THE REVELATION OF AN UNTHOUGHT OF MISCHIEF IN THE CATEGORIZATION OF CHIEFS IN GHANA’S CHIEFTAINCY ACT OF 2008 By Frederick Agaaya Adongo

 

The institution of chieftaincy constitutes one of the most basic cells of the modern state. This has been so since time immemorial. The institution predates even western colonial imperialism in our part of the world. It is therefore a very sacred and revered institution in all facets of the Ghanaian society. In this sense, credit ought to be given to the indomitable and transcendental judicial spirit of our time, Prof. Samuel Kofi Date-Bah JSC, who was described by Atuguba JSC in Janet Naakarley Amegatcher v. Attorney General (J1/8/2012) [2012] GHASC 40 as one “whose legal ability and sheer mental power act like a quarry, able to grind to fine sand the biggest and hardest rocks of legal problems” for his profound recognition of this fact in his opinion in the celebrated case of Nana Adjei Ampofo v. Attorney General and the President of the National House of Chiefs Suit No. J1/8/2008 dated 20th July 2011 wherein he remarked: 

“Chieftaincy is a revered and constitutionally entrenched institution in Ghana.  The reach of chiefs extends even beyond the formal machinery of the Ghanaian State.  Some of the rural settlements or communities without a permanent local resident representative of the Ghanaian State will, almost inevitably, have a chiefly leadership.  The social value of the institution of chieftaincy is thus given widespread recognition by the Ghanaian public.”

The very development of the traditional constitutional process – chieftaincy law revolves around customary law. In fact, chieftaincy law and customary law are, in a sense, inextricably stitched together, never to part ways. It is doubtless that factor which made it seem necessary to include customary law as part of the laws of Ghana in Article 11 of the 1992 Constitution. Article 11(3) spares us of any intellectual dilemma by defining for us what customary law is. It defines customary law as “the rules of law, which by custom are applicable to particular communities in Ghana.”

It is not surprising, therefore, that the provisions of Chapter 22 of the Constitution, devoted to Chieftaincy, rest on customary law. Particularly, Article 270(1) of the Constitution provides that “[t]he institution of chieftaincy, together with its traditional councils as established by customary law and usage, is hereby guaranteed.” Again, Article 277 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.” (Emphasis mine) Therefore, no person can validly be said to be a chief if the processes leading to his enskinment, enstoolment or installation run counter to the dictates of the customary law of the community concerned. 

From the foregoing, it can be gleaned that the chieftaincy institution of every ethnic group or tribe is governed by its peculiar laws, developed over time. Following the merger of a myriad of ethnic groups, with different systems of chieftaincy, into present day Ghana, there has been at play a diversity of cultures and applicable customary laws to the different chieftains that we have in Ghana. 

The roles of chiefs in modern state cannot be overemphasized, thereby generating the essentiality of the inclusion of the institution in the formal machinery of Ghana. The need for the institution of chieftaincy to be incorporated into the mainstream of the modern Ghanaian state has necessitated the regulation of the traditional constitutional process by statute. History is therefore replete with a number of statutes that were enacted specifically to deal with such matters that concerned the institution of chieftaincy. 

As a result, Coussey JA poignantly opined in the case of Republic v Techiman Traditional Council, Ex parte Tutu [1982-83] GLR 996 that “Chieftaincy, since the British colonial administration, has been governed by statute and this has continued since the independence of Ghana in 1957.”

Accordingly, Date-Bah JSC reiterated in the case of Nana Adjei Ampofo v. Attorney General and the President of the National House of Chiefs (supra) that “the institution of chieftaincy, although it has evolved in accordance with customary law, has been subjected to regulation by statute since the advent of British colonialism in this jurisdiction.  This remains true even now, subject to the qualification that article 270 of the 1992 Constitution limits the extent of statutory intervention permitted in relation to the institution of chieftaincy.” It is therefore not a strange development that Parliament has enacted the Chieftaincy Act 2008 (Act 759) to make more elaborate provisions for matters relating to chieftaincy, thereby adding flesh to the bony provisions of the 1992 Constitution on chieftaincy. 

As Date-Bah rightly identified, even the remotest of rural settlements have some forms of chiefly offices. But one thing is certain. All chiefs are not of equal rank, even according to custom. Some are subordinate to others, based on laws explainable only by custom. In a sense, in some territories, some chieftains are subsets of a universal set, a higher chieftain. The legislature took affirmative cognizance of this distinction between chiefs when it was enacting the Chieftaincy Act, 2008 (Act 759).

Thus, Section 58 of the Chieftaincy Act, titled Categories of Chiefs, provides as follows: 

“The following are the categories of chiefs

 

  • the Asantehene and Paramount Chiefs, 
  • Divisional Chiefs, 
  • Sub-divisional Chiefs, 
  • Adikrofo, and 
  • other chiefs recognised by the National House.”

 

Whereas the classification given by the Act may appear plausible and reflective of the system of chieftaincy as we have it today, that classification is, to some degree, in sharp contrast with the conscience of the Constitution, 1992. I refer particularly to subsection (a) of Section 58 as produced above. The usage of the term “the Asantehene and Paramount Chiefs” appears to me to be ethically incorrect and to some extent mischievous. 

