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1. In the early hours of Thursday, a devoted observer of Ghana’s political landscape reached out to me with a captivating inquiry. Seeking utmost clarity, he posed a question concerning the legal viability of James Gyakye Quayson’s participation in an upcoming by-election.
This consequential election looms on the horizon, a direct consequence of Mr. Quayson’s anticipated removal from Parliament following the resolute pronouncement of the Supreme Court of Ghana, gracefully unveiled in the city of Accra on Wednesday.
2. To shed the brightest light on this matter, it is paramount that we firmly grasp the fundamental basis of Mr. Quayson’s impending departure from office. This primarily stems from his regrettable failure to relinquish his Canadian citizenship before submitting his nomination papers for the 2020 electoral contest.
Summary of the Supreme Court’s Decision
3. The Supreme Court, with resolute unanimity, delivered a profound mandate, commanding the Parliament of Ghana to efface Mr. Quayson’s name from its hallowed records, stripping him of his valued title as a Member of Parliament. In Mr. Quayson’s own eloquent words, “The Court ruled that the Electoral Commission acted unconstitutionally in allowing me to contest the 2020 Parliamentary Elections without proof that I had denounced my Canadian citizenship at the time I filed my nomination in October 2020 to contest the parliamentary elections in the Assin-North constituency. … In fact, the EC [Electoral Commission] inspected my renunciation certificate in November 2020, prior to allowing me to contest the elections.”
4. The logical implications of Mr. Quayson’s statement suggest that, at the time of filing his nomination in October 2020, he lacked concrete evidence in the form of a certificate affirming his renunciation of Canadian citizenship. Intriguingly, he concedes that the EC scrutinized the said certificate in November 2020, approximately a month after he had submitted his nomination forms.
Impact of Ex parte Dr. Zanetor Decision
5. Ghana’s venerable legal precedent, established with utmost authority in the celebrated case of Ex parte Dr. Zanetor, unequivocally affirms that a candidate’s eligibility to vie for a parliamentary seat is determined with surgical precision at the precise moment of filing their nomination papers with the Electoral Commission. Such a decisive determination occurs neither earlier nor later.
6. Guided by Mr. Quayson’s affirmations, and in the absence of any contradictory evidence, it logically follows that he stood ineligible to participate in the 2020 election, steadfastly adhering to the principles elegantly elucidated in Ex parte Dr. Zanetor. Consequently, it emerges with crystalline clarity that the Supreme Court’s recent decision, announced on Wednesday, flawlessly aligns with the very bedrock tenets enshrined in Ex parte Dr. Zanetor, thereby rendering the said verdict impervious to any legal challenge. Interestingly, Mr. Quayson himself has declared that he harbours no intentions of contesting the outcome of this case.
7. In a resolute and resounding statement, Fiifi Fiavi Kwettey, the General Secretary of the National Democratic Congress (NDC), fervently declared, “The full weight of the party, including the Minority Caucus in Parliament, will be put behind Honourable Quayson so as to ensure an even more resounding victory for him in the upcoming bye-election.” Such a lucid proclamation indubitably manifests the unwavering intent of the NDC, distinctly signalling their disinclination to entertain the notion of a primary election to determine their candidate. Instead, it becomes evident that the NDC stands poised to affirm Mr. Quayson as their candidate for the forthcoming by-election.
8. During the 2020 parliamentary elections, Mr. Quayson undeniably showcased his mettle by securing a remarkable tally of 17,498 votes, surpassing his closest contender, Abena Durowaa Mensah of the New Patriotic Party (NPP) who secured 14,193 votes. This resounding victory resolutely underscores the undeniable merit of considering Mr. Quayson as an indomitable candidate for yet another electoral contest. This inclination finds its roots in the sincere hope that his enduring popularity shall continue to shine even brighter, effortlessly outshining any potential challenge that the NPP may present.
Past Precedent: Nyimakan’s Ineligibility
9. After the 2000 Parliamentary elections in Wulensi, Fuseini Zakaria challenged Samuel Nyimakan’s election as a Member of Parliament. The High Court, Tamale, ruled in Zakaria’s favour, stating that Nyimakan, being from Saboba in the Bimbilla Constituency, was ineligible to represent Wulensi. Despite appeals to the Court of Appeal and Supreme Court, the decision stood. As a result, the NPP did not nominate Nyimakan for the subsequent by-election, which was won by Kofi Karim Wumbei.
No criminal charges were levied against Nyimakan, possibly due to the NPP’s incumbency and a lack of inclination to prosecute one of their own. Fast forward two decades, another MP’s – Mr. Quayson’s – election has been invalidated under different circumstances. Consequential orders have been issued, which will compel the Electoral Commission to hold a by-election upon receiving directives from Speaker Alban Bagbin.
The Criminal Case Against Quayson
10. However, it becomes imperative to steadfastly acknowledge the inherent risks entailed in granting Mr. Quayson the opportunity to compete. At present, he stands embroiled in legal prosecution, directly related to this intricate matter. In February 2022, he was formally charged with forgery, perjury, and knowingly making a false declaration. These charges mirror those that led the late Adamu Dramani Sakande, former MP for Bawku Central, to face the court and his subsequent conviction in a criminal case pertaining to his dual nationality. In Sekande’s case, he had failed to renounce his British citizenship before contesting for and winning the Bawku Central seat.
