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4. Atuguba, Handout on British Jurisdiction-Ghana Legal System
Ghana Legal System (FLAW 103)
University of Ghana
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UNIVERSITY OF GHANA SCHOOL OF LAW
GHANA LEGAL SYSTEM
FLAW 261
INTRODUCTION OF BRITISH JURISDICTION INTO THE GOLD COAST
HANDOUT
Extracts From Oseadeeyo Addo Dankwa III, Paramount Chief of Akuapim Traditional Area, The Institution of Chieftaincy in Ghana – The Future (Published with the support of Konrad Adenauer Foundation Accra, Ghana December, 2004), p. 5, 6, 8.
“Colonization in its bid to control large and economically viable areas combined many small areas under the leadership of numerous ethnic head – chiefs. The result was that within a definable colonial territory, for instance, Ghana, where there were many chiefs who were independent of one other, but all of whom collectively came under the colonial administration – namely the state. In Africa, therefore, in a given nation state, there are many independent chiefs.
Before independence, the real ruling class in Africa happened to be, in most cases, colonialists who were foreigners imposing their rule on the indigenous population, including the chiefs. Most African chiefs had very limited political power. Yet due to lack of proper means of communication and the strong ethnic loyalty enjoyed by the chiefs, the colonialists in Africa had no option than to rule indirectly through the chiefs.
The so – called indirect rule limited the sphere of political activities of the chiefs to only cultural and social matters. Important matters such as finance, external and internal trade, foreign affairs, and to some considerable extent, law and order were in the hands of colonialists. Consequently, the chiefs within their limited sphere of activities remained as mere ceremonial chiefs. Relegated to the background of affairs by the colonialists, the Institution, however, continued to thrive on its basic structure.
Unlike his European counterpart of old, who ruled as an absolute monarch over all that he surveyed, the Ghanaian chief was regarded as a senior among equals. And the system of election has ensured that the institution is inextricably interwoven into the very core of the basic social order in operation...
The imposition of British colonialism and the subsequent ordinance defining the powers and jurisdiction of chiefs resulted in the erosion of chiefly power, influence and prestige.
The following Ordinances for instance, reduced considerably the powers of chiefs: the Supreme Court Ordinance of 1874, the Native Jurisdiction Ordinance of 1910 and the Native Administration Bill of 1927.
The Supreme Court Ordinance of 1874 marked the formal introduction of the British Judicial System, which left further uncertainties as to the extent of the jurisdiction left to the chiefs. The
Native Jurisdiction to chiefs gave them powers to make Bye-laws, subject, however, to explicit recognition of the Ordinance. In this case, the Governor had power to restrict the jurisdiction of any particular chief. The native Jurisdiction Ordinance of 1910 gave the chiefs exclusive territorial jurisdiction and, comparatively, limited control measures.”
Extracts from Despatches from Secretary of State to Governor (1852) No. 2 [ADM1/ 1/10 @ p] Public Records and Archives Department, Accra (Near Holy Spirit Cathedral), Ghana.
Subject: Meeting of Chiefs and Tax Source : Despatches from Secretary of State to Governor (1852) No. 2 [ADM1/ 1/10 @ p]
In a confidential despatch dated 17th October 1951, the then Governor of the Gold Coast Colony, Governor Hill had formed the opinion that it would have been dangerous calling a general meeting of chiefs in the Gold Coast given the prevailing state of society. In this despatch of 21st January 1852, the Secretary of State in London wrote as follows:
“Your anticipation as to the probable practicability and advantage of establishing a house tax at some future time are highly satisfactory. There is however one expression in your despatch which I do not distinctly understand. You speak of submitting to me an Ordinance for this purpose. Such an Ordinance may be necessary for the purpose of enabling the local Government to appoint the requisite officers and to direct the appropriation of the proceeds. But I am not aware in what way an Ordinance having force only within the narrow limits, the portion of the territory under British dominion is bounded, could render legal the collection of the tax in the territory beyond the limits and only under British protection. The collection must be, I apprehend, in virtue of treaty and usages.”
Extracts from Raymond Atuguba, “The Tax Culture of Ghana”. A Research Report produced by the Revenue Mobilization Support (RMS) of GTZ and the Legal Resources Centre (LRC), February, 2006, p-38.
Historically, and before colonial rule, the chieftaincy institution was the pivot of the whole society, more or less the government of the day. The chief had different departments made up of the Native Court, the Native Police and the Native Treasury. Under the Native Treasury, the chiefs had the power to tax the natives. This tax could be in cash or kind. The taxing system varied from one community to the other. The various sources of revenue included the following: property levies; funeral contributions; community welfare levies; land rent; special development contributions; tolls; royalties from traditional councils paid to paramouncies; fundraising during festivals and other festive occasions; levies on game, timber and mineral products; funeral contributions; burial fees; and other special levies. Historically therefore, Ghanaians have experienced a variety of tax regimes. These were mainly seasonal (e. during harvest) and event-based (e. during festivals); based on the profession/occupation of a person
only took the form of treaties and usages. In 1852 however, the Poll Tax Ordinance was passed to raise revenue for the administration of the newly created colony of the Gold Coast independent of the British administration in Sierra Leone.