Although the Act places the Asantehene and those regarded as Paramount Chiefs on the same pedestal, for purposes of the Act, it was wholly unnecessary to add the phrase “the Asantehene”. It is indisputable at customary law that the position of the Asantehene is far superior to that of some Paramount Chiefs, because there may be other paramountcies which are subject to him. But considering the fact that other chiefs who fall within the bracket of “Paramount Chiefs” also have other paramountcies subject to them at custom, it is inherently ethnocentric and tribally sensitive to single out the Asantehene and name him separately. 

In fact, the State is enjoined under Article 35(5) of the Constitution to “actively promote the integration of the peoples of Ghana and prohibit discrimination and prejudice on the grounds of place of origin, circumstances of birth, ethnic origin, gender or religion, creed or other beliefs.” Parliament should therefore not be embroiled in the passage of laws which have the tendency of spiking up ethnic and tribalistic sentiments, because the results may be unbearable and, of course, undesirable. 

Let me use the following for purposes of illustration to make my point clearer. In the Volta region, the Awoamefia of Anlo has a number of Paramount Chiefs who owe allegiance to him. A similar situation can be found in Northern Ghana. Under the Nayiri of Mamprugu are a number of paramountcies which are subject to him, and sometimes a chief cannot be enskinned in any of those paramountcies without the involvement of the Overlord of Mamprugu, the Nayiri. Some of the Paramount Chiefs under the Nayiri are the Wulugu-Naa, Soo-Naa, Wu-Na, Bunkpurugu-Naba, among others, including occupants of some other paramountcies in as far as the Upper East Region, notably the Bolga Naba and the Bongo Naba. Under the Overlord of Dagbon, the Ya-Na, are the Karaga-Na, Yo-Na of Savelugu, the Mion-Lana etc. It is one of these Paramount Chiefs, belonging to what are known as “Gates”, who would ascend to the higher office of Ya-Na when the Ya-Na is no more in office, either through abdication or death, depending on which Gate is next in the line of succession. Also, the Yagbonwura, the Overlord of Gonja, has the following Paramount Chiefs, among others, who owe allegiance to him: Damango-Wura, Tuluwe-Wura, Bole-Wura, Buipe-Wura and Sonyo-Wura. There may be a similar situation among other tribesmen as well in Ghana.

Quite obviously, describing these Overlords and the Awoamefia as Paramount Chiefs ‘reduces’ their rank on the face of it, in so far as those chiefs who are subject to them are placed on the same plane with them. Nevertheless, for purposes of expediency and in order not to create indescribably complicated problems because of the admixture of different forms of chieftaincy laws, it is appropriate to describe them as Paramount Chiefs for purposes of the Act. But that description does not in the real sense reduce their rank, because at customary law those who are subject to them will still recognize that fact and accord them the respect due them. 

In a similar way, describing the Asantehene as a Paramount Chief, for purposes of the Act, will not in any way reduce his rank of superiority. Now the problem with the formulation in Section 58(a) is that it somewhat regards the Asantehene above all other chiefs, who may have ranks higher than some other Paramount Chiefs subject to them, whereas that may not be so in reality. This is because the worth of every chief and the form of recognition accorded him is a matter determinable by custom. The best the law-makers could have done would have been to describe them all as Paramount Chiefs, instead of resorting to the naming of some chiefs who are seen ‘higher’ than Paramount Chiefs. Mentioning “the Asantehene” required also the explicit mention of all other Chiefs above Paramount Chiefs, including the Awoamefia and the Overlords and all other chiefs with similar ranks. But that, as I said, will only lead to problems, thereby requiring all Paramount Chiefs, including those above them to be regarded simply as “Paramount Chiefs”, by no means excluding the Asantehene. 

Aware of this reality, the framers of the Constitution in their jurisprudential and philosophic sagacity did not recognize an Asantehene or an Overlord of Dagbon, Gonja, Mamprugu or an Awoamefia in their formulation of the Constitution. The Constitution simply recognizes “paramount chiefs” as can be seen for instance in Article 271(2) which provides that “[t]he House of Chiefs of each region shall elect as members of the National House of Chiefs five paramount chiefs from the region.” The framers of the Constitution were aware of the Asantehene and all the Overlords, yet they refrained from explicitly naming any of them in the Constitution. They simply regarded them as “Paramount Chiefs”, and rightly so. When the Asantehene sits in the National House of Chiefs, he is there in the capacity of a Paramount Chief, because that is the only category of chiefs that are allowed in the House, except where a particular region has less than five paramount chiefs, requiring the inclusion of some others who are not paramount chiefs, according to Article 271(3). 

For the reasons already outlined above, the author is of the opinion that Section 58(a) of the Chieftaincy Act has to be reconsidered and possibly amended, in order for the law not to appear discriminatory to some chiefs. An amendment of this provision will further distance the perennial problems of tribalism and ethnocentrism that we already have in Ghana.  No nation can be great when the vehicle of ethnicity is continuously fueled by the official state agencies, particularly the executive, legislature and judiciary.