Access to Justice and Resolution of Criminal Cases at Informal Chiefs‟ Courts: the Ewe of Ghana

ACCESS TO JUSTICE AND RESOLUTION OF CRIMINAL CASES AT INFORMAL CHIEFS‟ COURTS: THE EWE OF GHANA

A DISSERTATION SUBMITTED TO THE SCHOOL OF LAW AND THE COMMITTEE ON GRADUATE STUDIES OF STANFORD UNIVERSITY IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF THE SCIENCE OF LAW

Renee Aku Sitsofe Morhe May 2010

This work is licensed under a Creative Commons Attribution- Noncommercial 3.0 United States License. http://creativecommons.org/licenses/by-nc/3.0/us/

This dissertation is online at: http://purl.stanford.edu/fy898bp6189

ii I certify that I have read this dissertation and that, in my opinion, it is fully adequate in scope and quality as a dissertation for the degree of Doctor of the Science of Law.

George Fisher, Primary Adviser

I certify that I have read this dissertation and that, in my opinion, it is fully adequate in scope and quality as a dissertation for the degree of Doctor of the Science of Law.

Amalia Kessler

I certify that I have read this dissertation and that, in my opinion, it is fully adequate in scope and quality as a dissertation for the degree of Doctor of the Science of Law.

Richard Roberts

Approved for the Stanford University Committee on Graduate Studies. Patricia J. Gumport, Vice Provost Graduate Education

This signature page was generated electronically upon submission of this dissertation in electronic format. An original signed hard copy of the signature page is on file in University Archives.

iii ABSTRACT

Lack of access to justice is a global problem. In Ghana, the state courts are few, poorly distributed, poorly resourced, and incapable of providing justice for everyone.

There is a general quest for alternative forums to complement state courts to improve access to justice. One of these alternatives is the chiefs‟ courts. Yet, chiefs‟ courts, the dispute resolution forums of chiefs and their elders outside the state courts, do not have criminal jurisdiction. This jurisdictional ban has, however, not stopped chiefs from assuming jurisdiction over criminal offenses and settling criminal cases. Not much is known about current chiefs‟ courts and their criminal settlement processes.

This dissertation aims at finding out whether the chiefs‟ courts could be viable alternatives to state courts in dispute resolution. The specific objectives are to establish the nature of the chiefs‟ courts, the range of offenses before them, the procedures used in resolving criminal cases, the conformance of chiefs‟ courts with human rights standards, and their acceptability to litigants.

This dissertation could make meaningful contributions to the debate on the Ghanaian alternative dispute resolution (ADR) bill that is currently under consideration.

Furthermore, it would contribute to the understanding of current chiefs‟ courts and whether they should be promoted. If not, it poses whether new alternative dispute resolution systems need to be formed to improve access to justice in Ghana. In addition, this dissertation could be useful to scholars of comparative law as an additional literature source on chiefs‟ courts as a feature of the Ghanaian legal system.

To achieve the aim and objectives, outlined above, a qualitative socio-legal study involving a total of five months field work was undertaken in six Ewe towns in Ghana.

Data was gathered through direct observation of settlement proceedings at current Ewe chiefs‟ courts. Data was also gathered through in-depth interviews of the chiefs to determine criminal offenses before them, the hierarchy and composition of the courts, and procedures used to settle cases. In-depth interviews of litigants at both chiefs‟ and state courts were conducted to determine acceptability of chiefs‟ courts to the people.

Written materials from archival colonial criminal court records were reviewed to determine types of offenses among the Ewe in colonial times. State court documents were also reviewed to determine the rate of resolution of criminal cases in the courts.

The dissertation has revealed that among the Ewe there exists a hierarchy of chiefs and their courts. Criminal cases before these courts include: assault and battery related to quarrels, fights, and accusations of witchcraft. Others are theft, domestic violence and defilement of girls.

Participation in these courts is voluntary. The chiefs‟ forums deal with cases brought to them directly by anyone or withdrawn from state courts for settlement. The proceedings are ritualized “customary law” processes for settling cases that are fast, familiar, readily available, and accessible to users.

Chiefs‟ courts facilitate access to justice because their processes bring lasting peace between parties, give them remedies sought, and enable them avoid delays associated with state courts. However, inadequate enforcement mechanisms, bias and litigation of

certain cases that warrant mandatory prosecutions, like defilement of girls at chiefs‟ courts, constitute downsides of the chiefs‟ courts.

Chiefs‟ courts could be viable alternatives to state courts in resolution of criminal cases, as long as the chiefs‟ courts are regulated by statute clearly laying out the limits to their jurisdiction. Minor offenses like petty theft, slander and defamation associated with assault and minor harm could be expeditiously dealt with in chiefs‟ courts. It is better to use these pre-existing chiefs‟ courts and their system of justice rather than the ADR bill system because chiefs‟ courts have better cost, accessibility, acceptability, and effectiveness. More research on chiefs‟ courts in Ghana however, needs to be done to qualitatively and quantitatively assess the general usage of these courts in the country.

ACKNOWLEDGEMENTS

I thank the members of my JSD Reading Committee: Professors George Fisher,

Richard Roberts and Amalia Kessler for their patience and guidance. I could not have finished this dissertation without their supervision. My heartfelt gratitude goes to Anne

Liu, my roommate and Stanford medical student, for her selfless kindness and help in editing most portions of this work. I am also grateful to the Fulbright Commission for funding my Stanford Program in International Legal Studies and the first year of my JSD

Program. I also thank the American Association of University Women for providing financial support.

Many thanks go to all the interviewees who were part of my research in Kpando,

Anfoega, Tefle, Sogakope, Wuti and Afife. Special thanks to my husband, Dr. Emmanuel

Komla Senanu Morhe for his insightful comments and direction. I also thank my children: Serlom, Mawuli and Mawutor for being supportive. Above all, I thank God without whom none of this would have been possible.

vii

TABLE OF CONTENTS

CONTENTS PAGE 1. INTRODUCTION ……………………….. …………………...... 1

1.1. THE BACKGROUND: ACCESS TO JUSTICE AND CHIEFS‟ COURT...... ………………………….1

1.2. THE PROBLEM………………………………………………..…3

1.3. AIMS AND OBJECTIVES…………………………………….…5

1.4. RATIONALE FOR THE STUDY…………………………..…….5

2. CONTEXTUALIZING ACCESS TO JUSTICE IN AN AFRICAN SETTING …………………………………………………………………….8

2.1. NORMATIVE FRAMEWORK FOR JUSTICE …………….…...9

2.2. IMPLICATIONS OF THE EXISTING LEGAL FRAMEWORK FOR ACCESS TO JUSTICE…………….…………………………….. .25

2.3. CHIEFS‟ COURTS AS JUDICIAL INSTITUTIONS IN AFRICA………………………………………………………………….41 2.3.1. Pre - Colonial Perspective ……..…………………………….41 2.3.2. Colonial Perspective …………………………………….…..54 2.3.3. Post - Colonial Perspective (With Special reference to Ghana)………………………………………………………..67

3. METHODOLOGY……………………………………………………………..90

4. CHIEFS’ COURTS AS JUDICIAL INSTITUTIONS AMONG THE EWE OF GHANA…………………………………………………………………96

4.1. RANGE OF CRIMINAL OFFENSES AMONG THE EWE : 1920 & 1940………..………………………………………………………….96 4.1.1. Types of Criminal Offenses Recorded ……………………..97 4.1.2. The Judges ……………………………...…………………100

4.2. CONTEMPORARY CHIEFS‟ COURTS AND CRIMINAL OFFENSES ………...…………………………………………………..102 4.2.1. Hierarchy of Courts ………………………………………...102 4.2.2. Judges and Courts Officials ………………………………..104 4.2.3. Range of Criminal Offenses before Chiefs ………………...106 viii

4.2.4. Classification of Offenses ……………………………….....108 4.2.5. Where do Criminal Cases come From? …………………....108

4.3. THE CRIMINAL SETTLEMENT PROCEDURE AT CHIEFS‟ COURTS………………………………………………………………..111 4.3.1. Steps in the Criminal Process………………………...... ….111 4.3.2. Enforceability of Decisions…………………………………121

4.4. WOMEN‟S EXPERIENCES AT CHIEFS‟ COURTS………...122 4.4.1. Gender Violence Offenses at Chiefs Courts …………….....122 4.4.2. Barriers in Prosecuting Gender related Offenses at State Courts ……………………………………………………………...127 4.4.3. Female Chiefs as Judges …………………………………...128

4.5. ACCEPTABILITY OF EWE CHIEFS‟ COURTS AS JUDICIAL INSTITUTIONS………………………………………………………..130 4.5.1. Access to Justice Facilitated by Chiefs‟ Courts……………130 4.5.2. Barriers to Justice at Chiefs‟ Courts …………………….…145

5. CHIEFS’ COURTS AND THE LAW: VIABLE ALTERNATIVES TO STATE COURTS?...... 150

5.1. UPSIDES OF CHIEFS‟ COURTS………..……………………150

5.2. UPSIDES OF THE LAW AT CURRENT CHIEFS‟ COURTS: “CUSTOMARY LAW” AS A VIABLE LAW AT CHIEFS‟ COURTS…………………………………………………………...... 160

5.3. DOWNSIDES OF CHIEFS‟ COURTS…………………...……166

5.4. CONCLUSION: CHIEFS‟ COURTS AS VIABLE ALTERNATIVE TO STATE COURTS………...... …166

6. RECOMMENDATONS AND CONCLUSIONS…………………….……..169

6.1. RECOMMENDATIONS ………………………………………169

6.2. CONCLUSIONS ………………………………………………176

7. APPENDICES ……………………………………………………………..…178

7.1. APPENDIX 1: MAP OF THE EWE IN AFRICA……………..178

7.2. APPENDIX 2: MAP OF GHANA SHOWING THE RESEARCH SITES………………………………………………………………...…179

7.3. APPENDIX 3: INTERVIEW PROTOCOL A……...... 180

7.4. APPENDIX 4: INTERVIEW PROTOCOL B ………………....183

8. BIBLIOGRAPHY …………………………………………………………….184

LIST OF TABLES

TABLE 1: Range of Criminal Offenses Recorded in Kpando District: Criminal

Court Records of 2nd Feb. - 30th Dec. 1920………………………..….…………98

TABLE 2: Range of Criminal Offenses from Keta District: Criminal Court

Records, 20th Jan. – May 1940………………………………………………...... 99

TABLE 3: Performance Returns of Criminal Cases: Kpando Circuit Court...... 136

TABLE 4: Performance Returns of Civil Cases: Kpando Circuit Court……… 136

LIST OF CASES CITED

Aniamoah v. Otwiraah (1961) 1 G. L. R. 405…………………………………………..80 Amachree v. Kallio (1914) 2 N. L. R. 108 ……………………………………………..88 Asano v. Taku (1973) G. L. R. 312……………………………………………………...78 Asare v. Donkor (1962) 2 G. L. R. 176…………………………………………...... 78 Budu v. Caesar (1959) 1 G. L. R. 410 …………………………………………………..78 Debrah v. The Republic (1991) 2 G. L. R. 523………………………………………….71 D. P. O. v. Djililah (1920)………………………………………………………………101 Dzasimatu and others v. Dokosi (1994-95) G. B. R. 426………………………………105 Gberbie v. Gberbie (1966) G. L. R. 789………………………………………………...79 Ghana Ltd v. Ashanti Goldfields Ltd (2005-6) G. L. R. 60……………………………..22 Golo III v. Doh (1966) 1 G. L. R. 447…………………………………………………..86 Gym v. Insaidoo (1965) G. L. R. 574……………………………………………………72 Kodieh v. Affram (1930) 1 W. A. C. A. 12……………………………………………...88 Nyame v. Yeboah (1961) G. L. R. 281…………………………………………………..78 Omanhene Kobina Foli v. Chief Obeng Akesse (1934) 2 W. A. C. A.………………….79 Paul v. Koko (1962) 2 G. L. R. 213……………………………………………………...78 Republic v. Godfred Osei Kwame (Kumasi High Court, unreported)…………………..28 Tanor v. Dapomah (1960) G. L. R. 241………………………………………………….78 Zogli v. Ganyo (1977) G. L. R. 297 ……………………………………………………..80

xii

LIST OF STATUTES CONSIDERED

African Charter on Human and Peoples‟ Rights (1982) Basic Principles on the Independence of the Judiciary (1985) Basic Principles on the Role of Lawyers (1990). Basic Principles for the Treatment of Prisoners (1990). Code of Conduct for Law Enforcement Officials (1979). Constitution of Ghana (1992). Convention on Elimination of All Forms of Discrimination against Women (1981). Ghana Alternative Dispute Resolution Bill, (2007). Ghana Criminal Offenses Act, 1960 (ACT 29). Ghana Domestic Violence Act, 2007 (ACT 732). Guidelines on the Role of Prosecutors (1990). International Covenant on Civil and Political Rights (1976). Protocol to the African Charter on Human and Peoples‟ Rights on the Rights of Women in Africa (2000). Universal Declaration of Human Rights (1948).

xiii

LIST OF ABBREVIATIONS

ADR…………………Alternative Dispute Resolution

CEDAW……………..Convention on the Elimination of all forms of

Discrimination against Women

DOVVSU…………….Domestic Violence Victims Support Unit of the Police

Service

D.P.O. ………………..District Political Officer

G. B. R. ……………….Ghana Bar Reports

G. L. R. ………………..Ghana Law Reports

N. L. R. ………………..Nigeria Law Reports

THE CHARTER……….The African Charter on Human and People‟s Rights

THE DECLARATION…The Universal Declaration on Human Rights

UNDP…………………..United Nations Development Program

W. A. C. A. ……………West African Court of Appeal

WAJU…………………Women and Juvenile Unit of the Police Service

WiLDAF……………….Women in Law and Development (Africa)

xiv

1. INTRODUCTION

1.1. THE BACKGROUND: ACCESS TO JUSTICE AND CHIEFS‟ COURTS

Effective access to justice is fundamental to the establishment of rule of law in any society. The term “access to justice” used in this study means an individual‟s ability to seek and obtain fair and effective resolution of conflict and redress for wrongs.

Throughout the world, due to lack of access to justice, many people do not receive fair trials for offenses they committed and yet innocent others go to jail for offenses they didn‟t even commit. Hence, access to justice is of great concern globally, particularly for the poor and the vulnerable in developing countries like Ghana.

In order to improve access to justice, modern reforms in dispute resolution include encouraging the use of informal courts and making legal aid services accessible. Informal courts are dispute resolution systems outside state courts. Reforms are geared towards making use of informal courts like chiefs‟ courts, because they are effective and readily available. Chiefs‟ courts are defined as dispute resolution forums of chiefs and their elders outside the state courts. These courts are male-dominated and are held in palaces, residential homes of chiefs, or outside in the chiefs‟ courtyards.

Use of chiefs‟ courts to resolve criminal cases has been documented in many African countries. In Ethiopia, despite the establishment of formal state courts, only a few of the country‟s sixty-two ethnic groups utilize the state‟s criminal justice system.1 The majority of the people in rural communities choose to use chiefs‟ courts and not to refer

1 See J. Macfarlane, Working Towards Restorative Justice in Ethiopia: Integrating Traditional Conflict Resolution Systems with Formal Legal System, 8 CARDOZO J. CONFLCIT RESOL. 487, 499 (2007).

complaints to the police.2 In Malawi, between 80% and 90% of all disputes are processed through chiefs‟ courts.3 In Sierra Leone, approximately 85% of the population uses chiefs‟ courts for resolution of disputes.4 In addition, 80% of Burundians take their cases to the chiefs‟ courts as a first choice.5 Moreover, the use of chiefs‟ courts is not unique to

Africa. They are used in the Chittagong Hill Tracts region of southern Bangladesh,6 where minor criminal offences are tried by chiefs and headsmen.7

Macfarlane8 has contended that the chiefs‟ courts are viable alternatives to state courts.9 She advocates that chiefs‟ courts must be taken into consideration in any reforms in the justice sector.10 The United Nations Development Program (UNDP)11 has also suggested that chiefs‟ courts should be considered in the justice sector reform and recognized.

2 Id at 500.

3 See E. Wojkowska, DOING JUSTICE: HOW INFORMAL JUSTICE SYSTEMS CAN CONTRIBUTE, UNITED NATIONS DEVELOPMENT PROGRAM, 12 (2006).

4 Id.

5 Id.

6 See Raja Devasish Roy, Challenges for Juridical Pluralism and Customary Laws of Indigenous Peoples: The case of the Chittagong Hill Tracts, Bangladesh 21 Ariz, J. Int‟l & Comp. L. 113 (2004).

7 Id at 129.

8 See J. Macfarlane, supra note 1 at 497, where she noted that use of informal forums are a reality, and that they should be considered as alternatives in justice reform.

9 Id.

10 Id.

11 See UNITED NATIONS DEVELOPMENT PROGRAM, ACCESS TO JUSTICE PRACTICE NOTE (2004). The UNDP noted that traditional adjudication mechanisms, like council of chiefs, can be recognized by formal law, or they may operate extra-legally. See also PENAL REFORM INTERNATIONAL, ACCESS TO JUSTICE IN SUB-SAHARAN AFRICA, supra note 18, where the case was made that traditional justice forums should be involved in justice sector reform.

1.2. THE PROBLEM

In Ghana, the state courts are inadequate, the judges are few and the legal aid system does not work effectively.12 People are not prosecuted in a timely manner for committed crimes.13 Consequently, many people are detained and languish in prison custody for variable durations of time, sometimes for minor criminal offenses that could have been expeditiously dealt with.14

Yet, in Ghana, chiefs‟ courts do not have criminal jurisdiction. Anecdotal information however, indicates that people use them for criminal cases. Not much is known about the current nature of these chiefs‟ courts and why people use them.

Understanding the nature and the operations of the chiefs‟ courts within the local setting is fundamental to successful policy formulation and implementation.

Understanding them is also fundamental for reforms to improve access to justice in

Ghana. In particular, understanding the courts and their processes is important because it

12 See R. A. S. Morhe, Legal Aid in the Criminal Justice System, (unpublished JSM thesis, Stanford Law School, 2007), where she established that the legal aid system in Ghana faces a number of problems including inadequate number of legal aid offices, inadequate prosecution of cases and inadequate remuneration of lawyers. She also noted that many accused persons languish in prison custody awaiting trial.

13 Id.

14 Id. See also M. J. Lowy, A Good Name is Worth More than Money: Strategies of Court use in Urban Ghana, in DISPUTING PROCESS-LAW IN TEN SOCIETIES, 189 (Nader & Todd, eds., 1978). Where writing about delays and problems of use of state courts in the Ghanaian town of Koforidua, he noted that physical distance of communities from state courts adds up to costs of litigation. Delays and adjournments orchestrated by the investigators, prosecutors and lawyers keep simple assault cases in state courts for years.

is believed that the chiefs‟ courts do not respect the human rights of users, particularly of women and girls.

Some have expressed concern that the chiefs‟ courts apply “customary law” which discriminates against women and girls.15 The courts are criticized because the remedies, even in criminal cases, are usually not geared toward punishment of perpetrators but rather toward fixing relationships in society.16 Some also question whether chiefs should have jurisdiction over issues relating to women and girls.17 In particular, maintenance, custody or guardianship of minor children; dissolution of marriage; and validity and effect of wills are all issues where women are likely to face prejudice by the patriarchal attitudes of the male-dominated courts.18

Others question whether chiefs‟ courts should exercise criminal jurisdiction.19

Concerns are raised because the rights of the accused guaranteed under constitutions, like

15 See PENAL REFORM INTERNATIONAL, ACCESS TO JUSTICE IN SUB-SAHARAN AFRICA, supra note 11 at 2. See also B. Connolly, Non-State Justice Systems and the State: Proposals for a Recognition Typology, Connecticut law Review, 246 (2005), where she stated that many non-state justice systems are dominated by men and court decisions and dispute resolution processes usually reflect patriarchal notions of society and perpetrate inequalities against women and other minorities in society.

16 See B. Connolly, Non-State Justice Systems and the State: Proposals for a Recognition Typology, supra note 19 at 247.

17 See SOUTH AFRICAN LAW COMMISSION, TRADITIONAL COURTS AND THE JUDICIAL FUNCTION OF TRADITIONAL LEADERS, 27 (1999).

18 Id.

19 Id. See also L. Wheeler, Mandatory Family Mediation and Domestic Violence, 26 S. ILL. U. L. J. 559(2002), where she argued that by allowing resolution criminal cases like spousal abuse out of court, victims receive inferior results.

the presumption of innocence and the right to remain silent and to be represented by a lawyer, are absent at chiefs‟ courts.20

1.3. AIMS AND OBJECTIVES

The study is aimed at finding out whether chiefs‟ courts could be viable alternatives to state courts in promotion of access to justice for people in Ghana.

The objectives of the dissertation are: (1) to determine the nature of the Ewe chiefs‟ courts. Ewe are one of the ethnic groups in the Volta region of Ghana. This includes looking at the judges and the range of criminal offenses among the Ewe during the colonial era and post-colonial era. It also involves finding out how current Ewe chiefs‟ courts are structured and constituted. (2) To determine the procedures used at the courts in resolving criminal cases and whether the procedures reflect human rights standards.

This includes determining how offenders are brought to the courts, steps involved in the proceedings, as well as mechanisms put in place to enforce court decisions. (3) To determine how acceptable the chiefs‟ courts are to the people by looking at people‟s perceptions of the courts and to understand the reasons that influence their decision to use chiefs‟ courts.

1.4. RATIONALE FOR THE DISSERTATION

Findings from this dissertation will make useful contributions to the debate on the alternative dispute resolution (ADR) bill.21 The bill is yet to be considered by the

20 Id at 29.

parliament of the Republic of Ghana. The dissertation will also be particularly helpful in deciding whether a completely new ADR system should be formed or viable pre-existing chiefs‟ courts could be modified and used to promote access to justice in Ghana. Though the dissertation may not provide direct benefit in terms of monetary compensation to research participants, the findings could influence policy making in this area of dispute resolution that may be beneficial to all, particularly, to women and girls in society.

This dissertation makes significant contributions to literature on chiefs‟ courts. The focus is on criminal offenses because that is the area in which there is an actual jurisdictional ban against chiefs‟ courts in Ghana.22 I choose to study the Ewe out of all the ethnic groups in Ghana because, apart from Kludze‟s23 introduction to legal processes and institutions of the northern Ewe,24 not much has been written on criminal offenses before contemporary Ewe chiefs. Furthermore, Kludze‟s contribution did not involve the views of litigants about the processes. In addition, historians like Lawrance25 have written about the Ewe but have not examined the criminal justice system.26 By focusing on the criminal process before Ewe courts, this dissertation fills the gap in the literature.

21 See GHANA ALTERNATIVE DISPUTE RESOLUTION BILL (2007), GOVERNMENT PRINTER, ASSEMBLY PRESS, GHANA, GPC/A225/300/5/2001.

22 See Criminal Offences Act, 1960 (Act 29) at sec. 8 which prohibits the resolution of criminal cases outside state courts.

23 See A. K. P. Kludze, Legal Processes and Institutions, in A HANDBOOK OF EWELAND, 70 (1997).

24 Id at 70-83.

25 See B. LAWRANCE (ed), THE EWE OF TOGO AND BENIN, (2005).

26 Id. See generally the following, A. K. ASAMOA, THE EWE OF SOUTH-EASTERN GHANA AND TOGO ON THE EVE OF COLONIALISM, (1986) & K. A. GAVUA, A HANDBOOK OF EWELAND, 6

In addition, by documenting the criminal settlement process among the Ewe, the dissertation serves as additional source of information for researchers interested in the workings of African societies. As an additional exposition on the many nuances of the

Ghanaian legal system, the dissertation provides useful material on customary law for the legal profession and legal scholars interested in comparative law. The dissertation provides insight into the nature of chiefs‟ courts and how they affect the administration of criminal law in Ghana, as a modern African country.

Though the dissertation is conducted among the Ewe, the findings have lessons for all dispute resolution practitioners and policy makers involved in justice sector reform in all countries with such systems. The dissertation advocates local solutions to address local problems. Consequently, this is a lesson for dispute resolution practitioners to pause in implementation of reforms and to take the chiefs forums into consideration. Only then will justice sector reforms be effective and efficient to meet people‟s needs.

Vol. II: THE NORTHERN EWES IN GHANA, (2000), who wrote on various aspects of history of the Ewe people.

2. CONTEXTUALIZING ACCESS TO JUSTICE IN AN AFRICAN

SETTING

Access to justice is a fundamental right. Every country, developed or undeveloped must ensure that everyone has the capability to access justice in the courts. In Ghana, this right is often hindered by the sheer pressure on under-resourced systems of justice.

Behind the backdrop of normative structures for justice under International Human

Rights Law,27 this chapter lays down the substantive right of access to justice as guaranteed under constitutional and statutory provisions in Ghana. These constitutional and legislative efforts are then analyzed from the stand-point of models on access to justice.

Ensuring access to justice goes beyond formal constitutional guarantees and formal state institutions to include informal courts. Justice is a right that is of paramount importance to the United Nations and one of the core mandates of the United Nations

Development Program (UNDP).28 The UNDP plays an important role in empowering the poor and disadvantaged to seek remedies for injustice.29 The organization is also committed to strengthening linkages between formal and informal courts. UNDP is committed to removing biases that are inherent in both systems so as to provide access to justice for all.30 Therefore, this chapter also reviews the literature on the nature and law

27 See UNITED NATIONS DEVELOPMENT PROGRAM, ACCESS TO JUSTICE PRACTICE NOTE (2004).

28 See id. UNITED NATIONS DEVELOPMENT PROGRAM, at 3.

29 See id.

30 Id. 8

of chiefs‟ courts as informal judicial institutions in Africa, with particular reference to

Ghana.

2.1. NORMATIVE FRAMEWORK FOR JUSTICE

International Human Rights Law provides the normative framework for justice.31

Under article 6 of the Universal Declaration of Human Rights (the Declaration),32 everyone has the right to recognition anywhere as a person before the law. Article 7 declares that all are equal before the law and are entitled without discrimination to equal protection of the law.

Additionally article 8 established that everyone has the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 10 of the Declaration entitled everyone charged with an offense to equal treatment. Under the Declaration, everyone is entitled to fair and public hearing by independent and impartial tribunals.

The International Covenant on Civil and Political rights33 demands that all signatory states abide by the principles of equality before the law and presumption of innocence of accused persons.34 States must guarantee freedom from arbitrary arrest and

31 See UNITED NATIONS DEVELOPMENT PROGRAM, supra note 32 at 5.

32 Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U. N. GAOR, 3d Sess., 1st plen. Mtg., U. N. Doc A/ 810 (Dec. 12, 1948).

33 International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U. N. T. S. 171.

34 See id, art. 26 & 14 (2).

detention.35 They must also guarantee the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.36

The Basic Principles on the Independence of the Judiciary37 stress the need for an independent judiciary in all member states. Inappropriate and unwarranted interference with the judicial process is prohibited. Due process is to be protected through established legal procedures that are fair and ensure respect for the rights of the parties. States are to provide adequate resources to enable their judiciary to perform their functions.38

The Basic Principles on the role of lawyers39 requires governments to ensure that efficient procedures and responsive mechanisms for equal access to lawyers are provided.

States are to provide sufficient funding and other resources for legal services to the poor and other disadvantaged persons. The Guidelines on the Role of Prosecutors40 identified the responsibility of prosecutors in protecting human dignity and upholding human rights.

The Guidelines also identified the responsibility of prosecutors in ensuring due process.

35 Id at art. 9.

36 Id at art.14 (1).

37 Adopted by the seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985. It was endorsed by the General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

38 Id.

39 Adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, from the 27 August to 7 September 1990.

40 Adopted at the Eighth United Nations Congress at Cuba, supra note 39.

The Code of Conduct for Law Enforcement Officials41 requires officers of the law to uphold human rights of all persons. Law enforcement officials are also to provide particular assistance to those who, by reason of personal, economic, social or other emergencies, are in need of immediate aid. The Basic Principles for the Treatment of

Prisoners42 prohibits discrimination and insists on respect for human rights. The Basic

Principles also call for the reintegration of ex-prisoners into society under the best possible conditions and with due regard to the interests of victims.

The Convention on the Elimination of All Forms of Discrimination against Women,

(CEDAW),43 also prohibits discrimination because of gender. The Convention gives assurance of equal protection before the law for women. CEDAW defines discrimination against women as:

Any discrimination, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status … of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.44

Article 2 of CEDAW, mandates all states to condemn discrimination against women in all its forms. States parties are to “pursue, by all appropriate means, and without delay, a

41 Adopted by the General Assembly resolution 34/169 of 17 December 1979.

42 Adopted and proclaimed by the General Assembly resolution 45/111 of 14 December, 1990.

43 See Convention on the Elimination of All Forms of discrimination against Women, G.A. res.34/180, 34 U. N. GAOR Supp. (No. 46) at 193, U. N. Doc. A/34/46, (Sept. 3, 1981).

44 See id at art. 1.

policy of eliminating discrimination against women.”45 To this end, all state parties embody the principle of the equality of men and women in their national constitutions.46

They also agreed to ensure and incorporate the practical realization of equality through legislation.47All states parties to the convention also agreed to adopt appropriate legislative measures to prohibit discrimination against women. States also agreed to employ other miscellaneous steps, including sanctions where appropriate, to prohibit discrimination against women.48

The convention representatives agreed to establish legal protection of the rights of women to ensure equal basis with men.49 They also agreed to ensure, through competent national tribunals and other public institutions, the effective protection of women against acts of discrimination.50 In addition, they agreed to refrain from engaging in discrimination themselves and to ensure that public authorities and institutions act in conformity with this obligation.51

45 See id at art. 2.

46 Id.

47 Id.

48 Id.

49 Id.

50 Id.

51 Id.

The states further agreed to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.52 They also agreed to take all appropriate measures including legislation to modify or abolish regulations, customs and practices that practice discrimination against women.53 Furthermore, states agreed to repeal all national penal provisions which constitute discrimination against women.54

Article 2 of the African Charter on Human and Peoples‟ Rights (the Charter),55 guaranteed the right of every individual to the enjoyment of the rights and freedoms recognized in the Charter.56 These rights are guaranteed without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.57 Article 18 of the Charter also encouraged state parties to ensure the elimination of all discrimination against women.

The Charter also encouraged states to ensure the protection of the rights of women and children as stipulated in international declarations and conventions.

The Protocol to the African Charter on Human and Peoples‟ Rights on the Rights of

Women in Africa promotes gender equality.58 This Protocol noted that, despite the

52 Id.

53 Id.

54 Id.

55 See African (Banjul) Charter on Human and People‟s Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I. L. M. 58 (1982).