Before the imposition of the Poll Tax, there is evidence of the collection of other kinds of taxes. The following colonial dispatch is instructive on this point
“Downing Street 4 th August, 1855 No. 3
“Sir, I transmit to you herewith a letter from the Secretary to the Royal Commission of the Patriotic Fund, in acknowledgement of the sum of fifteen pounds eighteen shillings contributed by certain Residents on the Gold Coast to the Patriotic Fund and conveying to them the thanks of the Royal Commissioners. I have the honor to be Sir...
The Officer Administering The Government of the Gold Coast”. 1
Among the various reasons for the introduction of the Indirect Rule in British West Africa was the existence of an effective African tax system. Traditional rulers were the main instruments used in implementing this policy. Where there were no chiefs, “warrant chiefs” were created. These rulers assisted British colonial treasurers in collecting taxes from the people. British rule meant increased authority for chiefs to collect taxes and conversely the diminishing authority of the chiefs to impose taxes. The following communication between the Chief Registrar and the Secretary for Native Affairs concerning the attempted imposition of a tax by one chief on “refugees” living on his land expresses the point and makes interesting reading:
“COLONIAL SECRETARY’S OFFICE ACCRA 26 th March, 1902.
Apontua, I am directed to inform you that your letter, dated 15th instant, in which you wrote to the Chief Justice about the action which the headman of Fancheneko was taking towards the Juabins residing at Domi, has been laid before the Governor who has caused a letter to be written to Headchief Amoako Ata II, of Akim Abuakwa, at Kibbi, directing him to inform Enin Ajaye that the proposed tax will not be allowed and that unless this chief refrains in future from troubling you and your people at Dome, he will be severely punished... (Sgd) L. R. Arthur Colonial Secretary Kwabena Apontua,
1 Gold Coast Despatches from Secretary of State to Governor 1855 (ADM1/1/13) Public Records and Archives Department, Accra.
OSEEM” 2
By 1908, authority to tax was clearly in the hands of the colonizing force and the following letter was written:
Domi 6 th aug. 1908
Sir, I beg most respectfully to lay this before your Honour that, about six years ago, the late Chief Anin Adjaye of Fancheneko was claiming from me and my subjects a proposed tax which I refused to pay and also I complained to Government about same. Your Honour the present Chief RamRam who has now occupied the throne, has commenced of giving me and my people trouble by raising a tax of load of cocoa from each of us (Juabins) at the expiration of every year and if I and my people refuse to pay this tax, we must quit from this land (Domi) and as I have a paper on this same case, from Government and all the time like to live with each other in peace, I have therefore despatched a bearer by name Quacoo Nyame to come with this my letter... I have the honour to be sir Your most obedient servant Chief Kwabena Apontua (Sgd)
Extracts from “Human Rights Beyond the Prison Walls: A Rights-Based Critique of Ghana’s Prisons System”. A Concept Paper Prepared for the Prisons Project of the Legal Resources Centre (LRC) by Dr. Dominic Ayine, August, 2002.
“Prior to the introduction of colonial rule and the formal introduction of imprisonment as a form of punishment, banishment, the imposition of fines, flogging and execution were the prevalent forms of punishment among the societies that now make up the nation-state called Ghana. Imprisonment was not institutionalised as a form of punishment. However, with the enactment of the Prisons Ordinance by the colonial administration in 1860, incarceration became an integral component of the penal system in Ghana. Convicted criminals and persons suspected to have been involved in the commission of crimes are almost invariably placed in prison custody or sometimes, particularly in the case of crime suspects, in police cells.”
2 Ashanti Refugees and the People of Eastern Akim Case No. 145 (ADM 11/1/18), Public Records and Archival Department.
Extracts from Raymond A. Atuguba, “Institutional Continuities: The Police in the Regulation of Public Order and Alcohol in Ghana.” Dissertation Submitted in Partial Fulfilment of the Requirements for the Award of the Doctor of Juridical Science Degree to the Law School of Harvard University, June 2004. p. 197, 208, 219-
“The story of akpeteshie is not only about how “the advance of European economic and political power into African societies..[ed] controlled-and fundamentally benign-indigenous patterns of alcohol use.” 5 Alcohol control was one of the arena’s where tension, conflict, resistance and contumacy, ensued between colonizer and colonized. As we shall soon discover, this led to the paradoxes of continuities and discontinuities, stability and change, in this area. In other areas, (as is the case with the police) imperialism of the sword and the pen, combined, rode rough-shod over pre- existing institutional forms, virtually obliterating them to points of non-recovery, but that is another matter...
