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Thu, 04 Apr 2024 Opinion

When The Law And Tradition Are In Conflict

By Dr. Solomon D.Y. Kwashie
When The Law And Tradition Are In Conflict
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The constitution is the fundamental and organic laws of a country which derives its sources from the rules, common law, practices, customs, and norms of a people. It defines the people's aspiration as it derives its sovereignty from the people. As enshrined in Article 1(1) of the 1992 constitution of the Republic of Ghana, “the sovereignty of the constitution resides in the people of Ghana in whose name and welfare the powers of government are exercised in a manner and within limits laid down in the constitution”. Emphasis is laid on the “welfare of the people” for that matter laws which include practices and customs which are in contravention of the constitution are null and void as per Article 1 Clause 2 of the 1992 Republican Constitution of Ghana.

This was expressed in the Judgement of Sowah J.SC. in the case of Tuffour V Attorney General [1980] GLR 637-667, portions of which are quoted below; “A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people's search for progress. It contains within it their aspirations and their hopes for a better and fuller life.” The Constitution as described again by Sowah J.S.C is a living organism capable of growth and development. These words of Sowah J.S.C. suggest that the constitution is amendable to meet the needs and aspirations as well as the welfare of the Ghanaian people.

It is therefore important to note that as society is a “living organism” society must grow and develop such that practices that are detrimental to the collective growth and welfare of the people are abolished. The Constitution empowers the people ensuring that the citizens have the right to defend and uphold the Constitution as in the holding of the Court in Sam (No 2.) V. Attorney-General [2000] SCGLR 305 at 315.

The subject matter under discussion of Child Marriage which is a customary practice of the people of some ethnic groups in Africa including Ghana. The marriage of or betrothal of young girls below the age of 18 years is a practice that is not consistent with the Constitution of Ghana. The custom of a group of people is an important part of the laws of that group as the practices are deemed acceptable by society, however, the fact that the group or community accepts the practice means that the practice is right. Child marriage is frowned upon by local and international conventions of child rights. People who deviate from the acceptable customs of society are seen as wayward and must be punished by the rules of the community. However, some customs even though may have been practiced in the past, their continual practice is detrimental to the welfare of the people.

The 1992 Republican Constitution of Ghana in Article 12(2) provides for the entitlement of every person in Ghana, the right to fundamental human rights and freedom irrespective of race, place of origin, creed and religion, political affiliation, and gender. The right to personal liberty is further provided for in Article 14(1) of the constitution except in cases provided for in the same constitution in sections (a) to (g). The Childre’s Act 1998 (Act 560) section 13 further emphasizes the right of children against such unlawful acts of forced marriage under section 13, which prevents a child from being betrothed, being subject to a dowry transaction, or being married. The Act 560 provides that the minimum marital age in Ghana is eighteen years. Section 14(1) of Act 560 provides that, and I quote “No person shall subject a child to torture or other cruel, inhuman, or degrading treatment or punishment including any cultural practice which dehumanizes or is injurious to the physical and mental well-being of a child. Article 15(1) provides that the human dignity of all persons shall be inviolable. It is worth noting that the practice of child marriage degrades the dignity of children.

Furthermore, Article 26(1) of the 1992 Constitution allows the practice of customs, practices, and promotion of cultures and traditions that are in line with the tenets of the Constitution, however, Article 26 (2) emphasizes that cultural practices that dehumanize or injure the physical and mental wellbeing of a person shall be prohibited. Article 26 is in synchrony with Article 1 of the 1992 constitution which derives its source from the aspiration and welfare of the Ghanaian people. Article 28 of the 1992 Constitution defines the rights of children in Ghana and specifically Article 28 (1)(d) demands that children are protected from physical activities and moral practices that are harmful. Article 28 (3) (4) protects the rights of a child against torture, and medical treatments based on traditional and cultural beliefs.

The 1992 constitution is the supreme law of Ghana. Article 11 of the 1992 Constitution lists the source of law in Ghana, which includes customary laws. However, customary laws must be consistent with the 1992 Constitution to remain valid. Other statutory laws of the country including the Criminal code ensure the protection of fundamental human rights of persons even accused of criminal activities as enshrined in the 1992 Republican constitution of Ghana. The Criminal Code also provides that whoever is guilty of the marriage of a child under eighteen years of age shall be guilty of a misdemeanor".

Apart from child marriage, the Trokosi system is a practice that must be completely abolished. The Trokosi system is a slavery practice by some tribes among the Ewe ethnic group. The practice demands the sacrifice of young virgins in attornment for the wrongdoing of a relative. Even though this practice has been barred by the laws of Ghana since it infringes on the constitutional rights of women, it is believed that the practice still exists in low proportions. The violation of the universal human rights of the victims, because of Trokosi practice, takes many forms, such as enslavement, sexual exploitation, and forced labour including child labour. Articles 16(1) and 16(2) of the 1992 Constitution of Ghana stipulate that no person shall be held as a slave or be subject to servitude.

