CHIEFS AND POLITICS: HOW DO CHIEFS CONTRIBUTE THEIR QUOTA TOWARDS NATION BUILDING? (PART 1) BY SAMUEL KISSIEDU AND MAAME TUFFOUR

Ghana is known to have a dual system of governance. They are, the traditional constitutional system, existing at custom and the modern constitutional democracy found in the 1992 Constitution. The traditional constitutional system evolved around the institution of chieftaincy. This it still does. The modern constitutional system of Ghana on the other hand was imported or better still, it is a colonially bequeathed legacy. In respect of the former, C.E.K Kumado described in his work on Chieftaincy and the Law in Modern Ghana as follows: “… The political systems in Ghana before the arrival of European colonialists, were as varied as there were tribes. Each of the main tribal groups had its particular political forms, ranging from the closely knit and specialized administrative structures of the great states like the Asante to the loose, rudimentary and after ill-defined structures associated with the extended family and kinship groups such as the Fra Fra of the Northern Region”. The latter was introduced into the former Gold Coast by our former colonizers, The British and has ever since remained the most preferred form of governance for post-colonial Ghana, just like other African countries. Making no attempt to abolish the former despite the preference for the latter, the 1992 Constitution, at its present form, has guaranteed the traditional constitutional system. To this end, article 270 provides that the institution of chieftaincy, together with its traditional councils as established by customary law and usage, is hereby guaranteed. Besides, the whole of Chapter 22 is dedicated to Chieftaincy.

Whatever be the diversified nature of the tribal societies in present day Ghana, authority is hierarchically structured in a typical traditional area. The Chieftaincy Act, 2008 (Act 759) section 58 for instance provides five categories of chiefs namely; the Asantehene and Paramount chiefs, Divisional Chiefs, Sub-divisonal Chiefs, Adikrofo and other chiefs recognized by the National House of Chiefs. However, regardless of the category that a person falls, once the person is deemed to be a chief, properly so called, then the person is barred from engaging in active party politics pursuant to article 276(1). Whether or not a person is a chief in law is determined by application of the litmus test captured in the definition of a chief under Article 277 which has been reenacted in section 57(1) of the Chieftaincy Act, 2008. Chiefs are people just like you and me. They share in the same hopes and dreams on which the constitution was brought up. They are citizens entitled to any positions just like any other citizen. Why then is the constitution preventing them from engaging in active party politics? Why are they also barred from becoming a member of parliament under article 94(3) (c)? This article engages in hermeneutics in respect of the provisions in the constitution curtailing the rights of chiefs to explore as other citizens particularly articles 94 and 276 as we seek to explore the extent to which a chief may exercise his political rights just like any other Ghanaian.

This writing is in two parts. In part one, we attempt a general exposition of the provisions in the constitution on which this topic borders thus articles 94(1) and (2), 95(1) and 276(1) and (2) paying particular attention to the words ‘qualify’ and ‘eligible’ as used in the constitution. The question of what active party politics mean is also discussed and finally we make some recommendations which could enable us involve our chiefs in nation building yet they may not engage in active party politics. In part two, we tackle the big question of whether or not a chief can be elected to occupy the position of Speaker of Parliament looking at the black letter words of article 94, 95(1) and 276(1) & (2).

 

PART 1

The question of qualification and eligibility.

Article 276 (1) provides that a chief shall not take part in active party politics, and any chief wishing to do so and seeking elections to parliament shall abdicate his stool or skin. Clause 2 further reads, notwithstanding clause (1) of this article and paragraph (c) of clause (3) of article 94 of this constitutions chief may be appointed to any public office for which he is otherwise qualified. Clause 2 makes mention of article 94 and as such is only right to refer to this clause. Article 94(3) (c) reads, a person shall not be eligible to be a Member of Parliament if he is a Chief.

