SECOND SEMESTER The traditional constitutional process-chieftaincy law Before the advent of colonialism we had our own governance system. If we were not taken over by colonial powers each of us would have been operating within our individual constitutional powers. The truth is that each one of us operates within two constitutional environments thus the traditional and Ghanaian constitutional environment. At times religion may be added. These multiple characters create difficulty sometimes. These can be traced to different rules we have to respect. The traditional process is characterized by diversity and has various ethnic groups, each with the political system. These can be grouped into two categories. Some are well developed administratively in governance arrangement. Others are not well ‘organized with one centralized governance system. These can be seen in the churches for instance the Roman Catholic Church which has the head to be the pope. But the same cannot be said about other churches lke the Methodist, Anglican etc. 62|PageThese are reflected in our traditional set up. For instance the Asantehene is the overlord of the Ashanti kingdom of which ‘everybody pays allegiance to. The same cannot be said of the other tribes lke the Kokombas. For the modern state of Ghana each small chief in a village calls himself a paramount chief. Whether the traditional process is one of centralized or not, two things are noticed. First leadership is recognized at different levels at all ethnic groups, the traditional constitutional process revolves around the institution of chieftaincy. Note that chieftaincy is not a traditional constitutional process, but it revolves around it and itis also 1 system. There are various leadership levels. The head chief, there are a number of divisional chiefs, town chiefs, village chiefs and within that system we may have heads of lineages, clans or families and leaders who are known as elders. Elder is not a position that is heritable. Its based on personal achievement, integrity etc. Two things can be noted. One is hierarchically structured, and secondly the leadership positions are gender neutral, thus not only man. So the chiefly position may be occupied by males or females. The hierarchical structure created some challenges with the colonialists when they first came, especially with the centralized system, everything was stated in the name of the chief. We run two parallel governmental systems in our modern state. One presided over by the chief and the other by the president. Though different they act in active completion for the loyalty for the people. That of the chief seems more loyal as. to that of the president. The system presided over by the president has been subjected by al kinds of blows and interruptions unlike the relative stability with the chiefs. Though there are chieftaincy disputes, this is because of the importance of the position. For instance the people in Kumasi understand the governance system of which the Asantehene is the overlord. Chieftaincy is about politics (the chiefs are politicians) and economics (many of the chiefs sit on lots of wealth and even if the chiefs do not control the wealth the management of this wealth is controlled by the chiefs). In politics we are able to live at peace because of chiefs, since law and order is maintained by chiefs. For instance there are 49000 communities of which 12000 are of the modern government and so itis the chief who maintains law and order in the rest (2000). Chiefs have skills, expertise, influence, experience, and many belong to professions. The chiefs are also seen as the religious leaders of their people, thus the belief that the chief has some magical religious powers. Read chiefs as a judge. Chieftaincy is the embodiment of our cultural heritage. Thus its the institution that maintains its richness. Before independence in the name of the chief was exercised the executive, legislative and judicial leader of his people. That position is one of the aspects of the institution in conflict with our modern government. In colonialism the chief was used indirectly to rule-Dr Lucy Mair in Native Policies in Africa defined indirect rule as “the progressive adaption of native institutions to modern conditions”. Kumado simplifies it as ruling through indigenous agencies. This made the traditional leaders part of the functionaries of the modern state. Because the colonial power found the traditional power useful, they made various researches and writings about the Institution. Role of chiefs in the modern state Since independence, we can break this role into two , one what the law says, thus they are supposed to contribute to the houses of chiefs, various district assemblies, adjudicate to chieftaincy matters, arbitration is conducted by then which is backed and enforced by the law, they maintain they are responsible for peace, law and order in their communities. 