56 Id.

57 Id.

58 See Protocol to the African Charter on Human and People‟s Rights on the Rights of Women in Africa, CAB/LEG/66.6 (Sept. 13, 2000). 13

ratifications of international and regional human rights instruments by the majority of states, women in Africa still continue to be victims of discrimination and harmful practices.59 States are obliged under the Protocol to ensure that the rights of women are promoted, realized and protected so that women are entitled to their human rights.60

States must ensure that women and men have equal access to justice and equal protection before the law.61 They must take all appropriate measures to ensure effective access by women to judicial and legal services.62 States must support local, national and continental initiatives directed at providing women access to legal services, including legal aid.63 They must also establish adequate educational structures, with particular attention to women.64

Law enforcement organizations at all levels must be equipped to effectively interpret and enforce gender equality rights.65 Women must be represented equally in the judiciary and law enforcement organs.66 States must reform existing discriminatory laws and practices in order to promote and protect the rights of women.67

59 Id. See the Preamble to the Protocol.

60 Id.

61 See id at art. 8.

62 Id at art. 8 (a).

63 Id at art. 8 (b).

64 Id at art. 8 (c ).

65 Id at art. 8 (d).

66 Id at art. 8 (e). 14

Ghana is signatory to some of these international human rights documents,68 many of which have been passed into Ghanaian law. The Ghanaian Constitution guarantees equality and freedom from discrimination.69 All persons are equal before the law.70 No one is to suffer discrimination on grounds of gender, race, color, ethnic origin, religion, and creed, social or economic status.71 The Constitution defines discrimination as:

To give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, color, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.72

A person charged with a criminal offense is to be given a fair hearing within a reasonable time by a court.73 He is presumed to be innocent until he is proved or has

67 Id at art. 8 (f).

68 Ghana signed and ratified the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. The country also signed and ratified the Optional Protocol to the International Covenant on Civil and Political Rights and the second Optional Protocol to the International Covenant on Civil and Political Rights, which aims at the abolition of the death penalty, on 7 September, 2000. The Country also signed the Convention on the Elimination of all forms of Discrimination against Women and the Optional Protocol to the Convention and ratified them on the 2nd January, 1986. The country signed and ratified the Convention on the Rights of the Child on 5th February, 1990. Ratification means that the country can be held accountable for its human rights obligations under these documents.

69 See the 1992 Constitution of Ghana, at art. 17.

70 Id at 17(1).

71 See id at 17(2).

72 Id at 17(3).

73 Id at art. 19 (1).

pleaded guilty.74 In addition, a person charged or arrested for an offense must be informed immediately in a language he understands, and in detail, of the nature of the offense.75 He must be given adequate time and facilities for the preparation of his defense.76

No person is to be convicted of a criminal offense unless the offense is defined and the penalty is prescribed in a written law.77 The Ghanaian Constitution also guarantees protection of personal liberty and freedom from arbitrary arrest and detention.78 Anyone arrested has the right to a lawyer of his choice.79 A person who is arrested, restricted or detained is to be brought before court within forty-eight hours after his arrest, restriction or detention.80

If an accused person is not tried within a reasonable time, he is to be released. An accused person‟s release could be either unconditional or upon reasonable conditions.

The conditions could include those necessary to ensure that he appears at a later date for

74 Id at art. 19 (2) (c).

75 Id at art. 19 (d).

76 Id at art. 19 (2) & (3).

77 Id. at art. 19 (11).

78 Id. at art. 14(2).

79 Id.

80 Id at art. 14 (3).

trial.81A person who is unlawfully arrested, restricted or detained by any other person is entitled to compensation from that person.82

The Constitution ensures respect for human dignity. No one arrested, restricted or detained is to be subjected to torture, or other forms of inhumane treatment or punishment.83The Constitution also guarantees the right to enjoy, practice, professes, maintain and promote any culture, language, tradition or religion. It prohibits all

“customary” practices that dehumanize or are injurious to the physical and mental well- being of a person.

In furtherance of its obligation under International Human Rights Law, the country has also passed specific legislation prohibiting harmful cultural practices, domestic violence and defilement of children. The Criminal Offences Act of Ghana, 1960 (Act 29), proscribes female genital mutilation, female religious bondage and widowhood rites.

Under section 69A of the Act:

a person who excises, infibulates or otherwise mutilates the whole or part of the labia majora and the clitoris of another person commits a second degree felony and is liable on conviction to a term of imprisonment of not less than four years and not more than ten years.

The Act under section 88A also provides that a person who compels a bereaved spouse or a relative of the spouse to undergo a custom or practice that is cruel in nature is charged as committing a misdemeanor. A practice is considered cruel if it constitutes an

81 Id at art. 14 (4).

82 Id at art. 14 (5).

83 Id at art. 15. 17

assault. In addition, under section 278A of the Act, a person who compels a bereaved spouse or relative of that spouse to undergo a custom or practice that is indecent in nature is also charged as committing a misdemeanor. Furthermore, section 314A of the Act prohibits customary servitude. Anyone who subjects another to customary servitude, ritual or forced labor is guilty of committing an offence. The Act under section 315 also prohibits trial by ordeal.

In addition, the Domestic Violence Act, 2007 (ACT 732) prohibits domestic violence.

Domestic violence encompasses physical, sexual and psychological violence occurring in the family or any close relationship where people live together. The offense includes battery, sexual abuse, psychological and emotional trauma, and economic deprivation. In

1998, Ghana established the Domestic Violence and Victims Support Unit of the Police

Service (DOVVSU), formerly called, the Women and Juvenile Unit of the Ghana Police

Service (WAJU).

The name of the unit was changed to DOVVSU to ensure that all vulnerable persons are catered for regardless of gender. DOVVSU was established because of the perceived inability of the police to handle complaints from people against their own family members, particularly complaints relating to domestic violence. The unit is essentially a division of the police force but differs in that the police are dressed in civilian clothing to ensure that they are approachable and welcoming.

This diverse unit comes complete with not only police prosecutors and investigators but also social workers, clinical psychologists and counselors. The vision is to create an

environment that provides timely and equitable response to victims of abuse. The vision is also to prevent, protect, apprehend and prosecute perpetrators of domestic violence and child abuse.

The country has passed legislation to counter the practice of non - prosecution of defilement cases. The offense is defined under the Criminal Offenses Act as the natural or unnatural carnal knowledge of any child less than sixteen years of age. Section 101(2) of the Criminal Offences Act, 1960 states that:

a person who naturally or unnaturally carnally knows a child under sixteen years of age, whether with or without the consent, commits a criminal offense and is liable on summary conviction to a term of imprisonment of not less than seven years and not more than twenty-five years.

Prosecution in defilement cases is mandatory and the law is very strict because the consent of the victim is immaterial. Other provisions promoting women and girls‟ rights are found under the Children‟s Act, 1998 (Act 560). The Children‟s Act defines a child as a person below the age of eighteen. The best interest of the child is paramount in any matter concerning a child and is to be the primary consideration by a court, person or any administrative body.84

The Act also prohibits discrimination against a child on many grounds including gender, age, custom, rural or urban background, or socio-economic status.85 In addition, the Act establishes parental duty and responsibility to protect children from

84 See sec. 2 of Act 560.

85 See id at sec. 3.

discrimination, violence, abuse and exposure to physical and moral hazards. The above international and national laws are geared toward removing barriers to using courts and to accessing justice.

The United Nations Development Program (UNDP) identified many barriers to justice.86 These include long delays, prohibitive costs of using the state court system and lack of available and affordable legal representation.87 Other barriers are abuse of authority and powers resulting in unlawful searches, seizures, detention and imprisonment.88 Barriers are also identified in weak enforcement of laws and implementation of orders and decrees.89 In many countries, there is general failure of courts to provide remedies that are preventive, timely, and non discriminatory, adequate, just and deterrent.90

There are also barriers relating to gender bias. The UNDP noted that existing national laws fail to protect women, children and the poor and other disadvantaged including those with disability and low levels of literacy.91 There is lack of actual protection of people in prisons and lack of adequate legal aid systems.92 Furthermore, there is general lack of information about the law and limited public participation in law reform. In

86 See UNITED NATIONS DEVELOPMENT PROGRAM, supra note 32 at 4.

87 Id.

88 Id.

89 Id.

90 Id.

91 Id.

92 Id.

addition, there are excessive laws, formalistic and expensive legal procedures in criminal and civil litigation and also in administrative board procedures. There is also avoidance of use of legal systems due to economic reasons, fear, or a sense of futility of purpose.93

The UNDP noted that in many countries reforms have been initiated within the justice sector to break down these barriers to justice. Such reforms include provision of legal aid to the poor. Reforms also include improving non-governmental organizations‟ capacities to monitor accountability within justice systems. The UNDP also noted that in some societies, people prefer chiefs‟ courts over the formal one.94 Based on this realization, the

UNDP recommended that access to justice programs should take greater account of chiefs‟ courts.95

State obligation established under the above international human rights documents demand that states guarantee the availability of courts and access to those courts. States must also take note of informal chiefs‟ courts and their mechanisms of justice. In response to the above recommendation, an alternative dispute resolution (ADR) bill96 is currently before the Ghanaian Parliament. The bill is the latest strategy towards improving access to justice in the country and is based on the all-inclusive approach recommended by the UNDP.

93 Id.

94 See id at 8.

95 Id.

96 See GHANA ALTERNATIVE DISPUTE RESOLUTION BILL (2007), supra note 26.

The Ghana ADR bill incorporates customary arbitration at chiefs‟ courts.97 Although the bill is yet to be made into law, ADR components have been attached to certain courts in Ghana with the goal that by the year 2013, ADR will be extended to all courts in

Ghana. The innovation spearheaded by the UNDP in the years 2006 and 2007, provided capacity building through training of magistrates, court registrars and mediators in alternative dispute resolution mechanisms. The UNDP also established a total of 21

Community Mediation Centers on a pilot basis in some localities as new points of access to justice.98

According to its Preamble, the bill sets out to replace the old Arbitration Act of 1961

(Act 38). In its stead is the revision of the law relating to the settlement of disputes by arbitration. This is in order to bring the law into conformity with international rules on arbitration.99

Under the old Arbitration Act, Ghana recognized commercial arbitration where parties, usually business entities, include arbitration clauses as part of terms of contract.100The clauses usually direct that parties agree to submit any issues of contention

97 See ADR bill at clause 96 (1).

98 See The United Nations Development Program UNDP, http://www.undp-gha.org/project. (Assessed on 11/10/2009). The UNDP is involved in ADR because according to the organization, protecting the rights enshrined in the Ghanaian Constitution and international human rights instruments to which Ghana is a signatory requires an effective justice administration system. The adoption of ADR mechanisms is seen as means to offer an expanded scope of justice to the poor and disadvantaged. See also Judicial Service of Ghana, Court-Connected ADR- Enhancing Access to Justice in our Communities, http://www.judicial.gov.gh/index. php? (Last assessed on 11/10/2009).

99 See the Preamble to the bill.

100 See for example the case of Ghana Ltd v. Ashanti Goldfields Ltd (2005-2006) SCGLR 603, which emphasized that an agreement by parties to resort to arbitration would be enforced as soon as a dispute 22

arising under and out of the contract for resolution by a third party, outside the courts.

The parties therefore choose the arbitrator(s) and the venue before-hand and as part of the contract terms, even before an actual dispute arise.

The bill seeks to establish an ADR Center for settlement of such disputes through mediation, arbitration, and other voluntary dispute resolution procedures.101The Center undertakes alternative dispute resolution by providing a forum and facilitating the settlement of disputes.102 It also has the mandate to arrange the provision of legal aid to any persons that it considers necessary.103 It is also responsible for reviewing the rules of arbitration and mediation to be established under the bill.104 In addition, the Center is to conduct research, provide education and issue specialized publications on all forms of alternative dispute resolution.105 It is to keep a register of arbitrators and mediators and provide a list of arbitrators and mediators to persons who request for their services.106

The bill recognized that arbitration in the “customary” form continues to be practiced to date. It therefore includes the mode and rules for “customary” arbitration of chiefs

arises. In the case, the Supreme Court held that the parties were bound by their own agreement to submit to conciliation as a pre-condition to resort to arbitration.

101 See the ADR bill, clause 121.

102 Id at clause 124 (2) (a).

103 Id at clause 124 (2) (f).

104 Id at clause 124 (2) (g).

105 Id at clause 124 (2) (h).

106 Id at clause 124 (2) (c ) & (d).

under the auspices of ADR.107 Any chief, chosen by one of the parties to a dispute and accepted by the other party can be an arbitrator.108 Chiefs must apply the rules of natural justice and fairness.109 Throughout the course of arbitration, chiefs have the duty to disclose any circumstances likely to cause justifiable doubt to their independence or impartiality.110 According to the bill, an award of a customary arbitration is binding on the parties and any person claiming through them and under them.111 Furthermore, a customary arbitration award given by a chief may be enforced in the same manner as a judgment of court.112

The bill prohibits customary arbitration in criminal matters unless done under court orders.113 The penalty for contravening this prohibition is a fine or a term of imprisonment not exceeding 12 months or both.114 In addition, all persons who contravene this jurisdictional ban can also be prosecuted under the Criminal Offences Act

1960 (Act 29).115

107 See Part IV of the Bill on “Customary” Arbitration.

108 See the ADR bill at clause 99 (1).

109 See id at clause 100(1).

110 Id at clause 105 (1).

111 Id at clause 116 (1).

112 Id at clause 118.

113 Id at clause 96 (2).

114 Id at clause 96(3).

115 Id at clause 96(4). See also section 9 of the Criminal Offences Act, 1960, that prohibits a person from being punished by the common law for an act.

2.2. IMPLICATIONS OF THE EXISTING LEGAL FRAMEWORK FOR

ACCESS TO JUSTICE

The above normative frameworks are based on models of justice that see justice as assured once there are constitutional guarantees of due process. The question is whether these laws and constitutional guarantees meet the needs and expectations of all

Ghanaians.

The constitution is the basic document that contains the hopes and aspirations of the people. It is assumed that a decision is good because it emanates from the constitution.116

It is also assumed that access to justice is assured when it can be verified that law in a given society emanated from an authority with the mandate to make laws.117 Once we are able to trace an enactment to its institutional source and confirm that that source had jurisdiction, then that law is deemed to be just and we have attained access to justice.118

Furthermore, the assumption is that once a procedure used in any justice system is fair then all users of the system will have justice.119 A just outcome results from a pure procedure.120 A justice system is said to be pure when a decision making body- like the courts - can show that the outcome of the process emanated from a system that assures respect for the rule of law and constitutionalism. Such a system respects the principle of

116 See W. E. Conklin, Whither Justice? The Common Problematic of Five Models of “Access to Justice,” 19 Windsor Y. B. Access to Just., 297, 309 (2001).

117 Id at 302.

118 Id.

119 Id.

120 Id at 298.

equality and of minority rights.121 The process must also show that freedom of expression characterized the deliberative process.122 Once the procedure used is fair then access to justice is guaranteed.

The problem with the above access to justice models is that they are blind to social realities. Social realities make access to justice elusive even under constitutional rule or under systems guaranteeing fair process. It is a mistake to assume that access to justice is complete once a state has a constitution. All African countries have constitutions that are interpreted by lawyers, judges and other informed officials.

There is no existing data in most African countries to establish the extent of court use.

Neither is there data to establish whether all Ghanaians, for example, have access to the state courts. But formal legal equality though constitutional provisions has not translated into substantial access to justice. Without attacking barriers to justice, access to justice becomes a mere legal rhetoric. In the words of Conklin, “justice remains a transcendent externality to the legal structure, an “ought” in contrast to the “is” of a legal reality.123

121 Id.

122 Id.

123 See id at 309.

Furthermore, decisions are sometimes taken based on law without taking account of the substance of the law. Once law emanated from an authority, like Parliament for example, it is deemed just, irrespective of whether the rule is fair or not. Not all laws emanating from an authorized source is good. Armatta124 observed that:

Laws themselves can prevent a woman from pursuing a cause of action. In some countries, women are prohibited from testifying against their husbands in criminal cases. In many African countries, women are prohibited from bringing any civil action in their own behalf, and can do so only under the guardianship of a male relative. If they are married, the suit must be brought by their husbands (the husband must agree to sue himself). In a few jurisdictions in the United States, women cannot sue their husbands because of the doctrine of inter spousal tort immunity… Remedies…may be barred to certain groups of people such as never married couples or same sex partners.125

In addition, one cannot rule out officialdom and human flaws related to interpreting and using the law. Impediments to justice are the differential effects of ethnic, gender, racial or class stereotypes which influences can produce pre-judgments in deliberations.126 In certain regions, governments pass laws that exempt marital rape from criminal sanction.127 Also, the police refuse to arrest men who beat their wives.128

Furthermore, some police even intimidate women into withdrawing complaints of

124 See J. Armatta, Getting beyond the Law‟s Complicity in Intimate Violence against Women, 33 Willamette L. Rev. 773 (1997).

125 See id at 803.

126 See Conklin supra note 121 at 299.

127 See HUMAN RIGHTS WATCH, GLOBAL REPORT ON WOMEN‟S RIGHTS, 335 (1995).

128 Id

spousal abuse. Prosecutors fail to charge men with domestic assault.129 Judges have been reported to accept honor and “heat of passion” defenses that allow wife-murder based on

“legislative provocation,” usually adultery.130

Many women are unable to obtain counsel and some have to travel long distances to state courts.131 Women in South Africa, for example, have to travel long distances to obtain protection orders; because only certain courts have jurisdiction to issue them; only to be turned away by court clerks.132 Therefore in many jurisdictions, women encounter barriers to assessing the legal system.133

As already observed, Ghana, like most African countries, has ratified many of the international documents on justice but ratification has not yielded results as barriers to justice continue to exist.134 Sexual violence cases remain untried for years and make it difficult for victims to obtain justice. In one defilement case, the Republic v. Godfred

Osei Kwame (unreported) before the Kumasi High Court, the complaint was made to police and a medical form was issued in May, 2005. It was not until August, 2009 when the medical officer was subpoenaed to attend court. Also as at the time of the subpoena, the medical officer who actually wrote the report was no longer working at the hospital.

129 Id.

130 Id.

131 See J. Armatta, supra note 129 at 803.

132 Id.

133 Id.

134 See also T. W. Bennett, Traditional Courts and Fundamental Rights, in THE SHADE OF NEW LEAVES, GOVERNANCE IN TRADITIONAL AUTHORITY: A SOUTH AFRICAN PERSPECTIVE, 164 (2006), where he contended that many poor in South Africa do not have access to state courts.

Another officer who never saw the victim had to give evidence based on what he could deduce from the report.

In addition, community attitudes that reflect long standing patriarchal values may significantly impede women from using the legal system.135 An unreported case involving a woman named Abena sheds light on the problems women encounter when accessing the state courts. This case is not originally from the research area but is recounted here because of its relevance. The case was brought before a mediation process at the offices of a non-governmental organization; the International Federation of Women lawyers (FIDA) at Kumasi. Abena has been married to a man named Kofi under customary law for twenty years. She is fifty-five years old and he is seventy-three. She is unemployed whereas Kofi is a trader. They have an unfinished house and a shop.

According to Abena, Kofi is no longer interested in their marriage and consequently she wanted her share of the matrimonial property. Kofi disputed her interest in the store and maintained the argument that she was his helper and not an owner of the property. He claimed that she only helped him acquire the properties. It is very significant that Kofi referred to his wife‟s contribution to the family as merely help. This echoes the patriarchal attitude towards women in many African societies where the average African male treats women as beasts of burden. Abena maintained that the couple in their active years cultivated two cocoa farms the proceeds of which were used to purchase the store.

Both parties brought witnesses to corroborate their case.

135 See J. Armatta, supra note 129 at 804. 29

During the pendency of the case, Abena was ejected from the house because she dared to litigate against her husband. All attempts at mediation failed and the parties were advised by FIDA to go to court. Abena is now homeless after spending her productive years working with her husband to build their fortune. Her only crime was her effort to get what she sees as her fair share of their joint enterprise. Abena decided to enforce her rights at court but she did not have money to litigate and so came to FIDA for help.

She fits the profile of a number of women in Ghana; she had no support of her own, no money to retain a lawyer and no literacy skills. Abena does not have the protection of her own family because she left her village years ago to settle in the city with her husband.

Many women in similar positions like that of Abena are forced to settle for less because of the difficulties they encounter in trying to use the state system.

For access to justice to be effective, formal guarantees of due process under the

Ghanaian law and the constitution are not enough. The law needs to address all barriers to justice existing in society before access to justice can be achieved. Access to justice demands that all persons (male or female, young or old, rich or poor) gain equal access to the law. There should be less reliance on procedure and laws. In order to attain access to justice there is the need to clarify the scope of laws and to find out the intent or spirit behind them. All laws can be questioned. Laws should express the will of the people and to satisfy their needs.

A major concern from the normative framework on justice above is that justice is modeled on Western legal systems. Justice is seen in the availability of state courts and

constitutions. Emerging models of access to justice are based on alternative dispute resolution and interaction of law and society.136 Mediation under Alternative dispute resolution (ADR) is often touted as an example of a procedure that is pure; one that guarantees justice.137

ADR clauses which traditionally have been included in business contracts and international agreements have recently found their way into collective agreements within companies and firms. ADR processes are established in firms and companies for resolution of civil suits. They are used particularly in industrial and administrative matters and union leaders have endorsed these alternative processes for resolving disputes.138 In many companies, therefore, state courts are used as the last resort after

ADR processes have been exhausted.

Simply put, ADR refers to the various means adopted by litigants to resolve their disputes amicably without reference to state courts.139 A more expanded definition is that

ADR is a continuum of processes for addressing conflict.140 These processes include unassisted negotiation and consensual or quasi-judicial processes, usually involving

136 See W. E. Conklin, supra note 121 at 311. He refers to this model as the “law and …” model.

137 See id. at 298.

138 See L. B., BINGHAM, MEDIATION AT WORK; TRANSFORMING WORKPLACE CONFLICT AT THE UNITED STATES POSTAL SERVICE, HUMAN CAPITAL MANAGEMENT SERIES, (2003) where ADR processes were lauded for bringing peace and promoting good working relations between workers and management in companies and corporations because of its all inclusive nature, that results in less incidences of sabotage and loss of good labor and increase in retention of clients and customers.

139 Id. at 8.

140 Id.

neutral or impartial third parties who have no personal interest at stake in the outcome of the case.”141

ADR has also been extended to the private sector. In this sector, ADR includes all modes and forms of dispute resolution within the legal order of the state other than the usual forms of adjudication by the ordinary courts.142 It refers to the management of individual and group interests outside the formal legal system.143 Processes used in ADR within this sector include “other forms of adjudication” and arbitration, mediation and negotiation.144 These processes can sometimes be established, controlled, adopted, enforced or made effective by state institutions.145

Mediation involves a third party who intervenes in a dispute to aid parties in reaching an agreement.146 Whether the aid of the mediator was solicited by the parties or whether he was appointed by someone in authority, the basic criteria is that parties must agree to his intervention.147 The mediators could be institutionalized neutrals or persons of acknowledged prestige.148 Under arbitration, parties consent to the intervention of a third

141 Id.

142 See Gordon Woodman, The Alternative Law of Alternative Dispute Resolution, 32 Les Cahiers de Droit 3 (1991).

143 L. Nader & H. F. Todd, Introduction, in THE DISPUTING PROCESS, LAW IN TEN SOCIETIES, supra note 18 at 3.

144 See G. Woodman, supra note 147 at 3.

145 See id at 14.

146 See Nader and Todd, supra note 18 at 10.

147 Id.

148 Id. 32

party whose judgment they must agree to accept beforehand.149 Adjudication involves a third party who has authority to intervene in a dispute whether or not the parties agree to his intervention and to render a decision with means at his or her disposal to enforce compliance.150

Nader and Todd identified other processes used in ADR as “lumping it,” avoidance, coercion and negotiation.151 “Lumping it” is where an aggrieved party fails to press his claim or complaint. The disagreement is simply ignored, and the relationship with the offending party is continued.152 Avoidance is withdrawing from a situation by cutting out further communication with the other party.153 Coercion involves unilateral action where one party imposes the outcome on the other. Coercion is also referred to as self help.154

Under negotiation, the parties resolve their dispute usually through persuasion, without the help of a third party.155

Another ADR process is Early Neutral Evaluation (ENE). ENE creates a unique opportunity to capitalize on the potential contributions of a sophisticated, knowledgeable

149 Id.

150 Id at 11.

151 Id at 9.

152 Id.

153 Id at 10.

154 Id.

155 Id at 10.

and neutral mind.156 The ENE evaluator helps parties more clearly understand each other‟s positions as well as the pertinent law and evidence.157

Advocates of ADR note that choice of ADR and the procedures to be adopted depend greatly on the goals and needs of disputing parties and also on the relationship that exists between them.158 Some parties want restitution, others want retaliation and some only want prevention of escalation of a dispute.159 In other cases, parties only want to establish the truth and would only be interested in a process that would help them generate historically accurate facts.160

ADR has fewer institutional restraints on creativity, both procedural and substantive.161 “The mediator hears both sides of the story, restates the issues and attempts to open the parties to the story of the other.”162 ADR can help people get better connected with one another because “communication across party lines is “more direct,

156 See W. D. Brazil, Why Should Courts Offer Nonbinding ADR Services? 16 Alternatives to High Cost Litig. 65, 74 (1998).

157 Id.

158 See F. Sander & S. Goldberg, Fitting the Forum to the Fuss: A User friendly Guide to selecting an ADR Procedure, 10 Neg. J. 49(1994). They make the point that one important factor in deciding which procedure to use in resolving a dispute is to find out the goals of the client. The authors also stated that having found that goal the next step is to find out what dispute resolution procedure is most likely to achieve those goals. Then the next step is to find out if the client is amenable to settlement, what the impediments to settlement are, and what ADR procedures is most likely to overcome those impediments.

159 See Nader and Todd, supra note 18 at 11.

160 See W. D. Brazil supra note 161 at 73.

161 See id at 65.

162 Id.

less stylized, less constrained and more thorough.”163 Communication is more dialectical than the communication that accompanies traditional adversarial litigation.164 Also, the conventional bench or jury trial is very expensive and not the best resolution for every dispute.165

The most vociferous argument for ADR has been made in relation to restorative justice or restoring relationships. Restorative justice is a process whereby all parties with a stake in a particular offense come together to collectively resolve how to deal with the aftermath of the offense and its implications for the future.166 Advocates for restorative justice recommend ADR for criminal cases. Marshall167 argued that criminal prosecution is not always successful in terms of rehabilitating the offender, helping the victim or protecting society.168 Mediation, for example, has been used in a number of minor criminal cases that lay emphasis on restitution; like cases involving property damage or burglary.169

163 Id.

164 Id.

165 Id.

166 See Bibas & Biersbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85, 89 (2004). See also www.ojp.usdoj.gov/nij/rest-just & www.restorativejustice.org where it is explained that restorative justice emphasizes the importance of elevating the role of crime victims and community members by their more active involvement in the judicial process. See further, Elton & Roybal, Restoration: A Component of Justice, Utah L. Rev. 43, 51 (2003), where the authors noted that restorative justice shifts the focus from the offender to address the needs of the victim.

167 See T. F. MARSHALL, ALTERNATIVE TO CRIMINAL COURTS, THE POTENTIAL FOR NON- JUDICIAL DISPUTE SETTLEMENT (1985).

168 Id at 1.

169 Id.

Mediation is even recommended in serious criminal offenses.170 Mediation is recommended because judges and juries, who decide the guilt of an accused, impose long prison sentences. These sentences cause unintended side effects for the prisoner, his family and his community.171Cases referred to mediation include aggravated sexual assault, aggravated assault with a deadly weapon, delivery of a controlled substance, indecency with a child and intoxicated manslaughter.172

Mediation allows parties to have a wider variety of custom-made solutions. These solutions include child support agreements, victim restitution, severe prison sentences, drug rehabilitation, mental health services and job training.173 Mediation also reduces the likelihood of any further violence or threatening behavior. It also reduces recidivism and aims at restoring peace at home.174

Some kinds of disputes may not be amenable to mediation or ADR.175 These include where the parties have no inherent interest in settling or where they have diametrically opposed interests.176 Some parties may also want the opportunity to have their

170 See J. Smith, Scrapping the Plea-Bargain, 7 NO. 1 Disp. Resol. Mag. 19 (2000).

171 Id.

172 See W. L. McAdams & S. R. Wetsch, Alternative Dispute Resolution of Criminal Disputes in the 12th Judicial District, SM051 ALI-ABA 443 (2006).

173 See J. Smith Scrapping the Plea-Bargain supra note 175 at 21.

174 See C. Bethel & L. Singer, Mediation: A New Remedy for Cases of Domestic Violence, Vermont law Review, Vol. 7:15 (1982).

175 See S. Engle Merry, Defining “Success” in the Neighborhood Justice Movement, in NEIGHBORHOOD JUSTICE; ASSESSMENT OF AN EMERGING IDEA (1982).

176 Id.

“community hear publicly all the evidence and argument and then pass judgment on the parties‟ competing positions.”177 Such persons want the traditional adversarial litigation.178

Also, ADR will not work where parties do not share similar norms, along which an agreement can be forged.179 It will also not work where parties are not linked into any form of ongoing social network that could impose pressures on them to restore peace.180

In addition, certain types of victim-defendant relationships are inappropriate for ADR intervention.181These include relationships involving domestic violence, and where child abuse or extensive substance abuse is present.182 ADR will also not work in situations where specialized departments could handle the issue.183

177 See W. D. Brazil supra note 161 at 65.

178 Id.

179 Id at 180.

180 Id.

181 See M. L. Luetkehans, Misdemeanor Criminal Mediation, 2- AUG Nev. Law. 24 (1994).

182 Id.

183 Id.

Mediation is preferable where the relationship is not among “intimates‟ but among

“marginals”.184 “Marginals” are:

Those people with whom we daily deal but on whom we do not center our emotional lives. Relationships that can be effectively dealt with by ADR are neighbors, other non intimate family members, commercial relationships such as suppliers/ distributors, coworkers, classmates and landlord/tenant.185

Commentators are divided when the issue involves mediation in criminal offenses against women and girls. McAdams and Wetsch186 acknowledged that not all criminal cases are suitable for referral to ADR and that the victims and their families should not be ordered to ADR. But if parties and victims want to use the process, then most cases are appropriate.187 ADR in criminal cases, they contend, allows the victim the opportunity to vent and be heard, therefore allowing individuals more closure.188 It gives the defendants and the victims opportunities to gain a realistic assessment of the options.189

Loomis190 insists that violence cannot be treated like an ordinary sin that can be corrected with counseling and mediation.191 Moreover, the world has moved away from

184 Id.

185 Id at 25.

186 See W. L. McAdams & S. R. Wetsch, Alternative Dispute Resolution of Criminal Disputes in the 12th Judicial District, SM051 ALI-ABA 443 (2006).

