Prof. Irene K. Odotei
Institute of African Studies, University of Ghana, Legon
A paper presented to German Students on the Go Africa…Go Germany Programme
Venue: Noda Hotel, Fumesua - Kumasi.
Date: 20th March, 2010 Time: 7:00pm
Chieftaincy is one of the most enduring traditional institutions of Ghana and has displayed remarkable resilience from pre-colonial through colonial and post colonial times. Chiefs combined executive, legislative, judicial, military, economic and religious roles. In the past, an important role of a chief was to lead his people to war to defend, protect and extend their territories. The nature of warfare for the chief in contemporary times has changed. The enemy is now poverty, hunger, disease, squalor, illiteracy, crime, injustice, environmental degradation, depletion of resources, greed, covetousness, ignorance and conflicts. These are the challenges of the new millennium.
Chieftaincy is indeed important to the people of Ghana. In Ghana, this position is gurannteed under the Fourth Republican Constitution (1992). Article 270 (1) of the 1992 constitution states, ‘‘The institution of chieftaincy, together with its traditional councils as established by customary law and usage, is hereby guaranteed.’’
CHIEFTAINCY (Who is a chief?)
Article 277 of the 1992 Constitution 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 queenmother in accordance with the relevant customary law and usage.’’ One must however state that reservations have been expressed about this definition because it does not adequately capture who a chief is. Among other things it seeks to define a chief with reference to a chief or queenmother whereas in some societies distinctions are made between the queenmother and the chief, who may be male or female. The reference to family and customary usage as criterion they argue is inadequate as family and lineages differ in genelogical depth and the fact that it is not always that people are made chiefs in accordance with tradition.
The chief is variously referred to as Ohene(Akan), Fia (Ewe), Mantse (Ga) Naa, etc. He is a ‘‘political and social power centre ( if even in a circumcised sense) in the area he rules and ipso facto a microcosm of authority who at times rivals the central government in legitimacy, recognition, and loyalty.’’ (Boafo Arthur)
ROLES OF A CHIEF
The Chiefs were responsible for the daily administration of the traditional area for its advancement and the growth of its inhabitants. This involved not only maintain once of peace and harmony between the people but also between them and the ancestors who were believed to be guardians of the people capable of inflicting hardships on the people if offended and blessing them if they did right.
A chief’s ultimate function was the maintenance of law and order as a prerequisite for the growth of the community and the advancement of the people in all spheres of life. The chief as a secular leader exercised executive, legislative and judicial powers by making laws, interpreting them and implementing them. And as the commander-in-chief of the armed forces, he reserved the right to declare and wage wars of defence or offence against the enemies of the state.
As a lawmaker, the chief together with his elders passed laws affecting the everyday life of his subjects. The chief was not limited in any sphere in the making of laws affecting his people. These laws however stemmed from the customs and traditions of the people as embedded in their worldview.
Among such legislative powers exercised by the chief was the right to levy or tax his subjects for specific purposes such as the prosecution of a war. The reason though and the necessity for it and how much and in what form had to be discussed by the council of elders and approved by them before its imposition.
The chiefs judicial powers were expressed in the chief’s court, which served as formal machinery for maintaining law and order. The court adjudicated cases involving his subjects and had jurisdiction over subjects in his territory, both indigenes and aliens alike. In the discharge of these duties the supreme interest of his people are paramount and as such these have to be done with the assistance and consent of the representatives of the people, his elders. As noted by Busia, ‘‘the chief had to keep strictly the injunction that he was to act only on the advice of his elders.’’
Religiously, since one of the important responsibilities of the chief is to maintain a link between his people and the ancestral spirits, his religious functions include performing elaborate rituals on important festive occasions such as the Akwasidae, Wukudae ,Odwira, Homowo, Fetu Afahye festival. On these occasions, the chief performs rituals to cleanse the blackened stools (believed to be the original stools upon which the deceased chiefs sat) so as to solicit the assistance of the ancestral forces for the peace, prosperity and progress of the individual and the state.