On a careful look it can be seen that the framers of the constitution used the word “qualified” for article 94 (1) and (2) all of which an individual would “qualify” to be a Member of Parliament. However the word “eligible” is used in article 94(3) to prevent a chief from becoming a member of parliament. We submit that the two (2) words do not mean the same. Neither were they intended by the framers of the constitution to have the same effect. Taking the lexical meaning of both words from the 8th edition of the Black Laws dictionary, eligible means to be fit and proper to be selected or receive a benefit whiles qualify means possessing the necessary qualifications. Thus, where the word qualify is used, a person must possess some features or qualities in order to qualify for a position and without this qualities the person would not qualify for the position. Eligibility on the other hand can exist independently of whether or not the person qualifies for the position. So a person can be qualified for a position on the ground of meeting all the necessary requirement but would not be eligible to occupy same on completely different grounds. This is the import of the variation in the words used in article 94(1) (2) and article 94(3). The framers of the constitution taking cognizance of the fact that chiefs and other civil servants are likely than not to meet the requirements stipulated in article 94 (1) (2), made a provision in article 94(3) to prohibit chiefs and the other category of people enlisted from contesting for Parliamentary seats regardless of the fact that they meet the requirements stated in article 94(1) (2). Simply put, what is being said is that a chief, who is first of all a citizen, qualifies to be a member of parliament when he meets all the requirements outlined in article 94(1) and (2) and by so doing can take part in active party politics.  However article 94(3) (c) limits a chief by saying he or she is not fit and proper to receive such a benefit. What could be the motive behind this provision? From Kumado’s article (supra), he states that in the pre-colonial era the traditional government revolved around the institution of a chief and that they possessed executive, legislative and judicial functions of the state. They were even associated with magic-religious powers. Even now chiefs are seen to be a symbol of unity and authority in their towns. As such, it may be argued that it was the intention of the framers of the 1992 constitution to prevent such sacred figures from losing their authority by affiliating themselves with one political party. Just imagine the shame a chief would face after actively campaigning for a political leader and he loses. A classic example is the allegations that were made against the Paramount Chief of Dormaa Ahenkro, Oseadeeyo Agyeman Badu II, who doubles as a Justice of the High Court. In a video that went viral, Oseadeeyo Agyeman Badu II said he was prepared to abdicate his stool if he lost a debate over the president’s achievements. He didn’t mind if he had to become a serial caller to parrot the then president’s achievements, he vowed. Few months after his alleged favorite candidate lost, he came back to clarify to the good people of Ghana and the subjects under his traditional council that he did not endorse former President Mahama but rather extolled his achievements, according to a myjoyline.com report. Clearly this is some of the instances that article 94(3)(c) and article 276(1) has sought to prevent as this is likely to create a sense of distrust in them for people of an opposing party and rubbish their front as a symbol of unity.

But what is active party politics?

Article 276(2) says that a chief can be appointed to any public office for which he qualifies. However article 94(3)(c) has established that this does not include becoming a member of parliament. As such we will focus our minds on which other public offices a chief may be qualified for. Article 295 provides that, “public office” includes an office the emoluments attached to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and an office in a public corporation established entirely out of public funds or moneys provided by Parliament;

From article 71 it includes chief justices among others. So what at all do members of parliament do in their active politics that chiefs cannot do? In other words, what does engaging in active party politics mean? Generally speaking, a politician is a person who is a delegate in a particular political party. Thus, a delegate holds party membership card, is entitled to vote during party elections and can also contest for a position in the party and consequently in government. Perhaps, the recent case of CIVIL AND LOCAL GOVERNMENT STAFF ASSOCIATION OF GHANA (CLOSSAG) VRS THE ATTORNEY-GENERAL, THE OFFICE OF THE HEAD OF CIVIL SERVICE, MINISTRIES, ACCRA AND THE OFFICE OF THE HEAD OF LOCAL GOVERNMENT SERVICE, MINISTRIES, ACCRA 2017 Unreported writ no J1/16/2016 gives us more insight of what active politics may entail. The case involved the challenge of a section in the Civil Service Code of Conduct as being unconstitutional. The section reads, “… a civil servant may not accept any office paid or unpaid, permanent or temporary, in any political party or organization; (b) declare himself openly as a registered member of a political party or association; c) Indicate publicly his support for any party, candidate or policy d) Make speeches or join in demonstrations in favor of any political person, party, or propaganda and e) engage in activities which are likely to involve him in political controversy. A letter which sought to execute the above provision also provided that persons holding civil service positions are barred from participating in politics including the following: attending political rallies, wearing party paraphernalia, subjecting one’s self for party vetting, holding party membership card and standing for party primaries. It suffices to say then that what article 276 (1) is preventing the chiefs in Ghana from doing include the following activities outlined above.

