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 © 2010 by Renee A Morhe. All Rights Reserved. Re-distributed by Stanford University under license with the author. 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. iv 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 v 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. vi 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