THE WAY FORWARD FOR NATIONAL UNITY AND ACCELERATED DEVELOPMENT

BY: Otchere Darko

INTRODUCTION:

I want to start my article by first appealing to all Ghanaians to exercise great care in whatever they say or write concerning the Institution of Chieftaincy which is a very sensitive national issue. Chiefs and communities are intertwined and, therefore, any “unguarded” remark made against a king or a chief is automatically amplified to affect the whole community of people that the king or chief is head of. We must also not forget the fact that ethnic mistrusts, fears and conflicts that existed among our ancestors before even the Whiteman set foot on our soils were the precipitating factors that made some pre-Gold Coast Colony Communities to decide to seek alliance with, and refuge under, the Whiteman whose huge cannon was superior to any weapon of war that our ancestors had in their communities. The Whiteman could not easily have colonised us if it was not because we ourselves submitted to his authority as a result of these three factors.....mistrust, fear of and conflicts among ourselves. And after colonisation, the Whiteman did nothing to blend together the different communities with their traditional rulers, cultures and customs that had artificially been soldered together through colonisation. After independence too, our indigenous leaders also failed to find a better and lasting way to blend the various ethnic parts of the country which the colonialists had weakly soldered together. Thus, the mistrusts, fears and conflicts that created the Bond of 1844 and placed us into the hands of colonialists continue to this day to haunt chieftaincy and threaten the unity and progress of Ghana. Chieftaincy disputes and conflicts that are taking place all over the country from Accra to Bawku are the price we are paying, and have to pay, for merging communities that lived differently and mistrusted, feared and fought one another in the past and yet failing, after both colonisation and independence, to blend them properly and congenially to enable them to cohabit trustfully and amicably. We now have on our hands this huge and neglected task which must be tackled. We must stop passing judgments and accusing factions engaged in these unfortunate conflicts through our sayings or writings and making matters worse by pouring petrol on fire, so to speak. Instead, we must all put our heads together with honest dedication and work assiduously to find the best way to change for better this institution that is part of our national heritage but which has become Ghana’s main albatross. Please pardon me for this long “thesis” that follows; and, please, spare time to read it. Not everything can be made short.

THE 1992 CONSTITUTION AND CHIEFTAINCY:

The 1992 Constitution fully guarantees the Institution of Chieftaincy as established by customary law and usage.

*Even here, there is a failure by this basic law of the country to remove the “greys” that do, and still can, inhibit the newly conglomerated Institution of Chieftaincy when the Constitution says the Institution of Chieftaincy together with its traditional councils is guaranteed “as established by customary law and usage”.......as if there is only one set of “customary law and usage” in Ghana that affects this institution. Customary law and usage differ from one community in Ghana to another community. So, when there is a dispute between two ethnic communities that have two distinct sets of “customary law and usage” and the dispute requires a determination based on “customary law and usage”, as prescribed by the Constitution, it becomes difficult and contentious to ascertain as to which of the two sets of “customary law and usage” Article 270(1) of the Constitution is referring to.

Then, also, there is the problem of the determination of what constitutes an accepted position of customary law since, unlike statute laws and judicial precedents, all traditional customary laws and usages in Ghana are “unwritten sets of laws and usages” that have for centuries been passed down the traditional lines through word of mouth from one generation to the next. This fact reduces the authenticity and quality of traditional customary laws and usages, and makes most of them liable for challenge and controversy. To forestall the “greys” and the contentions associated with customary law and usage, the National and Regional Houses of Chiefs have been empowered by the Constitution in Article 273 and 274 to play the role of resolving chieftaincy conflicts that relate to the determination of customary law and usage. From these bodies, further appellate jurisdiction lies with the Supreme Court.