Alcohol has for centuries played a prominent role in the social and religious life of African societies south of the Sahara. As early as the eleventh century A., Al-Bakari described offerings of alcoholic drinks in royal funeral rites in the kingdom of Ghana 6 ...
The importance of liquor revenues to the colonial administration in Ghana ascribed a parallel importance to alcohol in the political economy of British colonialism... Revenue from alcohol duties was one of the crucial props on which colonial empires in Africa were built and maintained. Once colonial administrations were founded, it was alcohol revenue, which largely paid for their upkeep. There were several reasons for this. The pre-1914 policy of metropolitan countries was that colonies should pay for themselves and grants were minimal from the metropolis. Secondly, imposition of direct taxation as a source of revenue was unpopular and government efforts to tax directly were generally and repeatedly unsuccessful...
Akpeteshie, distilled from palm wine, corn and cassava, began to make their entry into the market on a fairly widespread scale.. government banned its production. To the Gold Coast government, patronage of illicit akpeteshie not only compromised respect for law; it represented a loss of revenue as it undercut liquor imports and the taking out of retail licenses.., the palm, which yielded the oil, so sought after by European merchants at the end of the slaving era also yielded the wine for the ‘palmwine drinkard’ and the akpeteshie consumer. Felling and tapping the palms was detrimental to the palm oil trade... It is certain that this consideration was relevant in the banning of akpeteshie that was partly produced from palm wine.
5 CHARLES H. AMBLER, Alcohol and Disorder in Precolonial Africa, Working Papers in African Studies No. 126 (African Studies Center, Boston University, 1987) p. 2. 6 “Ghana” here refers to an ancient African Kingdom from which the current country called Ghana got its name. It covered a greater area than its successor in name. See ADU BOAHEN, Topics in West African History, (Longman: England, 1986).
This conclusion is buttressed by the fact that there does not seem to be any evidence that alcohol abuse was a serious health hazard in the colony. Information reaching the Colonial Secretary’s office revealed that:
Death from alcoholism were one in 1940, two in 1943 and nil in 1946. It is not known whether or not these were caused by illicit gin. 7
The people of the gold coast knew this and when the colonial government sought the opinion of the colonized on this matter, the responses were very strategic, playing into what the British wanted to hear. To the question whether or not “Ordinance No. 16 of 1931 [which] provides for the gradual decrease in the importations of gin until they cease altogether at the end of 1940” should be repealed, the Ga Mantse... and President of the Ga State Council responded thus on behalf of his subjects:
The State Council recommends that Ordinance No. 16 of 1931 should be repealed as it unduly places restrictions on trade and affects revenue. 8
Extracts from Rowland Atta-Kesson and Raymond A. Atuguba “Of Fish, Fishing, Fisherfolk, the Law and Fishing Institutions”. A Paper prepared for the Corporate Social Responsibility Movement (CSRM) and published on their website and on file with authors (April, 2007) pp 2-8.
Ghana has a long tradition of a very active fishing industry. Ghana's fishing industry has made tremendous strides over the years, developing from a predominantly traditional canoe fleet to a mix of traditional and modern fleet, including industrial trawlers. Bounded on the south by the Gulf of Guinea, Ghana has a 550-kilometre coastline and a total continental shelf area of about 24, square kilometres that support a marine fishing industry. Ghana also has a system of rivers, lagoons and lakes that form the basis of an inland fisheries industry.
The fisheries sector is characterised by artisanal and industrial fishing. Conflicts in the exploitation of fisheries resources between artisanal and industrial fishing are due primarily to the phenomena of open access regimes. With modernization of the fisheries, it is now possible for some small-scale fisheries to fish in deeper areas thus heightening or contributing to the number of conflicts.
The fishing industry in Ghana started as an artisanal fishery with very simple and inefficient gears and methods operating close to coastal waters, lagoons, estuaries and rivers. Fish caught were mainly to meet domestic demand for fish especially in the towns and cities. There were limited exports to neighbouring West African countries. The fisheries sector has expanded considerably over the past decades: modern fishing fleets are used; volumes of fish landed have increased and exports have gone beyond the boundaries of Africa, particularly into Europe. Ghana’s involvement in the international fish trade has meant that the trade policies of its Western trade partners can have a great impact on the country’s fishery sector, given its dependence on income from fish exports. Ghana is also a founding member of the World Trade Organization (WTO) and as such its participation in the international fish trade is regulated by WTO trade agreements.
7 CSO 11/13/34. File No. 6055, 1947, titled “Alcohol Drinks-Casualties Arising From”. 8 CSO 21/18/18.
did not use these nets began losing profits and began complaining to their chiefs and government representatives. In most of the cases the financial concerns of the unfortunate fishermen were presented along with (or in the guise of) concerns over the environment and the community; apprehensions about over fishing, sustainability of the fisheries resources, and the maintenance of fairness, equality, and peace between fishermen.
