In the recent past, some actions taken by chiefs or
traditional authorities including purporting to issue directives, banishment orders, etc. and to impose
sanctions on some private citizens and corporate institutions for
non-observance of local customs have generated public discussions, particularly
on the legal propriety of these actions.
This piece catalogues some of these actions and
addresses them from a legal and governance policy perspective for public
education purposes.
On or about August 20, 2022, the founder of the United
Progressive Party, Akwasi Addai (‘Odike’), was reportedly ‘banished’ from the
Manhyia Traditional Area by the Kumasi Traditional Council over comments he
allegedly made about chiefs in the Ashanti Region on Oyerepa FM, a private
radio station in Kumasi, regarding their alleged involvement in illegal mining.
Subsequently, Oyerepa FM was also reportedly ordered by the Kumasi Traditional
Council to stop broadcasting ‘until further notice’ following the occurrence of
the above-mentioned event. In another case, the Ada Traditional Council, on or
about August 11, 2022, reportedly ‘banned’ Radio Ada, a private radio station
in the Greater Accra Region, from covering or reporting on the recent
‘Asafotufiam Festival’, over some alleged uncomplimentary remarks made about
some chiefs of the Ada Traditional Council by some journalists of the radio
station. In related but separate events occurring sometime in October 2021,
some chiefs in the Central and Ahafo Regions publicly threatened to ‘banish’
any person found to be engaging in non-heterosexual conduct. The chiefs in question
issued the threat in an apparent show of public support for the Promotion of
Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 (‘anti-gay
bill’) currently being considered by Ghana’s Parliament. Further, sometime in
January 2022, some chiefs in Upper West Region were reported to have sanctioned
the public flogging of two persons for allegedly publishing a sex video on
social media. Most recently, the traditional council of Oyibi in the Greater
Accra Region issued a public notice purporting to declare Friday, September 30,
2021, a holiday for residents of Oyibi as part of the Oyibi Yam festival (‘Oyibi
Yele Yeli’).
These incidents, which are only representative of the
kinds of actions chiefs have been taking over a period of time, demonstrates that
some chiefs, continue to prohibit certain conduct and threaten sanctions
against violators in the nature of a penal or criminal ban, without any lawful
authority to do so. Regrettably, their actions have been allowed to fester with
the tacit indulgence and or approval of state actors (mostly political leaders)
and institutions.
It is important to note that while chiefs (or the
chieftaincy institution) are recognized by the 1992 Constitution (‘the
Constitution’) as important players in the grand national scheme of promoting
social cohesion and social order, they are not insulated from the normal
operation of the contemporary constitutional regime. Therefore, their actions
must conform to the strictures set out in the Constitution. They are neither
clothed with authority to make law nor enforce same, including customary law,
under the Constitution. Other than Parliament and institutions acting under the
authority of Parliament or a power given by the Constitution, no person or institution can purport to make law, be it directives,
banishment orders, fiats, howsoever described (Article 11(1)(b) and (c) of the
Constitution)
Similarly, other than law enforcement institutions
such as the Police, no chief or traditional authority has the power to enforce
banishment orders or directives against private persons or corporate
bodies. As a mater of fact, chiefs have
no legal means of enforcement; they have no police force or prisons, as was the
case in the colonial era.
Chiefs do not have judicial authority either. In Adjei Ampofo v Attorney-General & President of the National House of Chiefs [2011] 2 SCGLR 1104, the Supreme Court noted, rightly, that although individual chiefs in fact settle numerous disputes through customary arbitration (with the consent of the parties)—just as any private person could—chiefs have no formal judicial power except in the limited area of adjudicating chieftaincy disputes in judicial committees of Traditional Councils, Regional and National House of Chiefs.
It is also important to emphasize that customary law—which
often times is misunderstood—only refers to elements of the custom or
practice(s) of a defined community (generally by ethnicity and ancestry) which regulates the rights, duties and relationships
of self-submitting members of that community in such matters as marriage,
divorce, inheritance, succession, chieftaincy and land tenure, including those
which the judicial authorities of Ghana recognize (Article 11(2) and (3) of the
Constitution). Any custom or practice which is overridden by national law
cannot be referred to as ‘customary law’ legally speaking. It may, however,
continue to be observed and obeyed among members of a community only by voluntary compliance or immoral suasion.
This phenomenon of chiefs allocating unto themselves
law making and pseudo criminal law enforcement powers while government and other
state actors look on without concern is a slippery slope. It poses an imminent
threat to the actualization of certain fundamental freedoms including the right
to free speech and the right of persons to move freely.
In Adjei Ampofo, the
plaintiff sought amongst others a declaration that Section 63 (d) of the
Chieftaincy Act 2008 (Act 759) which compels a person to honour a summon by a
chief and imposes criminal liability for non-compliance is an encroachment on a
person’s right to free movement and therefore unconstitutional. The Court
agreed; holding that ‘the wide power of
chiefs to summon, on the pain of a criminal sanction, anybody at all in Ghana
to attend to an issue of any kind represents an unwarranted interference in the
freedom of movement of residents of Ghana and the width of the power does not
make it justifiable in the public interest.
Even though criminalising a deliberate refusal to honour a chief’s call
may strengthen the authority of chiefs and the respect accorded them, this
consideration is not a sufficient justification for the restriction that S.
63(d) imposes on the freedom of movement of individuals, even in a society
which reveres its chiefs.’
Conclusion
Government and other state actors ought to take the
necessary steps to stop this phenomenon which threatens to erode the
contemporary constitutional order. Chiefs must also, in the interest of
preserving the high regard citizens have for the pre-colonial traditional state
over which they preside, be measured and circumspect in their utterances and activities. The Courts,
as well as other institutions of state including the National Media Commission,
are available to chiefs to seek redress
where they find comments of individuals uncomplimentary or defamatory.