THE ENFORCEABILITY AND LIMITS OF ENFORCEMENT OF CHIEFTAINCY-RELATED CRIMINAL OFFENCES IN GHANA: A CRITICAL ANALYSIS OF SECTION 63(a) AND (b) OF THE CHIEFTAINCY ACT, 2008 (ACT 759)

APPIAH KUBI RICHARD, ESQ.

BSC.ADM, BA, LLB, MBA, MPHIL, BL, DBA (C)

0240478605/0506830610

APPIAHKUBITHESIS@GMAIL.COM

ABSTRACT

The institution of chieftaincy occupies a constitutionally recognized and historically significant position in Ghana’s governance structure. Although the institution is primarily rooted in customary law and usage, it operates within the broader constitutional and statutory framework of the Republic. One important legislative intervention in this regard is Section 63(a) and (b) of the Chieftaincy Act, 2008 (Act 759), which criminalizes acting or performing the functions of a chief without qualification and the assumption by a chief of a position to which that chief is not entitled under custom. These provisions seek to protect the integrity, legitimacy and orderly administration of traditional authority.

However, the enforcement of these offences presents certain legal and practical challenges. The principal difficulty arises from the fact that eligibility for chieftaincy, succession arrangements, nomination procedures, installation rites and entitlement to traditional positions are substantially governed by the customary laws of particular traditional areas. These customs are not uniform throughout Ghana. Consequently, law enforcement agencies and criminal courts may encounter difficulties in determining whether an accused person was qualified to act as a chief or entitled to occupy a particular traditional position.

This article argues that such difficulties do not render Section 63(a) and (b) invalid, obsolete or unenforceable. They remain part of Ghana’s body of laws and must be given effect. The Supreme Court’s decision in Nana Adjei Ampofo v Attorney-General and President of the National House of Chiefs (2011) is particularly significant because the Court rejected the constitutional challenge to subsections (a) and (b) on grounds of vagueness and over breadth. The article therefore examines the statutory foundation, constitutional validity, customary law considerations, evidential difficulties and institutional limitations affecting the enforcement of these provisions. It concludes that the appropriate response to enforcement difficulties is not to disregard the law but to strengthen the mechanisms through which customary law is established and criminal responsibility determined.

Keywords: Chieftaincy, customary law, criminal liability, traditional authority, succession, Section 63, Act 759, Ghana.

• INTRODUCTION

Chieftaincy remains one of the most enduring traditional institutions in Ghana. It plays an important role in customary governance, cultural preservation, community leadership, dispute resolution, mobilization for development and the maintenance of social order. Despite the development of modern constitutional institutions, chiefs continue to exercise considerable influence within their respective traditional areas.

The institution of chieftaincy is guaranteed under Article 270(1) of the 1992 Constitution, which provides constitutional protection for chieftaincy and traditional councils as established by customary law and usage. However, constitutional recognition does not place the institution outside the operation of national laws. Chiefs, traditional authorities and persons exercising traditional authority are subject to the Constitution and applicable legislation.

Parliament, in recognition of the need to regulate certain conduct relating to chieftaincy, enacted the Chieftaincy Act, 2008 (Act 759). Among the provisions of the Act is Section 63, which creates certain criminal offences in connection with chiefs.

Of particular relevance to this article are subsections (a) and (b), which provide that a person commits an offence where that person:

(a) acts or performs the functions of a chief when that person is not qualified to act; or

(b) being a chief assumes a position that the person is not entitled to by custom.

These provisions address two distinct but related forms of conduct. The first concerns the exercise of chiefly authority by a person who lacks the requisite qualification. The second concerns a chief who assumes an additional or different traditional position without customary entitlement.

The statutory objective is understandable. The legitimacy of traditional authority depends substantially on the recognition and observance of customary succession arrangements. Where an individual exercises chiefly authority without the requisite qualification or assumes a traditional position without customary entitlement, the legitimacy of the institution and the authority of its established structures may be undermined.

Nevertheless, the enforcement of these provisions raises important questions. How does the State establish that a person is not qualified to act as a chief when the relevant qualifications are determined substantially by the customs of the particular traditional area? How does a criminal court determine whether a chief is entitled to assume a particular traditional position? What happens where there is an unresolved dispute over the applicable customary law or the validity of an installation?

These questions reveal the distinction between the validity of a criminal provision and the practical difficulties associated with its enforcement.

