Politics, chieftaincy and customary law in Ghana's fourth republic.

Author:Owusu-Mensah, Isaac
 
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Introduction

Ghana over the last twenty years has earned recognition internationally as the beacon of democracy in Africa south of the Sahara and indeed in most of Africa. The nation has also earned a "democratic dividend" as evidenced by greater international recognition, significant inflow of direct foreign investment, improvement in social-economic conditions of the populace, a free and vibrant media, and through transparency in the governance space. The nation however, continues to cherish and maintain ancient traditional values as exemplified by the institution of chieftaincy based on custom and usage. Thus, chieftaincy is the custodian of the customary values and norms of the nation; it is customary laws that regulate civil behavior in traditional governance with judicial, legislative and executive powers. As a result, this paper seeks to assess how politics has longitudinally influenced the institution of chieftaincy and customary law.

The Chieftaincy Institution in Ghana

Chieftaincy is one of the few resilient institutions that have survived all the three phases of Ghana's political history during pre-colonial, colonial and post-colonial eras irrespective of the general attitude towards chiefs, and the institution. Chieftaincy is therefore the bedrock of Ghanaian society; and consequently the political leadership cannot undermine its credibility without aggressive political, social and repercussions. According to the Centre for Indigenous Knowledge and Organizational Development (CIKOD), a local non-governmental organization that focuses on the development of indigenous institutions in Ghana, 80% of Ghanaians claim allegiance to one chief or another (1). Hence, the people consider chieftaincy as the repository of the history and tradition of Ghana; and the custodian of indigenous traditions, customs and usage. Furthermore, the institution is considered as the bond between the dead, the living and the yet unborn that occupies the vacuum created, by the modern partisan political structures, in terms of customary arbitration and the enforcement of laws at the communal level.

A unique feature of chieftaincy in Ghana is gender. The responsibilities and positions of male and females are well defined in the institution in accordance with tradition and custom. In northern Ghana, especially among the Dagomba three skins, namely, Kukulogu, Kpatuya and Gundogu is purposely reserved for women, hence, the modes of succession are particularized. For example, among the matrilineal Akans, the top leadership positions and the responsibilities are divided between males and females; and the heir to the stool is normally a male, but a female ought to nominate him.

Furthermore, positions on the Traditional Councils in southern Ghana, with the exception of executioners, have male and female equivalents that complement each other in traditional governance. With this background, it would be appropriate to explain who is a chief in Ghana. The title "chief' has a long historical trajectory: various colonial and post-independence constitutions and military regimes have provided various definitions to suit the exigency of the regime, and the time. These changes and re-definitions are key elements permeating through in the recognition of the custom and tradition.

The Chieftaincy Act, 2008 Act 759, defines a chief as "a person who hailing from 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". The Act further sets minimum qualification for a chief; the candidate must be a person who has never been convicted of high treason, treason, and high crime or for an offence dealing with the security of the State, fraud, dishonesty or moral turpitude (2). In addition, section 58 of the Act stipulates a hierarchical structure of chiefs recognized in the nation as:

* Asantehene and Paramount Chiefs

* Divisional Chiefs

* Sub-Divisional Chiefs

* Adikrofo

* Others Chiefs reorganized by the National House (3)

Hence, any person holding up as a chief must belong to one of these categories outlined by the Act to ensure that appropriate privileges and responsibilities are accorded him or her in accordance with the Chieftaincy Act.

Chieftaincy in Pre-colonial Ghana

The present political map of Ghana, with clearly established administrative structures and boundaries, where an Executive President governs with the support of 10 regional ministers and 216 district chief executives, represents a significant evolution from pre-colonial Ghana. Thus, Ghanaians were organized into ethnic states during the pre-colonial era, and the paramount chiefs served as the executive head with the support of a council of elders. Some of these states were the Asante; the Dagomba; the Gonja; the Anlo, and many others with boundaries geographically different from their current regional demarcations. For example, the Asante state spanned four different regions of contemporary Ghana.

Chieftaincy in the pre-colonial era was the main system of government that combined legislative, executive, judicial, religious and military responsibilities; and these functions were replicated at the appropriate level of the traditional governance structure, i.e., at the level of the community and up to the paramount chief.

The lower-level chiefs received instructions from the higher chiefs in all aspects of administration. The communities and divisional chiefs had responsibility to report on the state of affairs of the community to the paramount chiefs during annual durbars. Nonetheless, these types of institutions were not the same as the Western institutions in terms of structure and administrative procedures, however, the substance of their responsibilities as well as the privileges attached, created the same social and political cohesion similar to the actions done in the Western countries at the time.

According to Frempong (2006), the political and social systems of pre-colonial Africa did not represent "a golden age" and was hesitant to implement the pre-colonial social and political system wholly to modern Ghana. The system however exhibited high tenets of democracy and the protection of human rights ideals and freedoms of expression within the context of their traditional values and cultures (4). Frempong (2006) further asserts that the newly found Alternative Dispute Resolution (ADR) is a recast of time-tested pre-colonial conflict resolution mechanism administered through the chieftaincy institution which sought to reconcile individuals and communities as well as improve social relations beyond mere settlement of disputes of conflicting parties (5). The chieftaincy institution during the pre-colonial period was not regulated by external legislation beyond the respective traditional councils (the Traditional Areas were considered as independent entities with apposite sovereignty).

Chieftaincy in the Colonial Era

Over the long period of colonial rule, the chieftaincy institution was refined, restructured and integrated into the British Colonial administrative system. This was an efficient means of facilitating control and effectively reducing the cost of governance, and thus, marked the genesis of the legal framework to regulate the institution. Prior to this period, chiefs with the support and recommendation of their council of elders enacted laws to regulate their jurisdictions (6).

Hence, three main considerations determined legislation regarding chieftaincy. First, the institution was tailor-modeled to suit the British Colonial requirement at the time, second attempts were instituted to practice a colonial policy before ordinances were introduced to legalize such practices, and third, chiefs who resisted the laws of the colonial administration were deposed or deported (7).

Furthermore, the colonial legislations on chieftaincy were driven by the need to comprehend the growing discontent that increasingly threatening the position of the chief. Social discontentment emanated from the agitations of the educated elite and the youth against colonial policies meant to exploit the indigenous people and pilfer the mineral wealth of communities as some chiefs acted as colonial agents. Chiefs in these communities consequently lost their long-held community reverence, because they were considered betrayers, and consequently the stability of the social order with the chiefs as the foremost constituents became a concern for the colonial regime (8).

The Gold Coast (now Ghana), became an official British colony in 1874 with the Order in Council of 1856 which defined local norms, customary law, practices and usages. In this backdrop, amongst the first major legalization of the chieftaincy institution was the Chiefs Ordinance in 1904, an instrument meant to support the evidence of the election, installation and deposition of chiefs in accordance with local custom. The preamble of the Ordinance reads, "An Ordinance to facilitate the proof of the election and installation and the deposition of chiefs according to native custom (9)"

A major inroad made...

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