Proof of Citizenship Is Determined By "The Law" and Not Birth Certificates (and even Passports)

Background
I wrote this article back in May 2023, but I have sat on it for a while and not published it. I only revisited this article today on account of a Ghanaian citizen living in UK, who assumed he was “British”. He had applied for a British passport and was denied. As we speak , he does not have permanent residence in UK, and is subject to immigration control by the UK Home Office.

When the EC in Ghana , back in 2020 embarked on a new voters registration exercise,. The EC provided a list of Identity documents which precluded the birth certificate as an acceptable document for voter registration. The Supreme Court ruled that a birth certificate was not proof of Identity and Citizenship. Many members of the public were confused by that ruling.

In May 2023, Justice Gertrude Torkonoo was nominated by the President of Ghana as Chief Justice. During her vetting, she was asked “if a birth certificate was proof of Ghanaian Nationality”. The Chief Justice nominee affirmed the unanimous decision of the Supreme Court. She confirmed that a birth certificate was a beginning point, and not conclusive of citizenship.

Is there a distinction between Citizenship and Nationality?

Yes, there is a very clear distinction between the two. They are not the same. Let us understand that there are rules when it comes to citizenship. For the sake of this write up I will prefer to use Citizenship as opposed to the use "Nationality". Citizenship and Nationality are not the same, we tend to confuse the two terminologies. You can be a "National" but not a Citizen.

There are many people who are "Ghanaian Nationals" born to Ghanaian parents, but due to certain laws in certain countries are not recognised as Ghanaian Citizens yet. However, such a kid could even qualify to be a Chief or Queen Mother in Ghana due to our customary law, but will be Ghanaian citizens due to the operation of the law. Now let’s get back to the issue of "Citizenship" before I digress.

Nationality is about tribe and ethnicity and belonging. Nationality is innate, you are born with it. Citizenship is about statehood, and it is a legal construct. Citizenship can be acquired through birth, marriage, and naturalisation. Whereas Citizenship can be revoked, Nationality cannot be revoked.

For instance, this writer can trace his family tree about four or five generations both on the paternal and maternal side of the family. On the paternal side, he can affirm that one of his ancestors Nana Asafo Boakye, The Asafohene who was exiled together with King Prempeh I to Seychelles. His ancestor (Asafo Boakye) was the only chief to return to Asante with the Asantehene in November 1924.

My forbearers were British subjects under British colonial rule and became Ghanaians upon Ghana attaining independence. On 6^th March 1957, my forbearers became Ghanaian Citizens and still retained their ethnic identities, the same could be said of many people in Ghana at that time.

Did you know there are 6 different types of British Nationalities, but only on class is known as British Citizenship?

Each type of British Nationality came with a “British Passport”.

1. BRITISH SUBJECTS

The first type of British Nationality we shall discuss is British Subject. The term "British subject" has several different meanings depending on the time.

Before 1949, it referred to almost all subjects of the British Empire (including the United Kingdom, Dominions, and colonies, but excluding protectorates and protected states). Between 1949 and 1983, the term was synonymous with Commonwealth citizen. Citizens of Gold Coast Colony, Ashanti Colony were British Subjects. As you can see the Passport is that of a British Colony.

Our dear friend who has been denied a British passport fell under this category. He was born in the British colony of Gold Coast prior to Ghana attaining independence and was therefore British at birth.

Upon travelling to UK in the 1970’s he ought to have formalized his British citizenship status from that of a British Subject. Moreso, when he married his then British wives, he could have used that route to formalize his status. He could have naturalized through marriage.

When he had his children, who by all accounts are British, he could have used the fact that they were EU nationals, to help regularize his stay in UK by availing for himself EU rights of his children. (Quite complex).

Moreso, when the 10 -year route was in vogue, he could have used that route as well. (Now that has changed to 20-years). I will advise our friend to seek proper legal advice on this issue.