In respect of the distinction in article 94 between the qualification and eligibility, the words of Sophia Akuffo JSC, as she then was, in the Civil and Local Government Staff case (supra) in respect of Civil Servants is very instructive as it applies to chiefs also. She stated in p14 of the judgment: Civil Servants are part of the exclusion list with respect to eligibility for members of Parliament and although the exclusion list in article 94 makes a distinction between qualification and eligibility, yet, at the same time, being qualified to become a member of Parliament does not make a member of the Civil or local government Service Eligible. All one need to do is to replace ‘Civil Servants’ with ‘Chiefs’. She also acknowledged on the same p14 that political rights and freedoms are subject to such qualifications and laws as are necessary in a free and democratic society and are consistent with this Constitution in the same way as fundamental human rights and freedoms are subject to respect for the rights and freedoms of others and for the public interest. Then at p17, she continued, “It is therefore our view that the Codes of Conduct of the Civil Service and the Local Government Service, in general do not deny Civil and Local Government Servants the freedom of association, particularly the right to join political parties of their choice. They merely seek to place a limitation on the manifestation of that right while in-service, in order to maintain the neutrality of the Civil and Local Government Service and foster the principles of anonymity and permanence. What they say, in sum, is that if you wish to broadcast or otherwise manifest your political party allegiance and/or run political office, step away from the said Services.

It is our submission that this is exactly what the constitution has sought to restrain the chiefs from engaging in. Simply put, if a chief wants to broadcast or otherwise manifest his political party allegiance, or run for parliamentary election, then the chief must abdicate his stool. In light of the ban placed on chiefs in article 276 from taking part in active party politics and the ineligibility for contesting for parliamentary seats, how do we incorporate chiefs into the governmental structure so as to benefit from their rich knowledge and experience so far as governance and development is concerned?

 

Proposal

Throughout this article, it may seem that we failed to acknowledge why chiefs may want to be MPs. In our opinion,the main issue has always been that the chiefs want a say in developmental projects happening in their towns which in the long run would contribute to nation building. In view of this, the solution we propose is to go back to the recommendations of the Committee of Experts for the 1992 constitution and Akufo-Addo Commission Report for 1969 constitution, where they urged the Consultative Assembly to find ways for effective participation of traditional authorities in the work of the Metropolitan, Municipal and District Assemblies (MMDAs). Unlike the 1957, 1969 and 1979 constitutions, the current constitution does not provide for institutional representation of chiefs in District, Municipal or metropolitan assemblies. For instance, in the 1979 Constitution, article 183 provided that a local government council established pursuant to article 182 of this constitution shall consist of such number of members as Parliament may by or under an Act of parliament prescribe, one-third of whom shall be chosen by the traditional authorities in the district in accordance with traditional and customary usage. This provision clearly indicate the involvement of chiefs in governance at the district level.

The 1992 constitution does not expressly provide for the representation of chiefs in the District assemblies, although their participation as Government appointees in such Assemblies is not precluded. The only provision in this regard is article 242(d) which states that a District Assembly shall consist of the following members – (d) other members not being more than thirty percent of all the members of the District Assembly, appointed by the President in consultation with the traditional authorities and other interest groups in the district.

However this still does not guarantee the representation of chiefs in the Assemblies. The reality is that since chiefs are outnumbered more often than not, their views are ignored. In SKB Asante’s book, The Evolution of the 1992 constitution he suggests that it would be highly desirable to promulgate a constitutional amendment which unambiguously provides for the effective representation of chiefs in the Metropolitan and District Assemblies. It has in fact been suggested that the 30 percent of the membership now appointed by government should be ceded to chiefs and for this a chief would be able to partake in the governance process without breaching article 276(1) because it will be an appointment under article 242 and not an election, which be it as it may does not require the use of any symbol associated with any political party pursuant to article 248. This will palpably promote a non-partisan structure of local government which fits properly a chief.