Along with these conflicts over profits and sustainability, other localized political and economic considerations played into the disputes. For instance, in one case it appears that old fishermen were behind the passing of bye-laws to prohibit the use of new nets. It was thought that these men could not afford to purchase, and were too old and weak to operate these new nets, and were therefore losing profits to younger and stronger fishermen who could afford them. Conflicts also arose between neighboring villages, among which certainly existed other struggles not mentioned in the records which might have amplified these fishing disputes. According to Barbara Walker (1998:105- 139), the archival record describes at least thirteen cases of net conflicts, which are too numerous to mention here. The earliest case, however, that established the precedent for the ensuing conflicts was the case of Akwufio and Others v. Mensah and Others. This was a case brought to the Supreme Court of the Gold Coast in Cape Coast in 1898 between two groups of fishermen in Teshi. An anonymous colonial document reports that the Ali net came into use among the Ga at Teshi in 1897 and in a short time most of the Teshi people used them without hindrance but later the majority of the fishing population became dissatisfied with them as they found that these nets injured their fishing so much that their families were starving. Their chief objection to the net was that it ruined the herring fishery by driving away the fish (Anonymous 1919:1). In response, a fisherman named Mensah and other fishermen at Teshi passed a law prohibiting the use of the Ali net. When a fisherman named Akwufio and others continued to use these nets, they were attacked by Mensah's group, their canoes were upset, and their Ali nets were damaged. After deliberations, in 1899, Chief Justice Sir W. Brandford Griffith decided that the law made by Mensah could not be enforced because it did not exist at the time of the Supreme Court Ordinance 1876, and this decision was used as a precedent in all of the cases of new net conflicts to follow. This decision of itself will be discussed further in the section below on conflicts over authority.
Earlier in February of 1890, a disturbance took place between the previously mentioned groups of fishermen, in which they quarreled again about the use of Ali nets. The town was fined £5 by the colonial police. This disturbance compelled the Manchemei (chiefs) of Accra and Christiansborg and Chief Nii Kotey of Teshi to co-sign a formal agreement to prohibit the use of the Ali net, which in the agreement was called "a most enormous and alarming construction apt of taking both young and large fish". The governor, F. M. Hodgeson, agreed to refund half of the £5 fine to Teshi if the Chief of Labadi would also sign the agreement. Although a "solatium" of £5 was offered to the Chief of Labadi, he refused to become a party to the agreement. Therefore, when in June of 1900 the Chief Fisherman of Accra (John Kofi Abrah) complained to the authorities that Labadi and Teshi fishermen were using "long fishing nets," neither the government nor the police would do anything to stop these fishermen. In February of 1901, Manche Tackie of Accra pleaded with the Governor to stop the fishermen of Labadi and Teshi from using Ali nets, again to no avail. Finally, when in March of 1901 the Manche of Osu reported an impending breach of peace in Teshi over the use of Ali nets, the District Commissioner traveled to Teshi to make an inquiry. He reported that there was no disturbance; that in Teshi as in Labadi and Ningowa he found the people were split up into two parties, one in favour of and the other against the use of the Ali net, but at all the three places it was
being freely used. The net had a mesh of 3/4 inches and is "similar to that used for centuries round the English coast". He did not believe that its use would have any detrimental effect upon the future "fish supply, and imagined that the Kings of Accra and Christiansborg had other reasons than those alleged for wishing its prohibition".
In 1901, the Governor, in view of the Chief Justice's and the District Commissioner's judgments, decided not to interfere further in the matter. Despite this, in 1901 and again in 1903, disputes between these parties went again before the courts. As a result of this long-running dispute and many others similar ones throughout coastal Gold Coast, Judge Sir Hugh Clifford ruled the following in 1916: “i. That the Government cannot countenance any attempt to prevent the use of the Ali nets merely because the fishing population who employ them have advantages over their neighbors. ii. That each fishing community must be allowed to decide for itself whether it will or will not use these nets... That no bye-laws imposing any restrictions, other than those above set forth, upon the users of Ali nets should be approved (Davis 1923:10-11).” In sum, these cases illustrate a variety of tensions precipitated among fishermen by the introduction of improved fishing nets into Gold Coast fishing communities during the colonial era. While competition over profits appears to be the principal source of conflict, these conflicts are simultaneously embedded in other patterns of local politics of the period. As noted earlier, disagreements over the suitability of the new nets also occurred between older and younger fishermen, between neighboring villages, and between those in pursuit of profits, and those concerned with preserving the fisheries resource base.
