WHO IS A CHIEF?
A chief is a person be it male or female who hails from the appropriate family and lineage, thus may hail from the appropriate royal lineage but may not be qualified if the stool is the rotational type and the turn has not gotten to him or her family yet( as held in the case of NYAMEKYE V TAWIAH & ANOTHER), has been validly nominated by the queen mother and not even the obaapanyin as held in RE WENKYI STOOL AFFAIRS.., elected, selected and enstooled as such by the elders and king makers with the approval of the (people), and has been recognized as such by customs and traditions of the society over which he rules. This is seen in the 1992 constitution at article 277.
Both the superior and the lower courts have jurisdiction in chieftaincy matters just that some of the courts has been ousted of its jurisdiction. An example is the case of EX PARTE ADU GYAMFI, where it was held that the high court has concurrent jurisdiction in chieftaincy matters. This decision was erroneous and has been rectified by the case of TOBAH V KWEIKUMAN, holding that the high court has no jurisdiction whether appellate, original, or review of chieftaincy matters but the constitution gives it the supervisory power to ensure that the lower courts is validly constituted to adjudicate a matter with regards to ensuring the rule of law in the court systems. Nonetheless, the Supreme Court has no original jurisdiction in chieftaincy matters but appellate from the Regional House of Chiefs.
As it was held in the case of FRIMPONG V THE REPUBLIC the court of appeal, high court and the district courts absolutely has no jurisdiction in chieftaincy matters. The national house of chiefs has original jurisdiction in cases which lies in the competence of two or more regional house of chiefs…Example is the Ahafo part of Brong Ahafo which owes allegiance to both the Asantehene and the Brong Ahafo chief. Appeal to this place is from the Regional house of chiefs which also has jurisdiction in trying first instant cases relating to the Paramount chief only. Appeal here is from the Traditional council which also tries cases relating to matters affecting chiefs other than the paramount chief. In the traditional councils the paramount chief is the judge or the head of its judicial committee. With the exception of the Traditional council which is established by customary law, the rest are established by statutory instruments.
The constitution itself recognizes the Asantehene as the head and chief of all the other chiefs in the Ghanaian society. Thus the first category is the Asantehene and all Paramount chiefs. Paramount chiefs are the heads of the traditional areas and they do not owe allegiance to any other chief. All the Divisional chiefs are subordinate to these paramount chiefs who are the heads of the traditional councils of the various traditional areas. Below the Divisional chiefs are the sub-divisional chiefs who are also subordinate to the divisional and paramount chiefs. Followed by the Odikoro popularly known as the family heads and lastly the other recognized chiefs of the National House of chiefs who has been statutory recognized and recorded and publicized at a particular society to rule in the interest of the people.
A chief must possess the quality of hailing from…this deal with the blood relation or ties the person shares with the members of the royal family. This implies that the person must be a biological member of that family and must be recognized and accepted as such by the family members and heads, this clearly disqualifies the Europeans from taking up chieftaincy positions in the country when they came…He must also be from the appropriate family…thus the turn of the Royal family from which is the only family from which the chiefs of that society are to be taken from as in NYAMEKYE V ANTWI & ANOTHER…He must also be from the appropriate lineage…Where he traces his ancestor from the same ancestor as the rest of the family does…He must also be validly nominated….by the queen mother..Be selected by the people…And elected by the king makers…And enstooled & enskinned by the recommendations of the customary laws and practices in operation in that particular community at the particular time.
Chieftaincy cause or matter which in my view is any matter affecting or relating to the institution of chieftaincy is any issue or problem as held in the case of ANIN V ABABIO & OTHERS which regards….the nomination, selection, election, enstoolment and enskinment of a chief….the abdication and destoolment of a chief….the right of a person to engage in any of the above processes in relation to the chief…. and last the recovery and delivery of stool properties in chieftaincy matters. According to RS Rattray in Asante law and constitution, he said that any self acquired property of a chief after his abdication or destoolment remains the property of the stool and not the former chief as held in the case of ANIN V ABABIO AND OTHERS. Matters relating to disputing lands, money, stealing are not chieftaincy issues. As held in OSEI V SIRIBOUR II the plaintiff’s claim of being a member of the royal family is not a matter affecting chieftaincy.
In BOAMPONG V ABOAGYE,…The abdication of a chief must be willingly of the chief but not forced. Also the necessary abdication rites must be performed not by anyone but by the king makers and elders and not even the queen mother. The consent of the King makers must be sought before the process begins so must that of the chief also. This is based on the presumption that it is the makers of a chief who can unmake him or her. The issue here therefore is whether the consent of the king makers be sought if the chief willingly wants to abdicate his stool. If yes is your answer then what happens if the king makers disagree to it but the chief willingly insists to abdicate him or herself?
In EX PARTE ADU GYAMFI…The beginning of the appointment process of a chief begins with the nomination without which all the others will not be possible. The queen has the sole right to the nomination of a chief and no one else. Although the queen has three chances in nominating after which if rejected by either the people or the king makers and elders, the king makers take over. This however doesn’t mean the rights of the queen mother has been exhausted but rather she still performs it, but this time round in conjunction with the elders and king makers not like before when she did it alone.
Article 270 being the introductory article to the institution of chieftaincy, states in its clause one that the institution of chieftaincy together with its traditional councils as established by customary laws and usages are hereby guaranteed. This in my view means that the 1992 constitution of the fourth republic of Ghana recognizes chieftaincy as one of its institutions over which it has the power to control, modify and alter its provisions. Thus room is created for the operation of customary laws which operate in particular localities as found in article 11. With regards to article 2 of the 1992 constitution, it places limits on the chieftaincy institution to exercise its powers in the welfare of the people of Ghana and any of its actions which is found to be inconsistent with the provisions of the constitution will be declared null by the constitution when it is challenged by any concerned citizen, per article 3. And this makes it possible for the Supreme Court which is a creature of the 1992 constitution to be the last court of resort when it comes to chieftaincy matters. By the look at article 11 of its provisions, the indigenous customary laws are regarded as one of the laws of the country. Article 270 (1) also gives a formal recognition to the institution of chieftaincy in our dear constitution.