This article takes the position that Section 63(a) and (b) remain valid and enforceable provisions of Ghanaian law. The existence of diverse customary laws and the practical difficulties associated with proving customary entitlement do not extinguish the statutory offences. Rather, they require a careful and constitutionally appropriate approach to enforcement.

• THE STATUTORY FRAMEWORK: SECTION 63(a) AND (b) OF ACT 759.

Section 63 of the Chieftaincy Act, 2008 creates offences relating to conduct in connection with chiefs. Subsections (a) and (b) are particularly important because they seek to prevent the unauthorized exercise or assumption of traditional authority.

The provision states that a person who acts or performs the functions of a chief when that person is not qualified to act, or who, being a chief, assumes a position to which that person is not entitled by custom, commits an offence. The section further provides for punishment upon summary conviction by a fine not exceeding two hundred penalty units, imprisonment for a term not exceeding three months, or both. In the case of a continuing offence, an additional fine not exceeding twenty-five penalty units may be imposed for each day during which the offence continues.

The language of the provision demonstrates Parliament’s intention to protect the integrity of the chieftaincy institution by criminalizing specified forms of unauthorized conduct.

• Section 63(A): Acting Or Performing The Functions Of A Chief Without Qualification.

Section 63(a) targets a person who exercises the functions of a chief despite lacking the requisite qualification to do so.

The offence is not necessarily limited to a person who formally declares himself or herself a chief. The statutory language extends to a person who acts or performs the functions of a chief without being qualified to act.

The provision therefore requires attention to two principal questions:

1. Whether the accused person acted or performed functions properly attributable to a chief; and
2. Whether that person was qualified under the applicable law to perform those functions.

The second question is particularly significant because qualification for chieftaincy is not determined by a single uniform customary succession system applicable to every traditional area in Ghana.

Article 277 of the Constitution and Section 57(1) of Act 759 provide the general definition of a chief. Under these provisions, a chief must hail from the appropriate family and lineage and must have been validly nominated, elected or selected and enstooled, enskinned or installed in accordance with the relevant customary law and usage.

Consequently, the question of qualification must be examined by reference to the constitutional definition, applicable statutory requirements and the relevant customary law.

A person who is not entitled to occupy a particular stool or skin cannot acquire legitimate customary authority merely by assuming the title or performing the functions associated with that office. Who determines whether a person is qualified?

Qualification is not necessarily determined by examining a person’s personal credentials or official documents alone.

It may require an investigation into: The person’s membership of the appropriate royal family or lineage, the customary succession arrangements applicable to the stool or skin, whether the appropriate kingmakers participated in the selection process, whether the nomination, election or selection complied with customary requirements, whether the installation was conducted in accordance with the applicable custom, whether the person is subject to any statutory disqualification and whether the person’s status has been duly registered and published where required.

These matters may involve extensive customary evidence, oral testimony, family histories, genealogical records and traditional practices.

The police and prosecutors may therefore encounter considerable difficulties when attempting to establish the absence of qualification without first resolving the underlying customary issues. Must the prosecution establish that another person is the legitimate chief?

This question deserves particular attention.

Where two or more individuals claim entitlement to the same stool or skin, the prosecution may find it difficult to establish that one person is unqualified without examining the competing claims.

However, Section 63(a) does not expressly make proof that another person is the legitimate chief a separate element of the offence.

The prosecution must establish the accused person’s lack of qualification and the relevant prohibited conduct beyond reasonable doubt.

Nevertheless, where qualification is genuinely disputed, a determination by the appropriate traditional institution may become essential evidence in the criminal proceedings.

• The Functions Of A Chief.

In Ghana, the functions of a chief can broadly be classified into two categories:

Customary functions – functions derived from the customs, traditions, usages and established practices of the particular traditional area.

Statutory functions – functions, powers, responsibilities and restrictions recognized or imposed by the Constitution, Acts of Parliament and other applicable legislation.

It is important to appreciate that statutory law does not necessarily create all the functions of a chief. Rather, the law recognizes, protects, regulates and, in certain instances, limits the exercise of traditional authority.

• Customary Functions Of A Chief

Customary functions are derived from the traditional authority of a chief within the particular stool or skin. These functions may differ from one traditional area to another, depending on the applicable customary law and usage.

• Custodian of Customary Law and Traditions

A chief is traditionally regarded as the custodian and protector of the customs, traditions and cultural heritage of the people. The responsibilities include: Preserving the customs and traditions of the traditional area, ensuring the observance of traditional rites and ceremonies, protecting the cultural identity of the community, maintaining traditional values and practices, ensuring the transmission of customary knowledge to succeeding generations.