Additionally, Article 26(2) of the 1992 Ghanaian Constitution outlaws any customary practice that dehumanizes or endangers the physical and mental well-being of any citizen. Accordingly, the Trokosi practice violates these constitutional provisions that prohibit any form of slavery. Further, the Trokosi practice places the victims at high risk of contracting sexually transmitted diseases (STDS), such as HIV/AIDS, because the priests who sleep with them have many sexual partners. Naturally, girls who enter the practice become automatic wives of priests irrespective of their age which is frowned upon by the 1992 Republic Constitution and the Children’s Act 560.

Trokosi is in contravention of Article 28(4) of the 1992 Constitution states that ‘no child shall be deprived by any other person of medical treatment, education, or any other social or economic benefit by religion or other beliefs. The Trokosi practice denies victims access to education and medical treatment, and this further constitutes a violation of the Ghanaian Constitution. It also contravenes the United Nations Convention on the Rights of the Child, which provides for the right of the child to education and medical treatment. The practice does not allow girls the freedom of education which is a necessary fundamental human right of citizens.

The case of Fiadjoe v. Attorney General of the U.S., 411 F.3d 135 (3d Cir. 2005) is a modern-day case law involving a Ghanaian migrant who wanted to seek asylum in the United States of America due to the Trokosi practice. In the case, Petitioner, Lorraine Fiadjoe, petitions for a review of orders of the Board of Immigration Appeals (BIA) denying her application for asylum, withholding of removal and relief under the Convention Against Torture, and denying her motion for reconsideration. Except for an eleven-year interval, from 1978, when Ms. Fiadjoe was seven years of age, until her flight from her native Ghana to the United States in March 2000, Ms. Fiadjoe was held as a slave of her father, a priest of the Trokosi sect, who, by the tenets of the sect, forced his daughter to work for him and abused her physically and sexually. Ms. Fiadjoe sought asylum and other relief on the ground that if she were returned to Ghana, as one of the women subject to the practices of the Trokosi, would likely once again become subject to her father's bondage and abuse, a consequence that Ghanian government authorities were unable or unwilling to prevent.

The Trokosi system even though has been reasonably reduced, we cannot conclude that the practice is eradicated in our community system. Chances are that the practice may that the practice can be ongoing under low tones in the society. An immigration case in the United States of America is a pointer to the chances of the existence of the practice. The plaintiff was not successful in convincing the Court to gain entry to the United States of America. In that case, it was held in the case of Fiadjoe v. Attorney General of U.S., 411 F.3d 135 [3d Cir. 2005] by both the Immigration Judge and the Board of Immigration Appeals that Ms. Fiadjoe's testimony was not credible, and the BIA found that Ms. Fiadjoe failed to establish that the government of Ghana was either unwilling or unable to control her father's sexual abuse. We conclude that these findings are not supported by reasonable, substantial, and probative evidence on the record considered as a whole. We will grant the petition and remand the case for a new hearing and development of the record before a different Immigration Judge.

In addition, slavery is explicitly prohibited by the 1992 Constitution. Article 16 states that “no person shall be held in slavery or servitude” nor shall anyone “be required to perform forced labour.” There is no doubt that the girls offered to the fetish priests are slaves. Therefore, the Trokosi slavery system is a direct violation of Article 16 of the 1992 Constitution of Ghana. Under Article 26(2) of the 1992 Constitution of Ghana, “customary practices which dehumanize or are injurious to the physical and mental well-being of a person are prohibited.” There is no question that the physical and mental health of a Trokosi slave is negatively impacted by her forced servitude. With sole responsibility for her upkeep, but no access to money or a food garden, a Trokosi slave sometimes goes for days without food. Furthermore, no medical care or educational support is provided to the girl once she becomes the property of the fetish priest. Many Trokosi slaves are illiterate which may mean that such persons are denied the right to education as per Article. In addition, the slaves are often forced to carry out their pregnancies and give birth with no medical assistance. Thus, because the slave’s physical and mental well-being is often neglected, the Trokosi slavery system directly violates Article 26(2) of the 1992 Constitution of Ghana.

Dehumanizing practices such as Trokosi, Female Genital Mutilation, and child marriage can be reduced to the barest minimum in the enactments of the Parliament laws that criminalize the practice such as the Anti-witchcraft bill currently passed by the Parliament awaiting Presidential assent. Article 21(4)(e) recognizes the limitations on religious freedom by affording the government the flexibility to restrict any religious practices that may conflict with any other rights afforded by the Constitution. This provision of the Constitution permits the enactment of laws that “safeguard the people of Ghana against the teaching or propagation of a doctrine which exhibits or encourages or incites hatred against other members of the community.”