63|PageIn general we can say the chiefs continue to provide welfare for thelr people for in fact even strangers or non-nationals who happen to be in their mist. The chiefs act as spokes persons for their people. They continue to act as assistants of central government and participants of central administration. They operate as conveyor belt for development in our contemporary world. So many traditional areas have a minister for development, eg. Is the Nk)so)hene in Ashanti Finally we try to use the institution as stabilizers in the modern state. As soon as the nation is confronted with home challenges the individual or major chiefs are called to intervene. That is in itself recognition in the modern state and shows that the institution is capable of promoting peace and order. Some of these roles in the modern state have some challenges. For instance a chief was lynched because of the way he dressed in public The structure * Divisional councils- Section 17 of the chieftaincy Act recognizes that these councils may be established but provides no answer as to who does the establishment. Article 270, ‘+ Traditional council- This is provided for in section 12. It says there shall be a traditional council in each traditional area. Article 270 guarantees the institution together with its traditional council Traditional Council is used in the sense of the state council. In TOKU, ALIAS AKOA, the principal question was whether the establishment of the Supreme Court ordinance abolished the role of the traditional council, State council is defined as the highest body in a traditional area Under the administration of a paramount chief. Section 76 of the act gives the definition of a paramount chief. But the definition given Is of little meaning, Thus if you are installed as a paramount chief then it means you are a paramount chief. Section 12 provides that there will be a traditional council and the president in section 13 is the paramount chief. ‘The CONDUA CASE tells of what a traditional area is and says it isa territorial area under a Paramount chief or territorial area controlled by paramount chief and Paramount chief is defined as the head chief and the head chief is defined as the chief who at custom does not own allegiance to another chief. + Regional houses of chief- Section 6 of the act and article 274. The act says the Regional House of Chiefs are successors to the provisional council under the 1925 constitution. These provisional councils were created as instruments in which the government will incorporate the traditional government into the modern government. The act treats this as if when the provisional council was established it covered the whole geographical areas as some area were not covered like that of the Ashanti. Mostly the regional house of chiefs are created by statutes, In Asante there is the Asante regional house of chiefs and the Asante man council. The Asanteman Council is a customary institution and the Regional House of Chief is a statutory institution. In Asante custom, they always have a gathering of all the Amanhene which does not happen in other areas. Section 13 of the act says the paramount chief of the traditional are or in the case of the Kumasi traditional area shall be president of the council (traditional council). ‘+ National house of chiefs- The national house of chiefs is the successor to the joint provisional council created by the Alan Burns constitution of 1946, section 1. This is also clearly a statutory decision. Therefore the participation of the national house of chiefs as well as membership could be by statute. {At the local level of our modern government two governments are present the government presided over by the chief and the other by the assembly member, district chief executive, and the Member of Parliament. The arrangement give us four strong leaders, the chief, the District chief executive, the presiding member and the Member of Parliament is the fourth. They compete to be responsible and instead of working together, work independently which creates a mess. 64] PageNature of the chieftaincy institution Itis coneiliar. Thus itis of two councils with the highest being the chiefs and the council. In the CONDUA CASE there was a decision whether the head of the fishing community was a chiefly position. The decision position is said to be by consensus. This distinguishes it from adversarial, or where the parties see themselves as adversaries. This is a major characteristic of chieftaincy in traditional Africa as a whole Definition of a chief Article 277 of the constitution and section $7(1) of the chieftaincy act defines a chief as a person, who, hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled, enskinned or installed as a chief or queen mother in accordance with the relevant customary law and usage. ‘© Firstly itis gender-neutral. There are female chiefs who are not queen mothers. Because in the case where there is. vacancy, both males and females can compete. ‘+ Appropriate family- thus you must come from the appropriate family ‘+ Appropriate lineage- So if you are from the appropriate family but not from the lineage, you will not be eligible ‘© Validly nominated, elected and selected-In EX PARTE ADUGYAMFI, the various process are spelt out. The word validly concerns the person who should be doing the election, ‘+ enstooled, enskinned or installed as