• Traditional Leadership and Administration.

A chief exercises traditional leadership over the community within the limits of the authority recognized by the applicable customary law.

The functions include: Providing traditional leadership and direction, Promoting unity among the people, supervising subordinate traditional authorities where customary arrangements confer such authority, ensuring the observance of traditional protocols, promoting discipline and respect for traditional institutions.

• Customary Dispute Resolution

Historically, chiefs have played important roles in resolving disputes within their communities.

Their customary responsibilities include: mediating disputes between individuals and families, resolving disagreements between traditional authorities, Facilitating reconciliation, assisting in the settlement of customary land disputes, promoting peaceful coexistence.

However, customary mediation must be distinguished from customary arbitration. Arbitration has specific legal requirements, including the consent of the parties.

• Administration and Protection of Stool or Skin Property

Depending on the customary arrangements of the particular traditional area, a chief may be responsible for: Protecting stool or skin property, ensuring the preservation of traditional assets. Participating in decisions concerning customary land administration, preventing unauthorized alienation of traditional property, protecting the interests of the subjects in relation to stool or skin property.

• Promotion of Community Development

A chief traditionally serves as a focal point for community development. This includes: Mobilizing community members for development. Encouraging educational advancement, promoting healthcare and sanitation. Facilitating the provision of social amenities, attracting investors and development partners, encouraging agricultural and economic activities.

• Cultural and Ceremonial Functions

A chief performs important cultural and ceremonial responsibilities, including: Presiding over traditional festivals, participating in customary rites, performing traditional religious and cultural obligations, preserving traditional symbols and regalia, representing the community at customary ceremonies.

• Protection of Traditional Authority

A chief has a customary responsibility to protect the dignity, authority and continuity of the stool or skin.

This includes safeguarding the traditional succession arrangements and ensuring that customary procedures relating to the nomination, election, selection, installation and deposition of chiefs are respected.

• Statutory Functions Of A Chief In Ghana

Statutory functions are those recognized, regulated or imposed by legislation. The principal legal instruments are the 1992 Constitution of Ghana and the Chieftaincy Act, 2008 (Act 759). It is important to distinguish statutory functions expressly conferred on an individual chief from those assigned to Traditional Councils and Houses of Chiefs as corporate traditional institutions.

• Participation in Customary Arbitration

Section 30 of the Chieftaincy Act, 2008 (Act 759) provides: “The power of a chief to act as an arbitrator in customary arbitration in any dispute where the parties consent to the arbitration is guaranteed.” This provision expressly recognizes the statutory authority of a chief to undertake customary arbitration. The legal implications include: A chief may arbitrate disputes where the parties consent, the parties must voluntarily submit their dispute to customary arbitration, the arbitration must comply with applicable legal requirements, and the chief’s authority as an arbitrator is recognized by statute.

This is one of the clearest examples of a statutory function expressly conferred on an individual chief.

• Constitutional Recognition and Protection of Chieftaincy

Article 270(1) of the 1992 Constitution guarantees the institution of chieftaincy together with Traditional Councils established by customary law and usage.

Article 270(2) further protects the institution against legislation that derogates from its honour and dignity. This constitutional protection gives legal recognition to the traditional authority of chiefs.

• Compliance with Constitutional Qualifications

Article 277 of the Constitution defines a chief as a person who: Hails from the appropriate family and lineage, Has been validly nominated, elected or selected., Has been enstooled, enskinned or installed, Has undergone the process in accordance with the relevant customary law and usage.

Article 275 also establishes certain disqualifications relating to convictions for specified serious offences. These provisions establish the constitutional requirements for recognition as a chief.

• Restriction on Active Party Politics

Article 276(1) of the Constitution provides that: “A chief shall not take part in active party politics.” A chief who wishes to participate in active party politics and seek election to Parliament must abdicate the stool or skin.

However, Article 276(2) permits a chief to be appointed to a public office for which the chief is otherwise qualified, subject to the Constitution. This provision regulates the political conduct of chiefs.

• Registration of Chiefs

Section 57(5) of the Chieftaincy Act, 2008 (Act 759) provides that a person shall not be considered a chief for the performance of a function under the Act or any other enactment unless that person has been registered in the National Register of Chiefs and the person’s name published in the Chieftaincy Bulletin. This establishes a statutory registration requirement for the performance of functions under applicable legislation.

