SHALABI AND ANOTHER v. THE ATTORNEY-GENERAL [1972] 1 GLR 259
HIGH COURT, ACCRA
Date: 26 NOVEMBER 1971
BEFORE: HAYFRON-BENJAMIN J.
CASES REFERRED TO
(1) Olympio v. Commissioner for the Interior, High Court, Accra, 30 July 1969, unreported; digested
in (1970) C.C. 4.
(2) Ernest (Prince) of Hanover v. Attorney-General [1955] 3 W.L.R. 868; 99 S.J. 871; sub nom.
H.R.H. Prince Ernest Augustus of Hanover v. Attorney-General [1955] 3 All E.R. 647, C.A.
[p.261] of [1972] 1 GLR 259
(3) Republic v. Director of Prisons; Ex parte Salifa, High Court, Accra, 8 July 1968, unreported;
digested in (1968) C.C. 107.
(4) Awoonor-Williams v. Gbedemah, Supreme Court, 8 December 1969, unreported; digested in
(1970) C.C. 18.
(5) Sallah v. Attorney-General, Supreme Court, 4 April 1970, unreported; digested in (1970) C.C. 55.
(6) Lakanmi v. Attorney-General, Western State, S.C. (Nigeria) 13/69 (cited in (1971) 3 R.G.L. at p. 125).
(7) Perez v. Brownell 356 U.S. 44; 2 L ed 2d 603; 78 S.Ct. 568 (1958).
(8) Perkins v. Elg 307 U.S. 325 (1939).
NATURE OF PROCEEDINGS
ACTION for a declaration that the plaintiffs have Ghanaian nationality.
COUNSEL
E. D. Kom for the plaintiffs.
Mrs. J. Amankwa, Senior State Attorney, for the defendant.
JUDGMENT OF HAYFRON-BENJAMIN J.
The plaintiffs are partners in the firm of Messrs. Shalabi Transport Service, Accra, registered under the Incorporated Private Partnerships Act, 1962 (Act 152), registered No. P. 208. The first plaintiff was born in the then Gold Coast on 30 September 1933 and the second plaintiff on 13 September 1935. Their parents were Lebanese. By reason of their birth in the Gold Coast, the plaintiffs were British subjects. The foregoing facts are admitted by the defence.
The plaintiffs go on and aver in their statements of claim that they were holders of British passports and gave the numbers of their passports. They held their passports until the Ghana Nationality Decree, 1967 (N.L.C.D. 191), was made, when they renounced their British nationality and applied for and obtained Ghanaian passports on 30 September 1968 and 24 October 1968 respectively. With the passage of the Ghanaian Business (Promotion) Act, 1970 (Act 334), which seeks to restrict the activities of aliens in certain sectors of the economy, the plaintiffs instructed their solicitors in view of the provisions of Ghana Nationality (Amendment) Decree, 1969 (N.L.C.D. 333), to seek a confirmation from the authorities that they were Ghanaians and free to carry on their transport business without hindrance. Their solicitors were told that the authorities hold the view that the plaintiffs are neither Ghanaian nor British citizens, but Lebanese. They therefore took out a writ for a declaration that they are Ghanaian citizens and as such entitled to carry on running their transport firm without let or hindrance.
The only serious defence put forward by the defence is found in paragraph (5) of the statement of
defence, which states that “The defendant hereby maintains that the Decree 333 affected those who had acquired citizenship under Decree 191.” The only issue set down for trial on the summons for directions was whether or not the amendment of N.L.C.D. 191 by N.L.C.D. 333 does affect or is intended to affect those who had already acquired citizenship under the Decree No. 191.
The whole case therefore turns upon the effect of N.L.C.D. 333. [p.262] of [1972] 1 GLR 259
This decree provides that:
“1. The Ghana Nationality Decree, 1967 (N.L.C.D. 191) is hereby amended by the substitution for paragraph 1 thereof, of the following paragraph: 1. A person born in Ghana is a citizen of Ghana by birth if-
(a) having been born in Ghana before the date of commencement of the Ghana
Independence Act, 1957 (L.N. 63), that is to say, the 6th day of March 1957,
(i) he was immediately before that date a citizen of the United Kingdom and Colonies or a British protected person, and (ii) one at least of his parents or grandparents was born in Ghana or
(b) having been born in Ghana after the 6th day of March 1957 one at least of his parents at the time of his birth was a citizen of Ghana.’ 2. This Decree shall be deemed to have come into force on the 25th day of July, 1967.”