187 Id.

188 Id.

189 Id at 445.

190 See K., Loomis, Domestic Violence and Mediation: A Tragic Combination for Victims in California Family Court, California Western Law Review, Vol. 35, No. 2355-70, 355-70 (1999).

191 Id. 38

viewing domestic violence as an aberrant lapse.192 Mandatory prosecution and no drop policies have been advocated in domestic violence cases.193 Such policies increase prosecution and do lower the rate of recidivism.194

Collier and Starr195 contend that efforts to re-establish “harmony” or reconciliation disguise deeper power asymmetries in societies that particularly disadvantage women and those lower in social status.196 It has been noted that restoring relationships does not necessarily mean restoring personal or intimate relationships; but rather restoration of social relationships of equality.197 Legal systems however, incorporate inequality198 and conflict, not consensus, are enduring aspects of any legal order.199

The most critical question to be raised is, “restoring peace or restorative justice for whom?” Many have expressed disquiet about resolving sexual assault cases involving

192 Id.

193 See Angela Corsilles, No-Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?, 63 Fordham L. Rev., 853-874 (1994).

194 Id at 853.

195 See STARR & COLLIER, eds., HISTORY AND POWER IN THE STUDY OF LAW (1989).

196 Id at 6.

197 See LLEWELLYN & HOWSE, RESTORATIVE JUSTICE, A CONCEPTUAL FRAMEWORK, (1998). For more discussions on restorative justice, see also J. Llewellyn & R. Howse, Institutions for Restorative Justice: The South African Truth and Reconciliation Commission, 49 U. T. L. J. 355(1999), where the authors mentioned South Africa as an example of a restorative process dealing with national and historical harms.

198 See STARR & COLLIER, supra note 200 at 7.

199 Id at 8.

children by ADR and outside the ambit of state courts.200 Menick and Ngoh201 established that some ADR centers in Cameroon mediate rape cases involving children.202 The cases are sometimes resolved within the victim‟s entourage. The subjects of their study were girls who were at least 15 years of age and had histories of sexual abuse. All victims had experienced sexual abuse in the form of rape and most of them were abused as adolescents or of younger ages.

The girls presented a range of psychiatric problems, somatic manifestations and disturbances in instinctive functions attributed to the long-term consequences of sexual abuse.203 No court action had been filed in many of the cases. Reconciliation had been achieved in some of the cases. Negotiated settlements involving payment of financial compensation to the parents of the victims were reached to avoid court action.204 The author noted that parties preferred negotiations with economic and social incentives over court actions.205

From the above, mediation under ADR is not a perfect resolution for all cases.

Recognition of “customary law” and other “unofficial law” as viable alternatives to the

200 See Menick, D. Mbassa & F. Ngoh; Reconciliation and/or Mediation settlements in cases of sexual abuse of minors in Cameroon; Med Trop (Mars) 1999; 59 (2): 161-4. (Article is in French but abstract of article is in Medline) PMID: 10546190[PubMed – indexed for MEDLINE] PubMed is a service of the National Library of Medicine and the National Institutes of Health at www.pubmed.gov .

201 See id.

202 Id.

203 Id.

204 Id.

205 Id.

state formal laws demand that account must be taken of this “unofficial” law and its systems.206 These systems, according to Macfarlane, run alongside state sanctioned processes.207 Omitting them would relegate the systems as non legal processes or inferior systems. It is important that they occupy center stage in discourses on access to justice in

Africa because in some countries they are frequented more often than the state courts.208

2.3. CHIEFS‟ COURTS AS JUDICIAL INSTITUTIONS IN AFRICA

2.3.1. Pre-Colonial Perspective

Before the advent of colonial rule, chiefs were the political and judicial heads of the various African communities. The primary role of the chief was to govern to ensure social stability and order.209 Chiefs and elders resolved disputes within their various communities and also had powers to enforce decisions.210 The various colonial governments, like the British in Ghana, were aware that pre-colonial Africans were governed in their ordinary affairs by bodies of “social norms” popularly regarded as binding.211

206 See T. W. Bennett, Traditional Courts and Fundamental Rights, supra note 139 at 164, where he contended that if the state is to discharge its duty to provide access to courts, then maintenance of traditional courts seems a prudent measure.

207 See J. Macfarlane, supra note 1 at 487.

208 See id at 499.

209 See S. A. BROBBEY, THE LAW OF CHIEFTAINCY IN GHANA 2 (2008).

210 See V. C. Igbokwe, The Law and Practice of Customary Arbitration in Nigeria: Agu v. Ikewibe and Applicable Law Issues Revisited, J.A.L 201, 212 (1997).

211 See Gordon R. Woodman, Customary Law, State Courts, and the Notion of Institutionalization of norms in Ghana and Nigeria, in PEOPLE‟S LAW AND STATE LAW, THE BALLAGIO PAPERS, 143 (Allott & Woodman eds., 1985).

The nature of pre-colonial African judicial institutions and the law applied therein remained unknown and unwritten until lawyers, anthropologists and historians began to record them. Initial commentary on judicial institutions in African societies was dominated by preoccupation with whether these societies had law.212

Pioneer work of Maine,213 for example, dismissed pre-colonial African societies as lawless and primitive.214 This conclusion, based on ethnocentrism, viewed law as present in the existence of legal codes and a law giver or legislature, who issues edicts to the lower ranking populace.215 For Maine and others of the same ilk, law cannot be present in any other form but only in terms of courts, prisons, policemen and legal codes. Based on the above categorization of law, Evans-Pritchard216 concluded that the Nuer, in the strictest sense, had no law.217 He asserted that the Nuer had conventions and compensations for damage, adultery and loss of limb but they had no authority with power to adjudicate on such matters or to enforce a verdict.218

212 See generally, H. J. S. MAINE, ANCIENT LAW (1906) & B. MALINOWSKI, CRIME AND CUSTOM IN SAVAGE SOCIETY (1926).

213 See H. J. S. MAINE, ANCIENT LAW (1906).

214 Id at 379.

215 See T. O. ELIAS, THE NATURE OF AFRICAN CUSTOMARY LAW, 37 (1954). See also, JOHN AUSTIN, LECTURES ON JURISPRUDENCE OR PHILOSOPHY OF POSITIVE LAW 316-7(1885), where he philosophized that in every legal system, there must be a sovereign who receives habitual obedience from the bulk of a given society.

216 See E. E., EVANS-PRITCHARD, THE NUER (1940).

217 Id at 162.

218 See id.

Elias219 reasoned that these conclusions were based on perceived lack of categorization of offenses into crimes and tort in African societies.220 Offenses like murder and theft, which under European law constituted criminal offenses, were said to be treated by African societies as matters for private redress by the wronged party or group rather than by the state.221 Self-help and vendetta were perceived to be the order of the day.

In addition was the assumption of lack of considerations like the mental state of an accused person by African judicial institutions when rendering punishment for offenses.

An example of punishment in absence of considerations of the mental state is the institution of corporate guilt.222 Furthermore, considerations of mental state to determine guilt was said to be absent in the offense of witchcraft, punishable by death or banishment.223 Accusations and punishment of witchcraft were based on the intense belief that a person desires to cause harm to another.224

Another basis for the assumption of no law in African societies was the belief in the supernatural to punish evildoers. In addition is the presence of trial by torture that was

219 See T. O. ELIAS, THE NATURE OF AFRICAN CUSTOMARY LAW, supra note 220.

220 Id at 112.

221 See T. O. Elias, Crimes and Civil Wrongs, in READINGS IN AFRICAN LAW, Vol. I, 101 (E. Cotran & N. N. Rubin eds., 1970).

222 See R. S. Rattray, Ashanti Law and Constitution, in READINGS IN AFRICAN LAW, supra note 226. According to Rattray, an example of collective responsibility is when a pregnant woman is found guilty of murder and she is kept in confinement until she delivers. After delivery, both mother and baby are killed. Most often the baby is presented for human sacrifice.

223 See id at 313. Rattray explained that witches were held responsible for deaths that could not be explained.

224 Id.

used to detect those guilty of crimes for which the offender was unknown or difficult to determine.225

Maine and his followers226 were influenced by positivist‟s theories of law.227

Malinowski,228 a forerunner in such thinking criticized the inaccuracy in defining law in terms of central authority, courts, and constables.229 Eager to prove the assumptions wrong, Malinowski230 looked at law from the concept and perspective of the non-Western societies he studied. He concluded that in all societies there was a class of rules that were too practical to be backed up by religious sanctions or mere goodwill.231

Malinowski averred that these rules were personally vital to the individuals that they could not be enforced by any abstract agency.232 He noted further that in such primitive societies, rules were binding due to “reciprocity, systematic incidence, publicity and ambition.”233 Abel234 however, contended that by describing all societies as having law

225 Id.

226 See Radcliffe-Brown, Primitive Law, in THE ENCYLOPEDIA OF THE SOCIAL SCIENCES, Vol. IX, 202-6 (1933), where he stated that primitive society like the African societies had no law. According to him, these societies had no legal sanctions but only mere matters of social convention or custom.

227 See T. O. ELIAS, THE NATURE OF AFRICAN CUSTOMARY LAW, supra note 220 at 38-40.

228 See B. MALINOWSKI, CRIME AND CUSTOM IN SAVAGE SOCIETY, (1926).

229 Id at 14.

230 See id.

231 Id.

232 Id.

233 Id at 67-68.

234 See Richard L. Abel, A Comparative Theory of Dispute Institutions in Society, Law & Society Review, Vol. 8, No. 2, (1974).

based on “reciprocity, systematic incidence, publicity and ambition,” Malinowski had

“committed the exact sin” as Maine.235 Malinowski had disregarded vast bodies of rules existing in societies that were not obeyed out of ambition or reciprocity.236

While conceding that Malinowski may have gone to the extreme in defining law in these terms, Elias237 contended that justice and law in pre-colonial African societies may not be the same as envisaged by Europeans or Westerners.238 He argued against the holding that Africans had no law. To Elias, such conclusions are a misconception and not wholly true. Such a view would mean to say that Africans never evolved beyond the stage of patriarchal or matriarchal families.239

Elias reiterated that there must have been “standards of social behavior, some collective public sentiment, a flouting of which would provoke universal disapproval” or

African societies would not have endured so long.240

235 See id at 224.

236 Id.

237 See T. O. ELIAS, THE NATURE OF AFRICAN CUSTOMARY LAW, supra note 220 at 51.

238 Id.

239 See T. O. Elias, Crimes and Civil Wrongs, in READINGS IN AFRICAN LAW supra note 226 at 102.

240 Id.

In the words of Kludze,241 law among the Ewe:

Approximates more generally the medieval notions of law as the dictate of right reason rather than the Austinian idea of legal positivism which conceives of law as a specific directive emanating from an identifiable legislator. The Ewe law consequently reflects social consciousness and is accepted by the community because it conforms to social values and not merely because of an elaborate enforcement mechanism.242

Kludze established that no special courts existed among the northern Ewe to try cases. There were no professional groups of lawyers or judges.243 The chief was the judge and he had jurisdiction over everyone in his territory. He also noted that many disputes were settled before “a wide variety of individuals and other traditional authorities and dignitaries.”244 Any individual could settle a case brought before him by parties although such an individual had no authority to compel the parties to appear before him.245Serious cases were taken to the chiefs‟ courts.246

Many pre-colonial African societies had centralized political authorities with administrative machinery, military and judicial organizations to enforce law and order as understood in their various communities.247 Three groups of pre-colonial African

241 See A. K. P. Kludze, Legal Processes and Institutions, in A HANDBOOK OF EWELAND (2000).

242 Id at 70.

243 Id at 72.

244 Id.

245 Id.

246 Id.

247 See T. O. Elias, Crimes and Civil Wrongs, in READINGS IN AFRICAN LAW supra note 226 at 102.

societies were said to have existed: the centralized, the societies which lacked centralized authority248 and the Islamic societies.249

The centralized societies had centralized political authority, administrative machinery and judicial institutions.250 These societies were culturally heterogeneous and consisted of units bound together by common interests and loyalty to a political superior such as, the chief or king. An example of such society was the Zulu of present day South

Africa.251 Organized force was the principal sanction and the chief was the administrative and judicial head with definite economic and legal control over the territories within his jurisdiction.252

Absolute monarchies and political tyranny were prevented253 through presence of other royal functionaries who served as checks and balances.254 The above arrangements served to protect law and custom and controlled and prevented autocracy. Chiefs were supported by council of elders and queen mothers,255 powerful secret societies,256 fetishes

248 See M. Fortes & E. E. Evans-Pritchard, African Political Systems, in READINGS IN AFRICAN LAW, supra note 226 at 1-11.

249 See T. O. ELIAS, THE NATURE OF AFRICAN CUSTOMARY LAW supra note 220 at 13.

250 See M. Fortes & E. E. Evans-Pritchard, African Political Systems, supra note 253 at 2.

251 Id.

252 Id.

253 Id at 18.

254 See J. B. DANQUAH, AKAN LAWS AND CUSTOMS, 226-227 (1929).

255 See T. O. ELIAS, THE NATURE OF AFRICAN CUSTOMARY LAW, supra note 255 at 18.

256 See P. A.TALBOT, THE PEOPLES OF SOUTHERN NIGERIA, 756 (1926), where he explained that the Ogboni society among the Yuroba of Nigeria, often served as a bulwark against tyrannical chiefs. He explained that in Yurobaland of Nigeria, when a chief abuses his power, subordinate chiefs have the right 47

and even by public opinion.257 Many centralized societies had hierarchy of courts from the lowest to the highest. Decisions given were binding with channels of appeal from the lowest courts to the highest courts.258

The African societies that lacked centralized authority had very rudimentary political arrangements.259 Such societies included the Tallensi of Northern Ghana and the Nuer of

Tanzania. These groups had cultural and ethnic homogeneity, strong lineage ties and bonds of direct cooperation.260 They did not have strong centralized authorities, administrative machinery or judicial institutions. These societies relied on competent council of leaders who performed functions like chiefs in centralized systems.261

Islamic influences in North Africa date back to seventh century A. D.262 From 800 A.

D., Islamic law, closely related to the religion, began to spread across the Sahara to countries like Sudan and then to ancient empires of Songhai and Mali.263 By the dawn of

to break away or depose him. A chief among the Yuroba is disposed when he is requested to “open the calabash;” meaning that he must commit suicide by voluntarily taking poison.

257 See T. O. ELIAS, THE NATURE OF AFRICAN CUSTOMARY LAW supra note 220 at 18. See also R. S. Rattray, Ashanti Law and Constitution, in READINGS IN AFRICAN LAW, supra note 226 at 81. Rattray mentioned that among the Ashanti, flogging was a possible punishment for saying anything bad against the chief. But a chief who used flogging widely and “who was always ordering his subjects to be flogged would, soon be destooled.”

258 See I. Schapera, A Handbook of Tswana Law and Custom in READINGS IN AFRICAN LAW, supra note 226 at 23.

259 See T. O. ELIAS, THE NATURE OF AFRICAN CUSTOMARY LAW supra note 220 at 14.

260 See id at 18.

261 Id at 20.

262 See A. KODWO MENSAH BROWN, INTRODUCTION TO LAW IN CONTEMPORARY AFRICA, 47 (1976).

263 Id at 48. 48

colonial rule in the late nineteenth century, Islam was operating in various African societies.264 Islamic law had been declared the fundamental law in Morocco, Algeria,

Libya, Tunisia, Egypt, Somalia, Zanzibar, the northern parts of Sudan and parts of northern Nigeria and Senegal.265

These Islamic societies were theocracies that had political systems of government with strong centralized administrations permeated by Islamic theology and law.266 Other parts of Africa like parts of East Africa, the Congo, parts of West Africa and parts of Southern

Africa had groups of Muslims who used Islamic law and its institutions. Unlike the first group though, these groups were not able to exercise any political or judicial authority over the entire population.267

Using positivist ideas of law emanating from Western societies to study African legal systems is a mistake. In the words of Abel:

The mistake of…anthropologists was to employ a concept, derived from a parochial system of jurisprudence, which had been designed for description and understanding within a particular institutional framework. Used elsewhere, it rendered a verdict of „no law.” Because the concept revealed only dissimilarities between domestic and exotic phenomena it over- simplified comparison.268

264 Id.

265 Id.

266 See T. O. Elias Crimes and Civil Wrongs, in READINGS IN AFRICAN LAW supra note 226 at 13.

267 See id.

268 See Richard Abel, Dispute Institutions in Society, Law & Society Review, Vol. 8, No. 2, 223 (1974).

Later anthropological documentation on the Nuer, for example, conceded that they did have law.269 They had machinery for settling disputes and a moral obligation to conclude them sooner or later.270 Machinery for settling disputes among many African societies was the chiefs‟ and their courts. Cory and Hartnoll271 identified five types of chiefs‟ courts existing among the Haya of Tanzania in pre-colonial times.272 These courts ranged in order of importance from the lowest court of chiefs‟ to the highest court.273

They noted that the courts were assisted by court elders who were appointed by the chief and who could only be dismissed by the chief.274

Social order was maintained in all African societies. Disputes among the Tswana of

Botswana were taken before chiefs‟ courts.275 There also existed among the Tswana several grades of courts where cases were tried and decisions given binding.276 Pre- colonial Tswana law was divided into civil and criminal wrongs but the classification was

269 See Evans-Pritchard, The Nuer of Southern Sudan, in M. FORTES & E. E. EVANS-PRITCHARD, AFRICAN POLITICAL SYSTEMS 278 (1940).

270 See id .

271 See H. Cory & M. M. Hartnoll, Customary Law of the Haya, in READINGS IN AFRICAN LAW, supra note 226 at 12-14.

272 See id at 12.

273 See id.

274 Id at 13.

275 See I. Schapera, A Handbook of Tswana Law and Custom in READINGS IN AFRICAN LAW supra note 263 at 23.

276 See id.

not identical to European law. Schapera277 contended that Tswana civil law established the private rights of people in regard to personal status, property, and contracts.278

The principal civil wrongs, included: breaches of contract, seduction, adultery and trespass, damage, theft, defamation and other wrongs against reputation.279 Civil law also provided redress if such rights are violated, by compelling restitution or compensation.280

Tswana criminal law regarded certain acts not merely as injuries to individual persons but as offenses harming social life and deserving punishment.281 Crimes included all offences against tribal authorities acting in their official capacity, and also breaches of all laws decreed by the chief, homicide, grievous bodily harm, sorcery, incest and other

“unnatural acts.”282

Schapera admits that sometimes, there were overlaps and many civil injuries are on occasion also treated as crimes.283 Offenders were not only forced to make amends to victims but made to suffer punishment as well.284 When a civil wrong was committed,

277 See id at 277.

278 Id at 112.

279 Id.

280 Id.

281 Id.

282 Id.

283 Id.

284 Id.

victims first attempt to obtain satisfaction by direct negotiation with the wrongdoer.285

Criminal wrongs could never be settled outside chiefs‟ courts.286

Rattray,287 writing on the Ashanti of Ghana, also noted that the natives referred to crimes as “things hateful to the tribe.”288 Crimes were infractions that:

The central authority was bound to take immediate official notice, lest certain supernatural powers, that regard these deeds as offensive, should wreck their vengeance upon those whose paramount duty it is to protect their interests and to punish breaches of law or custom.289

People who committed crimes like murder, suicide, certain forms of abuse, certain forms of assault and certain kinds of stealing, were liable to be arrested and tried at chiefs‟ courts.290 Other crimes included invocation of a curse upon a chief, treason, cowardice, and witchcraft.291 Crimes also included the violation of tribal taboos and refusal to obey any law or chief‟s command.292 Persons found guilty for such offenses,

285 Id.

286 Id.

287 See R. S. Rattray, Ashanti Law and Constitution, in READINGS IN AFRICAN LAW supra note 262 at 128.

288 Id at 128.

289 Id.

290 Id.

291 Id.

292 Id.

faced capital punishment. The penalty for murder is usually death for both male and female offenders.293

Pre-colonial African law did not attribute every offense to cosmic forces and in most cases every man was held responsible for his actions.294 Among the Ashanti, this fact was evident in the distinction drawn between accidental and intentional acts.295 The Ashanti differentiated between murder and accidental homicide.296 The majority of accidental homicides occur as the result of hunting accidents.297 Punishment for accidental homicide was not death but damages paid to the family of the deceased for their loss.298 Damages included payment in gold dust, rum, cloth and a coffin.299 The offender was also ordered to slaughter a sheep that was sacrificed for killing one of the chiefs‟ subjects.300

The above classifications of offenses constitute evidence that Africans had law. The above also confirms that they had judicial institutions that applied those laws. Law and judicial institutions in pre-colonial African societies should not be denied because they did not conform to the Austinian criteria.

293 Id at 132.

294 Id.

295 Id at 129.

296 See id.

297 Id.

298 Id.

299 Id.

300 Id.

2.3.2. Colonial Perspective

Initial British colonial policy in many African countries allowed existing chiefs‟ courts to continue in operation.301 Jurisdiction of British courts established in forts and trading posts were restricted to the British and others related to them, like the trading companies and their employees.302 The above policy changed with the need for greater scrutiny and control of activities of trading companies.303 These companies had almost assumed powers of government in the colonies where they traded. The desire was to protect imperial interests and the local populations from the plundering activities of the companies and their local employees.304

The taking over of activities of the companies led to extension of British jurisdiction beyond their forts.305 The burden of administering scattered subjects proved difficult for the colonial administrators as the imperial government was reluctant to subsidize the recurrent and capital costs of colonial administration.306 The British officials were expected to raise enough revenue from their colonies to cover the costs of administering

301 See LAUREN BENTON, LAW AND COLONIAL CULTURES, LEGAL REGIMES IN WORLD HISTORY, 1400-1900, 7 (2002).

302 Id.

303 Id.

304 Id.

305 See LAUREN BENTON, LAW AND COLONIAL CULTURES supra note 306 at 7. In Ghana, the 7th May 1821 Act, abolishing the company, marked the first open attempt by the British Empire to assume effective control over the territories. Indeed right after abolishing the Company, the Crown under Letters Patent of 17th October 1821, annexed Gold Coast colony to Sierra Leone.

306 Id.

them.307 In order to cut down costs, the colonial administrators employed African clerks and chiefs as local agents of colonial rule. Many chiefs worked as interpreters to both the trading companies and the British administrators.308 They helped to determine native laws and were part of the native courts set up to determine cases between natives.

This strategy of using existing local political structures to rule was called indirect rule.309 Under “indirect rule,” the British “ruled” the population through native institutions by using chiefs and “customary law.”310 In Ghana (Gold Coast), the colony was divided into districts under direct commissioners or officers.311 These districts were put under provinces with provincial commissioners. Each district was coterminous with territories under chiefs. The day-to-day affairs, local ordinances, jurisdiction over certain specific cases, development programs and sanitation all came under the chiefs and their council of elders.312 Adu Boahen313 contends that in theory, the district commissioners‟ duty was to see that the chiefs and their elders complied with British rule but in practice, they often dictated to the chiefs.314

307 See SARA BERRY, NO CONDITION IS PERMANENT: THE SOCIAL DYNAMICS OF AGRERIAN CHANGE IN SUB-SAHARAN AFRICA, 24 (1993).

308 See id.

309 See DAVID E. APTER, GHANA IN TRANSITION, 121(1963).

310 See ADU BOAHEN, TOPICS IN WEST AFRICAN HISTORY, 135-136 (1966).

311 See id at 135.

312 Id.

313 Id.

314 See id at 136.

Indirect rule characterized British colonial domination of Ghana which span from

1821 to 1957.315 British rule led to usurpation of political and judicial powers of chiefs.

As noted above, chiefs were recognized for their significance as “traditional” heads and made the central figures for local administration. The Bond of 6th March, 1844316 between the British and Fanti chiefs led to chiefs ceding political and judicial power to the colonial government. Under the Bond, the chiefs acknowledged British power and jurisdiction.317 The chiefs denounced human sacrifice and other “barbarous” customs and agreed that murders, robberies and other crimes committed within their jurisdiction be tried before British judicial officers.

The Bond gave the colonial power leverage to begin a chain of events that changed the legal history in the colony and ushered in what is known today as an English style legal system. Gocking318 contends that the effect of the Bond was that by 1850‟s the chiefs‟ courts in the coastal towns were adjudicating predominantly civil matters.319 Chiefs who

315 The year 1957 marked the end of colonial rule while 1821 was the year the British government abolished the African Company which had been trading in Ghana (then Gold Coast) and vested its possessions in the King of England. For a general history of the Constitutional Law of Ghana see BENNION, F. A. R., THE CONSTITUTIONAL LAW OF GHANA, 3 (1962), where he also traced the constitutional history of Ghana from 1821. He contended that the history of the four centuries before this date is one of great confusion and shifting of populations. The tribal systems were being modified by wars and invasions among the Africans themselves and also by the activities of traders from almost every European country. See also T. O. Elias, Ghana and Sierra Leone, The Development of their Laws and Constitutions, in THE BRITISH COMMONWEALTH; THE DEVELOPMENT OF THEIR LAWS AND INSTITUTIONS Vol. 10 (George W. Keeton ed., 1962) where the year 1821 was also used as the date for British colonial rule in Ghana.

316 See J. J. CROOKS (ed.) RECORDS RELATING TO THE GOLD COAST SETTLEMENTS FROM 1750-1874 (1973).

317 See id.

318 See R. Gocking, British Justice and the Native Tribunals of the Southern Gold Coast Colony, Journal of African History, 34 (1993).

319 See id at 96. 56

tried to adjudicate more than trivial criminal cases found themselves in conflict with both the Chief Magistrate and the Governor.”320

The sphere of English influence was expanded with the establishment of a Supreme

Court for the Forts and settlements in 1853 and for the Gold Coast in 1874. With recognition of chiefly power in 1883 and the passage of the Native Jurisdiction

Ordinance and its amendment in 1910, certain spheres of criminal and civil jurisdiction were given to chiefs. The British commissioners still dealt with all serious offenses like murder, robbery, slave-dealing, and other serious crimes.321The chiefs‟ roles involved only apprehending, detaining, and sending those people who were suspected of crimes to the commissioner of the districts.322

The chiefs had jurisdiction over civil disputes. These were disputes relating to ownership and possession of land, customary marriage, fetishism, witchcraft, and debt cases.323 Gocking contended that civil disputes were left to chiefs because they involved issues that the British courts could not understand or adjudicate.324 Chiefs‟ criminal jurisdiction was extended in 1927 with the passage of the Native Administrative

320 Id.

321 Id.

322 Id at 97.

323 Id.

324 Id.

Ordinance. The Ordinance gave chiefs jurisdiction over health and sanitary issues and made it an offense to disobey chiefs.325

British influence led to changes at chiefs‟ courts. English court practices like institution of legal proceedings by payment of fees, replaced African practice of swearing oaths.326 Furthermore, African practices like panyarring327 to enforce decisions gave way to use of surety.328 Sureties promised chiefs to pay court fines and damages in the event that an offender absconds.329

British colonialists found it prudent to make use of the indigenous institutions on the ground and the institutions were allowed to exist so long as they conduced to facilitating the government of the colonialists.330

325 Id at 100.

326 Id.

327 Panyarring is the term for capturing of Africans for sale to slave ships during the Trans Atlantic Slave Trade. Sometimes, defeated towns and villages were burnt down after battle and the people sold into slavery. Other times, people were ambushed and sold. See generally, D. P. MANNIX, BLACK CARGOES: A HISTORY OF THE ATLANTIC SLAVE TRADE 1518-1865, 95 (1962).

328 Id.

329 Id at 102.

330 See S. A. BROBBEY, THE LAW OF CHIEFTAINCY IN GHANA, 3 (2008). He explained that the policy of British colonialists, who colonized the Gold Coast (Ghana), was to make use of the indigenous institutions found on the ground. These indigenous political institutions were allowed to exist so long as they conduced to facilitating the government of the colonialists.

The chiefs‟ courts were tolerated as means of promoting order. As Apter put it:331

There are not two sets of rulers: - British and native; working either separately or in cooperation, but a single government in which the native chiefs have well-defined duties and an acknowledged status equally with British officials. Their duties should never conflict, and should overlap as little as possible. They must be complimentary to each other and the chief himself must understand that he has no right to place and power unless he renders his proper services to the state332

As agents of the colonial administration, chiefs had limited roles in local government and administration. They could tax their subjects and make bye-laws while the colonial government retained central power.333 Many took advantage of the processes and benefited greatly both in terms of wealth and position.334 A native authority system was formed under which chiefs were grouped according to hierarchy with the paramount chief as the head and made answerable to the district commissioner.

The above general judicial powers of chiefs were later withdrawn by the Native Courts

(Colony) Ordinance 1944 (Number 22). The Ordinance gave the Governor power to set up “new native courts” to which he appointed only chiefs amenable to colonial domination.335 The law created new grades of courts and chiefs were paid regular

331 See DAVID APTER, GHANA IN TRANSITION, supra note 314.

332 Id at 121.

333 See the Native Administration Ordinance, 1927 in GYANDOH AND GRIFFITHS SOURCEBOOK OF THE CONSTITUTIONAL LAW OF GHANA, (KOFI KUMADO & S. O. GYANDOH Jr. eds., 1 G. & G. 2009) which contains all the laws of the Gold Coast.

334 See R. Gocking, British Justice and the Native Tribunals of the Southern Gold Coast Colony, supra note 323 at 101.

335 See generally, the Native Administration Ordinances of 1878, 1883 and 1927 and subsequent Native Authority Ordinances 1935-52. These established Native Courts and provided for their jurisdiction, 59

salaries.336 In addition, chiefs could not be considered chiefs unless gazetted as such by the governor.337 Chiefs‟ powers and legitimacy was derived from Britain. 338

The colonial encounter also emphasized the defiance of colonized populations,339 and chiefs who did not follow directions were forcibly deposed and puppet ones established in their stead.340 Colonial rule therefore failed to preserve the traditional structures of authority. Kumado,341 noted that the British elevated the chief of Accra town (at the time a traditionally religious functionary) to the status of Paramount ruler of the Ga

Traditional Area. The colonial administration built around him a structure that had no root in tradition.342 Adu Boahen contended that the British were so attached to the system

constitution, dismissal and suspension of members. It also established the powers of chief commissioners over the courts.