• Participation in Traditional Council Administration

Under the Chieftaincy Act, Traditional Councils are established as formal institutions of traditional administration. Chiefs who are members of these Councils participate in the administration of chieftaincy matters within their respective jurisdictions.

These responsibilities include: Participating in Traditional Council meetings, contributing to decisions on traditional administration, participating in the determination of matters affecting chieftaincy through the appropriate Judicial Committee, promoting customary law and traditional governance.

An important distinction: Under section 29 of Act 759, the jurisdiction of a Traditional Council in chieftaincy matters is exercised by its Judicial Committee, comprising three or five members appointed from among the Council’s members. It is not an unrestricted judicial power exercised by an individual chief.

• Participation in the Determination of Chieftaincy Disputes.

The Constitution and Act 759 recognise the role of traditional authorities in the adjudication of chieftaincy disputes through Judicial Committee.

Under section 29 of Act 759, a Traditional Council has exclusive jurisdiction, subject to the Act, to hear and determine a cause or matter affecting chieftaincy arising within its area, except a matter to which the Asantehene or a paramount chief is a party.

The jurisdiction is exercised through the Judicial Committee. This means that chiefs appointed to Judicial Committees perform statutory adjudicative responsibilities in accordance with the law.

• Section 63(b): assuming a position without customary entitlement.

Section 63(b) addresses a different situation. It concerns a person who is already a chief but assumes another position to which that person is not entitled under the applicable custom.

The distinction between subsections (a) and (b) is important. Under subsection (a), the central question is whether the person is qualified to act as a chief in the first place. Under subsection (b), the person is already a chief, but the issue is whether that chief is customarily entitled to assume the particular position in question.

For example, a person may legitimately occupy a divisional stool but may not necessarily be entitled to assume a paramount position or another traditional office within the traditional hierarchy. The fact that a person is already a chief does not automatically confer entitlement to every other traditional position.

The expression “by custom” is central to subsection (b). It recognises that entitlement to traditional positions must be determined according to the customary law applicable to the particular stool, skin or traditional office.

The provision therefore protects the established customary hierarchy and prevents the assumption of traditional positions without the requisite customary authority.

• THE CONSTITUTIONAL FOUNDATION OF CHIEFTAINCY AND CUSTOMARY LAW.

The constitutional foundation of the institution of chieftaincy is found principally in Chapter 22 of the 1992 Constitution.

Article 270(1) guarantees the institution of chieftaincy together with traditional councils established by customary law and usage. Article 270(2) further restricts Parliament from enacting legislation that accords or withdraws recognition from a chief or derogates from the honour and dignity of the institution.

However, Article 270(3) recognises that laws may make provision for the determination, in accordance with appropriate customary law and usage, of the validity of the nomination, election, selection, installation or deposition of a person as a chief.

This provision is particularly important to the present discussion because it demonstrates that the Constitution recognises a role for statutory regulation while preserving the customary basis of chieftaincy.

Article 277 defines a chief by reference to the appropriate family and lineage and valid nomination, election or selection and installation in accordance with relevant customary law and usage.

The constitutional framework therefore establishes a relationship between customary law and statutory regulation. Customary law supplies the relevant traditional requirements, while the Constitution and legislation provide the broader legal framework within which those requirements operate.

It would consequently be incorrect to argue that the existence of different customary systems makes statutory regulation of chieftaincy impossible.Rather, the Constitution anticipates the application of different customary laws to different traditional communities.

Section 63(a) and (b) must therefore be interpreted within this constitutional framework.

• THE CONTINUED VALIDITY OF SECTION 63(a) AND (b): THE SUPREME COURT’S POSITION.

One of the most important judicial decisions concerning Section 63 of Act 759 is Nana Adjei Ampofo v Attorney-General and President of the National House of Chiefs (2011), Supreme Court, Suit No. J1/8/2008, judgment delivered on 20 July 2011.

In that case, the plaintiff challenged the constitutionality of several subsections of Section 63, including subsections (a), (b), (c), (d) and (e).

The plaintiff argued, among other things, that subsections (a) and (b) were vague and overbroad and were inconsistent with the constitutional protections relating to personal liberty and freedom of movement.

In relation to subsection (a), the plaintiff questioned how a person could know when another individual was qualified to act as a chief, particularly when the law did not expressly define every function performed by a chief.

In relation to subsection (b), the plaintiff argued that the provision did not sufficiently identify the conduct being criminalised.

