Opinion › Feature Article 07.02.2024

Why Chiefs Can’t Enforce Summons Against Individuals Such As Maurice Ampaw

By Joseph Annor

There has been a lot of controversy regarding summons issued by chiefs and traditional councils for individuals to appear before them. Notable ones include:

In January 2024, the Kumasi Traditional Council summoned Mr Antwi Boasiako (Chairman Wontumi), the NPP Ashanti Regional Chairman, following an accusation by the Kokosohene (Nana Kwaku Dua) that at the vetting of NPP’s parliamentary aspirants, Chairman Wontumi made a comment disrespecting Asantehene. NPP became embroiled in the issue.

Subsequently, Lawyer Maurice Ampaw made some comments about the issue, which the Kumasi Traditional Council deemed offensive. Mr Ampaw was summoned but refused to comply.

In 2023, Leaders of the Nogokpo town issued a 14-day ultimatum to Archbishop Charles Agyinasare of Perez Chapel International, to appear before them regarding his comment that Nogokpo is the “demonic headquarters of the Volta Region.” He refused to attend.
In 2022, Mr Akwasi Addai (Odike) is reported to have been ostracised from Kumasi Traditional Area by the Kumasi Traditional Council for comments he allegedly made about chiefs in Ashanti on Oyerepa FM. The Oyerepa FM was allegedly ordered by the Council to suspend broadcasting.
In 2015, the Modern Ghana Online Portal referring to a Daily Guide story (Minister Berates Flogging Chiefs (modernghana.com)) reported that Mr Adam Abudu (the head teacher of Lamasheugu Methodist Primary School) refused to honour an invitation by the Chief of Nakpanzoo, Abdul Rahman. As a result, Mr Adam Abudu was publicly flogged by the Chief and the Chief faced charges of assault and causing harm.

The then Minster for Chieftaincy and Traditional Affairs, Dr Henry Seidu Daannaa stated:

If you are a chief and you use 'abaa' on someone to compel attendance, you expose yourself to the wrath of the criminal proceedings, a thing that would embarrass not just yourself, your royal family and the chieftaincy institution. I will like to appeal to chiefs to understand that gone are the days when compulsion to summons was by whip.

It is unacceptable therefore that anyone should take the law in his or her hands in any way that will endanger lives and property. We would like to draw the attention of chiefs to desist from any such thing because the royal code of ethics does not allow that and it tarnishes the image of chieftaincy and it breaks the law.

Again in 2012, the Modern Ghana citing the Daily Guide, reported that a 34 year old Anastasia Adom (a married woman, trader and native of Abrani) alleged that Nana Norkeh Akototsey sexually assaulted her. The lady was invited to the house of the Mankrado, Togbe Pius Clemefi, where over 200 community members had gathered. Following her interrogation, she was found guilty by the Mankrado and his elders.

Under the order of the Mankrado, the crowd stripped Anastasia naked, matched her through the town, before banishing her. Meanwhile, some mocked her nakedness, others inserted their fingers in her private part, and her grocery shop was destroyed (see Woman Stripped Naked For Insulting Chief (modernghana.com)).

She later managed to escape through the bush and reported to the Daily Guide that the crowd did not stop their callous and barbaric behaviours despite her tears and pleas. What a shame and horribly treatment to the lady!

The Illegality of Compulsory Summons by Chiefs

Currently, chiefs do not have compulsory powers under the Constitution of Ghana to summon citizens to appears before them. The Supreme Court struck down those powers in their decision of the Case of Nana Adjei Ampofo vrs The Attorney General & The President of the National House of Chiefs (Case number J1 8 of 2008).

In that case, Nana Adjei Ampofo (a former Paramount Chief of Goase and Lawyer) sought:

A declaration that sub-section (d) of section 63 of the Chieftaincy Act 2008 (Act 759) is an encroachment on the liberty generally and freedom of movement in particular of citizens and accordingly in contravention of and or inconsistent with the spirit and letter of Articles 14 & 21 of the Constitution of the Republic of Ghana, 1992.

Subsection 63(d) of Act 759 stipulated that a person commits an offence, punishable by a fine and/or up to 3 months imprisonment if he or she deliberately refuses to honour a call from a chief to attend to an issue.

Nana Ampofo argued that:

s. 63(d) of Act 759 compels a citizen to respond to a summon by a chief to attend to an issue, whether he likes it or not; it is unconstitutional as an undue restriction on, and interference with, his freedom of movement;
the person summoned by the chief may not even be his subject;
the power could be used by chiefs as a tool for oppression and suppression;
the provision is vague as it does not explain the word “issue” and
if the President of the Republic of Ghana cannot compel a citizen to honour his invitation to attend to an “issue,” why should a chief, qua chief?

The defence of first Defendant (Attorney-General)

The Attorney-General responded that a chief has an authority in adjudicating traditional case brought before him, and in the process, a chief may have to summon or make an order for a person to be brought before him for the proper adjudication of the matter in the interest of justice and fairness. Accordingly, s. 63(d) can be equated to a subpoena to attend the chief’s summons.