CHALLENGES AND CHANGING ROLES OF CHIEFS
Traditional authority among the various ethnic groups in Ghana has evolved over the years. Through a series of regulations the colonial authority became the final arbiter on matters of chiefship and the chiefs’ roles were defined by these various legislations. In this regard, not only did the basis of a chief’s authority shift from the indigenous people whom he served to the colonial authorities who ironically did not fall within the ambit of the chief’s customary jurisdiction. The chief now served not his peoples’ interests as dictated by tradition but that of the colonial authorities who ruled the people through them.
The Native Jurisdiction Ordinance (N.J.O) of 1883 which sought to ‘‘facilitate and regulate the exercise of certain powers and jurisdiction by Native Authorities’’ made that evident by granting limited legislative and judicial powers to chiefs and their councilors and the Governor the power to suspend, depose or exile chiefs.
Under the Native Jurisdiction Ordinance, chiefs and their councilors were granted the power to make bye-laws. These laws were however not only to be ‘‘consistent with the laws of the colony’’ which meant the people were subject to British law and not their traditional laws and usage, but also the subject matter of these bye-laws was regulated by the ordinance. In effect, the colonial authorities prescribed issues that the chiefs could legislate on. These limited bye-laws which the chiefs could pass even when passed had to be reported to the Governor for his approval as ‘‘No bye-law which the Governor in Council disallows shall have any force or effect whatsoever.’’ Consequently, the colonial authorities arrogated the right of legislation, which had hitherto resided in chiefs and their elders before colonial rule.
There was also some transformation with respect to the exercise of the judicial functions of the chief. Native tribunals which were authorized by the colonial authorities had limited civil and criminal jurisdictions. For instance, in civil jurisdiction, chiefs were limited to affiliation actions, custody of children, land and marital issues. In personal suits and succession, the amount involved was not to exceed seven ounces of gold or twenty-five pounds sterling and fourteen ounces of gold or fifty pounds sterling respectively or such other sum to be determined by the colonial authorities. The chiefs’ authority with relation to criminal jurisdiction was to be determined by the authorities.
‘‘Native custom’’ which was applicable in determining the rights of parties was only acceptable if not ‘‘inconsistent with the principles of justice or with this ordinance.’’ In other words, punishment to be imposed on any convicted person was not to be ‘‘repugnant with natural justice or with the principles of the law of England.’’ Fines to be imposed by chiefs too were regulated by the colonial authorities with penalties for violation.
Significantly, the exercise of such powers was only in respect of ‘‘natives’’ unless the party not a native consented in writing to being tried by a native tribunal. This was very important considering the fact that traditionally any person under the jurisdiction of a chief was subject to the laws of that community.
Besides curtailing the power of chiefs in civil and criminal matters in their area of jurisdiction , the decisions of chiefs and the native tribunals were also subject to appeal to the British courts hence making the latter superior to the traditional ones. This meant that, the chiefs had to rely on the British courts for affirmation of their judicial authority.
The total subjection of chiefs to the colonial authorities was evident in the authority granted to the Governor to approve even meetings called by chiefs.
Every head chief may call the chiefs, captains, headmen and others who
are the councilors of his stool as aforesaid to meet together (subject to
any order of the Governor, who, if he thinks fit, may disallow or suspend
the right of meeting or any particular meeting) for the purpose of
consultation on the affairs of his division or any part thereof, and for
making bye-laws as aforesaid.
A chief’s jurisdiction was also affected by this ordinance with the power given the Governor to subdivide every head chief’s division or part thereof if he thought fit, ‘‘into such convenient groups of villages under the supervision of such chief subordinate to the head chief as the Governor with the advice of the Executive Council appoint.
Immediate postcolonial governments continued along similar lines. The pre-colonial executive, legislative, and judicial powers were never restored. Rather, attempts were further made to weaken the chiefs and limit their role in the administration of the modern nation state.
