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Constitutional law -
Interpretation - Chieftaincy -
Causes or matters affecting
chieftaincy - - Person summoned
by the chief - Tool for
oppression and suppression -
Balancing of the rights of
individuals to freedom of
movement - Void-for-vagueness
doctrine - Whether or not “a
call from a chief to a person”
forms part of the institution of
Chieftaincy as established by
customary law and usage. -
Whether or not the provision of
the Chieftaincy Act is
inconsistent with any provision
of the Constitution - Whether or
not the case raises a legitimate
justiciable constitutional issue
- Whether or not the said
sub-section (d) leaves any
discretion or excuse for the
citizen to refuse a call upon a
reasonable or just cause -
Whether or not the fact of the
deliberate refusal to honour a
call of a Chief being an offence
makes conviction automatic -
whether s. 63(d) is void for
vagueness s. 63(d) of the Act is
void for vagueness
HEADNOTES
A declaration
that sub-section (d) of section
63 of the Chieftaincy Act 2008
(Act 759) is an encroachment on
the liberty generally and
freedom of movement in
particular of citizens and
accordingly in contravention of
and or inconsistent with the
spirit and letter of Articles 14
& 21 of the Constitution of the
Republic of Ghana, 1992.”
HELD
In our view,
therefore, the declaration
sought by the plaintiff in
paragraph (a) of the reliefs
endorsed on his Writ of Summons
should be granted. The
inconsistency of s. 63(d) of Act
759 is primarily with article 21
(g) of the 1992 Constitution.
An invocation of article 14 is
less relevant in this context,
since, prior to conviction, a
person “called” by a chief does
not lose his personal liberty,
by which is meant his freedom
from confinement.
However, our
upholding of the plaintiff’s
argument relating to article
21(g) implies that s. 63(d) of
Act 759, being void for
unconstitutionality, cannot
serve as a viable legal basis
for a criminal prosecution that
could deprive an accused of his
or her personal liberty. The
fundamental freedom infringed by
s. 63(d) is thus freedom of
movement as prescribed in
article 21(g), rather than the
personal liberty protected by
article 14(1) of the 1992
Constitution
It would be
unwise for this court to rewrite
a criminal statute which
appears, on its plain meaning,
to be unconstitutional. It is a
much better outcome for this
court to strike down the
offending legislation and for
Parliament itself then to
rewrite the statute in the light
of the Supreme Court’s view. In
our view, a statutory provision
which limits itself to a chief’s
call within his or her
Traditional Area and provides a
defence for a person who is
called but has a reasonable
excuse not to heed the call
would have a better chance of
passing the constitutionality
test. However, we would not
grant relief (b) since we do not
consider s. 63(d) as legally
vague. As to whether the
impugned provision is overbroad
or not, we do not find that the
plaintiff has done enough to
challenge the constitutionality
of the provision on this score
and therefore we do not find it
justifiable to give judgment in
his favour on that issue.
Finally,
regarding relief (d) endorsed on
the plaintiff’s Amended Writ,
this court will grant it only in
relation to relief (a). In
other words, s 63 (d) of Act 759
is hereby expunged, deleted and
struck out from Act 759 on the
grounds of its
unconstitutionality. This court
unquestionably has the authority
to make this order under article
2 of the 1992 Constitution. The
order is made for the reasons
already extensively canvassed
above. No other subsections are
to be deleted, expunged or
struck out.
The
plaintiff’s action thus succeeds
only in part. Relief (a) is
granted in full and relief (d)
in part. Subject to this, the
action is dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Chieftaincy
Act, 2008 (Act 759)
Courts Act,
1993 (Act 459)
CASES
REFERRED TO IN JUDGMENT
Republic v
Techiman Traditional Council, Ex
parte Tutu [1982-83] GLR 996 at
999:
Edusei v
Attorney-General [1996-97] SCGLR
1
Adjei-Ampofo
v Attorney-General [2003-2004]
SCGLR 411
Republic v
Tommy Thompson Books Ltd.