a chief-These are the traditional symbols of the office of the chief. Thus if the traditional symbol is enstool, then the chief cannot be enskinned vice versa. And this is done by the queenmother. Thus for some the symbol s a stool where as others itis a skin, ‘+ Accordance with the relevant customary law and usage- the word relevant means that the procedure may be different from community to community. For instance if you are from the right family and lineage but if by custom the lineage rotates, you will not be eligible if it is not your turn, Looking at the chieftaincy act and the Constitution there are certain ideas: The definition as is in accordance with article 270, section 2 of the Act lists the disqualifications of a chief. The offences listed there appears to be offences against the governing state and not that against the customary state, Subsection 5 of section 57 states that a person shall not be considered to be a chief for the performance of a function under this Act or any other enactment, unless that person has been registered for the performance of that function in the National Register of Chiefs and that person's name has been published in the Chieftaincy Bulletin, The constitution was aimed at cutting the government from the processes to be a chiet. Categories of chiefs -section 58 ‘+The Asantehene and paramount chiefs- the law maker sees the Asantehene to be other than the paramount chief ‘+ Divisional chiefs 65| Page‘+ Sub divisional chiefs © Adikorofo ‘+ Other chiefs recognized by the national house EKU ALIAS CONDUA II v ACQUAAH The Appellant and the Respondent were both members of the Aboadzie fishing community of the shama state in Western Region. In 1958, a dispute arose between them as to the headship of this fishing community and as to the right to collect tolls from the fishermen who constituted the community. The appellant's claim at High court was dismissed for lack of jurisdiction. The appellant then caused a writ of summons to issue from the Shama State council against the respondent for a declaration that, he was the headman of the community and the proper person to collect fishing tolls. The council dismissed the appellant's claim and found for the respondent. The appellant appealed to the Court of Appeal Commission who dismissed the appeal. The appellant filed an application in the High Court, Sekondi, for an order quashing the decision of the Shama State Council and the Appeal commission on grounds that the Shama State Council had no jurisdiction because the suit was not of constitutional nature but rather the right to collect fishing tolls. Held- the jurisdiction of state councils was limited to determination of disputes of a constitutional nature. Also, the state council had a traditional jurisdiction to determine a dispute relating to the appointment or dismissal of a headman inasmuch asa headman occupied a traditional constitutional and political office. Jurisdiction in chieftaincy matters The jurisdiction provided for chieftaincy matters provides for what are chieftaincy matters as seem in section 76 Constitutional relation under customary law between chiefs- Ifa statutory position is at variance with the customary position, then the position of the law is that the customary position prevails. FRIMPONG V. REPUBLIC-the institution of chieftaincy is not a statutory matter itis a customary matter. In terms of structures or institutions our law provides a court system for dealing with causes or matters concerning chieftaincy. They are the Supreme Court, National house of chiefs, Regional house of chiefs, Traditional councils, and Divisional council The jurisdiction is distributed according to the status of the stool. Thus if it concerns a non-paramount stool, then the original jurisdiction is within a traditional council. Appeals go to the regional house of chief of the region the stool is located, then to the national house of chief then finally to the Supreme Court. If the stool concerns a paramount stool then the regional house of chief of the region, then to the national house of chiefs to the Supreme Court. Where the regional house of chiefs may not be appropriate, thus where itis inappropriate, or where the matter concerns two paramouncies, then the national house of chief has the original jurisdiction and appeals lie to the Supreme Court. These structures are supposed to be provided with lawyers Miscellaneous Under some institutions a chief can be destooled. Under others destoolment does not prevail. The belief is that the ‘community suffers more than the chief 66| PageIf ulook at section 72 of the Act, it states that a provision of this Act does not prejudice a right of allegiance to which a chief in ‘one region is entitled to from a chief in another region or a right of a stool in one region to property movable or immovable in another region. Article 276 The institution of chieftaincy is protected under our constitution and wisely kept out of the arena of partisan politics so our chiefs can counsel, admonish and encourage our people and their elected leaders.