Traditional Authority and Constitutional Democracy: Rethinking chiefs' power to summon

Introduction

From time immemorial, chieftaincy has been at the heart of governance in Ghana. Chiefs were not only custodians of land and symbols of cultural heritage—adorned in various designs of Kente cloth and surrounded by a bevy of wives—but also arbiters of justice and social order.

One of the most significant powers they exercised was the authority to bring respite to the abuse wife, the widow, the poor orphan and the business man who has been cheated by summoning individuals before their palaces to account for disputes, misconduct, or communal concerns.

This authority, once a cornerstone of traditional governance, has been significantly curtailed following the Supreme Court's landmark ruling in Nana Adjei Ampofo V.

The Attorney-General and the President of the National House of Chiefs (Suit No. J.1/8/2008, dated July 20, 2011). The Court held that Section 63(d) of The Chieftaincy Act, 2008 (Act 759)—which made it an offense for a person to refuse without reasonable excuse to honor a call from a paramount chief—was unconstitutional as it unduly restricted freedom of movement and personal liberty.

The provision in question read: "(d) being a subject of a paramount chief or a resident of a traditional area of a paramount chief or other person who is involved in a harmful economic or social activity within a Paramount chief's traditional area, refuses without reasonable excuse to Honor a call from the paramount chief to attend to an issue affecting or relating to that person or in the public interest."

As Ghana's democratic and constitutional governance has evolved, the debate today is not whether the nation should return to the past, but whether it can preserve the essence of traditional authority while safeguarding modern principles of accountability and human rights.

Historical Context of Traditional Authority

Ghana's political landscape has undergone profound transformation since independence in 1957. Under independence leader Kwame Nkrumah, the government used the Local Government Act to remove traditional leaders from their seats on local government councils, while simultaneously using the 1958 House of Chiefs Act and the 1961 Chieftaincy Act to reassure traditional leaders that the institution of chieftaincy and their powers to deal with customary matters was guaranteed.

Traditional authorities existed alongside emerging state institutions, often complementing formal governance at the local level.

Swearing an oath at the chief's palace served as a powerful deterrent and provided forums for dispute resolution long before modern courts became widespread across the country. These traditional mechanisms were particularly effective in rural communities where access to formal legal systems remained limited.

The republican constitution of 1960, followed by subsequent constitutional experiments in 1969, 1979, and the current Fourth Republic Constitution of 1992, has continuously redefined the relationship between traditional authority and state institutions.

Article 270 of the 1992 Constitution guarantees the institution of chieftaincy, stating that "the institution of chieftaincy, together with its traditional councils as established by customary law and usage, is hereby guaranteed". However, this guarantee coexists with constitutional provisions protecting individual rights and liberties.

As democratic governance deepened—particularly with the transition to multiparty democracy in 1992—concerns emerged about unchecked authority and potential abuses. This led to constitutional and legal reforms that limited the coercive powers of traditional leaders, including their ability to compel individuals to appear before them without recourse to state institutions.

The Supreme Court Decision and Its Impact

In the unanimous judgment delivered by Justice Date-Bah, the Supreme Court emphasized that "chieftaincy is a revered and constitutionally entrenched institution in Ghana," but noted that "the rights of even chiefs are subject to the 1992 Constitution". The Court's reasoning centered on three key concerns: First, the Court found that "on a literal interpretation of the text of s.

63(d), any deliberate refusal of any person to honour a Chief's call from any part of Ghana may result in criminal liability. This prospect of criminal liability is likely to constrain the freedom of movement of any person who receives a call from a Chief".

Second, the Court rejected the Attorney-General's argument that chiefs have an adjudicating function, stating: "With respect, this is a flawed and troubling argument. Its fundamental flaw is to accord a judicial role to chiefs as individual chiefs. Individual chiefs do not have, and have not had, a judicial function in independent Ghana".

Third, the Court pointed out that by Article 125(3) of the 1992 Constitution, "the judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power".

As one legal commentator noted, if "the President of the Republic, who holds executive authority of the state has no power to subpoena any citizen of Ghana," then the question arises as to whether chiefs should possess such power.

The Current Push for Restoration

In recent years, chiefs across Ghana have renewed calls for the restoration of their power to summon individuals—specifically, to amend Section 63 of The Chieftaincy Act, 2008 (Act 759). These calls have been articulated through various platforms, including the National House of Chiefs and regional houses of chiefs.

Chiefs are identified as playing extensive roles in state development through land administration, serving as gatekeepers between the central government and their subjects, promoting solidarity and employing their influence and expertise as a means for introducing sustainable development initiatives. Traditional leaders argue that modern courts are often distant, expensive, and slow, leaving many community-level disputes unresolved.

The loss of summoning authority, they contend, has weakened traditional governance and reduced respect for customary institutions. Supporters of restoration see it as a practical solution to social disorder, land disputes, and chieftaincy conflicts.

Critics, however, worry that restoring such powers without adequate safeguards could undermine individual rights and the rule of law. The challenge lies in finding a balance that respects both cultural heritage and constitutional democracy.

Balancing Authority Without Unchecked Punishment

The core challenge lies in separating the power to summon from the power to punish. A carefully designed framework could empower chiefs to compel attendance for dialogue, mediation, and fact-finding, while punitive authority remains firmly with the courts.

Clear statutory limits can define the purpose of a summons as non-punitive, ensuring that outcomes focus on reconciliation rather than coercion. Such limits would specify that summons relate to matters within the traditional sphere—such as customary disputes, land matters governed by customary law, and community concerns—while excluding criminal matters that fall within the exclusive jurisdiction of state courts.