Attendant to conflicts over new nets, struggles ensued between local leaders (Chiefs and Chief Fishermen) and Colonial leaders over who had the authority to legislate fisheries policy. In the first recorded case (Akwufio v. Mensah above), Chief Justice Sir W. Brandford Griffith decided that local leaders did not have the authority to prohibit the use of nets, and this decision was used as a precedent throughout the history of net conflicts in the Gold Coast. Instead of prioritizing existing village hierarchies and local knowledge about the capacity of the marine environment, Griffith's decision turned on a European concept of "freedom of the seas" and a British model of fishing practices. We re-revisit the Case of Akwufio and Others v. Mensah and Others which securely established Colonial policy on net conflicts. Instead of being resolved at the local level, this case went to the Supreme Court. It was decided by Judge Griffith that the colony would not support a law prohibiting nets, citing Section 19 of the Supreme Court Ordinance 1876, which decreed that “.. Supreme Court shall enforce the observance of any law or custom existing in the Colony not being repugnant to natural Justice equity and good conscience and not incompatible directly or indirectly with any local enactment then existing” (Porter 1916:3). No law against the use of the Ali net was "existing in the colony" in 1876, so Mensah was caught in a dilemma where his rights to enact local laws were no longer recognized because local lawmaking and litigation procedures were becoming obsolete, and the colonial court would not hear cases involving new "native" laws. Chief Justice Griffith's decision was evidently based on an ethnocentric conception of fishing, inasmuch as he commented that the Ali net was "similar to that used for centuries round the English coast”. Although Griffith was not a fisherman or a fisheries scientist, he concluded that the Ali net would have "no detrimental effect upon the future fish supply”. Furthermore, Griffith remarked that: “.. [I] thought for a moment that the use of the Ali nets did tend to injure a fishing industry [I] would advise the defendants to apply to the Government to legislate, but with the experience of practically the whole civilized world against that view, [I] did not hesitate to say that the Government should rather encourage than discourage the use of the Ali net.”
canoemen to transport cargo from European merchant vessels to shore and back through the "burning surf". Fanti integration into European discourses was marginal during this period, and shall not be discussed in detail here (see Walker 1998). After 1830, the lives of Fanti fisherpeople -- both men and women -- were increasingly influenced by British norms of economics, laws, and fishing practices. This history has shaped the development of Ghana's fisheries, as well as resource politics in Fanti fishing communities. Colonial intervention in local fisheries has resulted in a political/economic/ecological system in which increased catches of fish for profit are paramount to sustainable subsistence production; in which the labor and technology of men is venerated while the labor and technology of women is virtually ignored; and in which women and men fight bitterly among themselves to gain access to a livelihood from dwindling fisheries resources.
To develop this narrative, I shall begin with two brief sections on the theoretical orientation and the historical background of the paper. Next I shall discuss the influence of colonial rule on fishing communities. Fishing never became a significant economic sector during colonial times, although the British did make minor attempts to improve the industry in order to provide food for the prison population (Prisons Office 1939:2). More importantly, the location of the British colonial capital in the Fanti region had particular implications for property rights in the fishing industry. I shall summarize numerous cases of conflict in the Gold Coast fishing industry to illustrate the myriad ways in which technological change and colonial development shaped resource conflict. I also demonstrate how Fanti fishers increasingly appealed cases of local conflict to colonial courts instead of local authority structures. In this way, the colony made decisions about the fishing industry from the perspective of European models of fishing and in the interest of colonial economic imperatives, both of which had transformative impacts on Gold Coast fishing communities and the methods by which they captured fish. Finally, I shall emphasize the specific role of women and gendered conflicts in Fanti fishing communities, because women's work in fishing -- processing and marketing -- constitutes the profit-earning sector, and thus the driving force in the industry.
Theoretical Orientation
This study of Cape Coast's fishing industry has been broadly influenced by the peasants literature and theories of agrarian change. The peasants literature enables me to understand how the local and global economic and environmental histories of Fanti fishing shape historical and contemporary household and community politics over marine resources. Instead of asking the century-old "agrarian question", I ask the "aquarian question", which considers the fate of peasant fishers in the face of industrial capitalist transformations. This case study in many ways follows the debates surrounding the triumph of market relations over the peasant household, beginning with the work of Chayanov (1986) and Lenin (1967). While Lenin and other Marxist scholars anticipated the demise of the family farm, others argued various reasons for its persistence (Chayanov 1986, Scott 1976, Mann and Dickinson 1978). The principal contribution of my study to these bodies of literature is in my focus on the ocean as the primary resource base of a peasant community. The few scholars which have examined resource politics in peasant fishing communities tend to view these communities in isolation of regional and global patterns of economic and environmental change. Moreover, women and gender are scarcely recognized in studies of marine resource politics.