The Supreme Court rejected the challenge to subsections (a) and (b).

With respect to subsection (a), the Court accepted the argument that Article 277 of the Constitution and Section 57 of Act 759 define who qualifies as a chief. It further agreed that the functions of a chief could be understood by reference to customary law and that the provision was self-explanatory and did not suffer from the alleged vagueness.

The Court also held that subsections (b), (c) and (e) were not legally vague or inconsistent with Articles 14 and 21 of the Constitution. It declined to declare them unconstitutional.

Importantly, the Court struck down subsection (d), which criminalised the deliberate refusal to honour a call from a chief to attend to an issue, on constitutional grounds relating to freedom of movement.

The Court expressly stated that no other subsections were to be deleted, expunged or struck out. This distinction is fundamental to the present article.

The Supreme Court did not strike down subsections (a) and (b). On the contrary, it rejected the constitutional challenge directed against them. They therefore remain part of the Chieftaincy Act, 2008. The decision establishes an important legal position: the fact that a criminal provision relates to customary law does not, by itself, make that provision unconstitutional or unenforceable.

It also demonstrates that Parliament may create offences relating to the exercise of traditional authority, provided that the legislation complies with the Constitution.

The decision in Nana Adjei Ampofo must therefore be treated as a central authority in any serious examination of the enforceability of Section 63(a) and (b).

• CUSTOMARY DIVERSITY AND ITS EFFECT ON ENFORCEMENT

Although subsections (a) and (b) remain valid, their enforcement presents significant practical challenges arising from the diversity of customary law in Ghana.

Ghana does not operate one uniform customary succession system for all stools and skins. The customary requirements governing eligibility, nomination, selection, election, installation and succession differ among traditional areas.

The requirements applicable to one stool may be different from those applicable to another stool, even within the same traditional area.

In some traditional communities, eligibility may depend on membership of a particular royal family or lineage. In others, the process may involve the participation of particular kingmakers, family elders, divisional chiefs or other recognised customary authorities.

The procedures governing nomination, election, selection and installation may also differ.

This diversity creates difficulties where a person is accused of acting as a chief without qualification. For the prosecution to succeed, it must establish the applicable customary requirements and demonstrate how the accused person’s conduct violates those requirements.

It would be insufficient merely to establish that the accused person is unpopular, lacks the support of a section of the community or is involved in a succession disagreement.

The relevant customary law must be identified and properly established.

Similarly, under subsection (b), the prosecution must establish the customary requirements governing entitlement to the particular traditional position and demonstrate that the accused chief assumed a position without the necessary entitlement. Customary diversity therefore affects the evidential and investigative process. It does not remove the offence from the statute book.

Indeed, the constitutional recognition of customary law provides the legal foundation upon which these offences may be enforced.

• THE ROLE OF TRADITIONAL COUNCILS AND HOUSES OF CHIEFS.

The enforcement of Section 63(a) and (b) requires an effective relationship between the ordinary criminal justice system and the constitutionally recognised chieftaincy institutions.

Article 270(3)(a) recognises the authority of Traditional Councils, Regional Houses of Chiefs and Chieftaincy Committees to determine, in accordance with the appropriate customary law and usage, the validity of nomination, election, selection, installation or deposition of a person as a chief.

This constitutional arrangement is particularly relevant where a criminal allegation depends on whether an accused person was validly nominated, selected or installed.

Traditional Councils and Houses of Chiefs possess institutional knowledge of the customs, usages, succession arrangements and traditional structures applicable to their respective areas. Their records and properly constituted determinations may therefore provide important assistance in establishing the relevant customary position. For example, records relating to a person’s nomination, installation, recognition, customary entitlement or the applicable line of succession may be relevant to an investigation under Section 63(a) or (b).

However, it is important to distinguish the determination of a chieftaincy status question from the prosecution and determination of a criminal offence.

A Traditional Council or House of Chiefs may determine matters falling within its constitutionally and statutorily recognised chieftaincy jurisdiction. It does not thereby assume the ordinary criminal jurisdiction of the State.

Similarly, a criminal court should not purport to exercise the constitutional jurisdiction reserved to the appropriate chieftaincy institution in determining the validity of nomination, selection or installation.

The two institutional functions must be coordinated.

Where the criminal allegation depends on a genuinely disputed question of customary status, a determination by the appropriate chieftaincy institution may be particularly important in establishing the relevant legal foundation.