336 See R. Gocking, British Justice and the Native Tribunals of the Southern Gold Coast Colony, supra note 339 at 110.

337 See id.

338 See DAVID APTER, GHANA IN TRANSITION, supra note 314 at 123.

339 See JOHN MENSAH SARBAH, FANTI CUSTOMARY LAWS, viii (1968), where in the Introduction to the third edition of his book, Hollis R. Lynch stated that the traditional leaders, often supported by the educated elite continued to resist systematic whittling down of their power and influence. The resistance was especially to the British assumption of the right to dismiss them- a right which traditionally belonged to the Council of Kings or the people. Sarbah wrote the first edition of this book in 1897 and is one of the most important pioneer legal and sociological works on an African people although it was written to serve nationalist ends- to educate the British Administration to understand and respect Fanti culture. The defiance of the colonial population to colonial rule is also observed from the many deportations of chiefs like the British deportation of King Prempeh to Seychelles in 1901.

340 See A. K. P. KLUDZE, CHIEFTAINCY IN GHANA, 28 (2000), where he mentioned that the Germans deported Togbe Anku Dagadu of Kpando in 1919 to the Cameroons for defying the British.

341 See C. E. K. Kumado, Chieftaincy and the Law in Modern Ghana, 18 U. G. L. J. 194, 196 (1990-92).

342 See id at 197. See also Richard Roberts, “The Case against Faama Mademba Sy and the Ambiguities of Legal Jurisdiction in Early French Soudan,” in LAW AND COLONIALISM IN AFRICA, 190 (Kristin Mann & Richard Roberts, eds.,1991), where the author showcased French indirect rule in West Africa. He noted that colonial rule used or incorporated indigenous authority into colonial institutions by using chiefs, religious leaders, local military and civilian administrators as rulers. He also mentioned that there was centralization of colonial organization and authority in the Government-General. 60

of indirect rule because it was cheap.343 It was also the most indirect method of “ruling directly,” that they extended it to all their colonies, and created chiefs where there was none.344

Harvey345 also argued that although these arrangements strengthened the power of some chiefs, it alienated them from their people because they were identified with British imperialism.346 Many chiefs lacked legitimacy because they were appointed by the

British. The chiefs‟ prerogative of holding court provided an attractive source of income and stimulated bribery and other corrupt practices in the election and withdrawal of recognition of chiefs.347 At the divisional level, the subservience of the chiefs to the

British authorities lowered their prestige and stimulated popular distrust. It also undermined traditional lines of allegiance from subordinate to Paramount Chiefs.348 One may call this a divide and rule system349 because only those chiefs who were amenable to colonial hegemony and who carried out instructions were rewarded and given protection to the detriment of others.

343 See ADU BOAHEN, TOPICS IN WEST AFRICAN HISTORY, supra note 315 at 136.

344 See id at 136.

345 See W. B. HARVEY, LAW AND SOCIAL CHANGE IN GHANA, 77 (1966).

346 Id at 77.

347 See id.

348 Id.

349 See also KLUDZE, CHIEFTAINCY IN GHANA, supra note 345 at 29, where he referred to the strategies used under British indirect rule as “divide and rule.‟

Colonial rule also affected the economy. Pre-colonial communal mode of existence changed with the introduction of cash crops and mining industries.350 With introduction of cash crops for export, came the need for access to land. British colonial officers regulated access to land in order to prevent Africans from competing with European farmers. According to Berry,351 worse fate befell other parts of Africa like Kenya and northern Rhodesia, now Zimbabwe, where conditions permitted foreigners to settle in colonies and pursue agriculture and production of cash crops. Africans were forced into settlements under chiefs or headsmen that were more receptive and willing to collaborate with colonial authorities.

Many farmers were dispossessed of their land and “customary law” rules relating to land were transformed.352 The agents of change here too were the African chiefs.353 The spread of cash crops like cocoa and coffee raised the value of land. Africans became farm laborers and mine workers.354 The chiefs became wealthy as they were given land forcibly confiscated by the British from African farmers.355

350 See SARA BERRY, NO CONDITION IS PERMANENT: THE SOCIAL DYNAMICS OF AGRERIAN CHANGE IN SUB-SAHARAN AFRICA, supra note 312 at 24-40.

351 Id.

352 Id.

353 See id.

354 See id.

355 Id.

Chanock asserted that such practices resulted in litigation over the control of land.356

The chiefs had also lost favor of their subjects because of their role as intermediaries through which the colonial government collected taxes and raised labor.”357 Land became valuable and chiefs interpreted “customary” land law rules to inure in their favor.

Chanock noted that such interference led to the creation of new rules of “customary law” previously unknown to African communities.

As the result, much debate has centered on the use of the term “customary law” and the references to it as though it were the indigenous law of Africans. Woodman358 is content about the use of the term and argued that legal centralism denies African processes of regulation and adjudication the name of “laws.”359 He sees no good reason why those rules and principles which order relations within social field other than the state laws could not be classified as “customary law” or by some similar term.360

Chanock and Ranger, however, have rejected notions that African “customary law” was a pre-colonial residue. For them, native law and custom currently known as

“customary law” is a byproduct of colonial transformation of flexible and contingent patterns of negotiation and relationships into fixed rules with strict corporal and penal

356 See Martin Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (1985).

357 See id.

358 See Gordon Woodman, The Alternative Law of Alternative Dispute Resolution, 32 Les Cahiers de Droit, 3 (1991).

359 Id.

360 Id.

sanctions.361 Chanock and Ranger362 argue that any references to and descriptions of native law and custom as “customary law” are mere fabrications.363 Such references tend to down play the element of conflict and division which were involved in claims about what the law really was.364 They contend that what is known as “customary law” is rather an invention of tradition.365

Spear,366 noted that tradition or what we may term “custom” or “customary law,” continued to change with social change and conflicts within society.367 According to

Spear, one of the most common uses of invention of tradition has been to analyze the

British policy of indirect rule.368 He noted that the chiefs had to carry out the wishes of the colonial government and at the same time be careful not to offend their subjects lest they revolt.369

361 See this argument in Thomas Spears‟ Neo-Traditionalism and the Limits of Invention in British Colonial Africa, Journal of African History, 44 (2003).

362 See T. O. Ranger, “Invention of Tradition in Africa,” in INVENTION OF TRADITION (Eric Hobsbawn & Ranger, eds., 1983).

363 Id.

364 See M. Chanock , Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia supra note 361 at 3.

365 See T. O. Ranger, “Invention of Tradition in Africa,” in INVENTION OF TRADITION supra note 367 at 63.

366 See Thomas Spear, “Neo-Traditionalism and the Limits of Invention in British Colonial Africa, supra note 366.

367 Id at 8.

368 Id.

369 Id.

In the words of Spear:

Local chiefs trod a fine line between traditional obligations to redistribute wealth and protect people from misfortune and colonial demands to collect taxes, sell land, recruit and enforce a plethora of new regulations. Chiefs sought to attenuate the demands of the state and colonial officials often had to accede lest they precipitate violent opposition, the colonial nightmare.370

There were limits to the extent to which colonial authorities could effect change in the colonies. First, the colonial authorities had to rule through chiefs to legitimize their power. Second, the chiefs were careful in carrying out the orders of the colonial authorities because they had to appear legitimate.371

The limits on change to native law or tradition were also noted by Colson.372 Colson recounted a murder case that revealed the dissatisfaction of Africans (in Tonga society of the southern province of Northern Rhodesia) with the treatment of murder cases by the

British. Under pre-colonial conditions, murder in that society was recipe for vengeance and war in case that compensation was not provided.373 These methods were not employed under colonial rule. In the murder case, the police were rather summoned and the body examined by the government doctor. The culprit was arrested, prosecuted, convicted of manslaughter and imprisoned for a year.

370 Id at 9.

371 Id.

372 See E. Colson, Social Control and Vengeance in Plateau Tonga Society, Africa 3, 199 (1953).

373 Id. 65

Colson contended that for the Tonga, this was not enough. The grievance and unease continued until the family of the culprit agreed to pay for the death of the lost relative. In recounting this case Colson, on one hand, depicted the transformations wrought by colonial authorities in the law of natives. The practices of the colonial authorities albeit with the active participation of native authorities had an impact on the forms of punishment in the society. As the result, in the instant case, instead of exacting vengeance, the immediate family of the deceased was “content” with leaving punishment to the British courts and officials. On the other hand, the case showed the resilience of

African norms and customs, because despite the use of the foreign court, the people still had the need to fulfill “native law.”

Colson noted that:

With the presence of the British administration, the Northern Rhodesian police, the government-instituted chiefs with their courts and messengers, there is effective force to prevent the mobilization of units in vindictive action. But underneath this superstructure one can still see the interplay of the old forms of social control based on the interaction of kinship and local groups. These still work to reach over and above that which can be obtained through the courts. They are interested, not in the punishment of the offender, but in the re-establishment of good relations between the groups involved.374

Fallers,375 writing on the Busoga of Uganda, noted that the locals‟ memory of the pre- colonial phase was contaminated by their experiences of the new political and legal order

374 Id at 199.

375 See LLOYD FALLERS, LAW WITHOUT PRECEDENT: LEGAL IDEAS IN ACTION IN THE COURTS OF COLONIAL BUSOGA, 40 (1969).

introduced by colonialists. He referred to the Busoga legal system as one that had been thoroughly impacted by British rule and the work of missionaries. Fallers also contended that though the Busoga had accepted a great deal from outside, they had also retained a strong sense of identity, integrity, unity and continuity with the past.376

The changes wrought by colonial rule on native law and chiefs‟ courts with active participation of chiefs were detested by post-colonial African governments.377 In post- colonial Ghana, chiefs are banned from politics and local government but they have limited judicial powers.

2.3.3. Post- Colonial Perspective (With Special Reference to Ghana)

Chiefs‟ courts are in operation in many African countries.378 They have been described as informal dispute resolution systems, which have existed, although not without change, since pre-colonial times and are generally found in rural areas.379 The courts are headed by chiefs or headsmen appointed from within the communities on the basis of status and lineage.380 These courts are usually not backed by the enforcement powers of the state.381

These courts are found not only in the more remote rural areas, but also in urban areas

376 Id.

377 See DAVID APTER, GHANA IN TRANSITION, supra note 314 at 119.

378 See S. A. BROBBEY, THE LAW OF CHIEFTAINCY IN GHANA, 367 (2008), where he wrote that places where people settled disputes among African communities included chiefs‟ palaces and houses of prominent citizens, heads of families, and opinion leaders.

379 See PENAL REFORM INTERNATIONAL, ACCESS TO JUSTICE IN SUB-SAHARAN AFRICA, 11(2001).

380 See id PENAL REFORM INTERNATIONAL at 22.

381 Id.

and provide vital judicial services for poorer members of the community.382 They are accessible to people even in highly rural areas and provide services in the local language.383

Their dispute resolution system is familiar to users. The informal nature of the courts facilitate efficient disposition of cases.384 They entail low operating costs and promote reconciliation in a way that formal trials at state courts do not.385 Chiefs‟ courts in Africa exist because they are beneficial to communities.386 Bennett contended that the courts are cheap, the language used is familiar and the procedures are simple.387 He noted also that the courts do not use lawyers and court officials.388 All these, he asserted appear as virtues rather than vices.389

But chiefs‟ courts have been criticized for their sub-standard record with respect to human rights. They sometimes impose physical punishment.390 A form of physical punishment in Mozambique consists of blows administered by a heavy wooden object.391

382 Id.

383 See id at 25.

384 Id.

385 Id.

386 Id.

387 See T. W. Bennett, Traditional Courts and Fundamental Rights, supra note 139 at 164.

388 Id.

389 Id.

390 See M. P. G. Meneses, Traditional Authorities in Mozambique: Between Legitimization and Legitimacy, in THE SHADE OF NEW LEAVES, supra note 139 at 93.

391 See id at 113. 68

Some argue that justice at these courts more accurately reflect unequal bargaining power rather than just compensation.392 Feminists393 contend that “customary laws” used at chiefs‟ courts are inadvertently gender biased.394

In many countries, issues of gender bias have been resolved by just adding women to various institutions and structures. The approach has not worked in Africa.395

Mackinnon396 refers to such measures as formal equality which has little effect on women‟s daily lives.397 She argues that gender sensitive law reform should focus on the removal of the power differential or patriarchal structures that demand different treatment of the sexes.398 Bowman399 advocates the use of human rights standards as the measure to eliminate differential treatment and to resolve gender inequality and injustice.400

392 Id.

393 See generally, C. N. BOWMAN & A. KUENYEHIA, WOMEN AND LAW IN SUB-SAHARAN AFRICA, (2003). This book documents that “customary law” positions on inheritance, succession, acquisition of property, sexual and reproductive rights are all unfavorable to women.

394 See Id.

395 See J. Ahikire, Towards Women‟s Effective Participation in Electoral Processes: A Review of the Ugandan Experience, in 3 FEMINIST AFRICA, (2004), where it is noted that in Uganda, just adding women to “customary” courts did not make much impact on the outcomes of the court processes because the women elected to those courts were out of touch with the daily lived realities of the people.

396 See C. A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW, (1987).

397 See id at 496.

398 Id.

399 See generally, C. N. BOWMAN & A. KUENYEHIA, WOMEN AND LAW IN SUB-SAHARAN AFRICA supra note 398.

400 Id.

The legal framework for the structure and recognition of chiefs and their courts in contemporary Ghana, is found in a number of legislations like the 1992 Constitution, the

Chieftaincy Act, 2008 (Act 759) and the Courts Act 1993 (Act 459). The Constitution401 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.402

The Constitution prohibits chiefs from taking part in active politics; and any chief wishing to do so and seeking election to Parliament must abdicate his stool or skin.403 But a chief can be appointed to any public office for which he is qualified. Furthermore, a person cannot be a chief if he has been convicted for treason or for an offence involving the security of the state, fraud, dishonesty or moral turpitude.404

Chiefs do not have criminal jurisdiction. Under the Constitution and the Criminal

Offences Act, 1960 (Act 29), criminal cases are not to be litigated at chiefs‟ courts.

Section 8 of the Criminal Offences Act, prescribes that “no person shall be liable to punishment by the common law for any act.” The common law in Ghana includes

401 See the 1992 Constitution of Ghana, at art. 277.

402 See id. See also KLUDZE, CHIEFTAINCY IN GHANA, 26 & 99 (2000), where he explained that among the Ewe, Ashanti, Fanti, Akyem, Akwapim, Ga-Adangbe and other communities of the southern regions of Ghana, the chiefs‟ symbol of office is the stool. Upon installation, chiefs are introduced to the sacred stool which is carved out of wood. The chief is therefore said to be enstooled. Communities in the Northern, Upper East and Upper West Regions of the country are enskinned on animal skins. The skin is therefore their symbol of authority.

403 See the 1992 Constitution at art. 276.

404 See id at article 275.

customary law.405 Under the Criminal Offences Act, only the state courts have the mandate to deal with criminal cases. The Constitutional limit to criminal jurisdiction is also found under article 19 (5) which states that:

A person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence.

In the case of Debrah v The Republic,406 the charge against the accused person was that he had behaved in a disrespectful and insulting manner to a chief. The accused, a mason, had collected stones from the frontage of the chief‟s place. Such conduct, it was alleged, was contrary to the Kadjebi custom. He was summoned to the chief‟s palace and fined. He refused to pay the fine, and said so to the chief without going through the linguist, as prescribed by custom.

The accused stormed out of the palace but was subsequently arrested for disrespectful conduct toward the chief. His appeal to the Supreme Court was upheld because, apart from doubting the existence of the custom, the court held that a person ought not to be punished for an act which had not been prescribed as an offense. The Supreme Court went on to say that the rationale for prohibiting the prosecution of common law offenses also holds good for “customary law” offenses. Such a prescription, the court stated, was to ensure that capricious and unintelligible customary offenses could be subjected to scrutiny and eliminated where appropriate.

405 Article 11 of the 1992 Ghanaian Constitution.

406 (1991) 2 GLR 523.

In the case of Gym v. Insaidoo,407 the plaintiff sued the defendant for the return of certain articles he had seized from her room eight years ago. The action was instituted after many abortive demands made by the plaintiff over a period of seven years for the return of her things. The defendant‟s case was that he had been customarily married to the plaintiff. He asserted that the plaintiff stole his money from the room he shared with her whilst he was in hospital. He claimed that he had previously taken the plaintiff before a chief‟s arbitration panel, which held that she took the money. The rationale for the chief‟s decision was that the plaintiff and the defendant were the only persons occupying the room where the money was alleged to have been stolen.408

The plaintiff denied stealing. The court held per Koranteng-Addow J. that:

The proceedings before the arbitrators were a nullity in law, being ultra vires and illegal. The matter the arbitrators purported to try is in the nature of a crime, that is to say, stealing. It is an offence which could only be tried by a court of competent jurisdiction.409

The implications of the above statutes and the cases are very far reaching. In the first place, the proscription of criminal jurisdiction of chiefs, as explained above, means that criminal cases can only be prosecuted at state courts. Any attempt otherwise would be illegal.

407 (1965) GLR 574.

408 Id at 577.

409 Id at 580.

Indeed, Article 19 (11) of the same Constitution states that:

No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law

From the above, since “customary law” used at chiefs‟ courts is unwritten then as it relates to crimes, the chiefs do not have jurisdiction. In the second place, the assumption from the proscription of criminal cases at chiefs‟ courts is that, the state courts would be adequate and able to prosecute all cases. Thereby this fulfills the obligation to provide access to justice for all.

Such an assumption, however, does not translate into reality and chiefs are still hearing criminal cases at their courts. An example is the case of assault on a boy that was brought before Ewe chiefs in the Volta Region of Ghana.410 In the case, the plaintiff‟s son served as a “cowboy”411 with the first defendant. According to their written agreement, the defendant was to compensate the boy for his labor with a cow at the end of three years service. After three years, the boy would be returned to his parents to attend school.

The boy did not return and it was only after an additional two years when the plaintiff went to the village to ascertain what had happened. To his shock, he found his son with his left leg almost split open.

According to the son, the first defendant beat him repeatedly on the left leg with a club, resulting in the injury. This was a case of assault, battery and child abuse that ought

410 This case is from the personal written record of cases of a chief, lodged in his house. See also pages 96- 145 on Findings of this dissertation that reported on several criminal offenses taken before chiefs.

411 The word used means a boy who looks after cows or herds cows. 73

to have been taken before the state courts but the victim‟s family chose to litigate before the chiefs. At the chief‟s court, the first defendant corroborated the story, admitted liability and expressed remorse for his action. The first defendant stated that he beat the victim because the boy chose to play instead of rounding up the cows.

The court invited a photographer to take a picture of the victim‟s leg. The court also asked the second defendant to be joined to the case because she was related to both the defendant and the plaintiff. She was a mother and the wife of the first defendant. She was also the direct paternal aunt of the victim. It was because of her relations with the plaintiff that his son was released to the first defendant to serve as a “cowboy.” The boy was then merely seven years old.

The plaintiff wanted the first defendant to explain why he had caused harm to the boy. In addition, the plaintiff claimed compensation for the harm the defendant inflicted on the boy. The plaintiff also claimed that the boy should receive medical care at the expense of the first defendant until the boy is declared fit by a qualified medical doctor.

The plaintiff also demanded that the first defendant pay all expenses the plaintiff incurred in bringing the case before the chiefs.

The chief and his elders held that the first defendant compensate the boy a sum equivalent to 1,500 US dollars. The sum was to be deposited in an account for the boy until he turned 18 years. The first defendant was also to pay a sum equivalent to 300 US dollars in lieu of one cow to the boy for the three years he served as “cowboy.” The court also held that the boy was to be sent to an orthopedic medical center for examination. The

court held further, that medical care should continue until the boy‟s leg is declared fit by a medical doctor. The chiefs‟ court also fined the second defendant an equivalent of 42

US dollars for failure to counsel her husband on his conduct toward the boy and for her failure to report the boy‟s condition to the plaintiff.

Also, all expenses incurred by the plaintiff on the case, amounting to 87 US dollars were to be paid by the first defendant. In addition, the court reprimanded the plaintiff, the father of the boy, for allowing his son to continue serving as a “cowboy” when the boy reached school age. The plaintiff was fined an equivalent of 14 US dollars. Two members of the first defendant‟s family were asked to sign a promissory and commitment note as sureties, for the first defendant, to pay the money when he defaults.

With every law, there are exceptions, and these exceptions to the ban on criminal jurisdictions of chiefs‟ courts can be found under section 73 of the Courts Act, 1993 (Act

459). The section allows state courts to promote reconciliation in some criminal cases before them:

A Court with criminal jurisdiction may promote reconciliation, encourage and facilitate a settlement in an amicable manner of an offence not amounting to felony and not aggravated in degree (emphasis mine) on payment of compensation or on any other terms approved by the Court before which the case is tried, and may, during the pendency of the negotiations for settlement, stay the proceeding for a reasonable time and in the event of a settlement being effected shall dismiss the case and discharge the accused person.412

412 The Courts Act, 1993, sec. 72(1) & (2).

Under this provision chiefs can settle or mediate criminal cases but only under the express orders of state courts.

Under the Ghana Chieftaincy Act, 2008 (ACT 750), chiefs have the mandate to arbitrate civil cases that the parties consent to bring before them.413 The above mandate relates to “customary” arbitration in civil cases like land matters, marriage, divorce, inheritance and succession.

Criticisms have been leveled against the use of the term “customary arbitration” to describe “customary” dispute resolution processes. Agbosu,414 for example, saw the term as erroneously equating indigenous adjudication process under “customary law” with arbitration under English law. Agbosu noted that, the only difference between initiating an action at the courts under English common law and doing so under the indigenous systems of law is the procedure by which it is done.415 Under the former system, action is initiated by following a well-defined procedure by which all proceedings become documented. In the case of the latter system, initiation of the complaint and the process are conducted orally.416

413 See sec. 30 of Act 759.

414 See L. K. Agbosu, Arbitration under the Customary Law, Review of Ghana Law, 204 (1983-86), at 208-209,

415 Id.

416 See id.

Agbosu saw no tangible reason why one should be considered as proper and competent adjudication while the other is something else such as “arbitration.”417 The difference only relates to form and not substance. Allott418 also asserted that interpreters must be blamed for selecting the English noun “arbitration” to identify proceedings of chiefs in their effort to translate the institutions of “customary law” into English. The inevitable consequence he noted is the constant confusion about the law on customary arbitration.

Kludze419 also took exception to use of the term “arbitration” in referring to the judicial function of chiefs. He contended that the judicial functions of chiefs have been usurped by the state courts and proceedings in the chiefs courts are now relegated to the status of informal “arbitration”.420 According to Kludze, a notable feature of the Northern

Ewe legal processes and institutions is the apparent lack of technicalities. The lack of technicalities has misled observers and institutions to describe the system as informal and to call its adjudicatory process “arbitration.”421 All the above authors make valid arguments. This dissertation suggests that a better word to describe dispute resolution before chiefs is “customary adjudication” instead of “customary arbitration.”

417 Id.

418 See A. Allott, Customary “Arbitration” in Nigeria: A Comment on Agu v. Ikewibe, 42 J. A. L. 231(1998).

419 See A. K. P. KLUDZE, CHIEFTAINCY IN GHANA, 27 (2000).

420 See A. K. P. Kludze, Legal Processes and Institutions, 70, in A HANDBOOK OF EWELAND, THE NORTHERN EWES IN GHANA, (Kodzo Gavua ed., 2000).

421 Id.

Guidelines on “customary arbitration” are laid down in the case of Budu II v.

Caesar.422 The case established that for a valid customary arbitration, there must first be voluntary submission of the dispute by the parties to arbitrators. The intention is for the dispute to be decided informally, but based on its merits. Second, there must be a prior agreement by both parties to accept the award of the arbitrators.423 Third, the award must not be arbitrary, but must be arrived at after hearing both sides in a judicial manner.

Finally, there must be publication of the award.424

Commenting on these guidelines, it was argued in the case of Tanor v. Dapomah,425 that it is rare to find parties to a dispute in agreement before-hand to take the dispute to the chiefs or elders. Subsequent cases of Asare v. Donkor426 and Paul v. Koko,427 decided that to constitute submission of a dispute to arbitration, there must be evidence that the full implications of the purpose of the arbitration was explained to each party. The cases

422 See (1959) 1G. L. R. 410.

423 See also Asano v. Taku (1973) GLR 312, where prior agreement was said to have been established by the plaintiff swearing an oath and the counter response by the defendant. Also, prior agreement is sometimes held to have been established when there is the payment of an arbitration fee before the start of arbitration or before the award is published.

424 See also the case of Gberbie v. Gberbie (1966) GLR 789, where it was held that for a valid arbitration, the award must not be arbitrary but must be arrived at after both sides have been heard in a judicial manner; meaning that all parties and their witnesses must be heard. See further, the case of Tanor v. Dapomah (1960) GLR 241, where the court held that for a case to be conducted in a judicial manner, no arbitrator must be a judge in his own cause. In that case, the arbitration award was not accepted because one of the disputing parties was married to the chief, who was one of the arbitrators. The case of Nyame v. Yeboah (1961) GLR 281 also explained that the rules of natural justice meant that an arbitrator must not exceed his powers but must act strictly according to the reliefs and redress sought by the parties.

425 Dictum of Bossman J in Tanor v. Dapomah (1960) GLR 241, 244.

426 (1962) 2 G. L. R. 176, SC

427 (1962) 2 G. L. R. 213

also established that the parties must agree that the person or persons before whom they appeared should arbitrate upon their dispute and give a decision.

Customary arbitrations are binding on the parties and the decisions and awards made by the arbitrators can be enforced at the state courts.428 Also, the losing party cannot bring an action in court against his opponent in respect of the same subject-matter that was arbitrated upon.429 A party dissatisfied with a chiefs‟ decision in a civil case, could challenge the decision at a state court. In the case of Omanhene Kobina Foli v. Chief

Obeng Akesse,430 for instance, the state court set aside an arbitration award because the chief had exceeded his agreed terms of reference. In another case of Gberbie v.

Gberbie,431the court set aside the decision because one party was not given a fair hearing.

When the guidelines in Budu II v. Caesar described above are not followed, the decision of any customary arbitration would, at best, be regarded as the result of a negotiated settlement. The distinction between customary arbitration and negotiated settlement (mediation) is very important because dispute resolution occurs at all levels in society but many are only attempts by parties to find amicable resolution to their differences. In most cases parties do not intend that they would be bound by decisions of the mediators. Customary arbitrations of chiefs in civil cases are binding and the process is adjudicatory.

428 See E. D. Kom, Customary Arbitration, 160 (1983).

429 Id.

430 (1934) 2 WACA 46 at 51.

431 (1966) GLR 789 at 794.

According to Brobbey:432

Customary arbitration is an adjudicatory process. The arbitrators decide the dispute for the parties. It may allow the parties to participate in the discussions … but the actual decision, judgment or award is arrived at by the arbitrators who hand it down to the disputants.433

The ruling of the Supreme Court in the case of Aniamoah v. Otwiraah,434 illustrated the difference between arbitration and a negotiated settlement. The case, a boundary dispute, was first taken before a female chief, called a queen mother. The negotiations failed because the defendant refused to accept her decision. Three years later both parties voluntarily submitted the dispute to another chief for arbitration. The chief favored the defendant. The plaintiff was dissatisfied.

The case went on appeal to the Supreme Court, which held for the defendant, that the proceedings before the queen mother constituted only a negotiation for a settlement. The proceedings before the queen mother were a negotiation for settlement because there was no finality and no valid arbitration. The court stated that the proceedings before the second chief constituted a valid and effective arbitration. The court also held that the plaintiff had voluntarily submitted to that forum and indicated his intention to be bound by the decision. Another case, Zogli v. Ganyo,435 established that the result of a

432 See S. A BROBBEY, THE LAW OF CHIEFTAINCY IN GHANA, supra note 335 at 375.

433 Id.

434 (1961) 1 G. L. R. 405, SC.

435 See (1977) 1 G.L.R 297

negotiated settlement could also be as binding on the parties as an arbitration award, if it was accepted by both parties.

The 1992 Constitution gave chiefs exclusive jurisdiction as judges in all chiefly matters and disputes relating to the nomination, election, selection, installation or withdrawal of recognition of a person as a chief.436 This jurisdiction is to prevent government interference with matters involving chiefs. The jurisdiction is only shared with the Supreme Court. The Supreme Court is mandated by the Constitution to hear appeals relating to decisions of chiefs on such matters.437

The Constitution provided structures for chiefs to carry out this mandate by establishing the National House of Chiefs,438 the Regional Houses of Chiefs439 and the

Traditional Councils.440 There is one National House of Chiefs for the whole country.441

This House has appellate jurisdiction in matters relating to nomination, election, selection, installation or withdrawal of recognition of a person as a chief.442 The House receives appeals in these matters from decisions of the Regional Houses of Chiefs.443 An

436 See the Constitution at art. 270 (3).

437 Id at art. 273 (1).

438 Id at art. 271.

439 Id at art. 274.

440 See id at art. 270 (1). See also the Chieftaincy Act, 2008 (Act 759).

441 See id.

442 Id at 273 (1) & (2).

443 See id.

appeal from a decision of the National House of Chiefs can be made to the state Supreme

Court.444

The National House also advises any person or authority on matters relating to chiefs.445 The House has the mandate to study, interpret and codify “customary law.”446

In addition, the House has the duty to compile the “customary laws” and lines of succession applicable to each chief.447 It also has the mandate to undertake an evaluation of traditional customs and usages.448 The House also performs any functions assigned to it by Parliament.449

The National House of Chiefs is made up of paramount chiefs elected from all the

Regional Houses of Chiefs.450 Appeals are heard by the judicial committee of the House.