Quarcoo &
Coomson [1996-97] SCGLR 804
CHRAJ v
Attorney-General & Baba Camara
(Writ No. J1/3/2010,6th
April, 2011)
Tsatsu
Tsikata v The Republic
[2003-2004] SCGLR 1068
Papachristou
et al v City of Jacksonville 405
US 156; 92 S.Ct. 839; 31 L. Ed
110; 1972 US Lexis 84
BOOKS
REFERRED TO IN JUDGMENT
Words and
Phrases Legally Defined
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH JSC:
COUNSEL
MRS. AMA
BANFUL WITH CECIL ADADEVOH,
SENIOR STATE ATTORNEY WITH MISS
HELARA FRENCH, ASSISTANT STATE
ATTORNEY FOR THE 1ST
DEFENDANT.
PLAINTIFF
APPEARS IN PERSON
MR. AYIKOI
OTOO FOR THE 2ND
DEFENDANT
______________________________________________________________
J U
D G M E N T
________________________________________________________________
DR.
DATE-BAH JSC:
All members
of this Court are agreed on the
following judgment.
Chieftaincy is a revered and
constitutionally entrenched
institution in Ghana. The reach
of chiefs extends even beyond
the formal machinery of the
Ghanaian State. Some of the
rural settlements or communities
without a permanent local
resident representative of the
Ghanaian State will, almost
inevitably, have a chiefly
leadership. The social value of
the institution of chieftaincy
is thus given widespread
recognition by the Ghanaian
public. Nevertheless the rights
of even chiefs are subject to
the 1992 Constitution. Indeed,
as Coussey JA percipiently
observed in
Republic
v Techiman Traditional Council,
Ex parte Tutu [1982-83] GLR 996
at 999:
“Chieftaincy,
since the British colonial
administration, has been
governed by statute and this has
continued since the independence
of Ghana in 1957.”
Thus, the
institution of chieftaincy,
although it has evolved in
accordance with customary law,
has been subjected to regulation
by statute since the advent of
British colonialism in this
jurisdiction. This remains true
even now, subject to the
qualification that article 270
of the 1992 Constitution limits
the extent of statutory
intervention permitted in
relation to the institution of
chieftaincy. This Article 270
provides as follows:
“270.
(1) The institution of
chieftaincy, together with its
traditional councils as
established by customary law and
usage, is hereby guaranteed.
(2) Parliament shall have no
power to enact any law which-
(a) confers on any person or
authority the right to accord or
withdraw recognition to or from
a chief for any purpose
whatsoever; or
(b) in any way detracts or
derogates from the honour and
dignity of the institution of
chieftaincy.
(3) Nothing in or done under the
authority of any law shall be
held to be inconsistent with, or
in contravention of, clause (1)
or (2) of this article if the
law makes provision for-
(a) the determination, in
accordance with the appropriate
customary law and usage, by a
traditional council, a Regional
House of Chiefs or a Chieftaincy
Committee of any of them, of the
validity of the nomination,
election, selection,
installation or deposition of a
person as a chief;
(b) a traditional council or a
Regional House of Chiefs or the
National House of Chiefs to
establish and operate a
procedure for the registration
of chiefs and the public
notification in the Gazette or
otherwise of the status of
persons as chiefs in Ghana.”
In this
present suit, the plaintiff
wishes this Court to clarify the
extent of certain rights and
obligations of chiefs enacted by
the
Chieftaincy Act, 2008 (Act 759)
and to determine whether
those rights and obligations as
currently formulated in that
statute are
constitutional. The case
accordingly calls for a careful
evaluation of the challenged
rights and obligations against
certain entrenched
constitutional freedoms and
norms contained in the 1992
Constitution.
More
specifically, the plaintiff’s
claim (as contained in his
amended Writ filed on 11th
May 2010) is as follows:
a.
“A declaration that sub-section
(d) of section 63 of the
Chieftaincy Act 2008 (Act 759)
is an encroachment on the
liberty generally and freedom of
movement in particular of
citizens and accordingly in
contravention of and or
inconsistent with the spirit and
letter of Articles 14 & 21 of
the Constitution of the Republic
of Ghana, 1992.
b.
A declaration that the said
sub-section is legally vague and
overbroad and also accordingly
unconstitutional.
c.
A declaration that sub-sections
a, b, c, e of section 63 of the
said Act are legally vague and
overbroad and also inconsistent
with the spirit and letter of
Articles 14 and 21 of the
Constitution of the Republic of
Ghana, 1992 and accordingly
void.
d.