Nevertheless, whether such a determination is required in a particular prosecution must be considered in light of the nature of the charge, the applicable procedural law and the evidence available. Section 63 does not expressly make a prior chieftaincy judgment a universal condition precedent to prosecution.

The objective should be cooperation rather than institutional competition.

• THE EVIDENTIAL BURDEN IN PROSECUTING OFFENCES UNDER SECTION 63(a) AND (b)

One of the greatest limitations affecting the enforcement of these provisions is the difficulty of proving the relevant customary law and the accused person’s lack of qualification or entitlement.

In criminal proceedings, the prosecution bears the burden of proving the essential elements of the offence beyond reasonable doubt. This requirement is consistent with Article 19(2)(c) of the 1992 Constitution, which protects the presumption of innocence.

Consequently, a person accused under Section 63(a) or (b) cannot be convicted merely because another person disputes that person’s status or entitlement.

The prosecution must establish the necessary facts and legal requirements.

In a prosecution under subsection (a), relevant evidence may include: The customary requirements for eligibility to the particular stool or skin, the relevant royal family or lineage and applicable succession arrangements, the customary procedures for nomination, election or selection, the customary requirements governing installation, evidence concerning whether those procedures were followed and evidence showing that the accused person nevertheless acted or performed functions of a chief.

In a prosecution under subsection (b), relevant evidence may include: The traditional position already occupied by the accused person, the customary hierarchy and structure of the traditional area, the customary requirements for assuming the disputed position, evidence of the accused person’s lack of entitlement under the applicable custom and evidence that the accused person actually assumed the position in question.

Evidence may be obtained from relevant traditional records, recognised customary authorities, persons knowledgeable in the applicable custom, official chieftaincy records and other admissible sources.

The prosecution must, however, ensure that such evidence is reliable, relevant and properly presented.

A mere assertion by a rival claimant or a group of elders should not automatically be treated as conclusive proof of customary law. The accused person must also be afforded the opportunity to challenge the prosecution’s evidence in accordance with the rules of criminal procedure and constitutional guarantees.

The evidential challenge is therefore substantial, but it is not a legal impossibility.

• THE DISTINCTION BETWEEN A CHIEFTAINCY DISPUTE AND A CRIMINAL OFFENCE

A particularly important issue in enforcing Section 63(a) and (b) is the distinction between a genuine chieftaincy dispute and conduct that independently satisfies the elements of a statutory criminal offence.

Not every disputed installation or disagreement over succession automatically amounts to a criminal offence.

There may be situations where two factions genuinely disagree over the interpretation of customary law, the identity of the appropriate royal family, the eligibility of a candidate or the participation of kingmakers.

Such disagreements may require determination by the appropriate chieftaincy institution under the Constitution and Act 759. However, the existence of a chieftaincy dispute does not automatically provide immunity from criminal liability.

Where the evidence establishes that a person knowingly or otherwise unlawfully assumes or performs chiefly functions without the qualification required by the applicable law, the criminal law may be engaged, subject to proof of the offence’s elements. The important distinction is that the State must not criminalise the mere existence of competing claims. It must establish the specific conduct prohibited by Section 63(a) or (b).

This distinction protects both the integrity of the chieftaincy institution and the constitutional rights of persons involved in succession disputes.

It also prevents the criminal justice system from being used as an instrument for settling political, family or factional disagreements within traditional communities.

• THE LIMITATIONS AFFECTING ENFORCEMENT

The continued validity of Section 63(a) and (b) should not lead to the assumption that enforcement is straightforward.

Several limitations may affect the practical operation of the provisions.

• Absence of Uniform Customary Succession Rules

The absence of a single national customary succession code creates difficulties for investigators and prosecutors who may not be familiar with the particular customs governing a stool or skin. A procedure recognised in one traditional area may not be applicable in another. This requires every investigation to begin with an understanding of the relevant traditional system.

• Difficulty in Establishing Customary Law

Customary law may be unwritten or preserved through oral tradition, established practice, institutional records and the knowledge of recognised customary authorities. Where the applicable custom is disputed, identifying its precise content may become difficult. The prosecution must establish the relevant customary rule through legally acceptable means rather than relying on assumptions or generalizations.

• Politicisation of Chieftaincy Disputes

Chieftaincy disputes sometimes involve competing family interests, political influence, economic considerations and personal ambitions. There is a risk that criminal complaints may be initiated to intimidate rival claimants or influence the outcome of succession disputes. Law enforcement authorities must therefore exercise caution and investigate complaints objectively. The existence of a complaint should not be treated as proof of criminal conduct.