The Supreme Court rebutted the Attorney-General’s argument that it is flawed and troubling because:

The Attorney-General’s argument is according a judicial role to chiefs as individual chiefs. By article 125(3) of the 1992 Constitution, “The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”
Nowhere in the Courts Act, 1993 (Act 459) are individual chiefs given a judicial function. It is only Judicial Committees of the Traditional Councils, the Regional Houses of Chiefs and the National House of Chiefs, which are given limited judicial functions in relation to chieftaincy matters.
Individual chiefs can exercise an adjudicatory role only as customary arbitrators, if only the parties consent to the arbitration as stipulated under section 30 of Act 759. The distinction between a judicial and an arbitration process lies in the consensual nature of an arbitration. Nobody can be compelled to submit to arbitration. Accordingly, if all that individual chiefs can carry out are customary arbitrations, the first defendant’s argument, which endeavours to equate a chief’s call to a subpoena, collapses.

The 2nd Defendant (the President of National House of Chiefs) written submission

The Counsel for the President of the National House of Chiefs argued that 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.” Thus, Article 270(1) does not refer to chieftaincy as established by statute. Accordingly, the framers of the Constitution intended to ensure that the customs and usages of the institution of chieftaincy remained intact.

The Supreme Court responded that:

The implication of the counsel’s argument is that all the incidents at customary law of the institution of chieftaincy, as traditionally conceived, are to be imported intact into the current constitutional regime under the 1992 Constitution, even if they are in conflict with other provisions of the Constitution. This is palpably incorrect. For instance, chiefs traditionally exercised judicial functions and incarcerated those adjudged by them to be guilty of crime, but the Constitution does not allow them any longer.
The Chieftaincy Act, 2008 (Act 759) makes it abundantly clear that the institution of chieftaincy is subject to the rule of law and its incidents must measure up to the standards set in the Constitution. The customary law of chieftaincy cannot thus be applied in contemporary Ghana in its pristine purity, ignoring the impact of statute and of the Constitution.

The Final Declaration of the Supreme Court

The Supreme Court declared that the wide power of chiefs to summon, on the pain of a criminal sanction, anybody at all in Ghana to attend to an issue of any kind represents an unwarranted interference in the freedom of movement of residents of Ghana and not justifiable in the public interest. While criminalising a deliberate refusal to honour a chief’s call may strengthen the authority of chiefs and the respect accorded them, this consideration is not a sufficient justification for the restriction that s. 63(d) imposes on the freedom of movement of individuals.

Accordingly, the nine members of the Supreme Court repealed s. 63(d) of Act 759 on 20 July 2011.

A Call from Chiefs to Reinstate s. 63(d) of Act 759

In 2013, Dr Henry Seidu Daannaa (the Minister for Chieftaincy and Traditional Affairs) introduced a Bill to Parliament “CHIEFTAINCY (AMENDMENT) ACT, 2013)” (see: Chieftancy Amdnt..pdf (parliament.gh)), seeking to restore s. 63(d) of Act 759, with an amendment. The Bill reads as follows:

“(d) being a subject of a chief or a resident of the traditional area of a chief or other person who is involved in a harmful economic or social activity within a chief’s traditional area, refuses, without reasonable excuse, to honour a call from the chief to attend to an issue affecting or relating to that person or in the public interest.”

On 10 July 2017, it was reported that the National House of Chiefs called for a restoration of their summon powers, so they can assist with the fight against illegal mining. The President of the House:

asked, “How can a chief summon a 'galamseyer' if he has no authority?,” and .
stated “our MPs think that chiefs do not deserve this power” or maybe because “we were not in the position to influence the MPs like businessmen will do.”

On 29 September 2019, Bernard Buachi of rawgist.com reported that members of the National House of Chiefs led by their President, Togbe Afede XIV reiterated the request for a restoration of their power of summons. They believe it will make them more relevant as partners of government in fighting corruption and developing the nation.

On 4 January 2019, Citifmonline.com (cited in Yen.com) reported that Nana Baffour Owusu Amankwatia, the Chief of Bantama and President of the Kumasi Traditional Council said the cooperation of the President in restoring the power of chiefs to summon citizens should happen without delay; to help traditional leaders to play many meaningful roles in solving pertinent issues in their local areas.

Despite currently chiefs do not have compulsory powers to summon in relation to matters not directly related to chieftaincy, some chiefs continue to issue summons in contravention of the Chieftaincy Act 759. In particular, some chiefs are hiding behind the limited judicial functions granted to the Judicial Committees of the Traditional Councils, Regional Houses of Chiefs and National House of Chiefs (Chieftaincy Judicial Committees), to summon individuals to appear before them.

The Chieftaincy Act 759 set out the nature, composition and functions of the Chieftaincy Judicial Committees and customary issues falling within their remit as discussed below.

