Opinions Wed, 12 Mar 2008

Traditional Council Erred on the Nungua Case

The Traditional Council Erred on the Nungua Case and Should Be Corrected.

By Nii Otu Quaye

Whether in Nungua or elsewhere in the country, the chieftaincy institution, as an embodiment of our traditions, customs, and mores, is sacrosanct. Accordingly, it must be run with dignity and utmost lawfulness rather than the indignity and lawlessness constantly resonated in the ongoing artificial Nungua Stool dispute that has acutely been retarding the Town’s progress. The Judicial Committee of the Ga Traditional Council’s recent ruling on Odai Ayiku IV v. Nii Bortelabi Borketey Larweh XIV el al., featured in Volume 17, Edition No. 40 of the Chronicle, dated March 03, 2008, defies these venerable principles, perpetuating the disrespect and lawlessness. Indeed, that ruling is as unbelievable as it is erroneous and, if not swiftly corrected by the regular courts, would ironically have deleterious effects on chieftaincy as well as on the Houses of Chiefs that are constituted mainly to help preserve the chieftaincy institution. As demonstrated more fully below, the perpetuated indignity and lawlessness include the Judicial Committee’s failure to declare [at least sua sponte]: (1) that the two defendants –Bortelabi Borketey Larweh et al-- are not chiefs where they lack eligibility for chiefhood and have not been installed by the proper authority and cognate procedures; (2) that a chief is not installed or destooled by an Executive Instrument where the proper customary procedures have not been met; and (3) that Mantse Nii Odai Ayiku has standing not only in his own right to challenge the purported expungement of his regime but also corporately to protect the citizens of Nungua from being rendered chiefless.

It is axiomatic that a chief is enstooled and destooled only through certain established customary and traditional procedures. Among these are that: eligibility to chiefhood in Nungua is limited solely to the Royal Family (the original settlers who founded Nungua), which comprises three Houses (a.k.a. "We"s): the Kwei We, the Ayiku We, and the Adjin We. One chief is enstooled from one We at a time, and no other We installs a chief while the reigning chief is on the throne. Moreover: 1) no one can be a chief if he does not belong to the Royal Family, and (2) no We can install two successive chiefs without interruption by the other two Wes. Thus, the whole cycle must be run from the three Wes before any given ruling We’s turn can start again.

The Judicial Committee’s ruling sprang from a case instituted by Nii Odai Ayiku to enjoin two defendants, Mr. Justice Nii Laryeafio Akatoi ("Mr. Akatoi") and Dr. Samuel Okrah Bortei-Doku ("Dr. Bortei Doku") from interfering with Nungua’s chieftaincy. These people have self-styled themselves chiefs with novel titles they have coined, viz., Odehe Kpakpa King Odaifio Welentsi III and WOR Nii Bortelabi Borketey-Larweh XIV, respectively. By settled traditions and customs of Nungua, neither Mr. Akatoi nor Dr. Bortei Doku could be installed as a chief because Nii Odai Ayiku is alive and has not abdicated, let alone been destooled by the settled customary practices and procedures. In addition, Dr. Bortei Doku has no eligibility whatsoever to the throne, because he is not from the Royal Family. How can there be a Borketey Larweh XIV where there has not been any prior Nungua Chief, titled Borketey Larweh I, II, III or XIII. It is thus utterly mind-boggling that the members of the Ga Traditional Council’s Judicial committee, who should have known better, did not censure or reprimand these town wreckers but, instead, turned their deaf ears on Nii Odai Ayiku, impliedly condoning the defendants’ arrogation of chiefhood to themselves as if Dr. Bortei Doku could, with impunity, throw dust into the eyes of the Committees’ members by merely coining himself a novel title, hitherto nonexistent. Clearly, this is dangerous not only to the legitimacy of the Traditional Council itself, but also to the entire chieftaincy institution in Ghana. "The rod that hits Tete eventually hits Tetteh, if not corrected." Are we now washing our faces upwards? Mr. Akatoi’s case is slightly different, but its legal status is the same: unlawful! Specifically, Mr. Akatoi is a member of the Ayiku We segment of the Royal Family. Thus, he and any of his descendants are eligible to be a Chief in the future when the throne has gone through the other two Royal Families (Kwei We and Adjin We) and come back to Ayiku We. He cannot, however, be the chief at this time when there is a chief on the throne. Even if the stool were vacant, Mr. Akatoi’s eligibility is woefully premature at this time: he must wait for the Kwei We’s and Adjin We’s turns to run before he can assert his eligibility against other Ayiku We competitors!

In previous articles and comments on the Ghana Web, parallels have been drawn between the connived overtures of Dr. Bortei Doku and Mr. Akatoi and the Biblical episode involving the motherless woman whose mischievous fabrications against the bona fide mother prompted the judgment that earned King Solomon the adulation as the wisest person of all times. Among the points made in articulating the parallels are that, in addition to their ineligibility to be chiefs while Nii Odai Ayiku is on the throne, these two ostensible town wreckers connived to support the enstoolment of the new Ga Mantse and procured the Ga Mantse’s participation in the installation of Mr. Akatoi as Nungua Mantse, even though Ga Mantse has never in history had or played any such crucial role in the installation of a Nungua Mantse. This clearly tantamounts to a selling of Nungua’s heritage and" birth right for a mess of pottage." How on earth could Mr. Akatoi, a bona fide member of the Royal Family, team up not only with a non-royal person to attack and split his heritage with that non-Royal ally, but also with the new GaMantse, according the said Ga Mantse powers that no GaMantse has ever wielded over Nungua. This clearly is a sad day for Nungua and the whole chieftaincy institution, and it must be corrected expeditiously.

