With Ghana’s constitution limiting the role of the courts in certain matters related to traditional leadership, judges are not always sure of when they may intervene to right wrongs. But in the case of Nana Abor Yamoah II, and a dispute about his name being removed from the register of chiefs, the supreme court has made something very clear: there has to be justification for action like expunging names, the process has to be fair and involve a hearing, or else the courts would be entitled to intervene and impose their “supervisory authority”.
FOR commoners among readers, this is a particularly interesting decision. It trawls the arcane administrative processes required before a chief in Ghana is either “enstooled” or on the other hand, removed, “destooled or deskinned”.
Through the recitation of these processes, however, runs another thread: what is the appropriate role for courts in relation to traditional leadership bodies, in this case the National House of Chiefs and the Central Regional House of Chiefs? It is a question of particular relevance in Ghana where the constitution limits the role that courts may play in relation to traditional matters. This in turn means that when a matter involving traditional chiefs is brought to court, there is no certainty about whether the courts will agree to hear the case or decide it is outside their jurisdiction.
This case before Ghana’s highest court, involving precisely these issues, came via a disputed decision of the Court of Appeal. Writing for a unanimous court, Justice Yaw Appau began by re-telling the facts.
The story begins with the head of the royal family of Gomoa Fetteh, and Gomoa Fetteh’s chief, Nana Abor Yamoah II.
During February 2012, the Central Regional House of Chiefs wrote to the National House of Chiefs and asked that the name of Nana Abor Yamoah II be “expunged” from the register of chiefs. There was no dispute that the Gomoa Fetteh chief had neither been given notice, nor a chance to put his views.
When he and the head of his family heard of the letter, they asked the high court, Cape Coast, to rule that the request for him to be struck off, be set aside.
The two chiefly houses, however, argued that such litigation was constitutionally ousted because it “constituted a cause or matter affecting chieftaincy”.
At first this argument was turned down at the high court, but then the Chief Justice – without giving reasons, as the Supreme Court would later note in its decision – transferred the matter to another jurisdiction, where the claim of a constitutional ouster prevailed.
This was followed by another request from the regional house to the national house of chiefs, asking for the Gomoa Fetteh leader to be struck off. This duly happened, but still he was given no chance to be heard on the matter.
The offended chief, dissatisfied with this outcome, asked the Supreme Court to review the high court decision, and the justices overturned the high court view that a constitutional ouster prevailed. But that decision did not lead to the chief’s name being reinstated and the Gomoa Fetteh chief was soon back in court asking that the house of chiefs be compelled to re-enter his name.
Ultimately the whole matter returned to the Supreme Court, with a challenge to findings by the Court of Appeal – and that was when the whole dispute became really interesting as the judges insisted that even the house of chiefs had to act constitutionally.
The judges said that one of the administrative functions of the house of chiefs was to register the names of properly installed chiefs and delete the names of others. The courts had held that the house of chiefs had a duty to be fair when it carried out the function of registration. And, according to the authority of earlier cases, the courts could intervene if these institutions acted outside their constitutional powers.
It was clear from the records that the chief whose name was expunged had “been in the register for 13 good years as the chief of Gomoa Fetteh”. Clearly if he had been in the register all that time, he had initially been found to have been qualified. There was nothing before the court to suggest that his name had been successfully challenged by anybody. The only reason for the request to remove his name was that his entry in the register was “done under strange circumstances”. A close examination of the record showed that the only reason for the removal request was that “some people” filed a suit in the traditional council challenging his installation.
But, asked the court, would a “mere challenge to the enstoolment of a person as a chief, long after the name of that person had been entered in the register, justify the cancellation of that person’s name from the register” when the dispute had not been judicially finalized?
The authorities were clear that the only grounds for removing the name of a registered chief was where the registration was successfully contested in the appropriate court, or where the person had died, had abdicated or had been “destooled”. Given that, could someone’s name be cancelled without any notice to the chief concerned? Simply asserting that his name was registered via “strange circumstances” or even that his registration had been fraudulent was not enough to justify removing his name after 13 years. And until the dispute over his registration was properly resolved, any removal of his name “was null and void”.
Allegations of fraud had first to be established in a proper court – which had not happened here. The fact that the constitution gave traditional council and houses of chiefs the power to register the names of chiefs in Ghana did not mean that these bodies could remove people from the list without due process. By removing him from the register “without any justifiable cause” the house of chiefs was not performing an administrative function. Rather it was performing a quasi-judicial function when it had no right to do so. And, where the house of chiefs extended its jurisdiction to an area beyond its powers, as here, then it “brings itself within the supervisory authority of this court.”
If a chief’s name was to be removed from the register this had to be done properly with the chief involved “given a hearing”. “There should be a justification under the law for such a removal or deletion from the register. This was not what happened in this case.”
Because of this failure, with the house of chiefs acting against him before the dispute involving his initial registration was properly considered, the supreme court allowed the appeal and ordered that the name of the chief of Gomoa Fetteh be immediately re-entered pending the finalization of the dispute over the validity of his initial installation.
The judgment itself is ultimately satisfying – justice has been done and the honour of the constitution upheld. But there is something I could wish the court would consider, and it is a plea on behalf of journalists, lawyers and researchers: could the judges align their work with virtually every other jurisdiction in Africa, and institute a system of judgments with numbered paragraphs. It would make finding one’s way through complex judgments far easier; and without it, referring to the precise passage where key findings are made in an important decision such as this, is virtually impossible.