Matters falling within the remit of the Chieftaincy Judicial Committees

Section 76 (Interpretation) of Act 759 (see CHIEFTAINCY ACT, 2008 (ACT 759).pdf (parliament.gh)) defines the cause or matter affecting chieftaincy as follows:

In this Act unless the context otherwise requires, "cause or matter affecting chieftaincy" means a cause, matter, question or dispute relating to any of the following

the nomination, election, selection or installation of a person as a chief or the claim of a person to be nominated, elected, selected or installed as a chief,
the deposition or abdication of a chief,
the right of a person to take part in the nomination, election, selection or installation of a person as a chief or in the deposition of a chief,
the recovery or delivery of stool property in connection with the nomination, election, selection, installation, deposition or abdication of a chief, and
the constitutional relations under customary law between chiefs;

It is apparent from the above that only matters directly related to the chieftaincy itself and not a behaviour of a person towards a chief, fall within the jurisdiction of the Chieftaincy Judicial Committees.

Furthermore as discussed below, Act 759 outlines the roles of the Chieftaincy Judicial Committees, and they are consistent with the above definition of “cause or matter affecting chieftaincy.”

Compositions and Jurisdiction of the Judicial Committees

Section 76 (Interpretation) of Act 759 states "Judicial Committee" means a committee appointed under sections 25, 28 or 29 of this Act.

1. The Judicial Committees of Traditional Councils

Under s. 29 of Act 759:

a Traditional Council has an exclusive jurisdiction to hear and determine a cause or matter affecting chieftaincy within its area (which Asantehene or a paramount chief is not a party).
a Traditional Council Judicial Committee shall comprise three or five members appointed by the Council from their members.

2. The regional House of Chiefs
The original and appellate jurisdictions of the Judicial Committee of a Regional House of Chiefs consists 3 members and shall be assisted by an appointed lawyer of not less than five years standing recommended by the Attorney General (s. 28 of Act 759).

The Judicial Committees of Regional House of Chiefs have:

original jurisdiction in matters relating to a paramount stools (s. 26 of Act 759).
Appellate jurisdiction (s. 27 of Act 759) for appeals:
- from the Traditional Councils regarding nomination, election, selection, installation and deposition of a person as a chief; and
- against a judgement or an order given or made by a Traditional Council within its region on a cause or matter affecting chieftaincy

3. The National House of Chiefs
The Judicial Committee of the National House of Chiefs consists 3 members for original jurisdiction and 5 members for appellate jurisdiction and shall be assisted by an appointed lawyer of not less than ten years standing recommended by the Attorney General (s. 25 of Act 759).

The Committee has original jurisdiction in a cause or matter affecting chieftaincy that falls outside a jurisdiction of a regional house of chiefs or an appellate jurisdiction for a matter determined by a Regional House (s. 22 and s. 23 of Act 759).

Section 43—Supervisory jurisdiction of the High Court

Section 43 states ‘Despite a provision of this Act, the High Court has supervisory jurisdiction over an adjudicating chieftaincy body established by or under this Act.’

Conclusion
From the above discussion, it is clear that it is inappropriate to restore in any form the summon powers of chiefs under s. 63(d) of Act 759 because:

some chiefs will use it to abuse and suppress their subjects as it happened to Anastasia Adom and Adam Abudu.
The current practice of some chiefs and traditional councils issuing threats and insulting some individuals when they invite them to answer queries regarding comments they have made, falls outside the role of the Chieftaincy Judicial Committees. As discussed above, the Chieftaincy Judicial Committees can only adjudicate on issues directly related to the chieftaincy itself and not a statement by an individual considered a disrespect to a chief.
The intimidating way some chiefs and traditional councils issue their summons trample upon the rights of the accused person.
The domination in the national media the discussion of such summons is inappropriate and takes focus from important national issues.
In most cases, the composition of the Traditional Councils that deal with such issues is not consistent with the description of the nature and composition of the Judicial Committees in Act 759.
The legal way to deal with a statement considered derogatory to a chief or traditional councils is to refer the matter to the law enforcement agencies and the court (who are properly trained to deal with such matters) to determine if a person has used an offending language against a chief, which is an offence under s. 63 of Act 759. On the other hand, if it is a mere criticism of a chief, the chief has every right like any other citizen to sue the person at the court, albeit a fair and constructive criticism is part of democracy.
In many instances, chiefs may not have the appropriate skills and knowledge to deal with some issues. For example, on 16 November 2022, Citi Newsroom reported that the Chief Justice of Ghana, Justice Kwasi Anin Yeboah (now retired) cautioned chiefs against settling cases of child abuse and domestic violence in their palaces because it was criminal for chiefs or anybody to settle such cases. Justice Yeboah emphasised that “Relegating such cases to tradition where the adjudicator is the head of the family or Chief is strongly discouraged. It is an offence to do so under the laws of Ghana.” (see Stop settling child abuse cases, others at your palaces - CJ cautions Chiefs (citinewsroom.com))

Source

Disclaimer: "The views expressed in this article are the author’s own and do not necessarily reflect ModernGhana official position. ModernGhana will not be responsible or liable for any inaccurate or incorrect statements in the contributions or columns here."

Why Chiefs Can’t Enforce Summons Against Individuals Such As Maurice Ampaw

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