This Decree itself was made on 15 February 1969 and its Gazette notification was published on 21
February 1969. This Decree, as stated, amended the Ghana Nationality Decree, 1967 (N.L.C.D. 191), by substituting the above for paragraph 1 thereof. Section 1 of N.L.C.D. 191 originally provided that:
“1. A person born in Ghana is a citizen of Ghana by birth: Provided that –
(a) a person born in Ghana before the date of commencement of the Ghana Independence Act,
1957 (L.N. 63) (i.e. the 6th day of March, 1957) shall not be a citizen by virtue of this
paragraph unless he was immediately before the 6th day of March 1957, and within the
meaning of the law in force in Ghana on that date a citizen of the United Kingdom and
Colonies or a British protected person; (b) a person born in Ghana after the 6th day of March, 1957 is not a citizen of Ghana by virtue of this paragraph, if at the time of his birth neither of his parents was a citizen of Ghana and one of his parents possessed diplomatic immunity in Ghana.” Whatever the legal position was before the enactment of N.L.C.D. 191 it is quite clear that the effect of
the Decree was to confer Ghanaian citizenship on the plaintiff. It is contended on behalf of the defendant that N.L.C.D. 333 operates effectively to divest the plaintiff of the citizenship thus conferred. Before examining this submission in detail I shall deal with two submissions made on behalf of the Attorney-General which though not going to the root of the matter merit some consideration.
It is submitted on behalf of the Attorney-General that N.L.C.D. 333 was passed to correct an obvious
mistake made by N.L.C.D. 191. The [p.263] of [1972] 1 GLR 259 contention is that the National Liberation Council made a mistake in extending citizenship to persons, one of whose parents or grandparents is not a Ghanaian. It is said that since Independence only persons with at least one Ghanaian parent have been accorded Ghanaian citizenship. I do not see anything in N.L.C.D.
333 to support such a contention. It would be evidence of catastrophic incompetence if the National
Liberation Council did not discover such a glaring mistake, (if a mistake it was) until after nearly two
years. Moreover, after Independence but prior to the Ghana Nationality and Citizenship Act, 1957 (No. 1), which came into force on 11 May 1957 mere birth within Ghana conferred Ghanaian citizenship on a person one of whose parents was a British subject. The National Liberation Council by enacting N.L.C.D.
191 might have considered the concepts introduced by the Ghana Nationality and Citizenship Act, 1957 (No. 1), and gone back to the old British or Colonialist precepts. I cannot hold that the National
Liberation Council made any mistake by passing N.L.C.D. 191 and further that N.L.C.D. 333 was meant to correct any such mistake. I am fortified in this view by the fact that N.L.C.D. 333 was made before the case of Olympio v. Commissioner for the Interior, High Court, Accra, 30 July 1969, unreported; digested in (1970) C.C. 4 came before the court. That case was decided on 30 July 1969, and as I have said N.L.C.D. 333 was made on 15 February 1969 and was published in the Gazette on 21 February 1969.
That case turned on the effect of paragraph 1 (e) of N.L.C.D. 191. The National Liberation Council
government as represented by the Commissioner for the Interior appeared by the principal state attorney holding the brief of the Attorney-General. A perusal of the lengthy and detailed judgment of Edward Wiredu J. does not show that N.L.C.D. 333 was mentioned in that case. The important point, however, is that the National Liberation Council did not think it fit or proper to appeal. It is further argued on behalf of the Attorney-General that to hold that N.L.C.D. 191 conferred Ghanaian
citizenship would result in quite a number of persons, who are obviously not wanted as Ghanaian citizens in view of the provisions of N.L.C.D. 333, remaining Ghanaian citizens.