WHY DO WE CONTINUE TO HAVE THESE INTRACTABLE CHIEFTAINCY DISPUTES, DESPITE THE EFFORTS MADE BY THE CONSTITUTION TO PREVENT OR RESOLVE THEM? This is a question that different people will answer differently. In my opinion, chieftaincy disputes in our time arise because of three broad reasons. *The first reason is because chieftaincy, being monarchical, derives its source, power, strength and influence from two ideas which are: “imposition of authority” and “acceptance of authority”. Anytime the two ideas fail to reciprocate or synchronise with each other, the institution runs into trouble. *The second reason which is particularly true in our Ghanaian situation where there has not been any clear transformation, the Institution of Chieftaincy, as we have it now, has become archaic, irrelevant and redundant......in relation to the modern administrative systems, practices, values, and expectations arising from our modern democratic governance. As such, it is experiencing reactions that are the direct consequence of its unsuitability to us and with our time. Here we are, in Twenty-First Century Ghana, having in our midst kings and chiefs whose predecessors had extensive political, administrative, judicial and military powers that they exercised on their own and over their subjects and who today still want to behave like their ancestors in a new system of governance within which traditional rulers have had a large part of their traditional powers circumcised, leaving them with only residual “traditional authority” most of which they can exercise only with the help of a Central Government machinery except, essentially, in respect of their continued “power of control over the administration of stool or skin lands that are under their traditional jurisdiction”......a residual power that they attempt to protect with full vigour and as strictly as a dog protects its bone.... knowing that, despite the pomp and pageantry associated with his name, the Ghanaian king or chief is today like an “empty snail shell”. He is without the body that allows him to “move” and yet he is still designed to accommodate political “parasites and worms” that take advantage of the interplay of two factors associated with “chiefs” today.......the old statesmanlike nature of kings and chiefs that makes them “play homage” every time; and their new powerlessness that makes them “vulnerable”.

*The third reason is a combination of: firstly, our failure to blend several different ethnic states with their separate rulers and customs into one common Nation-State called Ghana; and secondly, our failure to blend modernity with generations of customary law and usage running unreformed over several centuries through different worlds and different civilisations. We cannot successfully coalesce and practice such a system of customary law and usage that is both multifarious and multigenerational and which has never been sieved through to eradicate inconsistencies and clashes.

Before coming back to the three reasons above and making suggestions as to how to resolve our chieftaincy problems, I want to refer readers to some historical event that can provide some food for thought when we are discussing current chieftaincy affairs.

In the nineteen-thirties, my grandfather who was one of the Divisional Chiefs of our traditional area in those days was said to have been forcibly taken from his palace and town to the palace and town of the Omanhene, [or Paramount Chief] of the said traditional area, under whose orders my grandfather was forcibly removed, beaten up, and imprisoned for days without trial, together with two other Divisional Chiefs of the same area. All three were “supposedly” conspiring to act against the paramountcy. That “arrest or kidnap” and subsequent molestation and imprisonment were all lawful in those days....because they were permitted by the customary law and usage of those days. That customary law and its usage have never been set aside by any overriding customary law in Ghana since that time. Should this mean that, if my grandfather was alive and still a Divisional Chief of our traditional area and was “supposedly” to have acted against the interest of the Paramountcy of our traditional area, could he now be “forcibly removed”, molested and imprisoned without trial by the current Omanhene of our area?

“YES, HE COULD”. It would seem. And that would be in accordance with “customary law and usage” that were applicable in the 1930s; which have not specifically been changed since the 1930s; which have now further been guaranteed, and thus authenticated, through Article 270(1) of the 1992 Constitution. *I do not want to relate this particular aspect of customary law directly to anything that has happened in Ghana in our recent time because of “sensitivity”. But I have intentionally narrated this real old incidence to underscore what I see as a “clash” between modern “human-rights law”, [on one side], and “customary law and usage” that have been authenticated by our modern constitutional law, [on the other side]; and to show how such a “clash” can create a situation that raises two concurrent conflicting suppositions of “lawfulness” and “unlawfulness” and creates a conflicting atmosphere that can force two angry opposing sides: to jump to complain, [on the one side]; and to jump to defend, [on the other side].....while both parties are standing on one same constitutional law that “HAS ALLOWED WHAT IT HAS DISALLOWED”. [NB: The same 1992 Constitution.....DISALLOWS the abuse of Human Rights through Article 12; but it also guarantees, through Article 270(1), Chieftaincy Institution as defined by Customary Law and Usage that do......NOT DISALLOW the abuse of human rights].

*Sometimes when there are chieftaincy disputes, people pass judgments that usually flow from their genuine belief of what they think is the position of customary law and usage. Others too pass contrary judgments, similarly, based on their own belief of what they think the law is. Both people here often genuinely believe that they are right, based on the way they see or interpret “customary law and usage”. Conflicts often arise as a result of genuine disagreements over the position of customary law. This means that there is need for a clearer and better definition of all aspects of customary law and usage.

*Besides the differences in people’s perception of customary law and usage, there are also several aspects of customary law and usage that are completely out of date and are, thus, inconsistent with modern practices, values and human rights, including the law that allowed my grandfather to be “forcibly removed” from his palace and town, molested and imprisoned without trial.....which customary law still stands. These outmoded and inconsistent aspects of customary law and usage have to be removed and buried.