2. BRITISH PROTECTED PERSONS

The next class of British Nationals are British Protected Persons.

A British protected person (BPP) is a member of a class of British nationality associated with former protectorates, protected states, and territorial mandates and trusts like Northern Protectorate and Trans Volta Togoland.

3. BRITISH NATIONALS OVERSEAS

British Nationals Overseas. Someone who was a citizen of Hong Kong was able to register as a British national (overseas) before 1 July 1997.

4. BRITISH OVERSEAS TERRITORIES

The next type of British Nationality is British Overseas Territories. These include Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, the Pitcairn Islands, Saint Helena, Ascension, the Turks, and Caicos Islands.

5. BRITISH CITIZEN

Generally, when we say a person is a British Citizen, this is what it is. You are a citizen of The United Kingdom of Great Britain and Northern Ireland. Great Britain consists of England, Scotland, and Wales) and when you add Northern Ireland then it becomes UK.

A UK birth certificate is acceptable if you were born prior to January 1, 1983. If you were born after, you will have to prove that one of your parents was a citizen or at least had the “right of abode” at the time of your birth".

If you were not born in the UK, you will have to prove that you were born to a British citizen who was eligible to pass on British citizenship to you.

6. BRITISH OVERSEAS CITIZEN

The case of Kenneth Kaunda will be a great example in determining the next type of British Nationality type.

As a rule, the British overseas citizen status is granted where an applicant or their father was born in a former British colony and was not granted nationality of that territory on independence.

The British overseas citizen (BOC) status arose because of the Independence Day arrangements of former British territories (mainly former British colonies) and how nationality was granted in the newly independent country regarding, amongst other things, where the parents were born.

Remember even after becoming President of Zambia for 27 years and as the nation’s founding father, Kenneth Kaunda was adjudged not to be Zambian by the Courts. It was deemed that his parents were from the former British Nyasaland now called Malawi. Mr Kaunda renounced his Malawian citizenship years ago, when he was President, so he was effectively Stateless in 1999.

So, under this type of British Nationality. He would have qualified as a British Overseas Citizen. But not a full British Citizen.

Having looked at the different Nationality types under British legal framework, as a former British colony, there are lessons we can learn in so far as issues of Nationality and Citizenship are concerned.

With the above definitions and classification of the different British Nationality types, we must understand that on a Birth certificate, will say that they are “British”. To an immigration Officer in UK, that is not enough to say a person is a British Citizen. Officers at the Identity and Nationality Office, upon an application for British citizenship, a more likely to reject such an application, is the parents of the individual are deemed not to be British Citizens (as opposed to any of the types of British Nationality).

How Does a Person qualify to be a Citizen?

There are generally two ways to acquire citizenship. By blood or lineage (jus sanguinis) determine or by birth at a place jus solis (born of the soil). The rules under jus solis (born of the soil) and jus sanguinis (blood) determine whether a child is a citizen of a particular country or not.

Jus Sanguinis - Citizenship by blood or lineage.

Ghana is strictly a jus sanguinis jurisdictions. You are Ghanaian based on your lineage or blood. A child born to a Nigerian couple living in Ghana, will have a Ghanaian birth certificate. Question is, is under our rules of jus sanguinis, will that child Ghanaian be classified as Ghanaian? The answer is a straight NO.

However, children born to a Ghanaian couple living in UK, will automatically have a British birth certificate, but the question is, does the child qualify to be British or Ghanaian? On the issue, the child will be deemed to be Ghanaian at birth irrespective of where he or she is born, because of the rules of lineage or blood (jus sanguinis)

The answer to whether the said child is British is not a straightforward YES or NO due to citizenship rules. In the case of UK, things like the date you were born, country of birth, marital status of your parents at birth (the rules have since been modified) rules of descent among others could determine whether you qualify as British at birth or not.