An order deleting, expunging or
striking out the said
sub-sections from the said Act
on grounds of their
unconstitutionality.”
The
plaintiff, who is a lawyer and
former Paramount Chief and
member of the National House of
Chiefs, brings this action in
his capacity as a citizen of
Ghana. The plaintiff issued his
Writ of Summons to invoke the
original jurisdiction of this
Court on 26th August
2008. As mentioned above, this
Writ was amended on 11th
May 2010, after leave had been
granted by this Court to do so.
The
provisions of the Chieftaincy
Act, 2008 challenged by the
plaintiff are all contained in
section 63, which reads as
follows:
“Certain
offences in connection with
chiefs
63.
A person who
a)
acts or performs the functions
of a chief when that person is
not qualified to act,
b)
being a chief assumes a position
that the person is not entitled
to by custom,
c)
knowingly uses disrespectful or
insulting language or insults a
chief by word or conduct,
d)
deliberately refuses to honour a
call from a chief to attend to
an issue,
e)
refuses to undertake communal
labour announced by a chief
without reasonable cause, or
f)
deliberately fails to follow the
right procedures to destool a
chief,
commits an
offence and is liable on summary
conviction to a fine of not more
than two hundred penalty units
or to a term of imprisonment of
not more than three months or to
both and in the case of a
continuing offence to a further
fine of not more than
twenty-five penalty units for
each day on which the offence
continues.”
The plaintiff
argues in his Statement of Case
that because s. 63(d) of Act 759
compels a citizen to honour a
call by a
chief to attend to an issue,
whether he likes it or not, it
is unconstitutional as an undue
restriction on, and interference
with, his freedom of movement.
He also points out that the
person
summoned by the chief may
not even be his subject. He
contends that the power could be
used by chiefs as a
tool for
oppression and suppression.
He further submits that the
provision is vague as it does
not explain the word “issue”.
It is also overbroad in that it
creates no limits as to time or
place etc. He poses the
question: if the President of
the Republic of Ghana cannot
compel a citizen to honour his
invitation to attend to an
“issue”, why should a chief,
qua chief, have that power?
The plaintiff
also raises an issue in relation
to s. 63(a), namely, that it is
also vague and does not clearly
define when a person qualifies
to act as a chief. Furthermore,
he expresses the view that the
provision is defective in not
providing a definition or
description of the functions of
a chief.
In relation
to s. 63(b), he complains that
it is unclear and overbroad and
does not give notice of what
specific conduct is being made
criminal.
He concludes
that:
“A penal
statute has to be clear in its
meaning, application and scope
to enable the citizenry know
what specific conduct [it]
prohibits so that they can steer
away from what it prohibits.
That is a due process
requirement and an attribute of
the doctrine of the rule of law
and due process: U.S. v
Brewer 139 U.S. 278, 288.”
In short, he
contends that most of the crimes
created by s. 63 of Act 759 are
unconstitutional for the reasons
outlined above.
The
constitutionality of section
63(d) of Act 759
We begin by
affirming that this Court has
jurisdiction to determine this
suit. Though
Edusei v
Attorney-General [1996-97] SCGLR
1 held that the cumulative
effect of articles 33(1), 130(1)
and 140(2) was to vest the High
Court, as a court of first
instance, with an exclusive
jurisdiction in the
enforcement of the fundamental
human rights and freedoms of
the individual contained in
Chapter 5 of the 1992
Constitution, in effect Ghana’s
Bill of Rights, nevertheless
when an action raises a genuine
issue for
interpretation of any
provision
of the Constitution or requires
a decision as to
whether
an enactment is inconsistent
with any provision of the
Constitution, the Supreme
Court has jurisdiction over it,
pursuant to article 130 of the
1992 Constitution. (See
Adjei-Ampofo v Attorney-General
[2003-2004] SCGLR 411 at
417.) This
case
raises a legitimate justiciable
constitutional issue as to
the consistency of the
provisions of s. 63 of Act 759
with articles 14 and 21 of the
1992 Constitution.
Proceeding
next, then, to the merits of the
issue of the constitutionality
of section 63(d) of Act 759, it
should be pointed out that in
the amended Statement of Case
filed on behalf of the first
defendant, namely the
Attorney-General, the response
put forward against the
plaintiff’s argument on s. 63(d)
of Act 759 was that chiefs have
an adjudicating function
alongside their administrative
one. Accordingly, s. 63(d) can
be equated to a subpoena to
attend the chief’s summons. A
telling passage from the
Statement of Case is as follows:
“As stated
earlier in our submission, the
chief has traditional authority
in the adjudication of cases
brought before him.