*Added to these two customary law problems is the current situation where our kings and chiefs find that their traditional powers have been eroded from them. This has inwardly left them with bitterness and resultant eagerness to protect whatever truncated power they still have......a situation that leaves [some of] them with no other option than to use any means available to them to exert themselves, using any power “they” think they possess by virtue of, and in accordance with, customary law as stipulated by Article 270(1) without bothering about any overlord “Central Government Authority” imposed by modern statute law which, “they” know, is above customary law.

From the three immediate highlighted points, it is clear, therefore, that we will continue to experience chieftaincy disputes and conflicts intermingled with “muscle flexing”, and “chest-drumming” UNLESS we do something concrete and urgent: (1) to update and improve customary law and usage and bring them in line with modern values and practices; (2) to codify and clarify all areas of our traditional customs and usages with a view to removing any “uncertainties”, “overlaps” and “inconsistencies”; (3) and also to find a way to make Ghanaians and our kings and chiefs feel that the Institution of Chieftaincy is really relevant to us and, if so, a visible part of the decision-making processes and developments that affect the traditional areas of authority of these kings and chiefs who today are “seemingly present but seemingly absent in our midst”.

HOW CAN WE UPDATE AND IMPROVE CUSTOMARY LAW AND USAGE AS THEY AFFECT CHIEFTAINCY?

Articles 272, 273 and 274 deal with matters involving some of the problematic issues discussed above. The National House of Chiefs, the Regional Houses of Chiefs and the Judicial Committees of the National and Regional Houses of Chiefs have all different roles that they play concerning the determination and evaluation of customary law and usage, as well as concerning the elimination of “those customs and usages that are outmoded and socially harmful” and the adjudication of disputes arising from chieftaincy misunderstandings. One would say that the Constitution has done all that it is required to do to ensure that chieftaincy in Ghana takes place in ways consistent with modern criteria and social acceptability. The fact, however, that chieftaincy disputes are continuing, if not on the ascendency, means that there are still areas that need urgent attention.

*IN MY OPINION, THE FACT THAT THE CONSTITUTION GUARANTEES CHIEFTAINCY AND ITS TRADITIONAL COUNCILS “AS ESTABLISHED BY CUSTOMARY LAW AND USAGE”, MAKES THE CREATION OF THE NATIONAL AND REGIONAL HOUSES OF CHIEFS AND THEIR JUDICIAL COMMITTEES CONTRARY TO THE SPIRIT UNDERLYING ARTICLE 270(1) BECAUSE THESE FOUR STRUCTURES HAVE NO CUSTOMARY LAW ROOTS AND ARE, THEREFORE, INCONSISTENT WITH CUSTOMARY LAW AND USAGE UPON WHICH THE INSTITUTION CONSITUTIONALLY RESTS.

The inconsistency of these constitutionally imposed modern structures with customary law and usage, in my opinion, partly explains their inability to deal effectively with the roles assigned to them. For example, in the Eastern Region, there are at least five broadly distinct traditional areas each of which has its separate traditional authority and different customary law and usage. There are the Kwawu areas; there are the Akyem areas; there are the New Juaben areas, there are the Krobo areas and finally there are the Akuapem areas. The Krobos are not Akans, to start with; the Akuapems, the New Juabens, the Akyems and the Kwawus, who are all Akans, are different types of Akans who have their “distinctly” different customs and usages.....no matter how similar they seem. Creating the Eastern Regional House of Chiefs, therefore, and expecting members of the House to have a common understanding of the customary law and usage applicable to chieftaincy in the Eastern Region is just like putting five different “singing birds” in one cage and expecting them to sing in unison a non-discordant birdsong. With the exception of one or two, the Regional Houses of Chiefs are non-homogeneous, incongruent, discordant, ineffective, irrelevant, useless and rather problematic impositions that would have collapsed, had it not been the financial benefits that sustain them. Also, the National House of Chiefs is an unnecessary creation that has no customary root and power to function effectively. These two facts explain why, despite the existence of these constitutionally imposed super-structures, we are experiencing an unprecedented number of chieftaincy disputes and conflicts in our modern age with its superior communication and better education.