11. Presently, the case against Mr. Quayson is before the High Court in Accra. The venerable Attorney General firmly asserts that he stands accused of purportedly providing a misleading statement to the Passport Office during his application for a Ghanaian Passport. Allegedly, he falsely declared the absence of any passport from another nation. Furthermore, the learned Attorney General has levelled profound charges against Mr. Quayson, asserting that he made a deceptive declaration to the EC, affirming his complete lack of allegiance to any foreign country when he submitted his candidacy for the Assin North constituency.
Possible Outcomes of the Criminal Case
12. Under Ghanaian law, four distinct and plausible outcomes graciously reveal themselves — a nolle prosequi, charge withdrawal, acquittal, or conviction. Allow me to expand upon each in a courteous manner. It is important to note, however, that this discussion does not seek to prejudge the case’s outcome, but rather aims to offer an appropriate response to the initial question at hand.
13. First, the discerning Attorney General, without necessitating the consent of the court, may decisively exercise his prerogative to invoke a nolle prosequi, guided by the esteemed sections 54 and 55 of Criminal and Other Offences (Procedure) Act 1960, (Act 30). This consequential step signifies that the
14. State no longer harbours any further interest in pursuing the case, thus effectively concluding the judicial proceedings. A seminal pronouncement in the authoritative case of Boateng VII v. Yeboah and Others masterfully clarifies that when the learned Attorney-General chooses not to proceed with a criminal prosecution, it decisively terminates the proceedings. Such a consequential determination liberates the accused party from the burden of charges, affording them the utmost freedom to navigate life’s path without the encumbrance of attending court appearances.
15. This enlightened ruling resonates harmoniously with the illustrious case of Klopfer v. North Carolina, where the distinguished Chief Justice Warren fittingly articulated (p. 214): “Its effect is to put the defendant without day, that is, he is discharged and permitted to go whithersoever he will, without entering into a recognisance to appear at any other time.” However, it remains vital to acknowledge that the State retains the prerogative to initiate future legal action against Mr. Quayson on the same grounds. Such is the nature of a nolle prosequi.
16. Second, with the court’s gracious consent, the State may opt to diligently withdraw the charges brought against Mr. Quayson, as stipulated under section 59 of Act 30. In such an event, the possibility of reintroducing similar charges would hinge upon the stage at which the charges are withdrawn. If the withdrawal occurs before the conclusion of the prosecution’s case, the accused must be discharged from the alleged offence(s), and their discharge shall not serve as a barrier to subsequent legal proceedings on the same grounds. However, if the withdrawal takes place after the conclusion of the prosecution’s case, the accused must be acquitted in regard to the alleged offence(s).
17. Third, in the event that Mr. Quayson is found not guilty and subsequently acquitted and discharged, he shall be fully entitled to vie for the high office of a Member of Parliament.
The Paramount Principle: Innocent Until Proven Guilty
18. Under Ghanaian law, the principle of “innocent until proven guilty” is paramount. It ensures that until Mr. Quayson is proven guilty and convicted, he maintains the right to run for Parliament. This principle safeguards the integrity of his candidacy until a verdict is reached with unwavering certainty. This enduring principle applies to the three potential outcomes previously discussed, ensuring the preservation of justice’s noble essence.
Ineligibility Upon Conviction
19. Lastly, in the unfortunate scenario of Mr. Quayson’s conviction, he shall, absent a successful appeal, be rendered ineligible to seek a parliamentary seat, strictly in accordance with the provisions artfully outlined in Article 94(2)(c) of our revered Constitution. This pivotal article explicitly states that a person shall not be deemed qualified to be a Member of Parliament if they have been convicted of a high crime under this Constitution, high treason, treason, an offence involving the security of the State, fraud, dishonesty, or moral turpitude.
Similarly, disqualification ensues if one has been convicted of any offence punishable by death or a sentence of no less than ten years. Additionally, disqualification applies if one has been convicted of an offence relating to, or connected with an election, as defined by a law in force in Ghana at any given time.
Conclusion
20. In evaluating James Gyakye Quayson’s eligibility for the upcoming by-election, I have considered legal precedents, party support, and ongoing prosecutions. The revered Ex parte Dr. Zanetor case provides a foundation, but Mr. Quayson’s failure to relinquish his Canadian citizenship before the 2020 election poses challenges. The NDC stands firmly behind him, believing in his potential for victory. However, the inherent risks and legal complexities of the ongoing prosecution must be weighed.
The outcomes, whether through a nolle prosequi, charge withdrawal, acquittal, or conviction, carry significant implications. It is the NDC’s responsibility to carefully deliberate, ensuring a fair and transparent decision that serves the interests of Assin North’s constituents and upholds democratic principles. Justice, respect for legal processes, and a measured approach are essential. As custodians of their party’s values, the NDC must navigate this intricate landscape, making a well-informed choice that honours democratic institutions and secures the integrity of the electoral process.
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