This Committee is made up of five members elected from the House.451 The Judicial

Committee is assisted by a lawyer with not less than ten years experience. The lawyer is appointed by the House on the recommendation of the Attorney-General.452

444 See id.

445 See the 1992 Constitution at art. 272.

446 Id.

447 Id.

448 Id.

449 Id.

450 See the 1992 Constitution at art. 271.

451 See id. at art. 273 (2).

452 Id at art. 273 (3).

Regional Houses of Chiefs are established in each of the ten regions of the country.453

The Houses have original jurisdiction in all matters relating to paramount chiefs and queen mothers within their regions.454 They also hear and determine appeals from the

Traditional Councils in respect of matters relating to the nomination, election, selection, installation or withdrawal of recognition of a person as a chief.455 The Houses also perform any functions conferred on them by Parliament.456 In addition, the Regional

Houses advise on issues relating to chiefs in their regions.457

The Constitution enjoins them to undertake studies on disputes between chiefs in their regions and to make recommendations for the resolution or expeditious disposition of such disputes.458 The Houses are also to undertake compilation of the “customary laws” and line of succession applicable to each chief.459 The membership of this House is determined by Parliament.460

Original and appellate jurisdiction of the Regional Houses of chiefs is exercised by

Judicial Committees of the Houses. The Committee consists of three chiefs appointed by

453 See the Constitution at art. 274 (1).

454 See id at art. 274 (1 ) (d).

455 Id at art. 274 (3) ( c).

456 Id at art. 274 (3 ) (a).

457 Id. at art. 274 ( 3) ( b).

458 Id. at art. 274 (3) ( e).

459 See id at art. 274 (3) (f).

460 Id. at art. 274 (1).

the House from among its members.461 The Judicial Committee is assisted by a lawyer with not less than five years experience who is appointed by the House on the recommendation of the Attorney-General.462

Traditional Councils are established in all areas under jurisdictions of paramount chiefs.463 Membership is made up of the paramount chief and other chiefs falling under his jurisdiction.464 They have the exclusive mandate to hear and determine cases involving chiefs within their area with the exception of cases involving the paramount chiefs.465 This judicial power of the Traditional Councils is exercised by Judicial

Committees. This Committee comprises three or five members of the Council.466 The

Traditional Councils also have jurisdiction in matters dealing with the election, installation and withdrawal of recognition of the chiefs. 467 Any chief dissatisfied with a judgment or an order given or made by a Traditional Council has right to appeal to the relevant Regional House.468

461 Id. at 474 (4).

462 Id at art. 474 (5).

463 See sec. 12 of Act 759.

464 See sec. 24 of Act 759.

465 See sec. 29 of Act 759.

466 Id. sec. 29 (2).

467 See chapter 22, articles 270 to 277 of the 1992 Constitution.

468 Id at 29 (3).

The law used at all the above mentioned chiefs‟ courts in all matters is “customary law.” In Ghana, article 11 (1) of the 1992 Constitution provides that the laws of Ghana comprise the following:

(a) The Constitution (b) Enactments made by or under the authority of the Parliament established by the Constitution (c) Any orders, rules and regulations made by any person or authority under a power conferred by the Constitution (d) The existing law; and (e) The common law

The Constitution under article 11 (2) explains that the common law of Ghana comprises “the rules of law generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.” The

Constitution goes on to state under article 11 (3) that, “customary law” means the rules of law which by custom are applicable to particular communities in Ghana.”469 From the above, to find “customary law,” one must look at custom and the decisions of the superior courts.

Customs are “the body of standardized patterns of behavior which have been established by the usages and observances of the people and having the force of law.” 470

Customs are not specially promulgated but rather established by popular practice and

469 See also E. D. Kom, Customary Arbitration, Rev. of Ghana Law, 148 &149 (1983-86), who stated that all constitutions which this country has had since independence as well as the various Courts ordinances, Decrees and Acts, have all provided for the preservation of customary law as part of the law of the land.

470 See MENSAH BROWN, INTRODUCTION TO LAW IN CONTEMPORARY AFRICA, 32 (1976).

long usage.471 They are separate from various social, moral or religious norms and serve as sources of legal ruling in the administration of justice.472 There is general knowledge of content of “customary law” by all indigenes. In the words of Sarbah:

Law emanating from this source must be published…knowledge is brought about by the beating of the Gong-gong, especially, in areas where people are likely to be affected by the law.473

As already mentioned, the current Ghanaian Constitution directs that to determine

“customary law” rules, one must also look at those rules “determined by the Superior

Court of Judicature.”474 In Ghana, the superior courts include the High court, the Court of

Appeal and the Supreme Court.

In interpreting their mandate, judges rely on expert witnesses. These witnesses are the elders and chiefs within the various communities. In the case of Golo III v. Doh,475 the issue in contention related to establishing whether the Ewe Kpeve community was patrilineal or matrilineal. Among the witnesses at court was an elder from Kpeve. He was

471 Id.

472 He referred to some of these laws as the juridical incidents of kinship and marriage, land tenure, guardianship, some rules of inheritance, wrongs such as insult and assault and defamation. Others are the acquisition of rights in land, matters involving the family relationship- husband and wife, child and parent, marriage and divorce and chieftaincy.

473 SARBAH, FANTI CUSTOMARY LAW, p. 33. See also BRODIE CRUICKSHANKS, 18 YEARS ON THE GOLD COAST, Vol. 2, 55 (1853) who noted that the Ahanta people of the Gold Coast (now Ghana) revised their laws at their annual harvest festival.

474 See the 1992 Constitution of Ghana. See also Gordon Woodman, Customary law, state courts, and the notion of institutionalization of norms in Ghana and Nigeria, in PEOPLES LAW AND STATE LAW, THE BELLAGIO PAPERS,144 (Allott & Woodman eds.1985), where he mentioned that the post colonial governments also retained the powers given to superior courts to apply any existing law and custom. See also article 40 of the 1960 Constitution, article 126 of the 1969 Constitution and article 4 of the 1979 Constitution.

475 (1966) 1 GLR 447.

well acquainted with the inheritance laws of Kpeve. He testified that inheritance was patrilineal in relation to both real and personal property. The elder‟s evidence on the matter was not contested and the High Court judge, Justice Jiagge, accepted his evidence as the proper law on the matter.

Apart from using expert witnesses, the superior courts only accept “customary law” that enjoys notoriety and is not repugnant to natural justice, equity and good conscience.476 In addition, the law must not be incompatible directly or indirectly with any enactment in force.477 Ollenu explained “notoriety” to mean that it is not enough that evidence has been led in court to prove the veracity of a rule of “customary law.” The custom must be shown to exist in the locality and to be generally accepted as binding.

The custom must not be just a practice which has sprung up within recent years for the convenience of a few in the community. But the custom does not need to be shown to have existed from time immemorial. Ocran478 explained that the “repugnancy clauses” embody relics from the colonial era, where not all customs were tolerated as having the force of law under the British dispensation.479

476 See OLLENU, THE LAW OF TESTATE & INTESTATE SUCCESSION IN GHANA, 59 (1966).

477 See id.

478 See Modibo Ocran, “The Clash of Legal Cultures: The Treatment of Indigenous Law in Colonial and Post Colonial Africa, 39 Akron L. 465 (2006), where he noted that British law introduced by the colonial administrators replaced indigenous laws whenever the colonial administration felt that the indigenous laws were repugnant to natural justice, equity and good conscience. In addition, he explained that, only customs that were recognized as in existence at the time of the establishment of colonial legislature in any particular country were considered relevant.

479 See id.

Repugnancy clauses were used by British judges to reject claims brought before colonial courts based on “customary law.” An example is the case of Kodieh v. Affram480 where the court refused to accede to a claim of a chief, based on the premise, that a deceased person was his ceremonial slave and his executioner. The court held that slavery was illegal because it was repugnant to natural justice, equity and good conscience. Also, in the case of Amachree v. Kallio,481 the plaintiff community claimed that under native law and custom, it had exclusive fishing rights to a river and that the defendant community could only fish in that river if it paid acceptable tribute. The court declined to enforce such a right because it was “contrary to the principles of natural justice and equity.”482

State courts produced a great deal of jurisprudence on “customary law” leading to many restatements of the law. Kludze has argued that the problem with judges interpreting and determining these customs and laws is that by so doing, the native laws and customs become crystallized even if made in error.483 He explained that once a customary law rule has been established by judicial declaration, all other courts are bound to follow that rule until it is abolished by the Legislature or a higher court. Casting native

480 See (1930) 1 W. A. C. A. 12.

481 See (1914) 2 NLR 108.

482 Id.

483 See also Kludze A. K. P., Evolution of the Different Regimes of Customary law in Ghana within the Framework of the Principle of Stare Decisis, in PEOPLE‟S LAW AND STATE LAW: THE BELLAGIO PAPERS 97, 99 (Allott & Woodman eds., 1985),

law and customs into codified form and fixed rules, renders previously flexible unwritten pre-colonial customs and practices inflexible.484

Kom485 also contended that all the law we know on the subject of customary law arbitration is to be found in the decisions handed down by judges from 1883 to the present day. In his words:

No attempt has been made to codify these decisions and there is no statute which can be looked at as the primary source of the law governing customary arbitrations. To find the true position of the law one has to go to the Law Reports. If one is lucky to come across a decision, one must research further to find out whether that decided case has been overruled, reversed or doubted in a later case or cases.486

The above words of Kom mean that like any law, determining the “customary law” position on a matter is not an easy task but one that involves research and precedence. As a result, “customary law,” the law used at chiefs‟ courts, is not static even during post- colonial times.

484 Id.

485 See E. D. Kom, Customary Arbitration, supra note 433 at 44.

486 Id.

3. METHODOLOGY

This is a descriptive socio-legal study that involved review of written court documents including archival colonial criminal record books and current state court documents. It also involved in-depth interviews of Ewe chiefs and litigants and direct observation of proceedings at Ewe chiefs‟ courts.

The Ewes inhabit south-eastern Ghana and southern parts of the Republics of Togo and Benin. Attached to this dissertation is a map showing the Ewe in Africa, marked

Appendix 1. They constitute a sizeable population of Ghana and are about two million people.487 They are found in the Volta Region and form 68.5 per cent of the population in the region.488 The Volta Region is located along the southern half of the eastern border of

Ghana, which it shares with the Republic of Togo. On the west, the region shares boundaries with the Greater Accra Region, the Eastern and Brong-Ahafo Regions. It is bounded on the north by the Northern Region and on the south by the Gulf of Guinea.

Most of the territory occupied by the Ewe was previously part of the German protectorate Togoland, transferred to the British following World War I under the League of Nations, after the partition of Togoland into French Togoland and British Togoland.

After World War II, the mandate became a United Nations trust territory. This territory was administered by the United Kingdom alongside the adjoining territory of the Gold

Coast and the territory became known as Trans-Volta Togo. Before independence and in

487 The Regions population in the 2000 Census was 1, 635,421. See also the website of Ghana Resource Center at http://www.modernGhana.com, last visited on 03/08/08.

488 For more Information on the Ewe people see generally, ASAMOA, THE EWE OF SOUTH-EASTERN GHANA AND TOGO ON THE EVE OF COLONIALISM, supra note 63 at 1. See also K. GAVUA, A HANDBOOK OF EWELAND, Vol. II: THE NORTHERN EWES IN GHANA, supra note 63, where the authors gave historical accounts of the people. 90

elections held under United Nations supervision, fifty-eight percent of registered voters from this region opted for formal integration into an independent Gold Coast (now

Ghana). The Union became present day Ghana on March 5th 1957.

The research could not be conducted in all Ewe towns in the Region. As with all qualitative research, the nature of the sampling method adopted in this research depended greatly on the goals and the practicalities of the research.489 The practicalities of the research demanded that not every Ewe town in the Volta Region could be visited. The

Ewes occupy three areas of the Volta Region – the northern group (Ewedome area), the southeastern group (Anlo area), and the southwestern group (Tongu area). Most people in these areas speak closely related dialects of Ewe and each of these groups is divided into administrative local councils made up of a number of towns.

In order to get representative views from all these areas, a list was made of all major towns and another of all rural communities or smaller towns in all the Ewe groups noted above. This sampling method helped to achieve the goal of ensuring that every member of the population (rural or big towns) had a chance of being included in the sample.

Furthermore this procedure minimized human judgment or bias in the election process.

Using a random selection mechanism like the lottery-type procedure,490 six locations, three representing the bigger towns and the other three, the smaller or rural towns were selected from two well-mixed bowls of names of all big and small towns.

489 See Gary T. Henry, Practical Sampling, in A HANDBOOK OF APPLIED SOCIAL RESEARCH METHODS, (L. BICKMAN & D. ROG, eds., 2000). See also JOHN LOFLAND & LYN H. LOFLAND, ANALYZING SOCIAL SETTINGS, 21-29 (1984).

490 See id, Gary T. Henry, at 107. 91

The chiefs and inhabitants of the locations chosen in this manner formed the research subject or population. State and chiefs‟ courts used were those within the locations selected. The research sites selected through this procedure were Kpando and Anfoega representing the Ewedome area, Sogakope and Tefle representing the Tongu area and

Wuti and Afife representing the Anlo area. Attached to this dissertation is a map of the research sites, marked as Appendix 2.

The study used data collection techniques best suited to the information sought. In order to find out the range of criminal offenses among the Ewe during the colonial era, this research used data from colonial criminal court records. This was the best method to collect such data since dependence on recollections like oral histories are no longer plausible for such a study. The data on the range of criminal offenses among the Ewe during the colonial era was compiled from the 1920 and 1940 colonial criminal record books.

The year 1920 was used as a starting point because that was the earliest recording of criminal cases involving all locations under this research. Before 1920 though and as far back as 1893, travelling courts under British Judicial Assessors were hearing cases at

Keta town in the Anlo area. Keta town is not part of the areas under this research. Cases recorded in the 1930‟s criminal record books were not used because they were difficult to access. Cases for certain periods were missing, while many that were available were illegible because the documents were old and poorly kept.

Generally, it was difficult to get data for cases for a continuous length of time. All cases were handwritten and had become worn-out over time. Also, cases were not chosen

from 1950 because by then, career magistrates had been established and appointed to local courts and chiefs‟ positions as judges had been formally abolished. The 1920s criminal record of cases found in Keta district was incomprehensible in many parts.

Cases were therefore, taken from the 1940 criminal record book, which appeared complete enough to provide a range of offenses seen and the judges involved.

It is conceivable to argue that the cases are not representative enough, because they do not cover all the years of colonial rule and also because no record was made of cases decided by chiefs in the criminal record books. Indeed, the research revealed that none of the cases in the criminal record books covering these periods included documents of chiefs engaged as judges. The data reflects offenses before British district officers and not chiefs and only serves as examples of offenses among the Ewe during the colonial era.

Data on the criminal dispute resolution process at chiefs‟ courts were gathered following the methodology of personal observation used by ethnographers.491 Data were gathered through attendance and direct observation of sixty dispute resolution sessions at chiefs‟ courts to document the way people dispute in the post-colonial era. The research particularly explored the nature of these courts; how they are constituted, the types of cases handled and the steps involved in hearing cases. Data were also collected from forty-seven in-depth interviews of chiefs to learn about the process, the kinds of penalty

491 See for example personal observation methodology of ethnographer Susan Hirsch; S. F. HIRSCH, PRONOUNCING AND PRESERVING, GENDER AND DISCOURSES OF DISPUTING IN AN AFRICAN ISLAMIC COURT, (1998). 93

given to those found guilty and the measures put in place to ensure that decisions are enforced.

Several field trips were made to the research sites. Chiefs and elders are the traditional leaders in society and initial visits were made with local contacts to seek help in being introduced to chiefs and to book appointments. The researcher herself is Ewe and communicated with interviewees in the Ewe language. In-depth interviews of chiefs were done using pretested unstructured interview protocols with open-ended questions.

Copies of the Interview Protocols are attached to this research as appendix 3.

Furthermore, the intention of this research was not only to capture the essence of dispute resolution processes but also to glean some understanding of the thought process behind decisions to either litigate at chiefs‟ courts or state courts. Therefore, structured survey questions were not used and instead, personal narratives through in-depth interviews of the research population were chosen.

The research employed purposive sampling method in the choice of people to interview, because there is no accurate data on people using either the formal courts or the chiefs‟ courts. The eighty-three people interviewed were the actual litigants found using the formal courts and the chiefs‟ courts. Information was gathered on acceptability of chiefs‟ courts to the people. Information was also gathered on the local factors that influenced the choice between state courts and chiefs‟ courts in resolving disputes in the various communities. Attached to the research is the Interview Protocol marked as

Appendix 4.

The researcher recorded all the interviews by note taking. Some phrases were recorded verbatim in the local dialect for better translation later. The field notes were later transcribed but names of interviewees was not collected as part of the data.

Thematic analysis was done. The results have been presented based on the themes emerging from the interviews and the set objectives of the study. The study involved an accumulation of five months field work among the people.

Prior to that, a month was taken for introduction to the research subjects. The limitation to this work is that, the study was done only among the Ewes in the above research population in Ghana and does not represent all people referred to as Ewe. The above shortcoming did not detract from the work.

4. CHIEFS’ COURTS AS JUDICIAL INSTITUTIONS AMONG THE

EWE OF GHANA

4.1. RANGE OF CRIMINAL OFFENSES AMONG THE EWE : 1920 &

1940

This section presents the findings on the range of criminal offenses among the Ewe during colonial era and the judges involved as documented in the colonial criminal record books from court archives. The review of the colonial criminal record books was an indirect but the most reliable means of ascertaining the range of criminal offenses during colonial times. This method was used because oral histories could not be obtained from current chiefs who did not live in those times.

The review of the records set off to outline the range of criminal offenses seen, the judges and the type of rulings given at the colonial courts in Kpando and Keta districts.

The entries in the colonial criminal record books were made under various districts and only districts covering the research sites were studied. One was Kpando district, which covered the towns of Kpando and Anfoega.

The other was Keta district which covered the towns of Tefle, Sogakope, Afife and

Wuti. The Kpando district recorded a total of one hundred and five criminal offenses in

1920 for a continuous period of eleven months. The Keta district, recorded a total of one hundred and sixty-two criminal offenses in 1940 for a period of five months. Data for offenses from individual towns was not available from the records.

4.1.1. Types of Criminal Offenses Recorded

A wide range of offenses were recorded in the colonial criminal record books. These included stealing, sanitation offenses, assault, rape and road traffic offenses. Other offenses recorded were worshipping prohibited fetish, disturbance of public peace, illegal distillation of alcoholic drink (spirit), illegal possession of firearms, and murder. These are displayed in tables 1 and 2. Table 1 outlined the offenses recorded in the Kpando district for the period February to December, 1920.

The courts sessions for this district were held on separate days in the towns of

Kpando, the district capital, Botoku, Woadje and Kpeve. The most frequently recorded offense was sanitation offenses (22/105), which included leaving compounds in insanitary condition and allowing mosquito larvae to grow on premises. This was closely followed by stealing (20/105) and assault (17/105) offenses. Nine road traffic offenses, related to riding bicycles without a license, were also recorded during the period.

Eight nuisance cases like allowing animals to stray into the market place thereby causing damage to wares were also recorded. One case of rape was recorded for the period. Other offenses recorded were causing damage to property, abuse and the obstruction of police officers in the execution of their duty and refusal to heed the call of chiefs‟ to duty.

Table 1: Range of Criminal Offenses Recorded in Kpando District

Criminal Court Records of 2nd Feb -30th Dec. 1920

Cases Number

Assault 17

Stealing/dishonestly receiving 20

Rape/indecent assault 1

Fraud 3

Road traffic offenses 9

Sanitation offenses 22

Nuisance 8

Public disturbance 8

Other 17

total 105

Table 2 shows a range of criminal offenses recorded in the Keta district court in 1940.

Court sittings in all cases were held at Keta, the district capital. A wide range of offenses were recorded. The most frequently recorded offense during the period was stealing

(36/162) followed by illegal possession or distillation of spirit or alcoholic drink (33/162) and then road traffic offenses (23/162).

The road traffic offenses recorded were riding bicycles without license and driving vehicles above permitted weight limit for roads. The district also recorded assault

offenses (21/162) and offenses involving worshipping prohibited fetish (21/162). Other offenses recorded included arson, bribery, causing damage to property and indecent exposure.

Table 2: Range of Criminal Offenses from Keta District

Criminal Court Records, 20th Jan-May 1940

Cases Number

Assault 21

Stealing/theft /dishonestly receiving 36

Rape/indecent assault/defilement 3

Fraud/ defrauding by false pretences 5

Road traffic offense 23

Manslaughter 1

Murder 6

Possession of/intent to distil illegal spirit 33

Worshipping prohibited fetish 21

Possession of firearms without license 14

Other 19

Total 162

4.1.2. The Judges

None of the entries in the colonial criminal record books for the periods researched were made by chiefs. None of the entries analyzed indicated chiefs as advisors or sitting with the British officers.

The British district political officers, not chiefs, were the judges in all offenses recorded. For example, the criminal records showed that D.P.O. Saxton, the then district political officer for Kpando, was the sole judge at the beginning of 1920. In June the same year he was succeeded by a new district political officer, Capt. E.T. Mansfield, who was also replaced in October of that year by his Worship Alec Clark Esq., and then in

December by Capt. Lilley. The 1940 offenses from Keta district were also heard by the sole British magistrate, Lindsell and later by J.E Miller. None of the criminal records during this period showed, involvement of chiefs. Recordings of the courts proceedings were all written by the British officers in the English language.

The colonial criminal record books revealed that chiefs used the colonial courts and sent wrongdoers and criminals to the district political officers for prosecution. One such instance, involved a fight in which two men were wounded. In a letter dated 4th April

1920, referring the two to the district political officer at Kpando, one chief wrote that:

I therefore have the honor most respectfully to submit to your attention the doer of the action by name William Kofi who took a knife and cut one Yaw Abeku. Your worship I beg to say that you may deal with them so that in future they shall see to put a stop of such malicious and intentional doings. Your worship, I enclose to your attention the doer of the action … and the wounded man … by my two policemen named Amuzu and Agbomgbom together with the knife.

100

Two offenses on “refusal to heed the call of chiefs‟ to duty” were recorded. In one, the accused was charged with assault on a linguist. The linguist had been sent by the chief to summon the accused to communal labor to repair a road. In another, the accused persons were brought to court because they had refused to work on repairing a road when called by the head chief of the town to do so. In both instances, the chiefs had been instructed and warned by the district political officers to get the people to repair the roads. All the accused persons were fined.

The review of the records revealed that the British political officers who presided over the courts imposed the payment of fines in modern currency for offenses like intent to distil illegal spirit and sanitation offenses. Fines ranged from the equivalent of two dollars to twenty-five dollars. In lieu of payment of fines, accused persons were to be imprisoned with hard labor. In all offenses found, the accused persons were recorded as having paid the fines.

In none of the cases were livestock or drinks demanded as fines. There was no record of payment of compensation to any victim of crime. The political officers also sentenced accused persons to imprisonment with hard labor for serious offenses like rape. Minors were sentenced to be caned. This was recorded in the 1920 Kpando criminal record book; in D. P. O. v. Djililah where a young man who stole money from his employer was sentenced to be canned.

People found guilty of worshipping prohibited fetish were fined. The colonial criminal records also revealed that summary trials were used for most offenses. Murder

101

cases were not tried in the towns. Those accused of murder were committed to stand trial at assizes in Accra.

From the above findings, colonial era chiefs did not have jurisdiction over criminal offenses like theft and murder, to name a few. The introduction of the British political officers as judges was a major interference with the judicial authority of chiefs.

Limitations to chiefs‟ criminal jurisdiction therefore began from the colonial era.

4.2. CONTEMPORARY CHIEFS‟ COURTS AND CRIMINAL OFFENSES

At all the research sites residents were involved in dispute resolution usually conducted by chiefs or queen mothers and their elders. This section presents the findings on criminal offenses at current chiefs‟ courts. The findings reveal how the chiefs‟ courts are constituted, the types of criminal offenses brought before them, where the offenses come from and how offenses are classified. Data for this section was gathered from direct or personal observation at sixty dispute resolution sessions and from in-depth interviews of chiefs at Sogakope, Tefle, Kpando, Anfoega, Afife and Wuti.

4.2.1. Hierarchy of Courts

The findings show that there exists a hierarchy of chiefs and a hierarchy of chiefs‟ courts among the Ewe. The highest court is the court of the paramount chief.

As paramount chief, I am the head of all chiefs in my jurisdiction. I am the overlord and all chiefs owe allegiance to me. I do not owe allegiance to any other chief. – A paramount chief.492

492 Interviewed on 4th December, 2008. 102

The paramount chiefs‟ courts are the last court of appeal. The paramount chiefs hold court in rooms at their palaces or in private residences, where there are no palaces. The next chiefs‟ courts in order of importance are the courts of the divisional chiefs. All territories or areas under paramount chiefs are divided into divisions and each division is headed by a divisional chief. The divisional chiefs are next in seniority to the paramount chiefs. Divisional chiefs have specific roles to play.

As divisional chiefs we assist and support the paramount chief. In battle formation, the divisional chiefs lead the way and at durbar grounds we divisional chiefs flank the paramount chief. We are his right hand chief, his left hand chief and chief of the middle wing. We are also the chiefs of the various towns - A divisional chief.493

Divisional chiefs also hold their courts in rooms at the palaces or at their private residences. They sit with select groups of elders. Divisional chiefs can receive appeals from courts of sub-chiefs. The lowest courts are the courts held by sub-chiefs. Sub-chiefs are lower in status to divisional chiefs. As their name suggest, they are chiefs of various sub-divisions within a division.

I am a sub-chief. Apart from holding court, I am also the chief in charge of the welfare of the divisional chief. I see to matters of etiquette. I make sure that he is well clothed at all gatherings. I also counsel the divisional chief. If he offends someone, I will ask for pardon and make peace. - A sub-chief.494 As chief of the youth, I am in charge of all matters dealing with the welfare of youth. I settle cases involving young men and women in this community. – A sub-chief.495

493 Interviewed on 8th August, 2008.

494 Interviewed on 8th August, 2008.

495 Interviewed on 4th September, 2008. 103

Sub-chiefs‟ courts are mostly held outside in their courtyards usually under a tree.

These courts are the most public because they are held outside. Sensitive cases involving minors or married couples are held in private.

4.2.2. Judges and Court Officials

The chiefs‟ are the highest judicial officers but they do not sit alone. They sit with other members of court, like the elders. A very important courtier or elder is the linguist.

In all courts observed, the linguist was present.

The linguist is an indispensible person at court. He is not an arbiter or a chief with his stool. He is the chiefs‟ spokesperson and the official that serves summons on parties. The linguist usually sits or stands very close to the chief at all public gatherings. – A chief.496 Every chief sits with a linguist and a couple of other chiefs or elders. - A chief.497

I always sit with my linguist, other chiefs and another person who acts as the secretary. – A chief.498

496 Interviewed on 8th August, 2008.

497 Interviewed on 9th January, 2009.

498 Interviewed on 11th December, 2008.

104

Chiefs sometimes sit with other chiefs. In their role as judges, the paramount chiefs can call upon other chiefs to assist them. They can also invite a number of elders of their choice from the community to sit as co judges. The elders need not be royals. The criteria for selection depend greatly on age and the elder‟s reputation in the community as an honest and wise person.

The paramount chief for example sits with other chiefs like his right hand chief and the chief in charge of the palace. In this town, every chief has his court. As a sub-chief, I have my linguist and when I sit as a court I do invite some other elders. – A chief.499

As chief, I sit with the linguist. I also sit with sub-chiefs like the chief of youths and a couple of elders, including the queen mother on some occasions. – A chief.500 The situation described above is the same in almost all the Ewe communities with slight variations. For example, at Sogakope, the chief does not always sit with his elders but with other prominent people in the community.

I always invite prominent members of society who command respect, and have high moral standards and good judgment to sit on my panel. I sit with my linguist and not less than four other people. My panel must always be an odd number. – A chief.501

I sit as the chairperson and the recorder and I always sit with my linguist and one or two panel members. The panel members may be sub-chiefs or elders at the court. – A chief 502

499 Interviewed on 4th September, 2008.

500 Interviewed on 8th August, 2008.

501 Interviewed on 11th September, 2008.

502 Interviewed on 4th December, 2008.

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It was also found that queen mothers‟, the female chiefs, also decide cases mainly involving divorce at their courts. The queen mother institution does not exist in all the

Ewe towns.503 It was observed that while Kpando, Anfoega, Sogakope and Tefle, had queen mothers, the towns of Wuti and Afife had none.

We do not have queen mothers‟ here. We only have the members of the 31st December Women‟s Movement.504 They deal mainly with development issues relating to children and women. – A chief.505

At all chiefs‟ courts, it was observed that litigants did not have a choice in empanelling the judges. For serious offenses, the judges are the chiefs themselves. In less serious offenses like minor fights between siblings or matters where the accused has acknowledged guilt, the judges are only the elders of the courts.

4.2.3. Range of Criminal Offenses before Chiefs

Many criminal offenses are brought before the chiefs.

We deal with offenses like assault as the result of fights or quarrels. We also settle cases (involving assault) between husbands and their wives. – A chief 506 We deal with all criminal cases. Any criminal case can be brought before us. – A chief.507

503 See the Supreme Court case of Dzasimatu and others v. Dokosi (1994-95) GBR 426, 488 where Hayfron-Benjamin JSC note that among the Ewe “…in some areas the institution of queen-mother was either unknown or its significance was not appreciated. In other areas the queen mother acted as a leader of the women and led the women-folk in the performance of communal labor and other functions. They were not known to perform any constitutional duties nor did they have stools of their own…”

504 The 31st December Women‟s Movement is a local non-governmental organization.

505 Interviewed on 9th January, 2009.

506 Interviewed on 11th December, 2008.

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This chief later declined to give detailed comment on some of the cases seen by them.

Previously chiefs deal with all types of cases but there are new laws now and we cannot settle criminal cases. – A chief.508

This chief in a later interview mentioned that:

We settle cases like fights and domestic matters involving assault. Some of the cases before us are serious. An example is one case of abortion brought by a young man. He was angry because the parents of his pregnant girl friend did not want her to marry him. The parents had forcibly caused her to abort his baby. He brought an action against the parents by summoning them before us. If both parties agree, any case can be brought before the chiefs. We have dealt with cases related to quarrels and fights. – A chief.509

Some cases I have settled include assault, theft, and offenses associated with marital disputes. – A chief.510 I settle many cases including assaults related to quarrels or fights and theft. – A chief. 511 Consistent with the views expressed above, my personal observation at chiefs‟ courts also revealed that the range of criminal offenses before them are assaults, including assault related to domestic disputes between spouses and persons of the same household.

Other offenses are assault related to defamation or accusations of witchcraft. The offenses also included theft and disturbing the peace due to fights and quarrels. Others are abduction and seduction and petty theft.

507 Interviewed on 9th January, 2009.

508 Interviewed on 8th August, 2008.

509 Interviewed on 4th September, 2008.

510 Interviewed on 11th September, 2008.

511 Interviewed on 4th December, 2008. 107

4.2.4. Classification of Offenses

Chiefs were asked about how offenses are classified. The responses show that there are two classifications of crime among the Ewe. Some offenses are classified as house matters. House matters are less serious offenses like quarrels and fights. In house matters, chiefs empanel elders from the families of the victim and the accused to help them come to an amicable settlement.

Other offenses are classified as matters that can lead to death. These include offenses like seduction and some insults or defamation. Others are aggravated assault that results in wound to the victim, rape, incest, defilement of children and criminal abortion. All the chiefs indicated that perpetrators of such offenses are given the severest penalty, including a ram.

The ram is symbolic. It is slaughtered and shared between parties to signify the peaceful settlement reached and accepted by them. Also, while chiefs‟ courts are generally open to the public, chiefs interviewed mentioned that serious offenses like defilement and incest are held in private.