Decisions reached through traditional processes should also be subject to review or appeal within the formal legal system. This approach mirrors principles found in administrative law, where decisions by quasi-judicial bodies remain subject to judicial oversight. The availability of judicial review serves as a critical safeguard against potential abuses and ensures compatibility with constitutional rights.

Learning from the ADR Framework

Ghana's Alternative Dispute Resolution Act, 2010 (Act 798) provides for "the settlement of disputes by arbitration, mediation and customary arbitration, to establish an Alternative Dispute Resolution Centre and to provide for related matters." The Act was assented to on May 31, 2010.

The ADR Act recognizes the role of traditional authorities in dispute resolution while embedding checks and procedural fairness. Part Three of Act 798 addresses customary arbitration, acknowledging traditional dispute resolution mechanisms within a statutory framework. However, participation under the ADR framework remains voluntary.

A 2023 evaluation of Act 798 noted that "despite the resort to litigation, ADR mechanisms have found favor with many people in the country," demonstrating the continued relevance of alternative dispute resolution in Ghana.

A balanced reform could introduce a limited compulsory summons for traditional mediation in specific categories of disputes—such as land matters governed by customary tenure, chieftaincy succession disputes, and community-level conflicts—while preserving the voluntary nature of settlement outcomes and maintaining access to the courts.

This hybrid approach would respect traditional authority while protecting constitutional rights.

Comparative Lessons from Africa

Botswana's Customary Courts

In Botswana, traditional leaders play recognized roles in dispute resolution through customary courts, which handle civil and minor criminal matters. These courts operate within a clear statutory framework established by the Customary Courts Act, which defines their jurisdiction, procedures, and limits. Crucially, punitive powers are constrained, and parties retain the right to appeal to higher courts.

The Botswana model demonstrates that traditional authority can function effectively within a constitutional democracy when properly circumscribed. The system maintains cultural legitimacy while ensuring access to formal justice.

South Africa's Experience

South Africa's Traditional Courts Bill and subsequent debates offer both positive examples and cautionary tales. While the Traditional Leadership and Governance Framework Act, 2003 recognizes the role of traditional leaders, efforts to expand their judicial powers have faced significant opposition from civil society over concerns about gender discrimination and lack of procedural safeguards.

The South African

experience highlights the importance of meaningful consultation with affected communities, particularly women and marginalized groups, in designing any framework that empowers traditional authorities.

Proposed Framework for Reform

Drawing on these lessons, a reformed framework for Ghana might include the following elements:

1. Limited Compulsory Summons Chiefs may summon individuals for mediation in specified categories of disputes (customary land matters, community conflicts, chieftaincy issues) with clear procedural requirements. The summons authority would be limited to matters traditionally within the purview of chieftaincy and would not extend to criminal matters or issues exclusively under statutory law.

2. Non-Punitive Nature Summons authority explicitly excludes any power to impose punishment, fine, or detention. Chiefs facilitate dialogue and reconciliation only. Any agreement reached must be voluntary and subject to the consent of all parties involved.

3. Procedural Safeguards • Written notice with clear grounds for summons • Right to legal representation or support person • Defined timeframes for resolution • Record-keeping requirements • Right to decline participation and resort to formal courts

4. Judicial Oversight All outcomes remain subject to judicial review. Parties retain access to formal courts at any stage. No decision of a traditional authority may be final without the possibility of appeal to the formal legal system.

5. Integration with ADR Framework Build upon the existing Alternative Dispute Resolution Act, 2010 (Act 798) to create a seamless system where traditional mediation serves as a first-tier mechanism within the broader ADR infrastructure.

6. Capacity Building Training programs for chiefs and traditional council members on:

• Human rights and constitutional limits

• Procedural fairness and natural justice

• Gender and disability sensitivity and anti-discrimination

• Record-keeping and documentation

7. Monitoring and Accountability Establishment of oversight mechanisms through regional houses of chiefs and the National House of Chiefs to:

• Address complaints about abuse of summons power

• Monitor implementation and effectiveness

• Recommend reforms based on experience

Conclusion

Restoring the power of chiefs to summon individuals does not require a return to unchecked authority. Instead, it calls for a carefully designed framework that emphasizes dialogue, accountability, and legal oversight.

Article 272(a) of the 1992 Constitution tasks the National House of Chiefs to "advise any person or authority charged with any responsibility under this Constitution or any other law for any matter relating to or affecting chieftaincy". This constitutional mandate provides a foundation for chiefs to play a meaningful role in dispute resolution while respecting constitutional boundaries.

By drawing on Ghana's democratic evolution since the 1960s, strengthening the ADR framework established by Act 798, and learning from comparative models in Botswana and South Africa, Ghana can preserve the "fire" of tradition without reviving its ashes.

Such an approach would recognize the enduring value of chieftaincy institutions in maintaining social cohesion and resolving disputes while ensuring full compliance with constitutional rights and the rule of law.

The path forward requires genuine dialogue among traditional authorities, government, civil society, and affected communities. It demands careful legislative drafting that balances competing values and interests.

Most importantly, it necessitates a shared commitment to both cultural heritage and constitutional democracy—twin pillars of Ghana's national identity. As recent scholarship observes, "chiefs continue to hold a symbolic cultural role in most African countries," but "through the consolidation of the modern nation-state their role has transformed."

Chiefs have become "informal administrators and points of liaison between local communities and state institutions". A reformed summons power, properly constrained and embedded within the rule of law, could strengthen this liaison function while preserving both tradition and constitutional rights.

In doing so, Ghana can reinforce both its cultural heritage and its commitment to justice, creating a uniquely Ghanaian model of legal pluralism that honors the past while securing the future.