The National Liberation Council could have stated categorically in N.L.C.D. 333 that all those who had gained or acquired Ghanaian citizenship by virtue of N.L.C.D. 191 are deprived of their citizenship. Such a statement would have put an end to speculation as to what they meant by the Decree. Furthermore the mere fact that several unwanted persons would remain Ghanaian citizens unless they are held to have been deprived of citizenship is untenable. It is not a legal submission: it may sound alright on some political platform, but it is completely irrelevant in a court of law. In H.R.H. Prince Ernest of Hanover v. Attorney-General [1955] 3 All E.R. 647, C.A. the Attorney-General’s argument that an interpretation of a statute, which would render as British citizens all living descendants of Queen Anne including many Germans some of whom had fought Britain in two bitter wars, would be inconvenient, was rejected by the English Court of Appeal. The courts are concerned with justice and not convenience. [p.264] of [1972] 1 GLR 259 The main contention put forward on behalf of the Attorney-General, however, is that N.L.C.D. 333 itself provided in paragraph 2 thereof that “This Decree shall be deemed to have come into force on the 25th day of July 1967,” i.e. the same date of the coming into force of N.L.C.D. 191. N.L.C.D. 333 was in fact made on 15 February 1969, and it was published in the Gazette on 21 February 1969.
It is submitted on behalf of the Attorney-General that:
(a) the foregoing words show quite clearly that the National Liberation Council intended to obliterate
the original paragraph 1 of N.L.C.D. 191 as if it had never been enacted.
(b) And consequently every person who acquired citizenship thereunder ought to be deemed never to
have acquired such citizenship,
(c) the National Liberation Council being
(i) the sovereign legislative body in the land could make such a law and that the courts must enforce these laws. (ii) the sovereign body in the land could do whatever it liked including depriving persons of their Ghanaian citizenship. Any legal submission or proposition which would have the effect of depriving even one person, who at a certain point in time was undoubtedly a Ghanaian citizen, of that citizenship has to be considered with care and circumspection. Even greater care is required when the basis of this submission or proposition is the monstrous doctrine of legislative omnipotence or omnicompetence. For the avoidance of any doubts the Constitution of the Second Republic of Ghana, 1969, banished this doctrine from the realm. Of course the provisions of this Constitution are not strictly relevant to this case.
The wider question here is whether citizenship once conferred can be withdrawn by processes other than those specifically mentioned at the time of the acquisition of such citizenship.
The answer, it is submitted on behalf of the Attorney-General, is that the National Liberation Council
being sovereign could do everything except turn a man into a woman or vice versa. We are grateful that it has not been suggested that the National Liberation Council could do even that. “The doctrine of sovereignty” as has been observed by a learned writer, Heuston (in Essays in Constitutional Law (2nd ed.), p. 1), is essentially the work “of Oxford men”; but even though our present leaders are also Oxford men it behoves us to consider whether this doctrine propounded in the comparative security of the Senior Commons of Oxford can be applied in all its fullness in the turbulent conditions of tropical Africa. The doctrine was eloquently propounded by Hobbes of Magdalen College, Oxford, in his Leviathan (The Fontana Library). An absolute ruler he said at p. 143 was necessary because in his absence the life of man becomes “solitary, poor, nasty, brutish, and short.” The experience of Ghana, and indeed of most African countries has been that it is with the presence of a “Leviathan” in our midst that life becomes “solitary, poor, nasty, brutish, and short.” [p.265] of [1972] 1 GLR 259
The doctrine propounded by Hobbes the political scientist, was taken over by Blackstone, of All Souls
College, Oxford. He said, Commentaries (3rd ed.), Vol. 1, pp. 159-160:
“The power and jurisdiction of parliament, says Sir Edward Coke … is so transcendent and absolute, that it cannot be confined, either for causes or persons within any bounds…. It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime or criminal: this being the place where that absolute despotic power which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms … It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what the parliament doth, no authority upon earth can undo.”
Even Blackstone was obliged to express doubts concerning the effect of statutes contrary to the law of God or impossible to be performed or with absurd consequences manifestly contradictory to common reason.