The following examples are worth considering. For instance, under Kwame Nkrumah, though Article 13 of the 1960 Constitution stated, ‘‘Chieftaincy should be guaranteed and preserved’’ the form was determined by the government. Recognition as a chief was left to the Minister. The Chieftaincy Act(No.81) defined a chief as an individual who (a) has been nominated , elected and installed as a chief in accordance with customary law; and (b) is recognized as a chief by the Minister responsible for Local Government (emphasis mine).
The Nkrumah government not only weakened the political and judicial roles of the chiefs but also made them appendages to the central government by breaking their financial backbone. For example through an enactment of laws such as Akim Abuakwa (Stool Revenue) Act, 1958 (Act 8) Ashanti Stool Act, 1958 (Act 28) and the Stool Lands Control Act, 1960 (Act 79) it usurped the regulation of the collection and usage of stool revenue.
The second Republican Constitution (1969) gurannteed the chieftaincy institution and further established the National House of Chiefs to have appellate jurisdiction in all chieftaincy matters from the regions and subject to appeals to the Supreme Court. Its functions included the progressive study, interpretation, and codification of customary law with a view to evolving, in appropriate cases, a unified system of rules of customary law, and compiling the customary laws and lines of succession applicable to each stool or skin. Chiefs were to participate in local government but subject to the will of the elected leadership.
The 1979 Constitution maintained the provisions of the 1969 Constitution except that it added in Article 176 (2) that:
Parliament shall have no power to enact legislation which confers on any person
or authority the right to accord or withdraw recognition to or from a chief; and
which in any way detracts or derogates from the honour and dignity of the
institution of chieftaincy.
This significant departure invested the power of recognition in a Minister of State.
The 1992 Constitution also guarantees and maintains the functions as set in the 1979 Constitution in addition to chiefs being barred from active party politics. Among other things, the 1992 Constitution of Ghana states: ‘‘The Institution of Chieftaincy, together with its traditional councils as established by customary law and usage is guaranteed.’’ The constitution recognizes the establishment of the National House of Chiefs. This is made up of elected representatives from the ten Regional Houses of Chiefs. These Houses of Chiefs play a pivotal advisory role in the government of the nation and also exercises the prime jurisdiction in all matters concerning the institution of chieftaincy itself.
These changing roles of chiefs as determined by central political authorities from colonial to post-colonial times have posed challenges to chiefs to effective contribution to the development of the nation. This is very vital if one considers the fact that most Ghanaians live in rural areas where the most visible political authority is the chief who the people still look up to in the provision of their wants and needs even though he lacks the resources to do so.
It is very clear that in the colonial era and immediately after independence, the greatest challenge to chieftaincy was the attempts by the state to reduce the power of the chieftaincy institution. The underlining argument was that two contending forces could not co-exist so one had to overshadow the other in terms of power and influence. Allied to this was the challenge of sustaining the chieftaincy institution in the face of political assaults by the central government.
It must be stressed that within the institution itself, there were challenges of succession disputes some of which defied solution and lingered on in various forms to date. Much attention was paid to the activities of the central government because that had the potential of completely doing away with the cherished tradition of chieftaincy in the country.
CHIEFS AS AGENTS OF DEVELOPMENT
In spite of the above noted obstacles to the chieftaincy institution, some dynamic chiefs have reinvented themselves under the present democratic dispensation to be agents of development. Notable among them are the Agboagbomefia of the Asogli traditional area, Togbe Afedi, Okyehene, Osagyefo Amoatia Ofori Panin, Nana Otuo Sriboe II Juabenhene, and Asantehene Otumfuo Osei Tutu.
As succintky expressed by the Asantehene:
Our predecessors engaged in inter-tribal wars, fitting for conquest over
territories and people. Today, the war should be vigorous and intensive
against dehumanization, poverty, marginalization, ignorance and disease..