4.2.5. Where do Criminal Cases Come From?

It was observed at the chiefs‟ courts that criminal cases come before chiefs in two ways. The first is by referrals from state courts and the second is by direct petition from people to chiefs to help settle their cases. Under the first scenario, cases are brought to the chiefs after action has been instituted at state courts. One party, usually the accused, seeks the chief‟s intervention to withdraw the case from court.

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In the words of a woman interviewed at a chief‟s court:512

We went to the (state) court because that man attacked me. His wife is my friend. The couple has marital problems. He thinks that I have influenced the wife to be disrespectful to him. I went to their house one day after church and found them quarreling. I tried to get the wife to leave the house but the man came with a big club and hit me from behind on my left arm. I took the case to court but the elders have decided that we should settle at home. The judge agreed. We are here to go into the matter. All the chiefs interviewed indicated their involvement in withdrawal of cases from state court for settlement. The request is usually made by the offender.

In one case before me, the accused, a young man, had beaten a young lady very badly. The victim insisted on taking the case to court. The accused was arrested. The boy‟s parents came to see me to help settle the case. They did not want him to go to jail. I sent my linguist to court, on the court day, to withdraw the case. The prosecuting police inspector refused but the judge agreed and asked for a report in two weeks. The case was settled and the accused was asked to pay all medical expenses incurred by the victim. Another case was one that involved assault on a police officer. The case was withdrawn from the police station and settled at my court. All expenses including compensation totaling two hundred Ghana cedi (200 US dollars), was paid to the officer. – A chief. 513

Another case withdrawn from court, mentioned by a chief,514 involved a young man who was arrested for assault and battery. Seeking to evade prosecution and possible incarceration, he appealed to the chief of the area to withdraw the case from court. The case was withdrawn and settled at the chiefs‟ courts. The accused acknowledged wrong doing and was ordered to pay the victims entire expenses estimated at two hundred and

512 Interviewed on 12th January, 2009.

513 Interviewed on 11th December, 2008.

514 Interviewed on 11th September, 2008.

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fifty Ghana cedis (250 US dollars). The accused also compensated the victim with the sum of a hundred Ghana cedis (100 US dollars). In his report to the state court the chief wrote that:

Both parties accepted our decision and at this juncture we asked them to smoke the peace pipe by shaking hands customarily and promise to stay together in peace. In other instances, cases are withdrawn from court for settlement when closely related people are involved.

I send my linguist to court to say that because the parties are all my “children,” I request the case to be withdrawn for settlement at my court. – A chief.515 Usually, the offender seeking our help to withdraw the case from court, brings one bottle of schnapps, pleads and requests that we assist him. We then contact the other person, the victim. In nine out of ten cases, the victim obliges. – A chief.516

Complaints of criminal offenses are also made to the chiefs‟ courts directly. In the words of one interviewee, a 43 year old litigant at a chief‟s court:517

I always take my cases to the chiefs and elders. I do not like the (state) courts. Cases at state courts take a long time to be heard. The judges are also not from our town and they do not know the secrets of the town. We all live here and our case involves a domestic matter between me, my wife and her uncle. Moreover, if we use the state courts, we would have to employ a lawyer. Also, the state courts sometimes rely on our elders to help resolve cases before them.

515 Interviewed on 4th September, 2008.

516 Interviewed on 4th December, 2008.

517 Interviewed on 8th December, 2008. 110

When asked about whether the situation would be different if someone outside his family were involved, he replied that:

We are all one generation. If you trace the genealogy, you would always find that everyone is connected in one way or another.

4.3. THE CRIMINAL SETTLEMENT PROCEDURE AT CHIEFS‟ COURTS

This section presents the findings on the procedures used at chiefs‟ courts for criminal offenses. The findings show how complaints are made and the steps involved in the process. The findings also reveal the mechanisms put in place to compel compliance with chiefs‟ decisions. Data on the criminal settlement process was gathered from my personal observation of the process at the chiefs‟ courts and from in-depth interviews with the chiefs.

4.3.1. Steps in the Criminal Settlement Process

The first step is the filing of complaints. The chiefs indicate that all people bringing complainants to the chiefs‟ courts bring bottles of liquor. In Kpando and Anfoega, the most common liquor brought was Heineken Schnapps but in Sogakope, Tefle, Wuti and

Afife any kind of schnapps was accepted. Other forms of liquor could be used depending on the gravity of the case and the wishes and capability of the complainant.

When asked about the significance of the liquor, a chief at Kpando explained that it was customary to present a complaint along with drinks and that the quantity depended on the seriousness attached to the offense. The chief also explained that the practice of presenting drinks is an essential component of “customary law.” “Customary law” is 111

unwritten and the presentation of drinks cements many customary transactions like inheritance, succession, customary gifts and marriage. Drinks are also essential in dispute resolution because it is evidence of parties coming to the forum to settle a matter.

Cases are brought to the chiefs‟ court by the presentation of drinks. In most communities here, the lowest amount of drinks accepted for the court of the paramount chief is four bottles. But a complainant could decide to give six or eight bottles as an expression of the gravity or importance he attaches to his case. Before the divisional or sub-chiefs, the least amount of drinks accepted are two bottles but complainants can present up to six. – A chief.518

This process of filing a case, it was found, is the same for all the towns visited. A slight variation was observed at Sogakope and Tefle where although the quantity of drinks also depends on the gravity of the offense, the highest number of bottles allowed for any offense is four. The complainant makes his compliant before a chief, explaining the nature of the case and the reliefs he is after.

The second step is the service of the summons. After filing of the case and the presentation of drinks, the accused will then have to be summoned to the chief‟s court to answer the charge made against him. The complainant therefore also has to pay the fee for service. At Kpando and Anfoega, this fee is called the walking fee, which is given to the linguist to make service or to inform the accused of the summons.

At Sogakope, Tefle, Wuti and Afife, this fee is referred to as money for holding the staff of the chief. The amount is made in cash and the figure depends on the mileage. The fee for summons within the same township could range from two to five Ghana Cedi

(two to five dollars). The chief receives the case and promises to send for the accused. In

518 Interviewed on 8th august, 2008. 112

all criminal cases observed, summonses were delivered orally by linguists from the chiefs courts. In all the towns visited, the chiefs explained that, when an accused is served with the summons, he must hold the staff of the linguist as a sign of submission to the authority of the chief.

Holding the staff is a symbolic gesture to show that you have accepted and committed yourself to hear the case before the chief. – A chief.519

When the accused is not from the same town as the complainant, then apart from the summons drinks presented at the chief‟s court when filing his case, the complainant also has to present drinks to be taken to the chief of the second town. In Sogakope and Tefle,

Wuti and Afife, in addition to the summons fee, the chief demands one bottle of liquor for the service out of jurisdiction. In Kpando and Anfoega, two bottles are demanded.

519 Interviewed on 11th December, 2008.

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When asked about the reason for the additional bottles, the chiefs explained that it was “customary.” When drinks are presented by one chief to another, the gesture is not only symbolic of respect for the authority of the chief. It is also evidence of the fact that his permission has been sought for serving of summons on the offender who is

“traditionally” his son or daughter.

If the linguist must serve summons out of the jurisdiction, then four bottles of schnapps are demanded from the complainant. One out of the number is sent to the chief of the other town where the defendant resides. - A chief.520

When the chief‟s linguist goes to the other town, he cannot go directly to summon the defendant. He goes to the linguist of the town who leads him to the chief. He has to use the drinks to make the summons through the chief of the other town. This procedure is always followed irrespective of the position of the summoning chief - even if he is the paramount chief- because the summoning chief may not be the direct overlord of the other chief. – A chief.521 The staff is a sign of a chiefs‟ authority and a symbol to the other chief that we have entered his jurisdiction. No one can summon anyone except with the permission of their chief. Each settlement has a sovereign power and identity and each chief deals with the other sovereign chief and not with the subjects directly. – A chief.522

The drinks are presented to the other chief along with a request for his assistance in informing the accused of the action instituted against him before the summoning chief.

The chief will accept the drinks and send his own linguist to inform the accused of the summons. In all cases, a message is also sent to the social father of the accused. The

520 Interviewed on 11th September, 2008.

521 Interviewed on 8th August, 2008.

522 Interviewed on 4th December, 2008. 114

social father of the accused is informed so that he could, if possible, provide social support to the accused at court. In litigating at chiefs‟ courts, parties are not allowed to appear with lawyers.

It was also observed that a complainant never goes as an individual but as part of a family and is accompanied by his relatives. So also no accused is required to attend court alone. Indeed, every person summoned may attend with his social father or any anyone he thinks could provide him with good support at the court. The rationale for this practice of involving the social fathers of the parties was explained by the chiefs.

Everyone - including strangers, must have a father. The social father is not the biological father. The head of family appoints a social father for orphans or strangers or those who become members of family by virtue of marriage. Even adults or the oldest man in every town has a social father. Sometimes the social father may even be younger than the son. This system forestalls impudence and disrespect within the community and at our courts. It is the duty of the family- from the clan head, the family head, the father, social father or foster father or anyone representing the father; to see that the person undergoes the punishment. Women are expected or allowed to be accompanied by their husbands at courts because they are treated as one. The husbands are usually granted permission to make contributions during the hearing of cases involving their wives and vice versa. – A chief.523

We do not deal with individuals but with families and elders. If a woman is summoned to answer charges, we also invite her husband and vice versa. It is not common for parties to refuse to respond to the chiefs‟ summons. – A chief.524

523 Interviewed on 8th august, 2008.

524 Interviewed on 11th September, 2008.

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When chiefs were asked about what happens when the accused refuses to use their system, they replied that in such cases the complainant is advised to take the matter elsewhere. The chiefs also noted that it was uncommon for people to refuse to appear before them.

If a party does not want to use the chiefs‟ courts, the other party is advised to take the matter up, elsewhere. – A chief.525

If you do not recognize the chief or heed the chief‟s summons and respect his authority, then if you have a problem in future, no one will help you. – A chief.526

Complaints can be filed before the chiefs on any day but the courts are not held daily.

All chiefs have specific days on which they conduct settlement of cases. This is common to all communities. In addition, chiefs do not sit on days set aside for religious cleansing of their royal offices. Such days are also reserved for deliberation over state matters and matters relating to welfare of their people. Most settlement proceedings are open to the public except criminal offenses involving minors or sensitive personal cases like divorce and marital issues between couples.

The third step in the process is the gathering of facts from the parties and their witnesses. This step is where parties tell their stories and are questioned by the court.

During this step, it was observed at all chiefs‟ courts that the chiefs and elders sit at the head of the assembly. Litigants and their families sit at opposite sides to each other. At all

525 Interviewed on 4th September, 2008.

526 Interviewed on 11th December, 2008. 116

courts, anyone who wants to make a contribution to proceedings must ask permission and can only speak when permitted to do so by the judges.

The chief or the presiding elder introduces the case. He explains to the gathering, for example, that Mr. A had brought a case before him against Mr. B. That Mr. A‟s case is that Mr. B had offended him. That Mr. A wanted Mr. B summoned to explain why he or she did that. The chief speaks through his linguist. The Ewe linguist does not repeat everything the chief says. He waits until the chief has finished speaking and then asks the parties whether they had heard what the chief said. The parties respond that they had heard.

The chief then asks the complainant to confirm whether that was the case he brought to the court. After the complainant confirms the complaint, the accused is asked whether he is guilty or not. If the accused is not guilty, he replies that he is not. This plea shows the preparedness of the accused to contest the case made against him. At Kpando and

Anfoega, the accused is made to present the same amount of drinks, or its value in cash that the plaintiff presented in making his suit. In the other communities, the accused is not required to do so.

Each party is allowed to tell his story. Notably absent at all the forums was the element of customary oath taking before chiefs‟ courts by parties. After narrating their stories, the chiefs question the parties to seek clarification on issues raised in the stories.

The parties are also given the opportunity to question each other on facts presented.

There is no format for questions and leading questions are allowed. The complainant is

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always the first party to tell his story. If the complaint involves a minor, his story is told on his behalf by his parents or guardian. Minors need not attend proceedings.

Unlike the state courts, members of both parties‟ entourage are allowed to make contributions during proceedings to clarify matters. Although proceedings are open to the general public in all cases observed, the public was not allowed to make contributions to proceedings. Both sides are allowed to call as many witnesses as they want. Witnesses are called to support each party‟s claims. All parties bring their witnesses but the witnesses must not sit in the court. The absence of witnesses at the forum is to ensure that they do not become influenced by what they hear.

After both parties narrate their cases, the witnesses are called. All witnesses take the oath to speak the truth. As witnesses narrate their stories they are asked repeatedly by the court whether they saw what they are testifying to. If they did not personally witness what they are testifying to, then their testimony only holds weight if other witnesses corroborate their stories. Witnesses are questioned by the parties and the judges. Unlike the process at state courts, witnesses cannot be summoned by the court and it is the duty of all parties to invite their witnesses to court. Indeed, a reluctant witness is evidence that a party has not got a good case.

After witnesses have been called and questioned as above, the presiding chief and his elders retire for secret deliberations to consider the case before them. The presiding chief informs the parties and the gathering that the court has to retire for secret deliberations.

The chiefs retire to think and deliberate on all facts presented before them. At this stage, the chiefs and elders put their heads together to decide the case.

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A caveat must be sounded here. The caveat is that where cases are withdrawn from state courts or when the accused admits guilt when served with the summons, the chiefs do sit to gather facts as described above. A simpler process is used where chiefs only empanel elders to determine compensation to be paid to the victim. In such cases, it is assumed that matters will proceed without acrimony. By acknowledging guilt, the accused is ready to make amends.

The elders meet with the parties and both sides only present two bottles of liquor each before a determination is made on the quantum of compensation to be paid to the victim.

When the complaint is made, the accused can admit that he is guilty and that there is no need to set up a process to determine his guilt. The complainant is then called and informed. When this happens, there is no gathering of facts and the case is given to an elder(s) in their community. The elder(s) listens to both sides to determine compensation and for reconciliation. The amount of compensation is usually determined by the complainant. – A chief.527

When the accused says he is guilty, only a few elders are empanelled to determine how much compensation should be paid to the wronged party. - A chief.528

When the accused admits guilt, our task is to help parties reach an amicable resolution of their dispute. There is no need to require witnesses or question the parties but the parties are still required to pay all “customary” drinks and penalties. – A chief.529

527 Interviewed on 4th December, 2008.

528 Interviewed on September, 2008.

529 Interviewed on 8th august, 2008.

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The fourth step is the verdict. The verdict is given by the presiding chief. In rendering the verdict, the presiding chief sums up all the stories heard and determines the guilt or otherwise of the accused. The chief also gives reasons for their verdict.

The fifth step after the verdict is determination of compensation. Compensation is always determined by the complainant. The accused is at liberty to ask for reduction in the award. It is the court‟s discretion to agree to vary the compensation. In addition, at the end of every case, the expenses of the litigation incurred by bringing the case before the chiefs are paid by the losing party. When the accused losses he usually forfeits the drinks he presented to court and pays what the victim offered for the summons.

For serious offenses, the accused is also made to pay the “customary penalty” of sacrificing a ram. Among the people of Sogakope, it is a taboo to accept rams from women.

Since our forefathers time, we do not accept rams from women. – A chief.530

When the complainant is rather found to be in the wrong- usually because there was no basis for the allegation- then he also forfeits his drinks and he must also pay for the drinks presented by the accused. The complainant would also be made to pay penalty fees for inconvenience. The penalties are imposed at the discretion of the judges and cannot be negotiated.

530 Interviewed on 11th September, 2008.

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4.3.2. Enforceability of Decisions

The chiefs were asked about how decisions are enforced. In particular, they were asked about what happens when people do not comply with their verdicts or when parties are not satisfied with the outcome of the process.

We can only rely on trust. Usually when people bring criminal cases, the accused is most often willing to atone. It is in civil cases that we can ask the police to arrest people for contempt of court and also enforce our verdicts at state courts. - A chief.531

The family has the responsibility to ensure that members live up to expectation and those found guilty of offenses do not repeat them. Habitual offenders become outcasts because they are shunned in public and given bad names. In addition, no one would want to marry into families with tainted reputations. But when parties fail to comply with our decisions we can only ask them to take the matter elsewhere. - A chief. 532

Sometimes we bring pressure to bear on the defaulting party through his family. We can also ask the defaulting party to pay the penalty in installments. When these measures fail, we advise the parties to take the matter up elsewhere. – A chief.533

Many people resort to forums using the supernatural like fetishes. Others appeal to higher chiefs like the paramount chief, when the decision is emanating from a lower chief like a sub-chief or a divisional chief. – A chief.534 The chiefs‟ explained that parties dissatisfied with decisions can appeal to higher chiefs‟ courts. Appeals from sub-chiefs courts are taken before divisional chiefs. Also, appeals from courts of divisional chiefs can be made before paramount chiefs‟ courts. On appeal, cases are heard afresh. The criminal procedure described above is basically the

531 Interviewed on 11th December, 2008.

532 Interviewed on 8th August, 2008.

533 Interviewed on 4th September, 2008.

534 Interviewed on 9th January, 2009. 121

same for all offenses except sensitive offenses involving minors or married couples, which are conducted in private.

4.4. WOMEN‟S EXPERIENCES AT CHIEFS‟ COURTS

An examination of dispute resolution at Ewe chiefs‟ courts cannot be complete without a discussion of women‟s experiences at the courts. This is because much has been written about the problems women and girls encounter in disputing either before state courts or chiefs‟ courts. The rationale for this section was to find out whether women face any human rights abuses at these forums.

Using narratives of interviewees and direct observation, the study reveals that despite mandatory prosecution prescribed for gender violence offenses like defilement of the girl child, these offenses continue to be mediated before chiefs.

4.4.1. Gender Violence Offenses at Chiefs‟ Courts

Two kinds of gender violence offenses are usually brought before the chiefs‟ courts.

These are domestic violence, particularly wife beating and defilement of the girl child.

The tendency, it was observed at chiefs‟ courts, was to treat these offenses as house matters especially when the perpetrators are family members or neighbors.

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Although chiefs resolve any case brought before them, they are very evasive when probed about criminal offenses, especially the sexual offenses. All chiefs interviewed did mention that they do settle cases involving defilement of the girl child so long as both parties agree.

We do not deal with rape cases but we do mediate over cases of defilement. – A chief.535

I always insist that rape cases are sent to court. Defilement cases are usually withdrawn from the police stations by both parties. The chiefs and elders only try to help parties come to some compromise on the damages that must be paid. - A chief. 536 Once both complainant and accused agree that we should help settle cases we do. We also see cases relating to people brought for having sexual relations in the bush, breaking of clan laws, and pregnancy related matters. We also will accept a case of defilement if the victims‟ parents so wish us to. - A chief 537 We intercede even in the offense of defilement when the parties request our help. We can withdraw such cases from the police. Usually the chiefs‟ petition to the police is that the parties are all his children and so he wants to withdraw and settle the case. Sometimes complainants take such cases to chiefs instead of the state courts. – A chief 538

535 Interviewed on 9th August, 2008.

536 Interviewed on 5th December, 2008.

537 Interviewed on 23rd August, 2008.

538 Interviewed on 12th December, 2008. 123

In explaining the reason for the use of chiefs‟ courts for such cases, some interviewees noted that undue delay in prosecution of defilement cases at state courts, and lack of financial resources to cater for the victim are some of the reasons why people choose to settle those cases before chiefs and elders.

Apart from court delays and the expense of litigation, the offense has already been committed. The child has already been defiled. Putting the perpetrator behind bars would not reverse the effect of the offense on the victim. It is not possible to put the child back in the situation that she was in prior to the assault or violation. At least the money will be used to cater for the child, including her hospital bills. Usually when offenders are put behind bars, parents are left with the bills and so some prefer to accept money. - A chief.539

Another chief gave the same reason for settlement of such cases:

Previously sexual offenders were punished by banishment or even death. With civilization and urbanization coupled with the intervention of central government, chiefs no longer have these absolute powers. Because justice is usually delayed at state courts, victims, especially their parents and family members are willing to settle these cases. The victim‟s family usually accepts money in lieu of prosecution. – A chief.540

539 Interviewed on 5th September, 2008.

540 Interviewed on 10th January, 2009.

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Domestic violence cases, particularly involving married couples, was also common before chiefs and elders.

I see offenses like assault committed by husbands on their wives. Many cases before me also include assault committed on siblings. I only accept such cases when all parties agree to our forum. - A chief.541 Many cases coming before me are divorce related but they always involve an element of physical assault, when men beat their wives during quarrels. – A queen mother.542

When cases involve women divorcing their husbands, the husbands are usually accused of cruelty and physical assault. In many cases, though, the women are not interested in reconciliation. By the time such cases get to us, the women are just seeking divorce. Sometimes they already have suitors. – A chief. 543

Fear of male partner imprisonment is one reason why women choose the chiefs‟ courts to settle domestic violence offenses. In an interview, one woman explained:

I use the chiefs‟ courts because he (offender) is my husband and I do not want to drag him to (state) court. For the past year he has refused to give me money for the upkeep of the home. He has also gone for a second wife without informing me. He does not cater for the children or pay their school fees. When I complain he beats me. I have complained to his people but they have not helped. They keep asking me to exercise patience. I reported him to the police but he brought some elders to withdraw the case to settle before the chiefs and elders. I know that I should not have agreed but he is still the father of my children. I do not want him imprisoned. This morning, we are here to settle the issue. – A 41 year old woman at a chief‟s court.544

541 Interviewed on 5th September, 2008.

542 Interviewed on 17th August, 2008.

543 Interviewed on 12th December, 2008.

544 Interviewed on 11th February, 2010.

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Another interviewee did not want the offender to go to jail because the offense of defilement resulted in pregnancy of the victim. For most families of victims, court prosecution is not the only answer. When the offense results in pregnancy, there are worries about upkeep of the victim and the unborn child. In the words of one interviewee:

The young man who put my daughter in the family way used his money to entice her. She is only fifteen. I know that I should report him to the police but that would mean “going up and down.” And if the offender goes to jail, who will support my daughter and the baby? At least here at our chief‟s court, he has accepted responsibility. He has been ordered to pay for her upkeep. He can do it because he is gainfully employed. - A 48 year old woman at a chief‟s court.545

545 Interviewed on 22nd February, 2010.

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4.4.2. Barriers in Prosecuting Gender related Offenses at State Courts

Some interviewees faced barriers prosecuting gender related offenses at state courts.

Accused persons with very good legal counsel are able to get away without conviction.

One interviewee‟s story confirmed this:

My daughter was put in the family way by a barber in our neighborhood. I did the right thing and reported to the police and he was arrested. But then he was bailed because he had denied responsibility. The case took two years to be called because the police kept saying that they were waiting for a lawyer from the Attorney-General‟s Department. I cannot remember how many times I have walked to that police station. I had to send my daughter to the village because of the disgrace. When the case was later called, his lawyer made them strike it out because they said there was not enough evidence. Now some people say that I should conduct paternity test. I am no longer interested in the matter because that is another trouble all together and we have to travel to Accra or Ho for the test. – A 43 year old woman at a chief‟s courts.546

Furthermore, the Domestic Violence and Victims Support Unit of the Ghana Police

Service (DOVVSU) - set up in 1998 to provide access to police services for all victims of crime-are not set up in all towns in the country. Their impact is not felt in many parts of the country. According to one interviewee:

We do not have DOVVSU here so the situation is not any different for us. If your husband beats you and you take the case to the police station, the police themselves will ask you to take the matter home for settlement. - A 35 year old seamstress at a chiefs‟ court.547

546 Interviewed on 26th February, 2010.

547 Interviewed on 15th February, 2010.

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Another problem mentioned by interviewees, is that, offenders arrested by the police are usually granted bail. In the process some of them abscond. The helplessness of interviewees is palpable. It was obvious that many would have wished that such matters be litigated at state courts. But as observed above, reality makes this an unsatisfactory channel. Many think that getting “something” at the chiefs‟ courts is better than nothing at state courts.

4.4.3. Female Chiefs as Judges

Women judges at state courts are common, but at the chiefs‟ courts, as already mentioned, women are rarely empanelled. When chiefs were asked whether female chiefs‟ could form part of their courts, only a chief at Kpando - stated that he sometimes invited queen mother‟s to sit on his panel.

Queen mothers are invited in sensitive cases relating to marital issues and domestic violence. Some women litigants interviewed at the chiefs courts were not worried by this apparent gender disparity among the judges because according to them:

They look at the case not the individual. – A 40 year old litigant at a chief‟s court. 548

548 Interviewed at Kpando, on 16th August, 2008.

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In all the six towns visited only a queen-mother at Kpando549 was actively involved in settlement of cases. She admitted that she was sometimes invited to sit on cases at chiefs‟ courts.

Most often I am invited because the chiefs‟ view a particular case as being so important that it demanded the involvement of all important leaders in the community. Sometimes the parties themselves request that I be included on the panel. But my participation is voluntary and as such, I sometimes decline the offer. We women do not sit as arbiters or judges at the chief‟s palace not because of discrimination but because we do not have the time or inclination to do so. We have a lot of responsibilities at home. The work at the chiefs‟ house is voluntary, a self sacrifice. If you spend all your time at the court, where will you get money to look after your children? Women are not treated differently; we have the choice to participate.

When asked about the fines paid at the chiefs‟ courts, one queen mother interviewed noted that she is not paid.

You can spend all your time at the chiefs‟ palace and get nothing. There is no remuneration for our time spent. Most of the payments made at court are distributed by the men. Nothing is paid in terms of an income. Meanwhile cases can sometimes take hours and even days to resolve. If you want your children to be well educated to university and tertiary levels then you have to work hard. You cannot leave the upkeep of the home to the men. No queen mother is prepared to leave her market wares or businesses to go hearing cases. – A 52 year old queen mother.550

This queen mother holds her own court at convenient times for herself. She explained that most of the cases before her involve divorce. Men whose wives threaten divorce

549 Interviewed on 17th August, 2008.

550 Interviewed on 16th August, 2008.

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sometimes ask her to mediate in order to save their marriage. In explaining the absence of women judges at his court, one chief said:

I have an absentee queen mother. She lives at Accra and it is very difficult and almost impractical to expect her to be present at my court for resolution of cases. I therefore add anyone from our area who is well respected and who is broadminded and inspires confidence to sit at my court. - A chief.551

4.5. ACCEPTABILITY OF EWE CHIEFS‟ COURTS AS JUDICIAL

INSTITUTIONS

This section presents the findings on why people use or do not use chiefs‟ courts.

Information sought included peoples‟ perceptions of these courts and the local factors that influence the choice between state and chiefs‟ courts. To get a balanced view, data was gathered from in depth interviews of litigants using both chiefs‟ and state courts.

State court documents were also reviewed to assess the current problems facing courts in the research area.

4.5.1. Access to Justice Facilitated by Chiefs‟ Courts

At all chiefs‟ courts visited, litigants interviewed gave closely similar reasons for choosing that forum over state courts. These included the fact that the chiefs‟ courts bring long lasting peace between disputing parties and their families and that, chiefs‟ courts grant the remedies that litigants seek.

In addition, some people use chiefs‟ courts because of the practice of withdrawal of cases from state courts for settlement. Others use the courts because of long delays in

551 Interviewed on 11th September, 2008. 130

prosecution of criminal offenders at the state courts. Furthermore, people use chiefs‟ courts because of edicts from leaders not to drag other members to the state courts but to first attempt settlement at home.

Most interviewees were of the view that chiefs‟ courts bring long lasting peace among litigants and their families. As one interviewee indicated:

When you take a family member to (state) court, the court ruling puts a definite end to litigation. But resolution at the chiefs‟ court would have brought a lasting peace to the family. So you can win a court case and get self satisfaction as an individual. But that victory cannot necessarily translate into support of all family members. There will be no peace in the family because people will not like to relate to you. – A 45 year old male litigant at chief‟s court.552

Another interviewee at state courts confirmed this and also noted that the chiefs‟ courts promote definite peace in the community.

I prefer the chiefs‟ courts. They are fast and bring lasting peace. You see, that lady in court, (referring to his opponent, the victim) is my niece. She has brought me here for assault. Bringing me here will not lead to lasting peace in the family. - A 56 year old man at a circuit court.553

552 Interviewed on 9th August, 2008.

553 Interviewed on 17th February, 2010.

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Consistent with what the chiefs said, some litigants interviewed also indicated that chiefs sometimes help withdraw cases from state courts for settlement. The views of interviewees revealed that withdrawal of cases from state courts ensures reciprocal treatment. Withdrawal of cases from state courts also prevents people from going to jail, particularly if restitution is the goal of the victim.

We can take any criminal case to the chiefs‟ courts. Some of the cases include assault and theft. If one side does not agree then the case is taken to the police station and the (state) courts. We can even withdraw cases from the courts for settlement at home in order to prevent the accused going to jail. My case was taken to court because the complainant is a litigant. She planted food crops on my land despite several warnings not to do so. With the help of elders we are here to settle the case. - A 43 year old male summoned before elders for cutting down the plantain tree belonging to his neighbor and assaulting her when she complained.554

I caught the young boy stealing from my farm and I took him to the police station. Later his parents heard of the matter. They pleaded with the chief to withdraw the case from the police. They want to pay for the farm produce he stole. The police informed me and the chief also sent his linguist to me. I agreed to meet on the issue today. The end result is the same for me. – A 48 year old male at a chief‟s court.555

Many people bow to social and family pressure to litigate at chiefs‟ courts instead of state courts. They do so because they can also count on such treatment when in trouble. A person‟s refusal to acknowledge the summons to the chief‟s courts opens him up for retaliation. He can never seek help from the chief. – A 51 year old man at a chief‟s court.556

554 Interviewed on 5th December, 2008.

555 Interviewed on 20th December, 2008.

556 Interviewed on 9th August, 2008.

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Similar sentiments were expressed by another interviewee:

When a chief wants to withdraw the case for settlement at home; you must listen to the chief and withdraw the case. Then you can also count on similar treatment. The chiefs do not let offenders go free but punish them. - A 63 year old female at a chief‟s court.557

Some litigants also believe that the chiefs‟ courts could give the remedies popularly sought by the people.

We take cases to our chiefs because they know our customs and they give the proper remedies for offenses. Even if I take my case to court, I will be asked to settle at home. In my case, the offender and her sister are my neighbors and our sons play together. Her sister lost her child about three months ago. That had nothing to do with me. Recently, our children fought at the playground in front of our homes. I intervened and separated them and then admonished the children for fighting.

Upon hearing from others what had transpired, the offender came to my house. She called me a witch. She said that I engaged in witchcraft to kill her sister‟s son and that I wanted to kill hers too. This led to a fight. My husband went to see her husband and threatened that if his wife did not apologize, we would summon her at the chiefs‟ court. She did not apologize or retract her statement. I summoned her before the elders.