• Institutional Coordination Challenges.

The relationship between traditional institutions and law enforcement agencies may not always be clearly understood. The police and prosecutors may require information from Traditional Councils, Regional Houses of Chiefs and other recognised authorities to establish the applicable customary law. Without effective coordination, investigations may be delayed or improperly conducted.

• Inadequate Documentation of Customary Procedures

In some traditional areas, records of succession, nomination, installation and customary entitlement may be incomplete or difficult to access. This may complicate the establishment of a person’s status or entitlement. Improved documentation and preservation of traditional records would strengthen both customary administration and the enforcement of the law. These limitations demonstrate the need for institutional reform and capacity building. They do not establish that the offences themselves have ceased to exist.

• THE RULE OF LAW AND THE LIMITS OF STATE INTERFERENCE

Although the State has a legitimate interest in enforcing Section 63(a) and (b), enforcement must respect the constitutional autonomy of the institution of chieftaincy. Article 270 protects the institution and limits the extent to which Parliament and other authorities may interfere with its dignity and constitutionally recognised structures. At the same time, the institution is not above the law.

In Nana Adjei Ampofo v Attorney-General and President of the National House of Chiefs (2011), the Supreme Court emphasized that chieftaincy is subject to the rule of law and that its incidents must comply with the Constitution.

The Court’s approach is significant because it rejects two extreme positions.

First, it rejects the proposition that customary law places chieftaincy entirely beyond statutory and constitutional regulation.

Second, it demonstrates that statutory regulation must itself satisfy constitutional requirements. The striking down of Section 63(d), while leaving subsections (a) and (b) intact, illustrates this constitutional balance.

The State may enforce criminal laws relating to chieftaincy, but it must do so within the limits established by the Constitution. The prosecution of a person under Section 63(a) or (b) should not become an indirect means of determining a chieftaincy dispute outside the appropriate constitutional procedures.

Equally, constitutional protection of chieftaincy should not be interpreted as a license for individuals to assume traditional authority without customary entitlement.

The proper approach is one of constitutional cooperation, respect for customary law and accountability under national legislation.

• WHY THE EXISTENCE OF ENFORCEMENT LIMITATIONS DOES NOT INVALIDATE THE LAW

A central argument of this article is that the difficulty of enforcing a criminal provision must not be confused with the legal invalidity of that provision. A law does not cease to form part of the legal system simply because its application requires specialised knowledge, complex evidence or institutional cooperation.

Several criminal offences in Ghana require the prosecution to establish facts that may be technical, specialised or dependent on particular legal standards.

The existence of such evidential difficulties does not automatically render the offences unenforceable. The same reasoning applies to Section 63(a) and (b). The fact that qualification for chieftaincy is substantially governed by customary law does not prevent Parliament from criminalizing the unauthorised exercise of chiefly functions.

Indeed, Parliament expressly incorporated customary entitlement into the language of subsection (b). The phrase “not entitled to by custom” demonstrates that the legislature intended customary law to provide the standard for determining whether a chief is entitled to assume a particular position.

Similarly, the expression “not qualified to act” in subsection (a) must be understood in the context of Article 277 of the Constitution and Section 57 of Act 759. The Supreme Court’s decision in Nana Adjei Ampofo reinforces this interpretation by rejecting the argument that subsections (a) and (b) are legally vague and unconstitutional.

Accordingly, the proper legal conclusion is that the provisions remain enforceable, although their enforcement must be based on credible evidence of the applicable customary requirements and compliance with constitutional safeguards.

To disregard these provisions merely because enforcement may be difficult would undermine the authority of Parliament and weaken the statutory protection afforded to the institution of chieftaincy.

• RECOMMENDATIONS FOR EFFECTIVE ENFORCEMENT

To improve the enforcement of Section 63(a) and (b), the following measures are recommended.

• Strengthening the Codification of Customary Law

The National House of Chiefs should intensify its constitutional responsibility under Article 272(b) to undertake the progressive study, interpretation and codification of customary law. Particular attention should be given to compiling customary laws and lines of succession applicable to individual stools and skins.

Such documentation would assist investigators, prosecutors, courts and traditional institutions in identifying the relevant customary requirements.

• Improving Records of Traditional Councils

Traditional Councils should maintain accurate and accessible records relating to: Royal families and recognised lines of succession, nomination and selection procedures, installation ceremonies and relevant customary requirements, recognition and registration of chiefs, decisions of Judicial Committees and established customary positions and traditional hierarchies. Proper documentation would reduce unnecessary disputes and improve the quality of evidence available in criminal investigations.