Chieftaincy must be used to propel economic development through facilitating
Investments in our communities, and through codification of customs and traditions
making it impossible for imposters to get enstooled and creating unnecessary
situations for litigations.
In this regard, he has since his ascension to the Golden Stool, helped resolve the numerous chieftaincy disputes and land litigation cases in Asanteman, which has brought peace and stability to Asanteman.
It is instructive to that since the traditional court emphasizes arbitration disputing parties are able to go back to their communities as partners in development. Otumfuo Osei Tutu II has also introduced the very innovative ways of recording all cases before the court on video. This video evidence has helped in the resolution of cases by providing counselors with the opportunity to review video evidence as well to confront vacillating witnesses with their testimonies. This is also an attempt at the preservation of the institutional memory of the court to assist future generations.
He has also set up the Otumfuo Education Fund in 1999 to provide quality education for the advancement of Asanteman in particular and the people of Ghana as a whole through:
v Financial aid and/ or material assistance to bright but needy pupils and students
v Employment of teachers, lecturers and other resource persons
v Incentive packages for teachers and other educational workers who provide outstanding service
v Supply of school equipment, education materials or teaching aids
v Investment in projects that promote education in Asanteman
v Provision, renovation or rehabilitation of school buildings, structures and facilities
v Provision of any other support/assistance consistent with the objective of the Fund
Otumfuo Osei Tutu II has been very influential in getting traditional leaders actively involved in the planning, location, and management of projects in their communities. This he calls a ‘‘demand-driven’’ approach to development rather than the poorly organized ‘‘supply-driven’’. His perseverance with the World Bank led to the establishment of the initiative ‘‘ Promoting Partnership with Traditional Authorities Project’’ under which the World Bank assisted Asanteman with a grant of $4.5 million to build the management capacity of chiefs, rehabilitate schools and build sanitation facilities in 41 communities.
The roles and relationships of chiefs to the central government have changed over the years. Whiles under colonial rule they become agents of the colonial authorities through the policy of indirect rule, post-independent government have been struggling with keeping a balance between tradition and modernity. How much space should chiefs have within the modern/western institutions of democratic governance? This is the challenge for central government and the chieftaincy institution.
I.K. Odotei and A.K Awedoba eds. Chieftaincy in Ghana: Culture Governance and Development, Legon: Sub- Saharan Publishers, 2006.p .11
 For the elaboration of views on this definition, see Introduction I.K Odotei and A.K. Awedoba, eds. Chieftaincy in Ghana: Culture Governance and Development, Legon : Sub-Saharan Publishers,2006), 17-19.
Kwame Boafo Arthur ‘‘Chieftaincy in Ghana: Challenges and prospects in the 21st Century’’ in A. Awedoba and I.K .Odotei eds. Chieftaincy in Ghana: Culture, Governance and Development (Accra: Sub- Saharan Publishers, 2006), p.152.
K.A Busia, The Position of the chief in the Modern Political System of Ashanti. London: Frank Cass & Co., 1968),p.,15.
N.A.G Adm 4/1/25.
N.J.O 1883( As Amended by 7 of 1910, s.5)
 N.J.O 1883( s.6(1) ).
 N.J.O 1883( As amended by 7 of 1910, s.2). ‘‘Native tribunal’’ means a head chief, or the chief of a subdivision, or village, as the case may be, sitting with the captains, headmen, and others who by native customary law are the councillors of such head chief, or chief.
 N.J.O 1883(s.13)
N.J.O 1883( As amended by 7 of 1910, s.7).
 N.J.O 1883 ( s.5(4) ).
 N.J.O 1883( As amended by 7 of 1910,s.4)
 Kwame Boafo Arthur. ‘‘Chieftaincy in Ghana: Challeges and Prospects in the 21st Century A. Awedoba and I.K .Odotei eds. Chieftaincy in Ghana: Culture, Governance and Development( Accra : Sub- Saharan Publishers, 2006) ,p.149.