In the
process of adjudicating such
traditional cases, there may be
need to summon or make an order
for a person to be brought
before him for the proper
adjudication of the matter in
the interest of justice and
fairness.
Respectfully
my Lords, considering that the
Chief’s Palace can pass for a
traditional court, any order
made by a chief for a person to
appear before it to resolve an
issue, cannot be an encroachment
on the liberty generally and
freedom of movement of a
particular citizen called before
that court and accordingly such
an act cannot be in
contravention of nor
inconsistent with the spirit and
letter of Articles 14 & 21 of
the 1992 Constitution of the
Republic of Ghana.”
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.
By article 125(3) of the 1992
Constitution,”[T]he 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.”
Nowhere in the
Courts
Act, 1993 (Act 459) are
individual chiefs given a
judicial function. Thus
individual chiefs are not vested
with judicial power by the
Constitution nor by statute.
However, though individual
chiefs are not vested with
judicial power, the Constitution
gives judicial committees of
chiefs limited judicial
responsibility. Judicial
Committees of the Traditional
Councils, the Regional Houses of
Chiefs and the National House of
Chiefs are given judicial
functions in relation to
causes or
matters affecting chieftaincy
by Chapter 22 of the
Constitution and section 39 of
the Courts Act, 1993. In
contrast to this collective
exercise of judicial
responsibility by committees of
chiefs, individual chiefs
continue to exercise an
adjudicatory role only as
customary arbitrators, which
role is to be sharply
distinguished from a judicial
one. Section 30 of Act 759
states that:
“The power of
a chief to act as an arbitrator
in customary arbitration in any
dispute where the parties
consent to the arbitration is
guaranteed.”
The
distinction between a judicial
and an arbitration process lies
in the consensual nature of an
arbitration. Nobody can be
compelled to submit himself or
herself to arbitration.
Accordingly, if all that
individual chiefs can carry out
are customary arbitrations, the
first defendant’s argument,
which endeavours to equate a
chief’s call to a subpoena,
collapses. If what the chief is
undertaking is based on the
consent on the parties, why must
he have a power to compel the
parties to appear before him?
A second
dimension to the flaw in the
first defendant’s argument is
the fact that a subpoena is for
a very specific purpose, to
compel a witness to attend
judicial proceedings and to
testify in them. A chief’s call
under Act 759 is, in contrast,
not at all targeted. It is not
limited to judicial
proceedings. On an initial
plain language reading of it, it
appears to authorise a person to
be summoned by a chief to attend
to any issue. The first
defendant is thus not comparing
like with like.
The Written
Submission of counsel for second
defendant, namely the President
of the National House of Chiefs,
formulates a different defence
to the plaintiff’s complaint
about a chief’s call. That
defence responds to the first of
the issues contained in a
Memorandum of Agreed Issues
filed by counsel for the second
defendant, Mr. Ayikoi Otoo, on
31st December 2010.
These issues were agreed
between the plaintiff and the
second defendant. At the
hearing of this suit, counsel
for the Attorney-General, that
is, the first defendant,
acknowledged that he too was in
agreement with the issues filed
in the Memorandum of Agreed
Issues, although in fact the
Attorney-General had filed a
different set of issues.
However, on analysis, the
Attorney-General’s different
issues are subsumed in the
Memorandum of Agreed Issues.
The first of the latter issues
is expressed as follows:
“Whether
or not “a call from a chief to a
person” forms part of the
institution of Chieftaincy as
established by customary law and
usage.”
In addressing
this issue, the Written
Submission of Counsel for the
Second Defendant relies on
Article 270(1) of the 1992
Constitution, which provides, as
already seen above, that:
“The
institution of chieftaincy,
together with its traditional
councils as established by
customary law and usage, is
hereby guaranteed.”