Even he reprobated those who talked of the omnipotence of Parliament for using “a figure rather too bold.” It was left to another Venerian Professor of law and a Fellow of All Souls Oxford, Professor A. V. Dicey, to clothe naked and arbitrary power with the glossy mantle of academic legality. It is worth noting that it was not by accident that the man who wrote the Law of the Constitution also wrote Law and Public Opinion in England which traced the connection between the development of English law and the course of English opinion. In fact when as Heuston points out at p. 2, Leslie Stephen asked the question why did not Parliament command all blue-eyed babies to be killed, Dicey’s answer was that there were both internal and external limits to parliamentary sovereignty. The internal limit is the fact that members of parliament are not usually men of outrageous views; the external limit is the possibility that the English electorate would not obey such a statute. It was partly because of the absence of those limits, both external and internal and partly due to the uncritical application of the doctrine of parliamentary omnipotence in all its pristine nudity by the courts under the old regime, that this country was led into what the preamble to the new Constitution describes as a regime of tyranny. The same preamble tells us that the chiefs and people of Ghana have “solemnly resolved never again to allow ourselves to be subjected to a like regime.” This court shall assist them in that solemn resolution. I do not think the coup leaders accepted or approved of the doctrine of the absolute sovereignty of the legislature. The constitutional provisions which they placed before the Constituent Assembly establishes this beyond doubt. I shall not presume that they claimed for themselves what they disapproved of in others.
Even though they were military men, the National Liberation Council did not rule by martial law; they did not set up military tribunals to execute [p.266] of [1972] 1 GLR 259 the laws of the land as was done in Pakistan in 1958 under Ayub Khan. They did not even set up a military regime side by side with the civilian authority such as was done in Ireland during the disorders in the year 1919 to 1921. They dismissed the then President from office and also from office as the Commander-in-Chief; they dismissed all his Ministers; they dissolved the National Assembly and the Convention People’s Party. The only direct amendment made in the 1960 Constitution was to abolish the Presidential Commission otherwise that constitution was merely suspended.
The Proclamation provided in paragraph 3 that “Until such time as a new Constitution is promulgated by the People of Ghana, the National Liberation Council shall have power for such purposes as they may think fit and in the National Interest to make and issue decrees which shall have the force of law in Ghana.” I cannot read from this Proclamation or from anything said or done by the leaders of the coup any other thing than that they were an interim government recognising the rights of the people of Ghana as the only body to promulgate a new constitution, i.e. as the repository of sovereignty.
As such the National Liberation Council could have had no greater powers than the people. The rights which had been denied them by the aid of the courts’ interpretation and construction of the 1960 Constitution were restored; the only limitation to the exercise was the national interest reflecting the exigencies of the moment. It is true that the National Liberation Council took certain steps to clean the Aegean stables. We are not now called upon to consider the legality of those acts. They, however, set up a Constitutional Commission to draft proposals for a Constitution; they convened a Constituent Assembly to draft a new constitution; and as soon as the new Constitution was adopted, new elections were held and the government of the country entrusted to new rulers. There was nothing in the Proclamation stating that the Decrees of the National Liberation Council were not to be challenged in any court; such a provision appears in the Nigerian Proclamation. There is nothing in the Constitution of the United States of America which gives power to the judiciary to pronounce on the validity of Acts of Congress. This power was self-acquired by the courts; for as Madison remarked in The Federalist (1961 ed.), No. 51, p. 356 “A dependence on the people is, no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
To hold that the National Liberation Council assumed dictatorial and irresponsible powers like the old regime is to leave the National Liberation Council with no memorial. They would be as if they should not have been. The seven gallant and true gentlemen of the Council would be likened unto the seven biblical devils who rushed to fill the vacuum created when the only mighty devil was cast out. The gratitude shown by the chiefs and people of Ghana in the Preamble to the Constitution, 1969, for the heroic struggle against oppression would have been singularly misplaced. It is at times fashionable to delineate power or sovereignty by a logical process. Kelson had done it with his “Grundnorm,” Austin did a [p.267] of [1972] 1 GLR 259 similar thing, only less severely, Olivercrona and Kant with their “Initial Hypothesis.” These however, as Laski has remarked, are only brilliant exercises in logic and not in life. Chairman Mao’s aphorism that political power flows from the barrel of the gun may be picturesque and graphic, but it does not explain why even in China an act is considered wrong not because the actor had no gun, but because he had no ideology. Most of the cases in which the question of the unlimited powers of the National Liberation Council has been raised have been High Court cases. I agree with Anterkyi J. that the whole purpose of the coup and the Proclamation that followed setting up the National Liberation Council, was to dismiss the then President and to dismantle his machinery for exercising absolute and unlimited powers, see