• Training Police Officers and Prosecutors

The Police Service and prosecutorial authorities should receive specialised training on chieftaincy law, customary succession and the statutory framework governing traditional institutions. Such training would enable investigators to distinguish between ordinary succession disagreements and conduct capable of constituting an offence under Section 63(a) or (b).

• Institutional Cooperation

There should be an effective working relationship between law enforcement agencies, the Office of the Attorney-General, Traditional Councils and the Houses of Chiefs. This cooperation should respect the constitutional jurisdiction of each institution. Where a criminal investigation depends on a disputed question of customary status, appropriate steps should be taken to obtain a reliable determination or other admissible evidence of the applicable customary law.

• Protection against Malicious Prosecution

Authorities must ensure that Section 63 is not used as a weapon in family or political disputes. A criminal complaint should be investigated objectively, and prosecution should proceed only where the available evidence establishes a proper basis for the charge. The constitutional presumption of innocence and the right to a fair trial must be respected.

• Legislative and Administrative Clarification.

Although the Supreme Court has upheld the constitutionality of subsections (a) and (b), Parliament and the relevant institutions may consider further guidance on the practical application of these provisions. Any clarification should preserve the customary foundation of chieftaincy while improving certainty, consistency and fairness in enforcement.

• CONCLUSION

Section 63(a) and (b) of the Chieftaincy Act, 2008 (Act 759) remain valid and enforceable provisions of Ghanaian law. They represent Parliament’s recognition that the integrity of the institution of chieftaincy requires legal protection against the unauthorised exercise or assumption of traditional authority. The fact that chieftaincy qualification and entitlement are substantially governed by diverse customary laws does not invalidate these provisions. Rather, it determines the legal and evidential standards that must be applied when enforcing them. The Supreme Court’s decision in Nana Adjei Ampofo v Attorney-General and President of the National House of Chiefs (2011) is decisive in this regard. The Court rejected the constitutional challenge to subsections (a) and (b) on grounds of vagueness and overbreadth and expressly declined to strike them out of the Act. Its decision to strike down subsection (d), while leaving the other challenged provisions intact, must be given its proper legal significance.

The enforcement of subsections (a) and (b), however, is not without difficulty. The absence of uniform customary succession procedures, the challenge of establishing customary law, the politicization of chieftaincy disputes, inadequate traditional records and institutional coordination problems may complicate criminal investigations and prosecutions. These limitations call for improved documentation, specialised training, institutional cooperation and a more systematic approach to establishing customary law. They do not justify treating the provisions as obsolete, suspended or legally unenforceable.

Ultimately, the law must be understood as an instrument for protecting the legitimacy and integrity of traditional authority. Customary law provides the relevant standards of qualification and entitlement, while Section 63(a) and (b) provide the statutory consequences for conduct that satisfies the elements of the offences.

The challenge before Ghana is therefore not whether these provisions should be recognised as part of the law, but how they can be effectively and fairly enforced without undermining the constitutional autonomy of chieftaincy institutions or the rights of individuals.

The central position is clear: Section 63(a) and (b) remain part of Ghanaian law. Their enforcement may be difficult, but difficulty of enforcement is not the same as absence of enforceability.

REFERENCES

1. Legislations
2. Constitution of the Republic of Ghana, 1992, particularly Articles 11(2), 11(3), 19(2)(c), 125, 270, 272 and 277.
3. Chieftaincy Act, 2008 (Act 759), particularly Sections 30, 57 and 63.
4. Evidence Act, 1975 (NRCD 323).
5. Courts Act, 1993 (Act 459).

 

1. Cases
2. Nana Adjei Ampofo v Attorney-General and President of the National House of Chiefs (2011), Supreme Court, Suit No. J1/8/2008, judgment delivered 20 July 2011.
3. Republic v Techiman Traditional Council, Ex parte Tutu [1982–83] GLR 996.
4. Tsatsu Tsikata v The Republic [2003–2004] SCGLR 1068.

 

APPIAH KUBI RICHARD, ESQ.

BSC.ADM, BA, LLB, MBA, MPHIL, BL, DBA (C)

0240478605

APPIAHKUBITHESIS@GMAIL.COM

PRINCIPAL REGISTRAR

ATEBUBU TRADITIONAL COUNCIL

BONO EAST, REGION.