-Otumfuo Osei tutu, article " Stop, look and listen, daly grophic, 22% may 2013 BOAMPONG v ABOAGYE The defendant was the Konongohene whiles the plaintiffs were the abusuapanin, obaapanin and the linguist. A ‘misunderstanding arose between them and the matter was reported to the Juabenghemaa. In the course of the delibrations, the defendant in a fit of anger pulled off his sandals. Sensing this, the plaintiffs claimed that the defendant had abdicated his stool and consequently perfrmed such rights to that effect. The defendant then sent a case to the Juaben Traditional Council where he was not given judgment. On appeal to the Ashanti House of Chiefs, the judgment of the Juaben Traditional Councilwas upheld. On further appeal to the National House of Chiefs, he was further denounced. He then brings an appeal to the SC as the appellant. The issue was whther the defendant had validly abdicated his stool. Held- although the defendant had voluntarily removed his sandals, it does not constitute a valid abdication. For there to be a valid abdication, there must be five conditions present. 1. Voluntary renunciation of the stool by the occupant 2. Acceptance by the stool elders and kingmakers, tt. Performance of the requisite rites and formalities 4, Publicity Based on this, the court held that the alleged abdication of defendant was not accepted by the elders of Konongo as their consenct and concurrence was absent. Secondly, the necessary customary rites were not performed as the abusuapanin was incompetent to perform this. Moreso, the abdication was not done in public as the alleged removal was done at the house of the Juabenhemaa, Public here means in a palace or ‘dwabrem’. Further the defendant did not voluntarily renounced the stool as the removal of the sandal was in frustration which arose as a result ofa fit of anger. cases ESSILFIE v ANAFO IV In the Nsona family, there are two sections; the Moree Dominase and the Efutu section. The defendant was the chied of Nkanfua, A complaint was lodged at the Oguaa Traditional Council for inter alia the destoolment of the defendant by the plaintiff. Judgment was given for the defendant. An appeal to the Central Regional House of Chiefs by the plaintiffs was allowed. The defendant, dissatisfied, appealed to the National House of Chiefs for which he was given judgment. The present ase is an appeal by the plaintiffs of the judgment of the National House of Chiefs. The issue was whether the court can grant an order for the destoolment of the defendant. 67 |PageHeld- there cannot be a declaration for the destoolment of the defendant as a chief because there plaintiffs had not adduced ‘enough reasons to warrant the destoolment of the defendant. Moreover, even if there were enough evidence, the court has ‘no power to destool a chief as this task is only within the ambit of the kingmakers of the community or town. IN RE WENCHI STOOL AFFAIRS: NKETIA v SRAMANGYEDUA, After the death of the Paramount chief of Wenchi, Nana Abrefa Mobore Bediatuo Vil, the Wench stool became vacant. The Kingmakers approached the queenmother of Wenchi, the Nana Sramangyedui II for her to nominate a person to be installed as the new chief, for which she asked for time, However, the kingmakers did not give the considerable time demanded and went ahead to the Obaapanin of the Wenchi Stool, Obaapanin Abena Frema Atuahene, for her to act in the stead of the queenmother to nominate someone as chief, for which Kwadwo Nyam Nketia was nominated and installed. The ‘queenmother, together with three chiefs, lodged a complaint with the Judicial Committee of the Brong Ahafo Regional House Chiefs for a declaration that the purpoted nomination and installation of Kwadwo was void on grounds that it can only be done by her, as queenmother. Their petition was dismissed and they appealed to the NHC where they were dismissed. This is ‘an appeal to the SC Held- that there had been no valid nomination and therefore the installation of the chief was void. In giving his judgment, Brobbey JSC asserted that the person who was required, under customary law, to nominate a person as chief was the queenmother and as such the purported nomination by the obaapanin was invalid. He stated that so far as there is a ‘queenmother, she is the only one to make the nomination and any other person who purport to make will be voided. Un the case, all the parties alluded to Nana Sramengyedua as the queenmother and as such, it was her duty to nominate. On the allegation of delay, the court held that the request of the queenmother was reasonable as she sought for time to consider all canditates she deemed fit to the position. REPUBLIC v ADANSI TRADITIONAL COUNCIL; EX PARTE NANA AKYIE There was a misunderstanding as to the person to take over the vacant New Edubiase stool. The plaintiffs sent the matter to the Adansi Traditional Council on grounds that the defendant was not a true royal of Edubiase and cannot be the chief. The council commenced sitting on a 21 member panel with the Adansihene as chairman. Later, the panel was reconstituted and it became seven to which the parties agreed. After the hearing, judgment was given to the defendants. The plaintiffs, not satisfied with the judgment