Many of the existing studies of small-scale fishers focus on fishing communities in isolation from external patterns of economics and politics (Acheson 1981, Cordell 1985, Dyer and McGoodwin,
Johannes 1978, McGoodwin 1989). These studies tend to fetishize ideas of common property, indigenous knowledge, and "sustainable" and human-ecological resource management. The political, economic, and ecological complexity which underlies most common-property resource regimes is becoming increasingly evident in the case of the oceans. Since Hardin's (1968) grim analysis of common property use and management in 1968, many scholars have critiqued his reasoning for not recognizing the highly developed property rights which exist in so-called "common" property regimes (Berkes 1987, Bromley 1992, Cordell 1985, McCay and Acheson 1987). These rights are not enforced by obvious fences and sentries, but by "everyday" strategies of subtle politics and coercion. A growing literature on fisheries articulates the commons "tragedy" with modern seafood markets, and the proliferation of commercial distant-water fishing, which opens access to fisheries which were closed in the past (Hviding 1996, Johannes 1982, Stonich, 1995).
Today, Ghana's artisanal fishing sector (for subsistence and small-scale marketing) is threatened by the large-scale commercialization of fishing in the region. West African fisheries have been exploited by European and Russian fleets since the mid 1700s (Lawson and Kwei 1974). More recently, as northern fishing grounds have become overfished, North American and Asian distant water fleets have moved into West African waters as well (Kaczynski 1989). It is estimated that over 70% of Ghana's commercial catch is exported out of Africa (Ibid). And this is only the catch which actually reaches shore.
Although Ghana's total fish production has increased by three hundred per cent in the last three decades (see Figure 1), this upward trend disguises significant problems in certain fisheries and among certain fishing communities. Ghana's staple fishery, Sardinella Aurita, for instance, collapsed in 1972, has since fluctuated wildly, and is now declining from its 1993 peak of 90,600 mt (Koranteng 1989:26, 28, Lawson and Kwei 1974, Research and Utilization Branch 1998.). At the same time, Ghana's population has grown by over 35 per cent, and the number of Ghana's fishermen has grown by 19 per cent. The number of Ghana's fishtraders is assumed to have increased steadily during this time as well (Walker 1998:170). These increases have occurred during an era of severe economic decline and structural adjustment, during which prices rose precipitously while incomes and social services disintegrated, especially for peasant producers. One result of the hard times in the artisanal fisheries is an increase in the use of poisons, dynamite, and small mesh-size nets in order to capture fish (Ibid:155).
Figure 1. Ghana's Total Marine Fish Production, 1967-
Source: FAO 1997, Research and Utilization Branch 1998).
Despite these apparent signs of trouble in the artisanal fisheries, Ghana is attempting to increase the capacity of its commercial fisheries sector as part of its structural adjustment debt-servicing arrangement with the World Bank and the IMF. For instance, in 1984 the Fisheries Department
During the height of the trans-Saharan trade (ninth through sixteenth centuries), Mande-speaking and Dyula traders would move from town to town with trains "of asses carrying merchandise ... woven cotton cloth, gold dust, iron goods, kola nuts, shea butter, incense, to be exchanged for the horses, fish, salt and grain of the coastal areas" (Mahoney and Idowu 1967:141). Several historians remark that people on the West African coast caught and dried fish for sale to inland peoples, but there is little detail as to the importance or extent of the trans-Saharan trade in fish (Davidson 1977:150, Flint and McDougall 1974:387, Person 1974:258). 3 Of more direct relevance to this study, Boahen writes that prior to the migration and establishment of the Fanti at the coast (between 1000 and 1300), the Akan peoples first opened trading contacts with the coastal Guan to acquire fish and salt (1967:162, see also Stride and Ifeka 1971:203). It can be assumed that fish were not valuable trade items compared to gold and kola nuts which were the principal commodities of the Akan, and the mainstays of the north-south trade. Riparian species of fish were available throughout the Sahel, presumably minimizing the desirability and necessity of marine fish from the coast. For instance, the Songhai empire along the eastern Niger River (1300-1600) traces its roots to the Sorko fisherpeople whose social system was closely tied to the cult of the river and the worship of a river divinity (Awe 1967:65, Stride and Ifeka 1971:65).
It was not until the establishment of the European forts and trading castles that detailed accounts of the coastal Fanti appear in the historical record. The Fanti were immediately recognized for their fishing skills, but it was largely their canoe-navigating and trading skills which became more important to the European traders.
The Judicial Basis of the British Gold Coast Colony
The first British ship reached the shores of what is now Ghana in 1553, opening a long history between England and that part of the world. European traders benefited from the existing complex trading structure of the Fanti (McCarthy 1983: ix), and from 1618 to 1820, a series of British companies traded here. From 1720 to 1820, the African Company of Merchants, which was open to all British merchants, governed the coast with some financial support from the British government to maintain a peaceful trading atmosphere. The decline of the slave trade and frequent attacks by the Ashanti eventually weakened the African Company, and it was dissolved by an Act of Parliament in 1820.