Republic v. Director of prisons; Ex parte Salifa, High Court, 8 July 1968, unreported; digested in (1968) C.C. 107. I am bound by the decision of the Court of Appeal sitting as the Supreme Court in the case of Awoonor-Williams v. Gbedemah, 8 December 1969, unreported; digested in (1970) C.C. 18 but the ratio decidendi of that case is that a person against whom adverse findings are made by a commission of inquiry is disqualified under article 71 of the Constitution, 1969, from being a Member of Parliament. The pronouncement on the unlimited power of the National Liberation Council was clearly obiter; but it is nevertheless entitled to the greatest respect. The pronouncements on the powers of the National Liberation Council in Sallah v. Attorney-General, Court of Appeal, sitting as the Supreme Court, 20 April 1970, unreported; digested in (1970) C.C. 55 were also obiter dicta.
I accept the view of Azu Crabbe J.A. (as he then was) in dissent in Awoonor-Williams v. Gbedemah that “during the administration of the National Liberation Council the rule of law was firmly established in Ghana.” Several English constitutionalists including Dicey have tried with difficulty to reconcile parliamentary sovereignty with the concept of the rule of law. The interesting aspect of this exercise is that in examining parliamentary sovereignty they bring to bear all their analytical and logical faculties; they strip history of all meaning by deducing from the fact that parliament had, for example by the Act of Union abolished a constitution, that parliament has therefore power to abolish any constitution; the fact that parliament has changed the established religion is taken to mean that parliament can change all established religions. Little consideration is given to the fact that these changes took place because they reflected at the time the mood of the dominant group of the country, i.e. that they reflected public opinion.
When however these same constitutionalists consider the concept of the rule of law, they deal with it in practical terms. They consider the independence of the judiciary not because logically the judiciary is independent but that in practice it is so. The position of the Lord Chancellor in the Cabinet is taken not as evidence of the political control of the judiciary, but rather as the exception that goes to establish the independence of the judiciary. The supremacy of the British Parliament in my view is nothing more than that the British Parliament has power to carry into effect what the predominant opinion in the country demands and not that the British Parliament can do whatever it likes.
[p.268] of [1972] 1 GLR 259 I am of the view that the doctrine of legislative omnipotence is a logical abstraction and ought not be applied to practical issues. I therefore accept the realistic view adopted by the Supreme Court of Nigeria when called upon to pronounce on the validity of a decree in the case of Lakanmi v. Attorney-General, Western State S.C. 13/69 (cited by J.S. Read in (1971) 3 R.G.L. at p. 125) when they said in an unanimous judgment delivered by Ademola C.J.N. that the Federal Military “government is a constitutional interim government . . . whose object is to uphold the Constitution, excepting so far as it had to derogate from it under the doctrine of necessity.” I hold that the National Liberation Council was an interim government for the re-establishment of the rule of law and other principles necessary for the proper functioning of democracy.
Now this being my view of the position of the National Liberation Council it is necessary to consider
whether the National Liberation Council had power to deprive Ghanaians of their citizenship.
In Perez v. Brownell 356 U.S. 44 (1958) Warren C.J. in a dissenting judgment said at pp. 64-65:
“Citizenship is man’s basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf. His very existence is at the sufferance of the state within whose borders he happens to be. In this country the expatriate would Presumably enjoy, at most, only the limited rights and privileges of aliens, and like the alien he might even be subject to deportation and thereby deprived of the right to assert any rights. This government was not entrusted with power to decree this fate.
The people who created this government endowed it with broad powers. They created a sovereign state with power to function as a sovereignty. But the citizens themselves are sovereign, and their citizenship is not subject to the general powers of their government. Whatever may be the scope of its powers to regulate the conduct and affairs of all persons within its jurisdiction, a government of the people cannot take away their citizenship simply because one branch of that government can be said to have a conceivably rational basis for wanting to do so.”