sent an action in the high court for an order of certiorari to quash the proceedings of the Council ‘on grounds of lack of jurisdiction. The order was not granted, This is an appeal. Held- it was incontrovertible that the proper quorum for adjudicating a cause or matter affecting chieftaincy under the CChieftaincy Act was a membership of not less than half of the total number of members of the traditional council present. In the instant case the full membership of the council was 21; consequently at least eleven members of the present council would constitute a competent body to hear and determine a matter affecting chieftaincy and since the membership of the reconstituted committee of the Adansi Traditional Council heard the appellants’ case, there was lack of jurisdiction in the committee and the sittings, proceedings and judgment of that committee were therefore null and void and of no effect whatsoever. REPUBLIC v. PRESIDENT OF GBI TRADITIONAL COUNCIL; EX PARTE TOGBE KWASI BUAMI Vil The respondent is the Paramount Chief of Gbi Traditional Area and also the president of the Gbi Traditional Council. He was required under Act tt70 to swear in chiefs within the Gbi Traditional Area into the Council. The applicants were not sworn in as 68| Pageprescribed by law on grounds that they were not registered by the National House of Chiefs list. The applicants brought an action for an order of mandamus to compel the respondent to swear them into the Council. Held- before a chief can be sworn into a traditional council, he must be registered as a chief and such registration gazetted. The applicants were not enrolled in the register and as such cannot be part of the new council ‘TOBAH v KWEKUMAH There was a misunderstanding as to who to occupy the stool of the Agona division and the plaintiff brought an action to the High Court for @ declaration that the defendant cannot install any chief, Meanwhile, the case was pending in the judicial committee of the Ahanta Traditional Council. The plaintiffs were given judgment. The defendant appealed for which they were dismissed on grounds that the High Court had jurisdiction to hear the case. NB: There was an issue as to whether the High Court has original jurisdiction as Section 14 of the Courts Act clothed it with Jurisdiction in all chieftaincy matters and Section 52 however limited the High Court's original jurisdiction in chieftaincy matters to only grant of prerogative writs. Held- There was no conflict between the provisions of sections 14(1)(a) and 52 of Act tt72. The trial judge had misled himself by ignoring the first part of section 14(1)(a) which made the original jurisdiction of the High Court "subject to the provisions of the Constitution and any other enactment." Section 14(1)(a) qualified the original jurisdiction of the High Court "in all matters." The “all matters" in section 14(1)(a) was subject to the provisions of the Constitution and any other enactment such as section 52 of Act tt72 and section 15 of Act tt70. In other words, section 14(1)(a) provided the foundation by the use of the words "subject to." for the limitation placed on “all matters" and permitted no conflict whatever. Consequently, only the judicial committee of the Ahanta Traditional Council had the exclusive jurisdiction to deal with the matter. It was therefore wrong for the High Court to have assumed jurisdiction to hear the matter. ANNIN v ABABIO The plaintiff was the past chief of Benchem but abdicated from the stool. The first defendant was sworn in as the new Bechemhene. The plaintiff brought an action for a declaration that certain properties were his personal properties and not, stool properties. After evidence had concluded, the first defendant moved the court that it had no jurisdiction to hear the ‘matter because it was a chieftaincy matter. Held- the court it had jurisdiction to hear the case and gave reason that although the case had arisen out of the abdication of the plaintiff, there is no issue raised for the recovery or delivery of the properties in connection with his abdication or the installation of the defendant as chief. Thus the matter at hand does not relate strictly to a chieftaincy matter, REPUBLIC v KOMENDA TRADITIONAL COUNCIL; EX PARTE PRAH The respondent, Kwasi Essiah was removed from his post as the Ebusuapanin of the Nsona Stool family of Dominase by the defendant, Nana Kwaku Prah, Dominasehene. As a result, Essiah brought an action before the Judicial Committee of the Kemoneda Traditional Council for a declaration that his purpoted removal as family head was null. The defendant applicant brought the instant action in the High Court for an order of prohibition to stop the hearing before the KTC on grounds that the respondent was not a chief and that the KTC lacked jurisdiction. Held- from the Chieftaincy Act, the categories of chiefs are spelt out; Paramount Chiefs, Divisional Chiefs, Sub-divisional chiefs, Adikrofo) and any other such chiefs recognized by the National House of Chiefs LI 798 precluded family head as chiefs 69|Pagein light of the last category and restricted them to be only chiefs if their positions were analogous to