‘Neither fish nor fowl’: an analysis of status ambiguity of the Houses of Chiefs in Ghana

Abstract

This article sets out to explain the basis of status ambiguity of the Houses of Chiefs and Traditional Councils in Ghana and the implications of this ambiguity on the status of the administrative personnel working in them. The interest was necessitated by complaints from administrative personnel in the Houses of Chiefs who were excluded from the general salary enhancement to all civil servants in Ghana in 2007. Between 2007 and 2009, research was conducted in all the 10 Regional Houses of Chiefs, in the National House of Chiefs and at the Ministry of Chieftaincy and Culture (MCC). While interviews were the main methods used at the MCC, it was combined with observations at the Houses of Chiefs. Primary and secondary documents were also consulted in the process. Data revealed that the Houses of Chiefs serve as “customary” courts for chieftaincy disputes and over the years, have incorporated certain practices of the English common law into their proceedings. Thus, they are neither customary courts in the strictest sense, nor common law courts, which equally explains the difficulty in determining whether or not the administrative personnel in these Houses are civil servants.

Keywords:

• chiefs
• Houses of Chiefs
• administrative personnel
• Native Courts
• chieftaincy

Acknowledgements

I greatly appreciate the comments of two anonymous reviewers whose comments have significantly improved the quality of this paper. I also will like to appreciate the comments and suggestions of the Editor, Melanie Wiber, and the Production Editor, Deborah Ward.

Legislations

Government of Ghana. 1957. The 1957 Constitution of the Republic of Ghana, 1957.

Government of Ghana. 1969. The 1969 Constitution of the Republic of Ghana, 1969.

Government of Ghana. 1979. The 1979 Constitution of the Republic of Ghana, 1979.

Government of Ghana. 1992. The 1992 Constitution of the Republic of Ghana, 1992.

Chieftaincy Act, 1961, Act 81 Accra, Government Printer. Assembly Press.

Chieftaincy Act, 1971, Act 370 Accra, Government Printer. Assembly Press.

Chieftaincy Act 2008, Act 759 Accra, Government Printer. Assembly Press.

Courts Act, 1993, Act 459. Accra, Government Printer. Assembly Press.

Notes

1. Legal pluralism was “the hybrid orders that resulted from the recognition granted by European colonial powers to “tribal” customary or “indigenous laws” over territories they came to dominate” (Jackson 2006, 59). The concept of legal pluralism has received considerable academic attention. For instance, Griffiths (1986, 2) defines the concept as: “that state of affairs, for any social field, in which behavior pursuant to more than one legal order occurs.” The concept: “draws attention to the possibility that within the same social order, or social or geographical space, more than one body of law, pertaining to more or less the same set of activities, may co-exist” (Von Benda-Beckman and Von Benda-Beckman 2006, 14). Legal pluralism is usually situated in contrast to legal centralism; state law, uniform for all persons, exclusive of all other laws and administered by a single set of state institutions (Griffiths 1986, 3). For further discussions on the systematic development of legal pluralism, and especially its treatment first by professional lawyers and subsequently by anthropologists, see Woodman (1998). Merry (1988) on the other hand, offers very interesting discussions on the conceptual equation of legal pluralism and social/cultural pluralism.

2. The term “Houses of Chiefs” was not used in every country. For instance in South Africa, the Congress of Traditional Leaders (CONTRALESA) represents their Houses of Chiefs.

3. Chiefs hold authority based on tradition and the word “tradition” comes from the Latin word tradere which can be translated as “pass something [over]” or “hand something [over]” Höhne (2006, 3). Traditional authority, therefore, is “an institution or power that is received and handed down or over from generation to generation” (Cheka 2008, 72). Those who hold and wield traditional authority are often referred to as traditional authority holders. Weber defined traditional authority as that type of authority legitimated by sacred traditions (Höhne 2006, 2). Whilst the terms “traditional institutions” and “traditional rulers” are problematic (Kraxberger 2009, 451), it is generally accepted by anthropologists that traditional rulers are key leaders of natives or ethnic groups who buttress their legitimacy and authority by claiming links to the ancestors and first settlers (Kraxberger 2009; also see Kuba and Lentz 2006).

4. See Article 77 (1) of the 1966 Botswana Constitution which established the House of Chiefs. However, thinks the Houses of Chiefs were established in 1965.

5. In practice, the subject matter of chieftaincy litigation that is pursued in a judicial committee or in court is encapsulated by the expression “cause or matter affecting chieftaincy” (Brobbey Justice 2008, 227). According to Brobbey, the expression “cause or matter affecting chieftaincy” is directly related to cases involving chiefs and chieftaincy that are filed in the Houses of Chiefs and the Supreme Court which provides that “cause or matter affecting chieftaincy” means any cause, matter, question, or dispute relating to any of the following: the nomination, election, appointment, or installation of any person as a chief.