The
Submission lays emphasis on the
words “as established by
customary law and usage.” It
points out that Article 270(1)
does not refer to chieftaincy as
established by statute. Its
argument is therefore that the
drafters of the Constitution
intended to ensure that the
customs and usages of the
institution of chieftaincy
remained intact. It contends
therefore that the
interpretation of article 270(1)
must have reference to the
institution of chieftaincy as it
is known and practised under the
customary law. It then reviews
some literature on the functions
of chiefs in the traditional
scheme of things, before
concluding as follows:
“The
instances I have cited supra
show at least, the traditional
functions of the Chiefs as was
known in the days of yore. If
the Chief was highly respected
and considered the father of the
traditional state over which he
presided, it stands to reason
that such a personality can
“call” a person, which is the
same as “a call from a chief”.
It is
therefore finally submitted on
issue ‘1’ that having regard to
the traditional functions of a
Chief and the language used in
the offence creating section of
the Chieftaincy Act 2008 (Act
759), the offence is in
accordance with Article 270(1)
which guarantees the institution
of Chieftaincy together with its
traditional Council as
established by customary law and
usage.”
The
implication of counsel’s
argument is that all the
incidents at customary law of
the institution of chieftaincy,
as traditionally conceived, are
to be imported intact into the
current constitutional regime
under the 1992 Constitution,
even if they are in conflict
with other provisions of the
Constitution. This is palpably
incorrect. For instance, chiefs
traditionally had the customary
law right to exercise judicial
functions and to incarcerate
those adjudged by them to be
guilty of crime. The
Constitution does not allow them
any longer to exercise such
judicial functions and this has
been accepted by them. Thus,
the fact that, as counsel puts
it, “in the days of yore” chiefs
could compel anybody within
their jurisdiction to attend to
their call does not necessarily
mean that such a power will pass
the test of constitutionality
under the 1992 Constitution.
Furthermore, the Chieftaincy
Act, 2008 (Act 759) makes it
abundantly clear that the
institution of chieftaincy is
not only as established by
customary law and usage, but
also as recognised by statute.
For instance, s. 57 of the Act
on the “definition of a chief”
provides in part as follows:
“(1) A
chief is a person who, hailing
from the appropriate family and
lineage, has been validly
nominated, elected or selected
and enstooled, enskinned or
installed as a chief or
queenmother in accordance with
the relevant customary law and
usage.
(2) A
person does not qualify as a
chief if that person has been
convicted of high treason,
treason, high crime or for an
offence involving the security
of the State, fraud, dishonesty
or moral turpitude.”
Thus a person
who is nominated and enstooled
as chief, in accordance with the
relevant customary law and
usage, would not be a chief, if
he has been convicted of any of
the offences referred to in s.
57(2). The customary law of
chieftaincy cannot thus be
applied in contemporary Ghana in
its pristine purity, ignoring
the impact of statute and of the
Constitution.
Moreover, the
interpretation of article 270
(1) on which counsel’s argument
is based relies on a misreading
of the text of the article. The
words “as established by
customary law and usage” in the
context of the article would
seem to be referring to the
“traditional councils”, rather
than to the “institution of
chieftaincy.”
Secondly,
what is being challenged by the
plaintiff is a provision in a
statute. The correct issue of
law to be determined is thus not
whether a customary law rule
relating to a chief’s right to
call a person is constitutional,
but rather whether a statutory
provision in the terms of
s.63(d) is void as being in
conflict with a provision in the
Constitution. We do not think
that the mere fact of the
institution of chieftaincy being
guaranteed by the Constitution
would be enough to save that
statutory provision if this
Court reached the conclusion
that the criminal offence of
deliberately refusing to honour
a call from a chief to attend to
an issue were an unjustified
interference with the right to
freedom of movement.
In sum, our
response to counsel’s argument
that the institution of
Chieftaincy is established by
customary law and usage and not
by statute and therefore its
pristine ancient rights must be
recognized as intact is that
chieftaincy, though guaranteed
by the Constitution, is not
insulated from the normal
operation of statutory and
constitutional law. To express
this proposition in other words,
the institution of chieftaincy
is subject to the rule of law.