A vivid example is the case of two sisters, (different mothers but the same father) and both born in Ghana. The father happens to be a British citizen (not British National) and is entitled under the rules to pass on his citizenship to his children. One of the sisters was able to acquire British citizenship at birth and the other could not. It was a small issue of which of the mothers was married to the father at the time of their birth. Due to Equality legislation, the rules have now been amended and the other sister can now register to be a British Citizen.

Where a parent is Naturalised as a British Citizen, care must be taken. The parent can pass on his citizenship via descent to a child born outside of UK. But that same child will not be able to pass on his citizenship to his offspring’s if they are born outside of UK.

In our constitutional set-up in Ghana, the rules have changed over time, as we have had different constitutions that have different sets of criteria in defining who is an is not a Ghanaian. The current 1992 constitution has recognised all the different requirements under the preceding constitution and legal framework, to recognise very body so recognised as a Ghanaian citizen to be a Ghanaian citizen.

In our case there are deemed to be Ghanaian Nationals, and of Ghanaian descent, but not everyone is deemed to be a Ghanaian Citizen not because our laws do not recognise them, but the laws in certain countries like Netherlands or Germany may prohibit them to hold Ghanaian Citizenship in addition to Dutch or German Citizenship. So, in certain countries dual citizenship is prohibited. But the person will remain a Ghanaian National or a person of Ghanaian decent but not a Citizen of Ghana.

Ghana and UK do not practice Jus solis (of the soil), so just being born in Ghana or UK alone in itself will not qualify someone to be Ghanaian and or British.

Jus Solis – Citizenship by Place or land.

USA or Canada on the other hand practice juris sanguinis (born of the soil). Even in Canada, a citizenship application does not require a birth certificate. There are certain individuals who were born in USA but one way or the other grew up in Ghana.

They could only claim their right to American citizenship by providing the right information regarding their birth, even without a birth certificate. In that instance the US embassy conducted interviews with the parents of the individuals making that application to verify the information they were given.

Conclusion
As the Chief Justice - nominee rightfully asserted, a birth certificate is the starting point. It is not conclusive in determining once citizenship. In her vetting she tried very hard in not mentioning the word ‘’ Nationality”, whereas the member of the panel, perhaps a layman was using Nationality in his line of questioning.

The case of Shamima Begum, born in London to parents of Bangladeshi heritage should help us to understand things a bit more. Even though she was born in UK and was British Citizenship with a British passport. Once her citizenship status was revoked by the Home Office and affirmed by the courts (after joining ISIS in Syria), she still held a British Passport but with no formal recognition and Status.

The Home Office’s line of reasoning was that since her parents and forebearers were form Bangladesh, she was no “Stateless’’ but a Bengali. The Government of Bangladesh also refused to formally recognise her as a citizen even though she could be classed as a Bangladeshi National due to her heritage.

In summary, we should be very mindful of such legal nuances in establishing whether a person is a Ghanaian citizen or not. Our birth certificate issued in Ghana, only asks the question of Nationality of parents and not the Citizenship of our parents. With that in mind, the Chief Justice nominee and the Supreme Court have made the correct judgement on the status of birth certificates in lieu of our citizenship laws. There is a reason why Parliament in promulgated a Citizenship Act 2000 and chose to use the title “Citizenship” and not to even include the word “Nationality” in the title.

Written by Kwadwo Kusi-Frimpong, a Financial Crime, Governance and Regulatory Expert, He has extensive experience working with banks and financial institutions in UK, Switzerland, and The Netherlands. Kwadwo has appeared on TV3 and is a regular contributor of Ghana Broadcasting Corporation flagship programmes including News, Market Avenue and Talking Point. He is a consultant for Kings Court Solicitors and various Banks and Insurance companies in UK.

He is a graduate of University of Ghana (Political Science and Philosophy), Graduate Diploma in Law and LLM from University of Law (formerly College of Law), and a post graduate degree in Financial Strategy from Said Business School, University of Oxford.