6. A “head chief” was “a chief who was not subordinate in his ordinary jurisdiction to any other chief” (Native Administration Ordinance 1883, section 2).

7. Rathbone (2000a, 172, 2000b, 128).

8. The reforms were part of the recommendations of the Blackall Committee set up by the Gold Coast Legislative Council in 1942 to investigate corrupt practices in the Native Courts.

9. The riots started when three ex-servicemen were shot and killed by British soldiers when they tried to peacefully present a petition to the British Governor regarding their living conditions. Crook (1986) provides a detailed explanation of the riots and the colonial administrators’ disappointment in the chiefs, who, were thought of as allies of colonialism, but were unable to stop the riot and were seen sometimes to mobilize rioters (Crook 1986, 103–104; Gocking 1994, 431–432).

10. According to Section 63 (a–e) of the Order-in-Council, the five regions included: Eastern Region (including present day Greater Accra Region), Western Region (including the present Central Region), Ashanti Region (including today's Brong Ahafo Region), Northern Region (including present day Upper East and Upper West Regions), and Transvolta/Togoland (the present Volta Region) (Brempong 2001, 35).

11. For a comprehensive discussion of these State Councils, see Rathbone (2000a, 2000b).

12. For selected studies on chieftaincy disputes in Ghana, see Agyekum (2002), Anamzoya (2008, 2009, 2010), Awedoba (2006), Bako (2006), Brukum (2000–2001, 2001)), Ladouceur (1972), Lentz (1993), and Lund (2003).

13. For the various roles administrative personnel play in the judicial process and the challenges they face, see Anamzoya (2008), MacGaffey (2006), Sibidow (1969), and Tonah (2004, 2005, 2012).

14. For an elaboration of the general functions of the Houses of Chiefs, see Ray (1998, 55, 2008, 109–112).

15. See Article 274 Clause 3 (subsection d) of Ghana's 1992 Constitution, sections 22 and 26 of the 2008 Chieftaincy Act, Act 759.

16. The Chieftaincy Act, 2008, Act 759, section 27 (subsections 1 and 2), and section 23 (subsections 1 and 2).

17. Sections 25 (1 and b), 28 (2) and 29 (2) of the Chieftaincy Act 2008, Act 759 in the Traditional Councils, Regional Houses of Chiefs, and in the National House of Chiefs, respectively.

18. A High Court Judge swears in members of the House of Chiefs. The various oaths they swear in are, the Oath of Membership, Oath of Secrecy, and the Judicial Oath.

19. For a comprehensive analysis of the judicial process in the House of Chiefs, see Anamzoya (2009, 2010).

20. Section 29 (4) in the case of Traditional Councils and Section 33 (1) in case of a Regional House of Chiefs. In the National House of Chiefs, however, a separate application for stay of execution has to be made first in the National House of Chiefs, and if that fails, to the Supreme Court (Brobbey Justice 2008).

21. The Ghana Universal Salary Structure (GUSS) is aimed at resolving inequities in pay within and across the public services. In 2006, the Government adopted the Single Spine Pay Policy (SSPP), and in anticipation of the effective implementation of the Pay Policy, on June 2007 the Government established the Wages and Salary Commission through an Act of Parliament (Act 737, 2007).

22. This association is now called the Civil and Local Government Staff Association.

23. A letter dated on the 5 February 2007 by the Ghana National Association of chieftaincy Workers to the Minister of Chieftaincy and Culture. (The letter is in the possession of this author.)

24. Personal interview with Miss Emma Lillian Bruce-Lyle, Chief Director, Ministry of Chieftaincy and Culture, Tuesday, 27 June 2007, in her office, State House, Accra.

25. For those who predicted the death of chieftaincy, see Van Binsbergen (1987, 156), Merry (1988), Proctor (1968, 97), and Rathbone (2000a, 3).

26. For selected readings see Andriaan Van Nieuwaal (1996), Von Throta (1996), Ray (1998, 2003), Skalnik (1996), and Tonah (2006, 2007).

27. See Englebert (2003); on the concept of mixed government, see Fukuda (1997) and Düsing (2002); and on its application to explain mixed government in Africa, see Sklar (1993, 2003) and Vaughan (2003).

28. For instance, see Gocking (2000, 61), Brobbey Justice (2000), and Crook et al. (2007).

29. I owe this statement Oba 2008, 85).