I wanted to ensure that she retracts her accusation or the stigma from her lies will follow me to my grave. Now the chiefs‟ have found her guilty. Everyone knows that I am innocent. She has been fined one cockerel. The cockerel is symbolic of my innocence. It is sacrificed to wash away her lies. The state courts may not even listen to my story let alone grant me this remedy. - A 32 year old female at a chief‟s court.558

557 Interviewed on 12th January, 2009.

558 Interviewed on 16th February, 2010.

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Clearly, this litigant was more concerned with the accusations of witchcraft than in the fight that ensued. Another interviewee noted that:

People come to chiefs because only their forum can give them the remedies sought. You cannot get customary remedies at the state courts. In my case, my wife committed adultery. This led to a fight between us. I have summoned both of them (my wife and her lover) before our chief. “Customarily” the chief will demand customary penalty from the man. We cannot get this remedy from the state courts. – A 45 year old male at a chief‟s court.559

When asked about the importance of this “customary” penalty, one chief explained that it was a “customary” penalty for adultery. In his words:

The customary penalty is given in cases of adultery and seduction. Adultery is a serious offense and is punished severely. The offense is abhorred because it humiliates the husband. It is a serious offense because a wife and the lover could plot and kill the husband. The customary penalty is compensation paid by the lover to the husband of the woman. The compensation includes the brides‟ wealth the husband paid for his wife and all expenses incurred on her. Payment of the customary penalty truly signifies the end of the matter. – A chief.560

Furthermore, almost all litigants interviewed expressed dissatisfaction about the delays and the slowness of the state court procedures. The delays, they said, is one reason why people use chiefs‟ courts.

The state courts are noted for delay tactics. - A 55 year old woman at a chief‟s court.561

559 Interviewed on 6th December, 2008.

560 Interviewed on 6th December, 2008.

561 Interviewed on 16th August, 2008.

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In addition to the above, other interviewees mentioned that they use chiefs‟ courts because of the few state courts available. State courts are physically inaccessible to people and also expensive. Chiefs‟ courts on the other hand are within every society and therefore there is less travelling expenditure and less loss of man or economic hours.

We do not have a court in our area. We have to go to the next town (about fifty kilometers away) to court. As a result, many people prefer to use the chiefs‟ courts to settle their cases.” – A chief.562

You spend money travelling to state courts. You also spend time that you could be doing some work going to court. – A 32 year old litigant at a chief‟s court.563

Indeed, out of the six towns visited, only two, Kpando and Sogakope have courts.564

Kpando has a Circuit and a Magistrates Court while Sogakope has a Circuit Court. These state courts also have a number of problems. The problems militate against the state‟s ability to fulfill its duty to provide people living within its jurisdiction access to justice.

Some of the problems include delay of cases in court and high turnover of court officials. Others are lack of proper data storage system and court automation. The state courts also face problems with inadequate number of lawyers and frequent adjournments.

The courts in Kpando and Sogakope are bogged down with cases with many of the cases outstanding from years. Nothing makes this point more glaring than tables 3 and 4 taken

562 Interviewed on 12th December, 2008.

563 Interviewed on 5th December, 2008.

564 In Ghana, the state courts are put under two groups- the Superior Court of Judicature and the lower courts. The superior courts are the Supreme Court, the Court of Appeal, the High Court and Regional Tribunals. The lower courts comprise the Circuit Courts, the District Courts, Juvenile Courts and the House of chiefs. 135

from the Kpando Circuit Court which documents a significant number of outstanding cases as at July, 2009.

Table 3: Performance Returns of Criminal Cases: Kpando Circuit Court.

YEAR 2008 2008 2008 2009 2009 2009 2009 2009 2009 2009

MONTH OCT NOV DEC JAN FEB MAR APR MAY JUNE JULY

NO. OF CASES PENDING AT THE 200 210 207 217 233 229 231 236 245 234 BEGINNING OF THE MONTH

NO. OF CASES FILED WITHIN THE 16 5 17 14 13 13 14 17 14 2 MONTH

NO. OF CASES DISPOSED OFF 5 8 7 8 1 3 0 2 1 2 OTHER THAN BY TRIAL

NO. OF CASES DISPOSED OFF 1 0 0 0 6 8 9 6 24 3 AFTER TRIAL

NO. OF CASES PENDING AT THE 210 207 217 223 229 231 236 245 234 231 END OF THE MONTH

NO. OF JUDGEMENTS DELIVERED 1 0 0 0 0 1 0 0 2 3

Source: Circuit Court Registry, Kpando, 2009.

Table 4: Performance Returns of Civil Cases: Kpando Circuit Court.

YEAR 2008 2008 2008 2009 2009 2009 2009 2009 2009 2009

MONTH OCT NOV DEC JAN FEB MAR APR MAY JUN JUL

NO. OF CASES PENDING AT THE 204 207 209 213 213 218 216 215 213 213 BEGINNING OF THE MONTH

NO. OF CASES FILED WITHIN THE 3 3 4 9 7 6 8 6 7 3 MONTH

NO. OF CASES DISPOSED OFF OTHER 0 0 0 1 0 0 0 0 0 0 THAN BY TRIAL

NO. OF CASES DISPOSED OFF AFTER 0 1 0 8 2 8 9 8 7 5 TRIAL

NO. OF CASES PENDING AT THE END 207 209 213 213 218 216 215 213 213 211 OF THE MONTH

NO. OF JUDGEMENTS DELEIVERED 0 0 0 0 0 0 0 0 0 0

Source: Circuit Court Registry, Kpando, 2009. 136

The figures above reveal how cases delay at the courts. For example, the number of criminal cases pending at the beginning of July 2009 was 234. Only two cases were filed for that month but only three cases had been tried and disposed of. Civil cases did not fare any better as can be seen from table 4. The cases filed daily are not many but the judges find it difficult to try cases on time. The reason for the outstanding cases was blamed on the high turnover of judges, court officers, prosecutors and investigators.

According to interviewees, a problem plaguing Ghanaian courts was the high turnover of judges, a situation that always leads to back log of cases. In the Kpando

Circuit Court for example, the preceding six years of interview date saw five judges.

Three of the judges had to leave because they were promoted to the High Court. One died before he could take up his post and thereafter, the district had not been able to get a substantive judge for about two years.

It was only about a year prior to the interview date when a new judge took over as the substantive judge. Already, this judge had during that time, received instructions from head office of the Judicial Service to go on relieving duties in other parts of the Volta

Region – in October and November 2008 at Jasikan and in July 2009 at Hohoe. Those duties have taken him out of his court for a while thereby contributing to the back log of cases.

On the face of it, the above may not seem such a problem particularly since judges get promoted all the time. The situation is serious when one considers the fact that it usually takes a two to three year gap between when a judge leaves and when a

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substantive one is appointed. In addition, with such high turnover of judges, all partly heard cases must be started again from scratch.

In the interim, judges sent on relieving duties see only fresh cases and adjourn partly heard ones. It is on record that some relieving judges advise parties to consult their chiefs or any influential person and settle out of court. This practice accounts for the criminal cases disposed of through other means other than by trial in the table 3 above. When the parties are successful, the courts adopt the settlement record.

The rest of the cases as already mentioned are adjourned until a new judge can be appointed. The same lack of judges was noticed at the Sogakope Circuit Court. The new judge who has been at post for only two years, inherited cases that have been in his court for as long as twelve years. He has routinely asked litigants, especially those who belong to the same family and those involved in misdemeanors, to withdraw cases for settlement at home.

In the case of the present judge of the Kpando Circuit Court, many of the cases - especially the criminal cases - meant for his court were sent to the district court. On his assumption of duty those cases were brought to his court and as can be seen from the tables 3 and 4 above, he has many outstanding cases to deal with. Cases were transferred to the circuit court primarily because the district court lacked jurisdiction to handle them.

Coupled with the high turnover of judges was the high turnover of investigators attached to the court. Almost all the investigators who handled the criminal cases had gone on retirement from the police service. Many of those who took over were

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subsequently transferred from the region. The same applied to the police prosecutors. For example, two prosecutors posted to the court just over the preceding twelve months had all left; one on retirement and the other transferred to a station in another district.

A new replacement was sent barely a month prior to the interview. Police inspectors are the usual prosecutors and some of them had part-heard cases as at the time of leaving.

The problem for the court is that in such cases, at every court appearance, new prosecutors have to pray for dates. The prosecutors also ask for adjournments in order to either contact previous investigators or prosecutors who are on transfer or retirement.

They also ask for adjournment to consult on directions to take. Past investigators are also needed to assist in tracing witnesses and even the accused persons. Indeed some of the criminal cases before the court have been pending for so long because accused persons and their surety cannot be traced. Sometimes their witnesses can no longer be found including even those who have already testified.

This problem arises because many of the cases come from surrounding villages and townships outside the location of the courts. In some of the cases, the crime officer has applied for new bench warrants to arrest accused persons. Many of the bench warrants cannot be executed though because the said persons are still at large.

According to one interviewee, on many occasions the court sometimes has about 12 to 15 criminal cases a day but the court is usually only able to deal with about two to three of those cases. The rest are adjourned. In some cases, even the prosecutors cannot find their witnesses. Ironically many of the cases involve minor offenses, such as

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misdemeanors and have been in court for the past five years. Some would have been settled out of court by the time the cases are called for hearing. Settlement out of court accounts for the disinterest of prosecution witnesses to continue the case at court.

Another problem associated with disputing at state courts uncovered by the research is poor storage of data. There is also lack of basic logistics like simple computers for secretaries.

My lawyer has applied for a record of proceedings a month ago but he is yet to receive them. – A 65 year old man with a fraud case before a circuit court.565

Making copies of record of proceedings is difficult for the courts. The courts have volumes of large notebooks. The judges record all proceedings in these books in a continuous fashion. The downside of this system is that the proceedings for one case are in several notebooks. Furnishing copies of record of proceedings becomes a long and arduous task. Typing the proceedings takes time. The typist would have to scan through the record books and type out the hand written notes of the judge before a copy could be released to the parties.

In addition, none of the courts visited were automated as at the time of the research.

In the year 2000 the Ghanaian courts began a computerization program which introduced information technology to the courts. The findings revealed that not all courts benefitted from this facility. Case management in Ghanaian courts therefore continues to be difficult, adding to delays in court.

565 Interviewed on 21st August, 2008. 140

Lawyers are also accused of taking on too many cases and they do not attend court regularly even on dates set aside for hearing of cases. This is common both in Sogakope and Kpando where lawyers usually write that they are engaged elsewhere. The usual excuse is that the lawyer has to appear before a higher court. The problem with the regions is that almost none of the lawyers attending court are residents. In Kpando for example, with the exception of only two lawyers, the rest come from Ho, Hohoe and even from Accra. At Sogakope, even the judge lives in Accra. According to some interviewees, some of the delay is orchestrated by these lawyers who have to come from afar to deal with cases.

When one lawyer attends court, the other does not attend for continuation of business.

Cases are then adjourned. Sometimes, at the next adjourned date, the case may not be heard because other cases may already be on the court list for the day. Not even the awards of costs by courts at various times have in any way assisted in court attendance by lawyers. The situation has also accounted for the courts inability to have many cases disposed off. Furthermore, lawyers are usually reluctant to take costs against each other for fear of retribution.

Due to the delays, lawyers for the parties are already fatigued by the long standing cases. Some have even lost track of the proceedings. There also exist a sizeable number of cases in the courts involving sick lawyers who never attend court. Many of the lawyers engaged in regional practice are old. Indeed cases handled by ailing lawyers are also part of outstanding cases before the state court judges at Kpando and Sogakope. According to

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one interviewee with a case of theft, the accused has counsel and cannot take part in the trial in the absence of his lawyer who is ill.

I attend court regularly but so far, our case has not been heard. His lawyer has sent a note that he is ill. For months now, we only come to take a date. – A 52 year old male litigant at a circuit court.566

Some interviewees blamed the litigants themselves for delay tactics of lawyers. In their opinion sometimes lawyers fail to appear because they have not been paid.

Furthermore, many litigants mentioned that they prefer chiefs‟ courts because state courts do not allow them to put forth their cases properly.

I do not like the way the courts ask you to state your problem. Sometimes I have not finished what I want to say and they cut me off. We are not lawyers. I think that the judges should allow us to state our case just as the chiefs‟ courts do. – A 38 year old litigant at a circuit court.567

566 Interviewed on 21st August, 2008.

567 Interviewed on 16th February, 2010. 142

The reluctance to engage in formal dispute resolution at state courts is observed from the narration below from a sixty year old market woman. Her story also reveals efforts by leaders at the community market to maintain ongoing relationships and to prevent conflict:

Most of the female population at any time during the day can be found at the markets. Even women who engage in farming sometimes deal in petty trading too. We all belong to associations. We have for example, the yam sellers‟ group, the plantain sellers‟ group, the “chop bar” owners association and so forth. All these groups have their heads. There is also a market queen. This queen is elected by popular vote of all the women. We are all enjoined by our market by-laws not to litigate or resolve issues outside the market.

We first try to resolve disputes locally within our own unions. Most of the cases involve petty quarrels and defamation, assault and theft. When a dispute arises between two women, the first step is to take the case before their various heads. If the heads fail to resolve the matter, the case is then transferred to the market queen. The queen invites other women of good standing in the market to help her resolve the matter. When the market queen fails, the matter can then go before the queen mother for formal hearing or to the chief.

Because of this arrangement, there is less stress or demand on queen mothers to settle cases. Furthermore, anyone who goes against the edict not to litigate outside the market is sanctioned and fined heavily. Since the establishment of the system, peace has prevailed in the market. Leaders now divert their attention to social development. - A 65 year old market woman.568

The market woman‟s story reveals that people in the community are aware of the various avenues open to them for litigation. It also explains the force of private arrangements that sometimes force people to use state courts last. The above views do not mean that people do not use state courts. Interviewees gave a number of reasons for doing

568 Interviewed on 16th August, 2008.

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criminal cases at state courts. Some explained that they have to use state courts irrespective of the attractions of chiefs‟ courts because of compliance with directive of statute. Those interviewed who stated this reason were those involved in road traffic cases and those coming for letters of administration.

Many interviewees stated that they use state courts because of the ability of the courts to ensure compliance with summons and judgment. Indeed, some have no reservations about using the chiefs‟ courts but mentioned that they chose the state courts because those courts ensured attendance.

I have a case before the circuit court. The accused is my tenant and a former friend. He threatened me with a cutlass when I went to demand rent arrears. When I first tried to resolve this dispute amicable before the elders of my town, the accused was not interested in pursuing the matter. He refused to obey the summons, saying that I can take the case wherever I wanted to. I brought the case to the state court to eject him from my house. – A 60 year old male at a circuit court.569

Others also mentioned that the chiefs do not have powers of arrest and incarceration.

Some interviewees also noted that chiefs cannot jail recalcitrant offenders. In addition, chiefs do not have powers to enforce their decisions because those powers have been reserved for the state courts.

569 Interviewed on 22nd August, 2008.

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According to one interviewee:

I know that chiefs‟ courts promote peace but people do not refuse to go to (state) courts when summoned. At chiefs‟ courts, some people refuse to attend the call of chiefs. - A 50 year old female litigant at a circuit court.570

Another interviewee noted that:

The police are prosecuting the accused who was my shop attendant. He stole items from my store. I prefer to prosecute him at the state courts because he has denied the offense. The state courts have the powers to incarcerate him if he is found guilty and defaults in payment. – A 47 year old man at a circuit court.571

According to this interviewee, he would only use the chiefs‟ courts when those forums can give similar remedies and assure compliance. However, when asked whether he would use the chiefs‟ courts to settle criminal cases- if he were the accused- he stated that he would, if doing so would prevent him from going to jail.

4.5.2. Barriers to Justice at Chiefs‟ Courts

Interviewees at chiefs‟ courts did not have problems with using that forum for criminal cases but interviewees at state courts mentioned some negative aspects of chiefs‟ courts which are barriers to justice. These barriers include bias on the part of chiefs, too many chieftaincy (chiefly) disputes, and litigious chiefs. Other interviewees mentioned that customary penalties are exorbitant. Some also mentioned the lack of enforcement mechanism at chiefs‟ courts.

570 Interviewed on 22nd August, 2008.

571 Interviewed on 15th August, 2008. 145

One litigant interviewed at state courts expressed fears about possible bias at the chiefs‟ courts. She also expressed the same misgivings about state courts. In her words:

The problem with chiefs‟ courts is that some of the elders and chiefs can be biased. In my own case, the whole issue started when my sister caught my uncle‟s wife in my room. We accused her of being there with the intent to steal. She denied that she was there to steal and we took her before the elders. But I realized that the elders were supporting my uncle and his wife. We withdrew from the proceedings.

At home, my nephew hit me with a cutlass inflicting wounds because I had accused his mother of being a thief. I lodged a complaint with the police. That was nine years ago and we are still coming to court on the issue. After I complained to the police, I noticed that the police were delaying prosecution of the case. I suspected that they had conspired with my nephew to frustrate me by not prosecuting.

I wrote to the crime officer and then to the chief justice. Because of my compliant, my case was transferred to another police station and another court. It is true that prosecuting the case before the chiefs bring lasting peace. But when chiefs are biased, the case cannot go on. Now after nine years, my assault case is still before the state courts. I have to journey from my town to this town (about 60 kilometers) for the case. – A 46 year old female teacher at a circuit court.572

572 Interviewed on 19th February, 2010.

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Interviewees are divided on this point of bias of chiefs.

As for bias, it depends on who the judges are. An elder can be bias if he sits alone or if one party to the case is related to him. But in chiefs‟ courts, it is not one person who sits on a case. It is not common for the chief and elders to be biased. – A 55 year old female litigant at a circuit court.573

There is bias at all dispute resolution forums. I prefer the chiefs because their forums lead to peace in the family. - A 63 year old male litigant at a circuit court in a case of theft and destruction of property.574

Some litigants indicated that chiefs‟ courts charge exorbitant fees for their services.

The customary penalties are too expensive. - A 35 year old woman at a circuit court.575

While some, like the above interviewee, think that the summons fee and the

“customary” penalties demanded at chiefs‟ courts are exorbitant, others mentioned that the “customary” fees and penalties may seem very high in the beginning but in actual fact, are very affordable when compared to the cost of using the state system.

Some people think that the chiefs‟ courts are expensive. Yes, they may be expensive because one is expected to pay for drinks. But there is speedy resolution of cases. Cases before chiefs can be heard and judgment pronounced all in one day. The (state) courts tend to be more expensive because cases last long. – A 34 year old civil servant, who is the accused person in a trial for assault before a circuit court.576

573 Interviewed on 23rd February, 2010.

574 Interviewed on 19th February, 2010.

575 Interview conducted by on 15th August, 2008.

576 Interview conducted on 22nd August, 2008.

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Furthermore, some interviewees at the state courts argued that chieftaincy disputes in some parts of the region were one reason why people will not use courts of chiefs to resolve issues. They stated that chieftaincy disputes breed factions and make some communities turn against their chiefs. Indeed, chieftaincy disputes were found in some towns visited.

At one town, there were two people holding themselves out as chiefs. At another, it was observed that although a new chief had been installed, there was a section of the citizenry who did not recognize him as chief.

In some cases, community chiefs or sub-chiefs do not recognize a paramount or divisional chief. They would refuse to litigate before him and so would all their supporters. Sub-chiefs also form cliques in disputes between divisional chiefs. If a person is summoned before a chief he does not recognize or respect, he would not attend or reply to the summons. - A 45 year old male at a circuit court.577

Not until chieftaincy disputes are resolved; chiefs‟ courts would not be recognized and given the respect they deserve. - A 40 year old male at a circuit court.578

Unless there are no chieftaincy disputes and chiefs are not biased, many will not use their forums. - A 36 year old female at a circuit court.579

It was found that some of the chiefs were themselves suing their subjects before state courts. This was found to be common in land cases. The chiefs were the litigants trying to dispossess their subjects of land. In such cases, the chiefs fall out of favor with their

577 Interviewed on 7th August, 2008.

578 Interviewed on 7th August, 2008.

579 Interviewed on 8th August, 2008.

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subjects and their families. The subjects would never agree to settle cases before a chief they regard as a cheat. This was the case of one interviewee who was involved in a land case with a chief at a circuit court. As he put it:

The sub-chief from my area has sued my family for our land. He said that our land belonged to him. He demanded that we pay two hundred Ghana cedi (200 US dollars) or forfeit the land. We refused because we bought the land from his predecessors. He then sued us in this court. I will never do any case before him. Not even if someone summons me before him. Family links are very influential. If a person is sued before a chief, even for a misdemeanor, and that chief has a case with a family member, relatives of the person will never allow such a chief to settle their case. – A 52 year old male at a circuit court.580

580 Interviewed on 11th August, 2008.

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5. CHIEFS’ COURTS AND THE LAW: VIABLE ALTERNATIVES TO

STATE COURTS?

5.1 UPSIDES OF CHIEFS‟ COURTS

The possibility of chiefs‟ courts as viable alternatives to state courts is evident when compared to alternative dispute resolution (ADR). The argument can be made that the

2007 Ghanaian ADR bill before Parliament would solve problems relating to accessing justice at state courts. Such an argument could be made because the bill encompasses

“customary” arbitration of chiefs. There are definitely some similarities between ADR and chiefs‟ courts.

Both are informal dispute resolution systems. Also, rules of evidence and procedure used in both systems are flexible. Decisions in both systems are based on agreement with emphasis placed on restorative justice.581 Both processes therefore emphasize reconciliation and restoration of social harmony. This finding correspond with

Macfarlane‟s,582 when she noted that informal dispute resolution systems are seen by people as restoring relationships and community functionality.583

But the ADR bill does not allow arbitrators including chiefs to settle criminal cases except under a court order. ADR has therefore not resolved concerns about criminal jurisdiction exercised by chiefs. The prohibition of criminal offenses before chiefs‟ courts under the ADR bill would therefore not have any effect on disuse of those courts to settle

581 See Nils Christie, Conflicts as Property, 17 Brit. J. Criminology 1(1977). See also, Raymond Shonholtz, Neighbourhood Justice Systems: Work, Structure and Guiding Principles, 5 Mediation Q.5 (1984), where the author explained the arguments for a rejection of the state courts and the development of community-based justice.

582 See Julie Macfarlane, supra note 1 at 459.

583 Id. 150

criminal matters. The prohibition is actually a repetition of earlier prohibitions under the

Constitution and the Criminal Offenses Act.

Also, the bill does not categorically prohibit or ban jurisdiction over criminal offenses outside the parameters of the ADR Center. This means that chiefs‟ courts could still settle those cases without use of the Center. Furthermore, the Bill does not give any standard to measure acceptable crime or level of harm to the victim that should justify the courts to order out of court settlement. It is therefore difficult to quantity how aggravated the harm or wound must be to qualify for out of court settlement.

In addition, ADR Centers as envisaged under the bill are an additional cost to the government. Although initially the projects are funded by non-governmental organizations, the sustainability is very much in doubt. Indeed, it is highly unlikely that the government will be able to afford setting up Centers in all districts of the country especially since it cannot even equip the few state courts in operation. The situation is also dismal when one considers that previous interventions like the Legal Aid service, to date have not even been established in all the district capitals in Ghana.584

None of the research sites had an ADR Center. Although the government and its partners have good intentions, they have not established the pilot ADR Centers where they matter most- in deprived districts outside the capital towns. Chiefs‟ courts will therefore continue to be utilized as dispute resolution forums in more rural settings where local governance is mainly by the chiefs. As the findings show, they will also be used in the many areas of the country where there are no state courts or where the presence of the police and other law enforcement agencies are not visible. Chiefs‟ courts will also

584 See Renee Morhe, Legal Aid in the Criminal Justice System, supra note 16. 151

continue to work in places where use of the state courts is the exception rather than the norm.

Conversely, and as the trend from the pilot ADR centers already show, ADR may work better in cosmopolitan centers. These are cities and surrounding suburbia, where the people come from diverse backgrounds. Cosmopolitan centers are also areas where there is more allocation of government resources. These are also areas where chiefs‟ jurisdictions are less felt.

Chiefs‟ courts in Ghana already have civil jurisdiction. Not much cost would be incurred granting them jurisdiction over certain criminal offenses. Costs for the government in maintaining chiefs‟ courts are less when compared to cost in the training of new judges under the state court system or in training alternative dispute resolution practitioners. As Connolly585 noted, the traditional mechanisms already in place at chiefs‟ courts allows disposition of cases to begin without first having to rebuild institutions.586

Another problem is the cost of ADR to the user. The arbitrators are always paid for their services and the parties and arbitrators have to agree on the fees payable. The bill does not specify the quantum of the fees, leaving this at the discretion of the parties, the

Center, and the arbitrators. Parties will therefore have to negotiate the fees even before their cases are dealt with. The absence of any regulations on the matter leaves room for a lot of uncertainty and will make the process unappealing to potential users. At chiefs‟ courts, the chiefs are not paid. Parties only have to pay for summons and the penalties for

585 See B. Connolly, Non- State Justice Systems and the State: Proposals for a Recognition Typology, supra note 20.

586 Id at 243.

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losing. The summons and the penalties would also be paid when parties choose to do customary arbitration under ADR. But under ADR the parties would have to bear the additional cost of chiefs‟ fee. So far, nothing in the Bill suggests that it would be cheaper than chiefs‟ courts; a situation that could be a disincentive to targeted users.587

Furthermore, apart from the very wide scope of ADR envisaged under the bill, the functions of the ADR Center are many and varied. The Center in discharging its functions under this wide area of dispute resolution could become immersed in bureaucracy. Indeed, one wonders whether this body will not end up as another non- functioning government institution with a very wide mandate, crippled by bureaucracy.

Moreover, putting chiefs under the ADR Center and making them report to the Center is a departure from the process at chiefs‟ courts. The process under ADR would culminate in putting the chiefs under another authority or under a government official.

This unlikely partnership may cause many chiefs to refuse to use the ADR procedures.

Some have even contended that putting “customary” arbitration under ADR is demeaning to the “customary” mode of dispute resolution.588 Woodman views the term alternative dispute resolution as a loaded one. He contends that the word “alternative” when broken down means a mode of dispute resolution which could be used instead of the standard.589

587 See also W. D. Brazil, Why Should Courts Offer Nonbinding ADR Services, supra note 161 at 75, who in promoting non-binding court ADR, noted that some litigants cannot afford to pay for private ADR services. He also noted that sometimes a case‟s realistic value discourages ADR. In cases of limited economic value, the parties might conclude that they cannot justify paying a private providers‟ fees.

588 See Gordon Woodman, The Alternative law of Alternative Dispute Resolution, 32 Les Cahiers de Droit 3 (1991).

589 Id.

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Woodman noted some level of ethnocentrism in the meaning of ADR.590 He argued that the Arusha of Tanzania for example, like other African countries, had methods of dispute resolution long before the advent of colonial rule and the inception of the modern state.591 Putting customary arbitration under ADR is in other words saying that customary arbitration can be used in place of the preferred state courts. Woodman argues further that, the proper idea or connotation should rather be that the state courts or court processes are alternative method of dispute resolution in African countries.592

The state courts have not been successful in providing access to justice for all. The courts are plagued with delays due to a myriad of problems. These are problems caused predominantly by all parties involved: the judges, the lawyers and the prosecutors.

Crook593came to similar conclusions when he observed that litigants were experiencing severe delays in Ghanaian courts.594 In his words:

It is evident…that the issue of delay in the court systems is not simply a matter of “too many cases”; the ways in which people use litigation, the administration of the courts, the behavior of lawyers, court officials and litigants themselves, all play a part.595

The above findings on problems with access to justice at state courts in Ghana are also similar to those found by a regional non-governmental organization involved in

590 Id at 8.

591 Id.

592 Id.

593 See Richard C. Crook, Access to Justice and Land Disputes in Ghana‟s State Courts: the Litigants‟ Perspective, 50 J. Legal Pluralism & Unofficial L. 1, 15(2004).

594 Id at 15.

595 Id.

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women‟s human rights issues; the Women in Law and Development in Africa

(WiLDAF). WiLDAF found that women, in particular face barriers to justice. The organization noted that when using the state system, women are confronted with challenges of physical access to the courts. Women also have low economic power to hire the services of lawyers.596 The organization concluded that improving women‟s access to justice in the country is one important area that deserves governmental action.597

Also, the findings that victims of criminal behavior are forgotten during prosecution of criminal offenses at state courts are similar to those of Ofori- Amankwah,598 who found that:

The undue concentration of the rights of the accused person has almost rendered his victim a forgotten entity-which was not the case at customary law where pacification and reconciliation are the touchstone of settlement of dispute.599

The above barriers to justice at state courts make chiefs‟ courts appear very attractive.

Strength of chiefs‟ courts is their availability and accessibility. Litigants do not have to travel long distances to attend court. A further strength of chiefs‟ courts is that justice sought by parties is not delayed. Most cases are resolved within a day or two. Resolving

596 Id.

597 See The Ghanaian Daily Graphic, Thursday, March 27, 2008, Page 11 (Women‟s World) by Salome Donkor. Also found at website of Pathways of Women‟s Empowerment at http://pathwaysghana.blogspot.com/2008/03/improving-womens-access-to-justice.html accessed on 07/27/2009.

598 See E. H. OFORI-AMANKWAH, SELECTED ESSAYS IN CRIMINAL JUSTICE, 167 (2005).

599 See id at 168.

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criminal offenses at these forums means that matters are handled expeditiously and tactfully. Speedy resolution of cases reduces some of the stress associated with prolonged bickering commonly encountered in court cases.

Also, lawyers are not used, eliminating one of the most expensive aspects of litigation associated with state courts. Furthermore, the criminal process is devoid of technicalities and copious rules of procedure. The procedures used at chiefs‟ courts are known to the parties. Proceedings are also conducted in native language of the parties, unlike state courts where users find procedures unfamiliar. The above finding is similar to Michael

Lowy‟s600 account of court use in Ghana. Lowy noted the psychological costs to litigants in terms of unfamiliar and “alien” court procedures.

