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Chieftaincy Under THE LAW - Ollenu J
Constitutional law of Ghana and its history (FLAW306)
University of Ghana
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CHIEFTAINCY UNDER THE LAW-N OLLENU
Before the bond of 1844, which made the British authoritative over the indigenous, the supreme power was vested in the chiefs. As is described by Chalmers, every village had a headsman who was subject to the Chief who, the chief controlled two or more villages and the chief was subject to a chief or king of a higher district. Though the aborigines assumed the administration but that was exercised side by side the chiefs and appeals from the traditional rulers went to the judicial assersors. People started taking disputes to the offices of the British commissioner which created some difficulty for the chiefs. The hearing of disputes may pass from one chief to another based on their whims and each carries with it a fine whi h acculate and plunge the parties into debts.
ENACTED LAW
Chalmers recommended the establishment of what he termed “native judicatories” giving government recognition to the chiefs, the traditional authorities , defining their powers and jurisdiction.
The Native jurisdiction Ordinance of 1878 was enacted which was replaced by another native jurisdiction ordinance f 1883, and was later amended by Ordinance NO. 7 of 1910, entitled “an oridnance to Facilitate and Regulate the Exercise of Certain powers nad jurisdiction by Native Authorities”.
Thus in order for the government to recognize thechiefs and define their respective powers and jurisdictions , the Native Jurisdiction Ordinance of 1878 and later 1883 as amended by ordinance number 7 of 1910.
The ordinance as Sarbah puts it did not apply to all chiefs E. Accra and Cape Coast were omitted and the Ancient prisons kept by the chiefs were closed. The reason being that where there were commissioners, the Ordinance did not extend to such districts.
Section 3 of the ordinance introduced in 1910 made the ordinance applicable to all chiefs. By providing that “every head chief’s division with s with all its sub-division is within the opweration of rthis ordinance and the powers and jurisdiction of all native authorities therein shall be exercised under and according to theprovisions of this Ordinance and not otherwise”
The ordinance recognized and preserved the judicial powers of the aboriginal rulers. The native Jurisdiction Ordinance maintained some at least , of their legislative powers as well as executive and ministerial powers. By the prisons Ordinance of 1888 the tradirtional prisons were legalized.
Section 27 of the ordinane provided statutory protection for thechief. section 29 however gave the governor the power to suspend or dispose off a chief. as sarbah points out that it created the suspicion that the government intended to ultimately do away with the aboriginal authority.
The definition in the Chiefs Ordinance of 1904, was though better but not accurate. Thus an “ordinance to facilitate the proof of the election and installation and deposition of chiefs according to Native Customs”. This provision has been retained also in the chieftain Act of 1971 (Act 30). This means that the chief holds his office at the wish of the people but the will of the government.
Before the Native Jurisdiction Ordinance, matters of a constitutional nature , thus matters relating to the election , installation or the abdication or deposition of a chief were purely for the traditional authority of each area.
Letteres patent of 20 september 1916 provided for the establishment of a legislative council. An order in Council in 1925 setting up a Legislative Council for the then Colony gave chiefs a right by their representatives to participate in eh central legislature of the country by some of their collegures elected by themselves. The Coussey Committee Reports that by creating a Provincial Councils , the Order in Council recognized the importance of chiefs. The Burns constituton of 1946 gave an otion to the provincial councils to elect members thus non-head chiefs to the Legislative Council. So from 1925 to 1951, paramount chiefs participated in the legislature of the country.
In exercisiong their powers various enactments were passed from time to time and the first is the Native Administrative (colony) Ordinance. Part 5 made it an offence to undermine the authority of a chief and part 4 made it an offence for a chief to withdraw allegiance from their superior.
The Native Administrative Ordinnance , a comprehensive code dealing with all asects of chieftaincy; and defining chiefs powers and duties fairly widely. It sought to protect the dignity of chieftaincy , and the relationship between chiefs and maintain the integrity of each state. It is entitled “An ordinance to Define and to Regulate the Exercise of Certain Powers and Jurisdictin by Native Authorities and to Assign Certain Functions to the Provisional Councils and for Purposes connected threwith.”
On the face of sections 3,4 , 5 and 6 of the Ordinance , all that need be done upon the election, installation or deposition of a chief is to report the same to the Governor for his information-prima facie implying that at long last the Governor’s confirmation was no longer necessary fro the validity of an election , installation or deposition of a chief once the same had been carried out in accordance with customary law. It is implied however that before reporting to the Governor, the State Council and the district commissioner must have satisfired themselves on the validity of the election and installation.
Ans important freature of the Ordinance is the clear line of demarcation drawn between the local government functions of the State Council and its purely traditional functions. The ordinance confirmed to the state council its traditional jurisdiction to determine dispurts in matters of a constitutional nature.
In 1944, the Native Authority Ordinance (no. 21 of 1944) and the Native Courts (Colony) Ordinance , 1944 (no of 1944) were passed. For the Native Authority which by section 3, consisted of a chief and council or councils , the powers of a local a local authority; the other created local courts called the native courts , which took away for mthe traditional authority jurisdiction in civil and criminal matters; he only connection which the ordinance created between the Native Authority and the courts htereby established was nothing f more than the powers to recommend persons , some of whom might be among pewrsons whom the Governor appointed, to preside over the court, and that fees and fines from the court formed part of the revenue of the authority.
Further provisions madde in these enactments required native authorities to work in conjunction with finance boards appointed under the Native Administrative Treasuries Ordinance , 1939. this assured to
jurisdictions from decisions of traditional Authorities and Traditional Aurthorities have exclusive jurisdiction in matters affecting chieftaincy. Ex-parte Adu Gyamfi.
Chieftaincy Under THE LAW - Ollenu J
Course: Constitutional law of Ghana and its history (FLAW306)
University: University of Ghana