The British Colony at Cape Coast was eventually established in 1874 by way of the local judicial system. George Maclean, hired by British merchants to serve their interests, arrived in Cape Coast in 1830. In negotiating peace between Fanti and Ashanti, Maclean transferred the arbitration of "palavers" (arguments, litigation) between signatories of the peace agreement to the British governor at Cape Coast (Metcalfe 1962). In a matter of years, the principal Fanti chiefs had signed the Bond of 1844, agreeing to bring all major legal disagreements "before the Queen's judicial officers and the chiefs of the districts, moulding the customs of the country to British law" (Great Britain Public Record Office 1844, cited in Ibid).
For those Africans living near the castle, the British court system was less complicated and less expensive than the court of the chiefs, and for this reason, British law caught on quickly among the coastal Fanti. "The courts of the chiefs and the headmen required extensive gift-giving, fees, and fines, while the only payment required in the magistrate's court before 1850 was a small sum for the delivery of a summons if necessary" (Cruickshank 1853, v. 1:270-276, see also McCarthy
1983:146). By 1851, chiefs were no longer appearing at the growing number of court proceedings, and in 1853 the British government created a Supreme Court in Cape Coast. This court was intended for cases involving British subjects and admiralty, and would only honor British law, without regard to "native law" (Griffith 1936). Henry Connor was dispatched from Britain to preside over both the Supreme and Local Courts. Having no experience or knowledge of local laws, the two separate courts became quickly integrated, and almost all cases went straight to the Supreme Court (McCarthy 1983:148). In this way, the power of Fanti chiefs was weakened substantially over the next century.
Through the judicial system, the British became increasingly involved in Gold Coast African affairs. At the same time, threats from the Ashanti continued, and these two circumstances led Britain to establish the Colony in 1874; an "act to remove doubts as to the exercise of power and jurisdiction by Her Majesty" (Great Britain Parliamentary Papers 1874, cited in McCarthy 1983:171). The judicial foundation of British rule in Gold Coast affected the history of coastal resource politics, as I shall now attempt to show.
New Technology, New Conflicts, and Colonial Fishing Policy
The British Colony at Gold Coast did not establish a Fisheries Department until 1946... Yet colonial administrators were involved in the industry from the turn of the nineteenth century when new kinds of fishing equipment began to appear on the Fanti Coast. New technologies, particularly the introduction of improved nets, precipitated a host of new conflicts over marine space and resources...
III. Conflicts Over Property in Marine Space and Marine Time
.. fishing boundaries did exist prior to the colonial era, they were not codified in written laws and by permanent markers as happened in the early part of the twentieth century.
In reference to numerous disputes over Ali nets, Justice Sir Hugh Clifford ruled the following in 1916:
iii. That when any fishing community has decided to use the nets, it should be allowed to do so only in its own territorial waters; that it should be required to take all reasonable precautions to prevent its nets from causing inconvenience or injury to its neighbors; and that its members should refrain from drawing their nets up on any foreshore other than that belonging to their village.
v. That where necessary the coastal limits of the territorial waters of any fishing community should be determined and the boundary marked by some landmark of a more or less permanent character, on the beach.
(Anonymous 1919:10-11)
By this time in European maritime law, the notion of "territorial waters" was a distinct concept, although the dimensions of this territory were being theoretically debated and physically fought over (Anand 1993:76). It is not known whether such rights were recognized by Gold Coast fishing communities, yet they were imposed by Colonial authorities.
According to Christensen (1977), the observance of a fishing holiday was associated with rituals to local deities, especially the sea god. The fishing holiday has not been explicitly described in terms of environmental and resource conservation, but Koranteng states that it was (and still is) a day when fishing communities and the sea itself could "rest", and "repair" their resources (Koranteng 1990).
The only record of conflict over this holiday in the Colonial archive describes the antics of a repeat offender named Koteku from Accra (Accra was predominantly Ga at the time). In March of 1925, the Omanhene of Cape Coast wrote a detailed letter to the District Commissioner asking for assistance in curbing Koteku's habit of fishing on Tuesdays and Sundays. Evidently, as early as 1910, Koteku was driven away from Saltpond for violating the fishing holiday, at which time he resettled in Cape Coast. Before granting him permission to fish there, the Chief Fisherman made him promise not to violate the Cape Coast fishing Oaths. Never-the-less, Koteku "was twice convicted for violating the Oath of the Fishing Community" (Ogwaa Ahinfie 1925).
On Sunday, 22 February, 1925, Koteku was again caught fishing, and the Chief fisherman warned him not to repeat his offense. Undaunted, Koteku fished again the following Sunday, at which time he also told other foreign fishermen that he had authority from the District Commissioner himself to fish on Sundays. He attempted to collect Amandzi 9 from the foreign fishermen, telling them that the Omanhene of Cape Coast had appointed him Headman and empowered him to collect these fees. In his letter to the District Commissioner, the Omanhene wrote:
But for the timely intervention of Chief Coker the fishermen would have gone to Duakor yesterday and no doubt there would have been something very unpleasant for Koteku and his Keta accomplices. I certainly demand that Koteku as an Accra man should have respect for our Oaths or leave our shores and carry on his pranks in his native village (Ibid).