As a starting point, it is strongly suggested, therefore, that these Regional Houses of Chiefs should be replaced with more homogeneous, congenial, relevant, custom-rooted, purposeful and effective chieftaincy bodies that correspond with the existing Traditional Council areas, and which can better and more efficiently play the customary roles that the Constitution has currently assigned to these non-customary Regional Houses of Chiefs. In place of these Regional Houses of Chiefs, therefore, let Ghana establish “Traditional Houses of Chiefs” to correspond with one or any number of the existing Traditional Council areas that have identical or homogeneous or closely-related customs and usages; or are bonded to one another by common heritage and traditional allegiance......but not necessarily geographically conjoined, or intra-regionally located within modern-day Ghanaian administrative boundary demarcations that are unrelated in any direct way to chieftaincy or customary practices. And let these new “Traditional Houses of Chiefs” fulfil the administrative and judicial roles currently assigned by the Constitution to Regional Houses of Chiefs. To concretise this suggestion, it should be possible, for example, for all the chiefs in Western and Central Regions to have one, two, or more number of such “Traditional Houses of Chiefs” based on the homogeneity and other traditional characteristics of the existing Traditional Councils within the two regions. And also it should be possible for any group of chiefs in the Eastern Region, for example, who share common heritage and allegiance with chiefs in Ashanti, such as the Chiefs of New Juaben Traditional area who are traditionally homogeneous with their Ashanti counterparts, to be able to sit as part of a newly created “Traditional House of Chiefs” that groups all the chiefs who now form the Asanteman Traditional Council.

*In other words and in essence, the modern geographical, or regionally defined, locations of traditional rulers should NOT be the basis for chieftaincy groupings which, by their nature and purposes, should appropriately be based on traditional customary law and usage, as rightly stipulated by the same Constitution that mistakenly set up these Regional Houses of Chiefs. Basing chieftaincy groupings on geographical proximity and regional identity is inconsistent with customary law and usage that form the constitutional basis upon which the Institution of Chieftaincy and its Traditional Councils are defined. History, backed by current affairs, shows that such uncustomary groupings create fertile grounds for eruption of chieftaincy disputes and conflicts and should, as a matter of urgency, be discontinued and replaced.

With respect to the National House of Chiefs, it is strongly suggested that it should be abolished: because it has no customary root or basis; because it was created for a political reason.....that is, for political expediency rather than for chieftaincy efficiency; because there is nothing “national” about chieftaincy and the set of customary laws and usages that relates to the Institution of Chieftaincy; because the set of customs and usages that affect chieftaincy changes from one traditional area to another and, therefore, makes the position of National House of Chiefs superfluous, redundant, financially wasteful, and technically impotent for dealing with the functions assigned to it by the Constitution, including the appellate roles that can easily be singularly performed by the Supreme Court which, in cases relating to the deliberation of chieftaincy matters, can be given the constitutional “optional power” of co-opting any number of chiefs, on ad hoc basis, who, in the opinion of the Supreme court, can assist it to determine any appellate chieftaincy case referred to it.

IN CONCLUSION, WE MUST NOW DO ALL WE CAN, AS A NATION, TO FORCE THE INSTITUTION OF CHIEFTAINCY *THROUGH ITS VARIOUS TRADTIONAL COUNCILS* TO URGENTLY CODIFY, MODIFY, UPGRADE AND MODERNISE OUR CHIEFTAINCY AND THE SYSTEMS OF CUSTUMARY LAW AND USAGE THAT GOVERN THEM, WITH THE OBJECTIVE OF: IMPROVING THE RELATIONSHIPS THAT AFFECT ALL OUR DIFFERENT ETHNIC COMMUNITIES, THEIR RULERS AND THEIR CULTURES; AND CREATING THE NECESSARY HEALTHY CONDITIONS THAT CAN FACILITATE THE BLENDING AND MEANINGFUL INCORPORATION OF THE INSTITUTION INTO OUR NEW “NATION-STATE” THAT IS GOVERNED THROUGH A CONSTITUTION WHICH MAKES THIS COUNTRY A “FULL REPUBLIC” WITHIN WHICH OUR OLD PRE-COLONIAL “COMMUNITY-STATES” WITH THEIR RULERS AND CULTURES FORM A GUARANTEED SUBSIDIARY AND CULTURALLY SIGNIFICANT PART IN A MODERN SYSTEM THAT OPERATES WITHIN THE FRAMEWORK OF NATIONAL LAWS THAT, IN TURN, FORM PART OF THE LAWS OF UNIVERSALITY THAT INCLUDE THE UNITED NATIONS’ CONVENTION ON HUMAN RIGHTS WHICH MAKES IT “ABSOLUTELY UNLAWFUL” FOR THE HUMAN RIGHTS OF ANY HUMAN BEING TO BE TRAMPLED UPON, IRRESPECTIVE OF NATIONAL OR CUSTOMARY LAW.

Source: Otchere Darko Written On: 26th March 2010.