Nor are Dr. Bortei Doku’s intentions concealable. In another Chronicle article, dated 21 January 2008, titled "Ga Priests Angry," in which Dr. Bortei Doku endeavored to defend their unlawful participation in the installation of the new Ga Mantse, Dr. Bortei Doku and/or one of his cohorts, named Nuumo Borketey Larweh Tsuru, vehemently cautioned that it is unlawful for the Government to interfere with chieftaincy affairs. It reads in part: "The Gbowo Wulomo on his part warned that politics should not be brought into chieftaincy issues. . . [and that] it is only mischievous people who would want to drag chieftaincy issues into politics." Yet, it was this same Dr. Bortei Doku who maligned Nii Odai Ayiku to the Government and induced it, through manipulation, to push Nii Odai Ayiku into exile. Oh, yes, it is the same Dr. Bortei Doku who now claims that the Government’s purported unlawful destoolment of Nii Odai Ayiku by the baseless Executive Instrument should be left unquestioned. The fundamental point being ignored here is that the Government, per se, does not install or destool a chief. Instead, it only gazettes after a chief has been duly installed by the appropriate traditional leaders and by the proper customary procedures and norms. The cleavage between Bortei Doku’s acts and utterances is crystal clear, and their inherent contradictions should be recognized and decried forthwith.

The Judicial Committee’s ruling against Mantse Nii Odai Ayiku IV is, to say the least, a gross betrayal of the Committee’s interests --protection of chieftaincy-- that the Committee is supposed to serve. The members know fully well that a chief cannot be destooled, except by the established customary procedures and only by the proper traditional leaders. They know also that the government cannot lawfully destool a chief, except where the requisite traditional procedures have been undergone, in which case it would ungazette him. Where none of these procedures have been met regarding Nii Odai Ayiku, the members of the Judicial Committee should have no qualms about the fact that he cannot be destooled merely by a dint of an Executive Instrument. Nevertheless, their recent ruling defies these truisms. If they could be oblivious to these basic norms, one wonders what their role really is. This, to say the least, should be very troubling to all clear minded Ghanaians.

As a quasi judicial entity, the Judicial Committee has a sacrosanct duty to maintain and preserve the integrity of the chieftaincy institution by deliberating and applying the established norms without fear or favor. Without doubt, if the Committee had declined to deliberate on or to decide the case and, instead, transferred it to the judiciary (preferably the Appeals Court or the Supreme Court), its actions would have been correct, at least, on the basis that the Judicial Committee, as an inferior court (not a co-equal branch of government), lacks the authority to resolve constitutional issues of the magnitude implicated by the Executive Instrument. Instead of taking this noble course, the Committee hoisted the Executive Instrument, ruling that Nii Odai Ayiku lacked the requisite legal capacity to bring his action, which literally means that Nii Odai Ayiku lacked standing to vindicate his and the Town’s rights. How logical can this be?

Clearly the ruling is unworthy and patently wrong, defying all settled law on standing. Generally, to have standing, a plaintiff must have a stake in the outcome of the implicated case. This means that the act being challenged must be causing him an injury in fact, an injury which is palpable rather than abstract, and it must meet the requirements of causality. If Nii, the duly enstooled chief whose position is threatened with obliteration, does not have standing to vindicate his own rights, who else will have the standing to do so? At the very minimum, his position is being taken away. This, without more, clothes him with standing, at least, to have a court of law look into whether or not the assault against him is valid or justiciable.

Where a lawsuit is directed against an official action, the standing requirements are slightly different in that the Attorney General is deemed the one with the requisite standing to espouse the public’s claim. But even in such situations, the law is not absolute. Instead, it has an exception that clearly trumps the Traditional Council’s recent ruling. Specifically, the public standing law postulates that anyone who suffers distinctly differently from the rest of the members of the public will have standing. Here, Nii Odai Ayiku’s position is being taken away from him by depriving him of rights to perform his duties. This is an injury in fact, transcending any injuries suffered by the public at large. Thus, he clearly has standing as well to represent the Town as a whole because he was duly installed to protect the interests of the Town and its citizens, and he swore a firm oath to uphold and perform that duty. Where his position is being overthrown, rendering the Town Chiefless, he certainly has a duty to espouse the interests of the Town and its inhabitants. These, in a nutshell are what the standing law entails. Nii Odai Ayiku and his Stool (Elders) should bring the matter to the Supreme Court not only to vindicate his and the Town’s rights but also to expose the nefarious acts and have the Court determine, once and for all, who the Chief of Nungua is.

Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.

Columnist: Quaye, Nii Otu