This account illustrates various factors which might have been involved in this dispute. Violating the fishing oaths is stated as the principle infraction, but it is obvious that the foreign status of Koteku, in addition to his unwillingness to pay the Amandzi, are central to the problem. Because of the lack of data, it cannot be ascertained whether or not violations of the fishing holiday increased after the introduction of Ali nets, or whether these violations were handled differently under Colonial leadership. However, this historical case is described here because today, the violations of the fishing holiday is currently a prominent complaint of fishtraders in Cape Coast.
Extracts from Raymond A. Atuguba (2022), Customary Law Revivalism: Seven Phases in the Evolution of Customary Law in Africa, Inter Gentes Journal of International Law and Legal Pluralism, Vol. 3, Issue 1 (forthcoming, 2022)
Whilst it may seem from the sampling of cases above that the repugnancy clause was a good thing, eroding from African Customary Law, all horrible practices that ravage the human consciousness, we must be careful not to arrive too easily at such an assessment. A deeper study will reveal that in many instances, the repugnancy clause was used to erode principles of African Customary Law developed many centuries ago, but which accord with twenty-first century science. Thus, it is not in all cases that the repugnancy clause abated what appeared to be unconscionable rules of Customary
Law. In some cases, the repugnancy clause was used to disrupt intelligent, scientific, progressive, and sustainable rules of Customary Law. In the case of Akwufio and Others v. Mensah and Others, the Colonial Secretary of Agriculture ordered the Chief of Winnebah to withdraw a set of bye-laws prohibiting the use of three types of nets. The Chief of Winnebah claimed that these nets were the cause of over fishing and scarcity in the local fish supply. In a communication to the Provincial Commissioner at Winnebah, the Secretary stated that he could not agree that the Chief’s objections to the nets were “sound” because “the best fishing net is the net which catches the most fish”. It was later decided by Judge Griffith that the colony would not support a law prohibiting nets, citing Section 19 of the Supreme Court Ordinance 1876; a decision which clearly went against the Customary Law principles of sustainable fishing, and even sustainable development. In plain language, this case held that sustainable fishing, an aspect of sustainable development, was repugnant to “natural justice, equity, and good conscience”! It is, therefore, not true as opined by many experts, including one of the most revered judges of England, that the essence of the repugnancy clause was to eradicate “barbarous customs” which ought to be “rejected as repugnant to natural justice, equity and good conscience”.
The repugnancy clause is not merely a colonial phenomenon. Many African countries begun their post-colonial eras with a mass of colonial laws which had replica of the repugnancy clause. Kenya’s Judicature Act of 1967 reinforced the repugnancy clause in the statement of sources of law in Kenya. Section 3 of the Act reads: “that the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more parties is subjected to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law.” Similarly, the South African Law Commission observed that the repugnancy clause was replicated in the Law of Evidence Amendment Act which required that judicial notice be taken of customary law on the condition that it accords with public policy or natural justice. In its recommendations, the Commission opined that this reproduction of the repugnancy clause be repealed as it is “an unwelcome reminder of the superior role enjoyed by the common law in South Africa’s legal system.”
The wholesale acceptance of the repugnancy clause in post-colonial laws of African countries is made evident by decisions of courts when faced with an issue of customary law. As recently as 1997 in the Nigerian case of Mojekwu v Mojekwu, the court held that the local custom by which a daughter was disentitled from inheriting her father’s property was repugnant to natural justice, equity and good conscience. In Koykoy Jatta v Menna Camara, the Supreme Court of Gambia held that “under Gambian statutes, it was repugnant to natural justice, equity and good conscience to import the custom of female circumcision into a tribe that did not practice it, even though this was the custom of the place where the act of circumcision occurred.” In Donkor v Danso, an ancestor of the plaintiff, a subject of the Kwahu Stool, had cultivated a portion of the Kwahu Stool land at Awenade, and that portion was in the possession of the plaintiff’s family. In the course of time, the land became outskirt land and without the consent of the plaintiff and his family, the Stool granted the land in question to another subject of the Stool. At the trial, evidence was given by the Secretary of the Kwahu State Council as to Kwahu custom, by which the Stool had the right to re-possess itself of previously alienated land if and when the land became outskirt land. His evidence was that by Kwahu custom, as a town extends or develops, all lands which fall within the outskirts of that town become absolutely vested in the Stool for all purposes. Subjects of the Stool who have cultivated and have been in occupation of that land for whatever period before the town extended to it, forfeit the
4. Atuguba, Handout on British Jurisdiction-Ghana Legal System
Course: Ghana Legal System (FLAW 103)
University: University of Ghana
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