As Professor Kumado said in his piece the SUPREME COURT AND THE YENDI SKIN DISPUTE, the government must not interfere with the processes of chieftaincy institutions but must work hand in hand with it to ensure ample development of the people at the grass root, thus villages. The constitution must therefore regard the decisions of the Regional Houses of chief and that of the Traditional councils as legally right at any moment since these two institutions takes into consideration the most important part of the dispute with regards to the customs and traditions of the people of that area. And this is the most important part of the substances (indigenous constitutional law) used in the adjudication of disputes in any of the courts having jurisdiction in chieftaincy matters.
In RE WENCHI STOOL AFFAIRS…the queen mother is given the sole responsibility of nominating a person to the position as a chief. The queen mother’s consent was not sought and someone is installed as the chief of Akwatia, that the asking by the queen mother from the elders to be given three weeks for her nomination was too long for the elders. The court held that the institution of the chief was void ab initio since his nomination was not done by the queen mother and that the swearing of the oath before the okyeman council was null and his recognition by the minister is also irrelevant since that was required in the late but not recognized by the present constitution. The institution of a chief has its root at the nomination without which all the other processes will be declared null or void on grounds of its inconsistency with the customs and usages of that particular community.
Although the queen mother plays a vital part in the nomination and for the matter the installation of a chief in the various communities I don’t see it necessary for her to be a member of the National and the Regional House of Chiefs. This is because she only plays a vital role in the nomination aside which everything rests on the king makers and elders. So why don’t we include the elders and king makers in the courts rather than the queen who doesn’t even play a role when it comes to the abdication or distoolment of a chief? I don’t see the relevance of the queen mother in the chieftaincy matters aside nomination and so with the current proposals, I personally vehemently disagree. Under the law, chiefs are expected to represent his people in public occasions. Also the chief make customary laws. He is the embodiment of the culture of the people and he also maintains law and order in his society. He is the mediator between the ancestors and the people and performs ceremonial functions of the society. He ensures peace by adjudicating of matters for the purpose of justice.
Section 22 of the 1992 constitution
Chieftaincy is guaranteed by the constitution in article 270, and a chief is defined in article 277. Constitution 1992 talks about the national house of chiefs and the regional house of chiefs in chapter 22 and appeals to the Supreme Court. The High court may have the supervisory jurisdiction over the lower courts to determine their composition and their competence to sit on a case. A chief must not be a member of parliament or engage in party politics else he or she relinquishes his post as such. But he may be qualified into any public office of which he is qualified.
Chieftaincy Act 2010, act 759.
Talks about the traditional councils and the divisional councils and defines a chieftaincy cause in section 58. The Asantehene and paramount chiefs, the sub-divisional chiefs, the divisional chief, the Adikorofo and any other chief recognized by the National House of chiefs. The Traditional council is headed by the paramount chief and the divisional council headed by the most senior chief. The chiefs in this act are to be registered by the National House of Chiefs and their names publish in the chieftaincy bulletin.
In the cases below the chieftaincy causes are being fairly adjudicated.
EKU ALIAS CONDUA II V ACQUAH….the paramount chief or the divisional council determines who the headman is and not any other court.
FRIMPONG V REPUBLIC…the high court has concurrent jurisdiction in chieftaincy matters and so therefore the kukuomhene doesn’t owe allegiance to the Asantehene and therefore any enactment which seeks to change the position of a chief is to the extent of its inconsistency be declared null or void.
TOBAH V KWEIKUMAN…..the high court has no concurrent jurisdiction in chieftaincy matters but it has the supervisory jurisdiction over all lower courts
NYAMEKYE V TAWIAH….the law to apply in chieftaincy matters is the customary law and not the English common law and the rotational system was confessed by the defendant that it was the turn if the Edumfa stool.
EX PARTE ADU GYAMFI….the queen mother was the competent person to nominate a person to the position of the stool, so the swearing of oath before the Okyeman council and his recognition by the minister was not necessary although her nomination has been rejected three times.
RE WENCHI STOOL AFFAIRS…..the nomination of the candidate by the Obaapanyin was incompetent since it is only the queen mother who is to do that and without her consent is not valid whiles she still remains the queen mother.
ANIN V ABABIO…what the plaintiff possessed as a self acquired property must be proved else it becomes a stool property where those items were acquired whiles one was a chief as said by R.S Rattray.
BOAMPONG V ABOAGYE…abdication must be voluntarily and it is only the elders who can destool a chief and not even the queen mother whose function is the nomination.
EX PARTE SAKYIRAA…certiorari do not lie against statutory established institutions and the Okyeman council was one of those but the destoolment of the queen mother without hearing was against the rule of natural justice.
OSEI V SIRIBOUR…the claim of the plaintiff wasn’t a chieftaincy cause since it just purports to question the plaintiff’s membership of the royal family.
EX PARTE TRADITIONAL COUNCIL…mandamus will not lie against an officer where there isn’t refusal to perform his function and so the minister’s request to withdraw the chieftaincy status of certain chiefs cannot be imposed on him.
NANA ADJEI AMPOFO V ATTORNEY GENERAL…section 63 (d) of the Chieftaincy Act 759 is inconsistent with the letters and spirit of the 21 article of the 1992 constitution, and so the deliberate refusal of a person to honour the call of a chief cannot be imposed as a crime for which the person faces the consequences.