I am of the view that the National Liberation Council was not set up to deprive Ghanaians of their citizenship. The preamble to the Proclamation states clearly that the National Liberation Council was set
up to provide “for the proper administration of the country.” The administration under the previous
regime was not proper because its power was used to destroy freedom and happiness. As John Locke said in the Second Treatise of Government (Peardon ed.), p. 76, the power given to any sovereign or
government has no other end than the preservation of life, liberty and pursuit of happiness, and therefore it “can never have a right to destroy, [p.269] of [1972] 1 GLR 259 enslave, or designedly impoverish the subjects.” Citizenship once conferred can only be lost by the processes specifically stated in the instrument conferring that citizenship.
Even if my view of the law as stated above is wrong, I am still of the view that the backdating of
N.L.C.D. 333 to take effect on the same day as N.L.C.D. 191 did not have the effect of depriving those
who had acquired citizenship under N.L.C.D. 191 of that citizenship. As was stated in Perkins v. Elg 307 U.S. 325 (1939) at p. 337, “Rights of citizenship are not to be destroyed by an ambiguity.” If the National Liberation Council wanted to deprive persons like the plaintiffs of their citizenship, it should have stated that in explicit terms. Citizenship is not to be destroyed by inference. The excellent introduction to the Interpretation Act, 1960 (C.A. 4), makes it quite clear that that Act is meant to be a tool and not a master in the hands of judges. It is settled law that when an Act is said to come into force on a particular date, it comes immediately after the expiration of the previous day. Therefore ordinarily since both N.L.C.D. 191 and 333 are said to come into force on 25 July 1967, both are deemed to come into force immediately after the expiration of 24 July 1967.
However in this instance N.L.C.D. 333 states specifically that “The Ghana Nationality Decree, 1967
(N.L.C.D. 191) is hereby amended by the substitution for paragraph 1 thereof, of the following new
paragraph.” At the beginning of this judgment I expressed gratitude at the only limitation on the National Liberation Council’s powers admitted by learned state attorney. She admitted that the National Liberation Council could not make a man a woman and vice versa. This is only a graphic way of saying what Blackstone said, that Parliament “can do everything that is not naturally impossible.” It is naturally impossible for the National Liberation Council to have amended N.L.C.D. 191 by N.L.C.D. 333 unless N.L.C.D. 191 was in existence before N.L.C.D. 333. No one, however mighty and omnipotent, can substitute one thing for a thing that has never existed. It is clear therefore that whatever interpretation is placed on these Decrees, the inescapable result is that N.L.C.D. 191 was in existence and came into force before N.L.C.D. 333 and that the plaintiffs acquired citizenship rights under N.L.C.D. 191. The later Decree not having specifically divested those who so acquired citizenship of their rights, it is clear that they continue to enjoy those rights, unless the same has been specifically removed by subsequent legislation.
Article 5 of the Constitution, 1969, provides that “Every person who, on the coming into force of this
Constitution, is a citizen by law of Ghana shall continue to be such a citizen.” Article 6 provides:
“Subject to the provisions of this Constitution, every person born in or outside Ghana after the coming into force of this Constitution shall become a citizen of Ghana at the date of his birth if either of his parents is or was a citizen of Ghana.”
It is clear from these provisions that every person who was a Ghanaian citizen before the coming into
force of the Constitution of the Second [p.270] of [1972] 1 GLR 259 Republic remains a citizen and by the operation of article 1 (2) of the Constitution no law can be made to take away that citizenship.
Section 1 of the Ghana Nationality Act, 1971 (Act 361), in so far as it purports to affect to their detriment the position of persons who were Ghanaian citizens before the coming into force of the Constitution is ineffectual. The new definition of citizen in the new Act is void and of no effect, in so far as it seeks to restrict citizenship within narrower limits than those prescribed in the Constitution. I hold therefore that the plaintiffs are Ghanaian citizens. For these reasons I gave judgment for the plaintiffs with costs on 23 November 1971.
DECISION
Judgment for the plaintiffs.