Other practices such as child labour must be seriously looked at in our present day. Article 21(4)(e) of the 1992 Constitution does not directly deal with the issue of slavery or forced labour, because it allows the Ghanaian government to enact statutes and regulations banning any religious acts or traditions that compromise the values upon which the nation was founded, the constitution in its wisdom has placed a premium on the liberty of all people without discrimination on gender, age, religion, and creed as well as race.

The Criminal Offences Act 1960, Act 29 Section 69A frowns against Female Circumcision which is a cultural practice of some groups of people in Ghana. The law provides that whoever excises, infibulates, or otherwise mutilates the whole or any part of the labia minora, labia majora, and the clitoris of another person commits an offense and shall be guilty of a second-degree felony and liable on conviction to imprisonment of not less than three years. To clarify "excise" means to remove the prepuce, the clitoris, and all or part of the labia minora; "infibulate" includes excision and the additional removal of the labia majora.

After the passage of the right enforceable laws, campaigns on various channels including social media, traditional media, and mobile theatre to create awareness of laws on women and child abuse issues including an emphasis on customs and values that are in contravention of the 1992 Republican Constitution of Ghana. It was again, mobilizing national support to provide a safe and protective environment for women and children. When this is effectively done it is anticipated that there will be a change in the narrative of how Ghanaians protect their vulnerable persons in society.

Our laws provide ways of determining the ages of children, therefore it should not be difficult to prevent the exploitation of children. The Act 560 under Section 122 provides ways of determination of the age of a child. The provisions in Act 560 are quoted below;

“(1) In the absence of a birth certificate or a baptismal certificate a certificate signed by a medical officer as to the age of a child below eighteen years of age shall be evidence of that age before a Family Tribunal without proof of signature unless the court directs otherwise.

(2) An order of a Family Tribunal shall not be invalidated by any subsequent proof that the age of the child has not been correctly stated to the Family Tribunal and the age presumed or declared by the Family Tribunal to be the age of that child shall be deemed to be the true age for any proceedings under this Act.

(3) A statutory declaration issued and certified by the High Court of Justice, or a person authorized by law to authenticate same as to the age of a child upon an application by a parent or guardian of the child shall be evidence of the age of that child.”

The age of the children in issues of child marriage can be confirmed using two means. Firstly, the Lawyers depended on information from the parents to estimate the age. The Lawyers and law enforcement officers also depended on the baptismal record of the child as proof of age, in addition, like the provisions of Section 122 of Act 560 a medical officer can contacted to estimate the age of children. It is an observation that the opinion of community leaders affects law enforcement. Where customary practices of the community benefit opinion leaders law enforcement becomes a challenge.

The 1992 Constitution also emphasizes natural justice such as institutions providing avenues for fair trials as in the case of the “Republic v Akim Abuakwa Traditional Council”. This requires State institutions including the Police and the Attorney General to ensure that accused persons are given the right to legal representation. This also means that the rights of accused persons must be protected until they are found guilty by a court of competent jurisdiction as provided for by the Constitution of Ghana and the Criminal Code, Act 29.

In conclusion, the constitution is the embodiment of the aspirations of the people based on laws that are culturally acceptable ensuring that the welfare of the people is protected by the laws, customs, and customary practices. Any practice that does not protect the welfare of the people such as child marriage, is a practice in contravention of the 1992 Republican constitution as well as International Conventions on Child Right protection. Subsidiary legislation must be passed by parliament to ensure other practices including Trokosi practices, Witch camping abs female genital mutilation are eliminated in the country. Article 39(2) of the 1992 Republican constitution of Ghana obliges the State to ensure that traditional practices that are injurious to the health and well-being of the persons are abolished.

Citizens must advocate for the necessary regulations to clarify and fully operationalize all constitutional provisions as in the case of “Adjei-Ampfo V Accra Metropolitan Assembly and Attorney General” where the court held that Article 2(1) provides that all citizens have the locus to advocate for the enforcement of the constitution. The constitution grants the citizen courage to change practices that offend and wisdom to defend practices that promote human dignity and community development ensuring that the rights of all persons are protected. When tradition conflicts with any law of Ghana, the traditional practice shall give way to the law as per Article 1(2) of the 1992 Republican Constitution of Ghana.

References

  1. The Children’s Act 1998 Act (560)
  2. The Constitution of Ghana, 1992
  3. The Criminal Code, 1960 (Act 29)

Author: Dr. Solomon D.Y. Kwashie
Medical Laboratory Scientist
([email protected])

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