stool fathers obaapanin, ‘and ohemaa. Moreso, the respondent was not recognized by the Natlonal House of Chiefs as a chief. Due to this, the KTC lacked jurisdiction as its jurisdiction is only restricted to chiefs, OSE! v SIRIBUOR ‘The appellant claimed he was part of the royal family of Juaben. As a result, he, together with some elders, approached the respondent to be recognized as such. The respondent accepted him. However, at a later date, the appellant realized that the respondent no longer accorded him the royal status. As a result, he filed a case un the Ashanti Regional House of Chiefs for a declaration that he was a royal of the Jubeng Stool. The issue was whether the Regional House of Chiefs had jurisdiction over the matter, Held- that the House of Chiefs have jurisdiction only on matters relating to chieftaincy. The appellant asserted that the case at hand related to chieftaincy because being a royal, one stands a chance of belng nominated as a chief. However, the court debunked this assertion ad held that the appellant had his eyes only on being a royal and not becoming a chief and thus, ruling that it had no jurisdiction, REPUBLIC v NATIONAL HOUSE OF CHIEFS; EX PARTE KUSI APEA, ‘The appellant was the chief of Wenchi until he was removed in 1958 for which the respondednt was installed as new chiet. However, in 1966, the appellant was reinstated as the chief by virtue of the Chieftaincy (Amendment) Decree, 1966 (NLCD 12), for which he ruled for seven years until the Decree was repealed by the SMC through the Wenchi Paramount Stool Affairs Decree, 1976 (SMCD 64). The respondent was reinstalled under SMCD 64 but the appellant alleged that NLCD 12 was repealed by an AFRC Decree and not SMCD 64 and as such he was stil the chief. He thus brought this action in the High Court {fpr a mandamus to compel the National House of Chiefs to register his name as the chief of Wenchi Held- that the remedy of mandamus cannot be granted because the appellant had to institute proceedings at the RHC to be restored and mandamus cannot lie from a court where there are other remedies existing, REPUBLIC v. AKIM ABUAKWA TRADITIONAL COUNCIL; EX PARTE SAKYIRAA It ‘The kingmakers of the Akim Abuakwa Traditional Area who had approved the nomination of Dr. Alex Fredua Agyemang as ‘Okyenhene, met to elect and install him as the new omanhene. On three occasions, the applicant, the queenmother of the traditional area was sent for by the Okyeman Council to attend the council meeting, but she refused as she did not approve of the nomination, and as a result she was declared summary destooled. She therefore brought the present application for an order of certiorari to quash the decision of the Okyeman Council which resulted in her destoolment. The respondents ‘opposed to the application on grounds, inter alia, that since the applicant was not a chief in accordance with Akim Abuakwa ‘custom her destoolment could not be governed by the provisions of the Chieftaincy Act, 197. The issue was whether a ‘queenmother can described as a chief within the meaning of the Chieftaincy Act. Held- the queenmother of Akim Abuakwa was a chief within the meaning of a chief as defined by section 48 (1) of the Chieftaincy Act, 1971 (Act tt70), and that being the case, her destoolment being a cause or matter affecting chieftaincy should have complied with the Chieftaincy (Proceedings and Functions) (Traditional Councils) Regulations, 1972 (L.l. 798). But since there was no evidence that the purported destoolment complied with the provisions of the regulations stated, the respondents’ order of destoolment was made without jurisdiction. NYAMEKYE v, TAWIAH Tol PageIn an appeal to the National House of Chiefs in a chieftaincy dispute arising from the rotational right of three houses to nominate a candidate for the stool by turn, it was submitted inter alia to the house that whatever defects there might be in the trial tribunal's judgment, its holding in favour of rotation must be right and should be left undisturbed. The house rejected this submission holding that, "A plaintiff succeeds on the strength of his own case and not on the weakness of the defendant’s ‘case. The onus of proof always lies on him who alleges a certain fact, and unless this proof is made, the plaintiff cannot succeed . ..” The house therefore reversed the judgment of the Central Regional House of Chiefs, which was the tribunal of fact. This is an appeal. Held- the policy reason underlying the statutory conferment of both original and appellate jurisdiction in chieftaincy disputes on traditional tribunals, was that the personnel of those courts were, by reason of their background and training knowledgeable in indigenous law and custom to competently determine those matters. When they sought to resolve issues which demanded the application of customary law by resort to the subtleties of English common law their expertise was doubtful and as this case showed, they foundered in the result. A party could prove his case by admissions from the mouth of his opponent or his adversary's witness and in holding otherwise the house offended both principle and authority.