Lowy also noted that court officials were educated young elite, totally different in dressing and manner from the litigants using the courts.601 The above observations are also similar to those made by Meneses602 about litigating at justice forums of traditional authorities in Mozambique. He noted that, “one of the greatest strengths of these institutions is that justice is immediate, public, collective, face to face, and relatively transparent.”603 “Justice is also based on local knowledge, which is flexible.”604

600 See M. Lowy, A Good Name is Worth more Than Money: Strategies of Court use in Urban Ghana, supra note 18 at 190.

601 Id.

602 See M. P. G., Meneses, Traditional Authorities in Mozambique, in THE SHADE OF NEW LEAVES, supra note 139 at 153.

603 Id.

604 Id.

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Furthermore, the presence of family members at chiefs‟ courts is helpful in many instances. The findings have shown that summons is delivered via the social father of the accused. The practice automatically gets other family members involved in the case. The presence of the family may be a double edged sword. On one hand, some offenders may find it humiliating to have family members around. On the other hand, the members give support to their kin. The importance of the presence of the family was also observed by

Kludze605 who noted that:

The family must be involved…no man stands alone. Everybody, an adult or a child, is a member of an extended family…an individual‟s complaint must be championed and supported by his family…upon receiving the complaint, the proposed adjudicator send his own emissary to the head of family of the prospective defendant…606

In addition, the process before chiefs‟ courts is voluntary. Unlike state court proceedings, both victim and accused can withdraw at anytime they feel threatened by bias. Moreover, decisions are collective of the courts because they are arrived at by consensus. Kludze607 observed a similar process in his study among the northern Ewe people. He noted that chiefs‟ and elders hold consultations before declaring their verdicts.608 He refers to it as a whispering consultation;609 “a private but not so secret deliberation by the judges when the evidence adduced is evaluated in public.”610

605 See A. K. P. KLUDZE, Legal Processes and Institutions, in A HANDBOOK OF EWELAND, 73 (1997).

606 Id at 74.

607 Id at 78.

608 Id.

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The criminal settlement process at chiefs‟ courts also allows room for negotiations.

The findings revealed that there is room for negotiations in terms of asking for reduction in fines. The remedy granted is usually determined by the victim but due to underlying need for reconciliation and peace, the offender is allowed to ask for reduction of fines imposed. In giving the offender the opportunity to negotiate terms of payment, the remedies are granted through consensus.

A further strength of chiefs‟ courts that make them viable alternatives to state courts is that, goals of the users do not have much to do with retribution but with restitution or compensation. In the case of theft for example, the findings show that accused persons and victims are more interested in restitution. The conclusion to be drawn is that chiefs‟ courts grant remedies that users seek. Banning chiefs from criminal jurisdiction will not deter people who use their courts because of customary remedies granted for certain offenses. People will continue to use the chiefs‟ courts irrespective of whether the courts are part of the judicial system.

Meneses611 came to similar conclusions when he noted that in Mozambique, people will continue to use the chefs‟ courts whether the chiefs are officially recognized or not.612 People are loyal to the chiefs‟ courts because they are confident that the chiefs‟

609 Id.

610 Id.

611 See M. P. G., Meneses, Traditional Authorities in Mozambique, in THE SHADE OF NEW LEAVES, supra note 607 at 116.

612 See id.

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have wisdom and that they solve problems and protect their interests.613 According to

Meneses, the recognition of the competence of chiefs‟ is attested to by those who constantly request their help to solve problems.614

In addition, the findings of this study revealed that people who commit offenses want to use chiefs‟ courts. Accused persons ask chiefs to withdraw criminal cases from the state courts. They use the chiefs‟ courts because they are eager to offer compensation in order not to go to jail. The findings are similar to those found by Van der Waal.615 Van der Waal noted that some women in the Limpopo province of South Africa use the

“traditional court” because they do not want their opponents “to rot in jail.”616 The above reason may also account for the refusal of some Ewe women to prosecute their husbands for domestic violence offenses.

Based on the above, people with such goals, will continue to use chiefs‟ courts irrespective of state law and the presence of state courts. In addition to the above, the findings revealed that state courts refer criminal cases to the chiefs, including those related to serious assault. By doing so, the state courts confirm the potential of chiefs‟ courts as viable dispute resolution forums for criminal offenses.

613 Id.

614 Id.

615 See C. S. Van der Waal, Formal and Informal Dispute Resolution in Limpopo Province, South Africa, in THE SHADE OF NEW LEAVES, supra note 139 at 151.

616 Id.

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To guarantee access to justice, parties must have avenues for appeal. Under the criminal process before chiefs, parties are at liberty to refuse to accept decisions of courts. The presence of the hierarchy of courts of chiefs‟, means that parties can appeal to higher chiefs‟ courts. The channels of appeal go to the court of the paramount chief. The above finding is similar to those of Kludze.617 Kludze noted that there is no stigma attached to the rejection of a verdict and an unsatisfied party can appeal to a higher tribunal within the traditional hierarchy.618

5.2. UPSIDES OF THE LAW AT CURRENT CHIEFS‟ COURTS: “CUSTOMARY

LAW” AS A VIABLE LAW AT CHIEFS‟ COURTS

Unwritten “customary law,” - used at chiefs‟ courts to regulate the filing of cases, the summons procedure and to decide “customary” penalties in criminal cases- is known to the users. The plain English meaning of the word customary is “according to custom or defined by long-continued practices.”619 The word also means, usual or habitual or established by custom rather than by law.”620 It is acknowledged that by no stretch of the imagination can one say that “customary law” of the Ewe today is their long-continued practices.621 This law is native law and custom of the Ewe as a byproduct of colonial

617 Id at 80.

618 Id.

619 Definition taken from Oxford English Dictionary.

620 Id.

621 For a general overview of this debate, see LAW IN COLONIAL AFRICA, 4-5 (Mann & Roberts eds., 1991), who argue that customary law evolved out of the interplay between African societies and European colonialism. They also contend that the contents of customary law had been modified with passage of time. The intent of the colonialist was to ensure that indigenous laws and practices disintegrate after introduction of foreign “civilized law”. 160

influence. The above conclusion is similar to those of Chanock.622 Chanock, referred to

“customary law” as native law and custom transformed by colonialism.”623

Indeed, the finding on offenses among the Ewe during colonial era throws some light on the transformation of “customary law.” Ewe chiefs‟ courts were in existence before the inception of colonial rule. But the finding from the colonial criminal court records did not document chiefs‟ as judges in criminal cases. This finding is rather surprising because under the Native Administration Ordinance of 1927,624 British established chiefs‟ native courts were given jurisdiction over certain criminal offenses like petty theft and violation of by-laws.625

The findings of this research however are similar to those of Offiong626 who wrote on the Ibibio from Nigeria. Offiong established that natives did not patronize the native courts of chiefs‟ established by the British.627 The people saw these courts as “intruding links with the colonial administration.”628 The Ibibio viewed the situation as “reducing

622 See M. Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (1985).

623 Id at 4.

624 This statute was later succeeded by the Native Courts (Colony) Ordinance 1944 (Number 22). The 1944 Ordinance, as already noted, was the revolutionary Ordinance because it abolished chiefs‟ role in dispute resolution. Only chiefs appointed by the Governor were allowed to serve in the “new” native courts established by the Ordinance.

625 Id.

626 See D. A. Offiong, The Status of Ibibio Chiefs, Anthropological Quarterly, Vol. 57, No. 4, 100- 113(1984).

627 Id.

628 See at 108.

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the status of their chiefs, making them agents of the British.”629 Many tended to ignore the native courts and continued to use the indigenous system by which justice was administered by meetings among heads of kinship groups or extended families or village elders.630

Gocking,631 also had similar findings on the Gold Coast (Ghana). He reported that there was a great deal of opposition to the Gold Coast Native Administration Ordinance.

Despite the criminal jurisdiction given to chiefs, the British courts continued to monopolize the adjudication of most criminal matters.632 Gocking found that there was little incentive for the chiefs to prosecute criminal offenses like violations of local sanitary by-laws. Such action was hardly likely to enhance their popularity.633 He also found that criminal cases were not attractive to the chiefs because they were less remunerative than civil actions.634

Gocking635 found some documentation of criminal cases tried by the chiefs‟ in 1931 but those were only from “districts and smaller towns around the Saltpond District and the east of Cape Coast, where there were no Police Magistrates or District

629 See id.

630 Id.

631 See Roger Gocking, British Justice and Native Tribunals of the Southern Gold Coast Colony, The Journal of African History, Vol. 34, No. 1, 93 (1993).

632 Id at 99.

633 Id.

634 Id.

635 Id.

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Commissioners.”636 Gocking‟s account focused on towns of the southern coastal areas like Cape Coast and Accra “where colonial rule was longest and judicial interchange most significant.”637 He also noted that those areas possess the best judicial records.638

The findings illustrate that colonial rule brought change to law within African societies. New offenses like riding bicycles without licenses, allowing larvae to grow on premises, intending to distill illegal spirit, and worshipping prohibited fetishes, were introduced. None of the above was documented as crimes before pre-colonial chiefs‟ courts.639 The findings also revealed that punishments for criminal offenses before British judges were either fines or imprisonment. No African “customary” penalties like slaughtering of animals recorded by Rattray were imposed.

Any references to “customary law” at current Ewe chiefs‟ courts must take changes brought by colonial rule into consideration. An example is the reference by chiefs‟ to the practice of serving summons with drinks as “customary.” The importance of drinks in modern day “customary law” was recorded by Kom,640 who noted that customary marriage rites in most parts of Ghana include the presentation and acceptance of cash and drinks.641 The drinks are proof that a valid marriage had taken place. He noted that the

636 Id at 100.

637 See id at 95.

638 Id.

639 See R. S. RATTRAY, ASHANTI LAW AND CONSTITUTION, supra notes 292-298, where he gave a list of types of crimes among the Ashanti people.

640 See KOM, E. D., KOFI MENSAH AND THE LAW: 1 INHERITANCE MARRIAGE AND DIVORCE, (1993).

641 Id at 59. 163

quantum may differ in all communities but it is the presentation to and acceptance by the woman‟s family of the drinks that constitutes a valid marriage.642

The importance of drinks is also recorded by Ollenu,643 writing on succession under

Ghanaian “customary law.” Ollenu noted that drinks are offered in acceptance for election to positions like serving as the customary successor to a deceased person. “The drinks are poured, calling upon the spirit of the deceased and all ancestors to witness the solemn rite.”644 The case of Kpakpla v. Kofi Kpo,645 also established that acceptance of customary law gifts must be evidenced by the presentation of drinks. The drinks are shared by everyone as evidence that they were present when the gift was made.646

There is no literature to suggest that elements of “customary law” in modern times like presentation of drinks in dispute resolution (used by the Ewe and indeed most ethnic groups in Ghana) was a practice from antiquity. What is known is that “customary law” is the name given to law practiced at chiefs‟ courts. 647 This law has come to stay albeit in

642 Id.

643 See OLLENU, N. A., THE LAW OF TESTATE AND INTESTATE SUCCESSION IN GHANA, (1966).

644 Id at 107.

645 See (1966) G. L. R. 443.

646 Id at 445.

647 See GORDON WOODMAN, Customary law, State Courts, and Institutionalization of Norms in Ghana and Nigeria, in PEOPLES LAW AND STATE LAW 143 (1985).where he refers to pre existing African norms and laws as indigenous customary law. See generally, A. ALLOTT, ESSAYS IN AFRICAN LAW, WITH SPECIAL REFERENCE TO THE LAW OF GHANA (1950), N.A. OLLENU, THE LAW OF TESTATE AND INTESTATE SUCCESSION IN GHANA (1966) and A. K. P. KLUDZE, EWE LAW OF PROPERTY (1973). All these authors refer to modern African law as “customary law.”

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its corrupted form. As already mentioned, it is one of the sources of Ghanaian law.648

“Customary law” is amenable to change and this phenomenon is recognized by the

Constitution which states that the law:

Should be construed with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of the Constitution and to give effect to any changes effected by the Constitution.649

Van der Waal made similar observations on “customary law” in South Africa. He noted that:650

“Customary” courts are more directed towards finding solutions than enforcing rules. For this reason, customary law and its institutions can accommodate contradictions, fluidity and differentiation…“customary law” is an affordable, socially sensitive adjudication and arbitration system for a poor, rural population, packaged in the discourse of tradition and patriarchy.651

It is a law that is not found in a written document. But from the users‟ perspective, a law nonetheless that does afford them remedies sought.

648 See chapter 4, article 11 of the Ghanaian 1992 Constitution which states the sources of law in Ghana. See also E. D. Kom, Customary Arbitration, supra note 474, where at 149, he stated that all constitutions which this country has had since independence as well as the various Courts ordinances, Decrees and Acts have all provided for the preservation of customary law as part of the law of the land. See also the Supreme Court Ordinance, 1876 (Cap 4); the Courts Decree, 1966 (NLCD 84) and the Courts Act, 1971 (Act 372).

649 See article 11(6) of the Ghanaian 1992 Constitution.

650 See C. S. Van der Waal, Formal and Informal Dispute Resolution in Limpopo Province, South Africa, in THE SHADE OF NEW LEAVES, supra note 620 at 153.

651 Id.

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5.3. DOWNSIDES OF CHIEFS‟ COURTS

From the findings, one downside in using chiefs‟ courts is the lack of a strong enforcement procedure. Basically, the fact that offenders can be easily identified because they can be traced to their families may not be a guarantee for deterrence of commission of crimes. In addition, ostracizing a habitual offender may not be an effective mechanism to prevent recidivists. Recidivists may not be deterred by this sanction. In close communities, though, these measures could be strong motivating factors for upholding social norms and the maintenance of law and order.

Possible bias at chiefs‟ courts is another downside of the use of this forum. But this downside is minimized because parties are at liberty to withdraw from proceedings whenever they feel threatened by bias. The best option to counteract these downsides is not to deny chiefs criminal jurisdiction. The jurisdictional ban has not resolved human rights issues because victims and offenders still utilize the chiefs‟ courts.

5.4. CONCLUSION: CHIEFS‟ COURTS AS VIABLE ALTERNATIVE TO STATE

COURTS

The world has realized that access to justice particularly through means of adversarial system of justice does not work for all offenses. This realization is seen from the introduction of alternative dispute resolution even in developed countries like the United

States. Alternative dispute resolution ideas are being imported into Africa as a solution for improving access to justice.

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However, African countries have begun to reconsider existing African dispute resolution systems which function just as well as the “new” alternative dispute resolution systems. Such reasoning is supported by recent upsurge of interest in rejuvenating

“customary” courts even in countries where they had previously been abolished, like

Mozambique.652 In Mozambique, “among all entities involved in community justice, the traditional authorities and their law have, for a long time, been the most significant.”653 In the words of Meneses:654

In instances of conflict resolution, traditional authorities intervene in a wide range of issues. They are particularly important in evaluating problems of access to land, family matters, debt, bodily harm, damage to property, health/sickness, witchcraft and petty theft. In all these matters, the traditional authorities are a key node in a network of institutions that may include the district or even the provincial courts, the police, and local, political and administrative agencies. Sometimes they are the first venue sought for the parties, in other times they function as appeal institutions and in yet other cases they provide advice, or evidence in cases being dealt with by other institutions.655 In Botswana656 “customary” courts are recognized by law and they may sentence an accused to a term of imprisonment between six months and a year.657 The President may also issue an order increasing the jurisdiction of a “customary” court in criminal matters

652 See M. P. G., Meneses, Traditional Authorities in Mozambique, supra note 607 at 110.

653 Id.

654 Id.

655 Id at 112.

656 See Chapter 04; 05 of Laws of Botswana (Customary Courts) sections 11 & 17.

657 Id.

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by giving it power to sentence a person to imprisonment up to 4 years.658 In Swaziland, chiefs‟ courts also have considerable criminal jurisdiction.659

Policy makers involved in justice sector reform should consider chiefs‟ courts as another vehicle that Ghanaians could employ to obtain justice. There is therefore need for a law on chiefs‟ criminal jurisdiction in Ghana.

658 Id.

659 See SOUTH AFRICAN LAW COMMISSION, supra note 21 at 30; which quoted Swazi Courts Act No. 80 of 1950, section 12. The Act states that a Swazi chiefs‟ court is not restricted in jurisdiction over criminal cases except that “the fine or other punishment shall in no case be excessive but shall always be commensurate with the nature and circumstances of the offense and the circumstances of the offender. 168

6. RECOMMENDATIONS AND CONCLUSIONS

6.1. RECOMMENDATIONS

In order to ensure justice for all, courts must be available, accessible and affordable to the ordinary man. Hence, chiefs‟ role as arbiters in criminal matters should not be overlooked. Chiefs‟ courts are available in all societies, even in the most rural areas. It is profitable to use chiefs‟ courts because they are already in existence. Future policies directed towards providing access to justice must take account of chiefs‟ role and their input in the justice system. The provision for customary arbitration by chiefs under the

ADR Bill seeks to fulfill this suggestion, but as the above discussions have shown, it is not a viable measure.

To be accepted as viable dispute resolution forums for criminal cases, chiefs‟ courts need to be modified by law to regulate their activities and to make them conform to human rights standards. It is recommended that there is need for a clear, unambiguous law on jurisdiction of chiefs over criminal offenses. Chiefs should be given clear guidelines under the law, on the types of criminal offenses to handle. The chiefs would then be able to enforce their decisions whenever necessary because they will no longer be acting “extra legally.”

The dissertation does not propose that everyone should use the chiefs‟ courts. Neither does it propose chiefs‟ courts as substitutes for state courts. The dissertation proposes legislation to regulate the types of criminal offenses before the chiefs.

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The model legislation for chiefs‟ courts should therefore have a preamble which would cement chiefs‟ courts as additional means of promoting access to justice. The proposed law could retain the current venue for hearing cases. The judges should be composed of chiefs and queen mothers or their representative under “customary law.”

The law should provide that no party to proceedings before a chiefs‟ court may have a legal representative during the proceeding. A party may be supported or represented by his or her wife or husband or family member, in accordance with current practice.

A chief should have criminal jurisdiction over some offenses emanating from his area. As revealed by the findings chiefs are already hearing criminal offenses like assault and battery, petty theft, minor bodily harm, domestic violence and defilement. They also deal with slander and defamation accompanied by assault. The proposed legislation on criminal jurisdiction of chiefs‟ courts should state clearly that chiefs should have concurrent jurisdiction with state courts over the above listed offenses.

It is acknowledged that taking these cases before the chiefs‟ courts means offenders receive non- custodial sentences. But the findings show that custodial sentencing is not always preferred in all cases. Offenses like domestic violence and defilement are brought before the chiefs‟ courts because of barriers encountered in prosecuting these cases at state courts.

Moreover, in domestic violence cases, the current Ghanaian Domestic Violence Act,

2007 (Act 732) allows out of court settlement in many cases where the violence is not severe. The Act provides under section 24 (1) that despite mandatory prosecution of offenses, a court could promote reconciliation in cases where the domestic violence is not

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aggravated. A court could also promote reconciliation where the offense of domestic violence does not require a sentence that is more than two years. In such cases, the Act mandates that courts must refer the case for alternative dispute resolution when the complainant desires to have the matter settled out of court.

Chiefs‟ courts may therefore continue to arbitrate domestic violence cases involving minor harm or injury to the victim. Chiefs‟ courts should not hear cases of repeated abuse or violence because repeat offenders need stiffer punishment to conform.660 Such cases must be reported to the state courts for more severe punishment. Such a law would help advance the cause of women because of strict and clear limits to jurisdiction.

Defilement cases however, relate to rape of young girls. The victims of such offenses are incapable of making a choice to litigate at chiefs‟ courts or state courts, and the decision is made for them by their parents. The model law should provide that chiefs take the best interests of these victims into consideration. Chiefs‟ courts should ensure that their forums are not used by offenders just to evade punishment at state courts. Such offenders should be severely punished even at chiefs‟ courts to serve as deterrent to others. The law may lay out appropriate penalties in such matters and chiefs could be given the power to impose custodial sentences in such cases involving children.

Chiefs should not deal with offenses involving very serious and grievous bodily harm that result in hospitalization of the victim. The law should also state clearly other offenses that chiefs should not arbitrate. These offenses should include rape, murder,

660 See the Domestic Violence Act, 2007 (Act 732) at 24 (3), where the statute stated that where the accused has engaged in any act of domestic violence after the out of court settlement, the accused shall be brought before the Court and prosecuted. 171

manslaughter, and offenses against the state like treason, punishment of which is the preserve of the state. Giving chiefs‟ courts criminal jurisdiction would provide people with additional choices in terms of forums that could actually reduce the number of state court cases.

Furthermore, Ghanaian law bans all harmful “customary” practices and these practices should include accusations of witchcraft. Observations at chiefs‟ courts revealed that cases involving accusations of witchcraft are taken before these courts. Though none of the chiefs‟ courts observed among the Ewe revealed punishment of witches, anecdotal information reveals that people branded as witches are sometimes maltreated. In rural northern Ghana for example, women can be banished by chiefs or their own families for suspected witchcraft. Most accused witches in those communities are older women, often widows who are identified by fellow villagers as the cause of difficulties, such as illness, crop failure or financial misfortune.

Many of these banished women live in “witch camp” villages populated by suspected witches. The women do not face formal legal sanctions when they return home but most fear they may be beaten or lynched if they return to their villages. As at 2001, there were about 850 women in the camps. Efforts by the Ghana Commission on Human Rights and nongovernmental organizations to stop the practice have not been successful. Various organizations continue to provide food, medical care and other support for the residents of the camps.661 The proposed law should ban offenses of witchcraft before chiefs

661 See Crime and Society (a Comparative Criminology Tour of the World) at http://www- rohan.sdsu.edu/faculty/rwinslow/Africa/Ghana.html last visited on 4/1/2008. 172

because it degrades women, is discriminatory and constitutes a serious violation of their rights.

To make the above recommendations receptive to chiefs, there should be human rights training programs for chiefs. The programs should train chiefs on how to proceed with such sensitive matters, like violence against women and defilement, including awareness of the vulnerability of girls. Non-governmental organizations like the UNDP and Penal Reform International are already working on justice sector reform. Such organizations can offer assistance with training programs that would sensitize chiefs on human rights issues.

The training program may also assist chiefs to know their limits and to understand the law, and the Constitution of the country on such issues. Chiefs will be better informed to make decisions on the cases to handle, those they must reject and those they must transfer to the state courts. Chiefs are leaders of their people and armed with such training, the chiefs will be able to lead the campaign for change and promotion of human rights of women and girls.

In addition, it is commendable that some chiefs constitute their panels using people from civil society, but it is recommended that chiefs may also be sensitized to include many women on their court panels as judges. The women need not necessarily be queen mothers‟, but may be women of substance and of good repute who reside within the community. As members of the community such women would have a stake in issues affecting women and would also benefit from training programs, and be better informed to make contributions as judges at chiefs‟ courts.

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Furthermore, law on chiefs‟ criminal jurisdiction may also provide that decisions from the chiefs‟ courts in criminal cases should have the same effect as a judgment delivered at a magistrate‟s court. Under this recommendation, a party, who is dissatisfied with a decision of a chief or queen mother, after exhaustion of local remedies at chiefs‟ courts, may have a further right of appeal to a higher court. The higher court should preferably be the High Court. The above mentioned superior court‟s powers of review are already available in civil cases emanating from chiefs‟ court. It is submitted that modalities for such appeal should be subject to debate involving all stake holders including the chiefs, state court judges, civil society and the government.

It is recommended though that on appeal, the practice already observed for appeals in civil cases from chiefs‟ courts may be used: the case must not be reopened. The appellate judge should only decide whether the rules of natural justice were observed. The rules of natural justice include finding out whether there was bias on the part of the judges at chiefs‟ courts. The rules of natural justice also mean finding out whether the party seeking appeal was given a fair hearing and whether the arbiters were wrong on any part of the law or fact.

The additional channel of appeal to state courts, requires that chiefs should keep records of cases especially, a register of cases heard before them. Training of chiefs should therefore include training in record keeping. Adducing evidence on appeal before higher courts will no longer be the arduous task of eliciting oral testimonies from chiefs and the litigants.

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It is also commendable that most areas occupied by the Ewe have hierarchy of chiefs who are gazetted and registered with the government. But not every area has a registered chief. It is recommended that unregistered chiefs who are involved in dispute resolution should be licensed by the government, as providers of dispute resolution services outside state courts. Licensing would ensure that users of their forums benefit from changes enumerated above.

The law could retain the current practice at chiefs‟ courts of imposing “customary law” punishment like fines in terms of livestock and remedies like “customary law” penalty for seduction. The proposed law should also retain the general focus of chiefs‟ courts towards promotion of reconciliation. Hence, if it comes to the notice of the chiefs‟ court that an accused person has not complied with an order, the court could cause such a person to appear before it and demand explanations. Based on the response, the court could assist the accused by giving him more time to comply with the order initially imposed. Such a provision will give opportunity for peace and reconciliation which

African dispute resolution systems are famous for.

It is further recommended that criminal justice must also focus on the victims. Once the perpetrators are prosecuted, this marks the end of the involvement of the Ghanaian state, but this phase marks the beginning of problems for the victims. Rehabilitation of the victims is essential, especially for offenses like domestic violence. In cases where the victims want to be free from the perpetrators, adequate safety nets like shelters must be put in place to protect them. Act 732 provides that shelters must be available for victims

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of domestic violence and it is recommended that the government takes steps to make this provision a reality.662

In cases like defilement, the state must invest in caring for victims, including covering the payment of their medical bills. As noted by Ofori-Amankwah,663 the time has come for victims to be adequately compensated not only by the accused, but also by the state. Sometimes victims may not even get anything from accused persons, especially in cases involving impecunious accused persons.664

6.2. CONCLUSIONS

This dissertation has established use of chiefs‟ courts in selected communities among the Ewe. The results warrant further studies, preferably quantitative studies, to access the extent to which people in the region adopt “customary” proceedings in preference to state courts. A quantitative study could produce data on the number of people using the forums and add impetus to the demand for law reform as envisaged by this dissertation. It would also be insightful to know how many cases are presented before chiefs‟ courts annually or even monthly.

More research would also be needed to document “customary law” as it is presently used and applied at current chiefs‟ courts. Some may argue against this measure because it is a process that could freeze the evolutionary process of “customary law.” The

662 See Act 732 at section 31.

663 See E. H. OFORI-AMANKWAH, SELECTED ESSAYS IN CRIMINAL JUSTICE, supra note 603 at 167.

664 Id.

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flexibility and dynamism of the law is its greatest characteristic. It is contended that documenting accounts of “customary law” as practiced at the chiefs‟ courts would not stop the evolutionary process of the law but would rather be an heirloom for communities.

The documentation is also for the sake of law makers to know about their history and to be able to trace developments of the law over years. Documentation in this way is not seen as a onetime event but an ongoing process. Such a venture, if successful, would also enlighten all stake holders, including policy makers in justice sector reform about the very nature and force of these courts as viable dispute resolution forums.

Apart from the need for further research into “customary law,” writing and researching this dissertation has revealed the need for re-introduction of the law as a core subject in Ghanaian law schools. The re-introduction would provide knowledge of new dimensions and debates, and would also make the law lend itself to comparisons with other global legal systems. Finally, the current situation at state courts is appalling and does not afford people access to justice. It is hoped that Ghana takes steps in legal reform, as recommended by the dissertation, in order to create access to justice for all.

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7. APPENDICES

7.1. APPENDIX 1: MAP OF THE EWE IN AFRICA

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7.2. APPENDIX 2 :MAP OF GHANA SHOWING THE RESEARCH SITES

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7.3. APPENDIX 3: INTERVIEW PROTOCOL A.

The questions in these protocols are meant only as a guide. They are open ended questions to allow those interviewed to express themselves freely. The questions will be read carefully before the day of the interviews in order to familiarize myself with them. I need not follow the order of the questions strictly but will make sure that all questions are asked. During the course of the interviews I will take notes.

I. Section 1: Nature of Informal Courts

This section will interview chiefs in the communities. The task here is to find out the various forms in which informal courts exist in the community, how they are constituted and the types of cases handled.

1. What kinds of offenses are commonly brought before chiefs?

2. How are offences classified?

3. What avenues for resolution of disputes do you have in your community?

4. What kinds of cases are sent to these dispute resolution centers?

5. Where do the cases come from?

6. Who are the people involved in resolving criminal cases (like fights,

stealing, immoral behaviors, defamation (insults, assaults)).

7. Apart from the chief‟s court, what other courts are there in this

community?

8. How are the chiefs‟ courts constituted?

9. Are women part of the courts?

10. When does the court sit? 180

Section 2: The Settlement Process

This section is also directed at the chiefs and explores the settlement

procedure.

1. What are the steps involved in settlement of cases in chiefs court?

2. When a person commits a criminal offence what is the procedure for

dealing with such an offender? Who lodges the complaint?

3. How is the case brought to the court?

4. How is the offender summoned?

5. Who receives the case? How is the case recorded?

6. How does the process begin?

7. How does the process progress? (What is the entire procedure from

beginning to end)?

8. What kind of support do the offender and the complainant receive

during the proceedings? (In national courts the accused has a lawyer to

defend him or offer support. Does the offender appearing before

traditional courts have any support? What form does the support take?)

9. How are witnesses used in the court? When are they brought to the

court?

10. Who are allowed to ask questions during proceedings?

11. How does the process end?

12. What are the usual methods of punishment?

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13. What kinds of redress are sought and actually given and how effective

are these?

Section 3: Enforceability of Decisions

This section also involves in-depth interviews of chiefs to find out the kind of penalty given to those found guilty and the measures put in place to ensure that decisions are enforced. It will also explore avenues for appeal that are available to people who use their courts.

1. How do you enforce your decisions? What measures are put in place to ensure

that the “court rulings” are complied with?

2. What happens when one party refuses to use your system?

3. If fines are imposed on a guilty party, how are the fines distributed?

4. What happens when someone does not comply with the rulings of the court?

5. What happens when the complainant is not satisfied with the rulings of the court?

6. What appeal avenues are available to both offender and complainant?

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7.4. APPENDIX 4: INTERVIEW PROTOCOL B.

These interviews are also very important because the respondents are actual litigants at both state and formal courts. If possible they would be asked for the opportunity of an interview before proceedings begin. General questions would be asked first. For example, why did they choose to litigate before the chiefs first? After establishing some rapport, the remaining questions would be asked. The right of respondents to decline to answer any questions would always be respected. Confidentiality rules would apply and no litigant would be identified by name.

II. Attitude of People Towards Informal Courts

The intention is to find out reasons for which people use or do not these courts.

Information sought includes, accessibility and acceptability of the informal courts to the people in the community. This section will explore the local factors that influence the choice between formal and informal courts in resolving criminal cases in the community.

1. In your opinion why do people go to chiefs‟ courts to resolve their cases?

2. Are there any barriers to the use of modern courts in your locality? In terms of

cost, distance, social barriers and ignorance.

3. In your opinion, what factors determine your choice between informal and formal

courts in criminal cases?

4. What do you like about the informal courts? What don‟t you like about them?

5. How much does it cost to send and settle cases before the chiefs‟?

6. In your opinion do you think the chief‟s court should continue settling criminal

cases? Why?

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