Division: HIGH COURT, HOHOE
Date: 20 DECEMBER 1991
Before: ACQUAH J
A case about the offence of disrespect or insult to a chief under section 53(a) of the Chieftaincy Act, 1971 (Act 370) in Ghana.
-Facts of the case*: This is an appeal from the District Court which dismissed a submission of no case made by the accused.
The appellant, a mason, was charged with insulting the chief of Kadjebi by way of certain conduct,he was caught and reported for picking stones in front of the palace. At the arbitration to discuss this conduct he was additionally charged with speaking directly to the chief and leaving the palace without permission. He was fined by the chief and his elders, but he refused to pay and was reported to the police.
Appeal and judgment:
The appellant appealed against the ruling of the district magistrate court that dismissed his submission of no case. The High Court allowed the appeal. If laid down the three necessary elements of the offence
(i) the language or conduct complained of was disrespectful or insulting;
(ii) the accused used or offered the said disrespectful or insulting language knowingly; and
(iii) the person against whom the said language or conduct was directed was a chief. All 3 elements must be held to be present.
a) The chief’s testimony is essential to ground the claim once the accused pleads not guilty and since the chief did not testify a conviction could not be sustained.
b) On the evidence the conduct was not insulting – the chief may have been annoyed but annoyance is not enough – the conduct must be injuriously contemptuous or discourteous of the chief.
c) “Knowingly” was an essential element of the offence and the prosecution must be able to establish the requisite intent. It must be established that the accused knew the conduct was disrespectful before the accused would be required to open his defence. The prosecution failed to prove the state of mind of the accused
d) It appeared that the actions of the acused only offended Kadjebi custom only and not against the chief. Picking stones and leaving without permission was not an offence directly against the chief, but against the community.
e) A custom barring the accused from gathering chippings which are unwanted is backward and stifles initiative and economic wellbeing. It sins against PNDCL 42
f) Per Section 8 of act 29 “No person shall be liable to punishment by the common law for any act.” Customary law is part of common law, and so for it to be punishable steps had to be taken to have such offences and their punishment clearly spelt out in the relevant statutory instrument. Consequently, if the fine imposed on the accused in the instant case was not an arbitration award as
alleged by the prosecution but the punishment for finding him guilty of a customary offence, then it infringed against section 8 of Act 29. On the other hand, if it was an arbitration award its
enforcement did not lie with the police but in taking a substantive civil action.
g) The court recommended that in order not to sin against section 8 of Act 29, customary offences together with the
appropriate sanctions should be spelt out and presented to the National House of Chiefs who will conduct investigations and consideration and present a draft to that effect to the Head of State. Subsequently they could pass an LI after consulting with the Chief Justice to give effect to these sanctions.
This is the procedure laid down in sections 41-47 of Act 370.