As already noted, Coussey JA
recognized as much in Republic v
Techiman Traditional Council, Ex
parte Tutu [1982-83] GLR 996 at
999. Chieftaincy is thus not an
inviolable obscurantist
institution but a part of the
contemporary constitutional
regime and its incidents must
measure up to the standards set
in the Constitution. The
traditional incidents of
chieftaincy cannot therefore be
used to shore up a statutory
provision which is held by this
court to be in breach of a
provision in Chapter 5 of the
Constitution.
In the light
of the arguments of the
plaintiff and the first and
second defendants summarised
above, the issue which arises is
whether this Court should grant
the plaintiff the first remedy
claimed in his Writ of Summons,
namely, “A
declaration that sub-section (d)
of section 63 of the Chieftaincy
Act 2008 (Act 759) is an
encroachment on the liberty
generally and freedom of
movement in particular of
citizens and accordingly in
contravention of and or
inconsistent with the spirit and
letter of Articles 14 & 21 of
the Constitution of the Republic
of Ghana, 1992.”
Several of
the issues listed in the
Memorandum of Agreed Issues are
germane to a resolution of the
question whether this
declaration should be granted.
These are issues 3, 4, 5, 8 and
9 which state as follows:
3.
“Whether or not the offence
creating Section of the
Chieftaincy Act 2008 (Act 759)
Section 63, particularly sub
paragraph (d) constitutes an
undue restriction, encroachment
and interference with the
liberty and freedom of movement.
4.
Whether or not the said
sub-section (d) leaves any
discretion or excuse for the
citizen to refuse a call upon a
reasonable or just cause.
….
5.
Whether or not the person to be
called by the Chief should be a
subject within the traditional
area where the Chief exercises
his authority having regard to
the definition of customary law.
8.
Whether or not Setion 63 (d) can
be equated to a subpoena to
attend the Chief’s Summons.
9.
Whether or not the fact of the
deliberate refusal to honour a
call of a Chief being an offence
makes conviction automatic.”
Counsel for
the second defendant argues that
s. 63(d) does not create an
offence that unduly restricts
the freedom of movement of
persons because articles 12 and
14 in Chapter 5 of the
Constitution do not confer an
unfettered right to liberty. He
points out that article 12(2) of
the Constitution qualifies the
amplitude of the freedoms and
rights of the individual
conferred by Chapter 5 by making
them “subject to respect for the
rights and freedoms of others
and for the public interest.”
He refers to dicta by Kpegah JSC
in
Republic v Tommy Thompson Books
Ltd., Quarcoo & Coomson
[1996-97] SCGLR 804 where
the learned judge applies a
balancing concept that
endeavours to reconcile
individual and societal rights
in the interests of harmony. In
that case, Kpegah JSC had held
that the Constitution in
articles 12(2) and 164 had
placed limitations on freedom of
speech that are reasonably
required for the protection of
the rights of other persons and
in the public interest and
subjected the freedom of the
press to laws that are
reasonably required in the
interest of national security,
public order, public morality
and for protecting the
reputations, rights and freedoms
of other persons. Counsel for
the second defendant thus
advocates for an analogous
balancing
of the rights of individuals to
freedom of movement against
limitations to that right which
are reasonably required for the
protection of the rights of
chiefs. He stresses that
article 14 which confers the
right to personal liberty is
limited by the use of the
following words in its clause
(1): “except in the following
cases and in accordance with
procedure permitted by law.”
In any case,
he contends that s.63(d) is not
couched in such absolute terms
as to infringe the provisions of
Article 14. He denies that the
provision leaves a person
invited with no discretion or
excuse. He bases this
contention on the fact that the
section commences with the
adverb “deliberately”. He
refers to the definition of
“deliberate” in
Words
and Phrases Legally Defined
and concludes that when
applied to s.63(d) it means that
in order to constitute an
offence, a failure to honour the
call of a Chief must be
“well-weighed or considered;;
carefully thought out; done of
set purpose; studied not hasty
or rash.” He expresses the view
that Parliament intended to
exclude from the offence
anything done on the spur of the
moment. In his view, the
offence is committed only when a
person has considered and
carefully thought out his action
of not showing respect to the
Chief. He insists that respect
to chiefs is demanded by
traditional society and
recognized by the law. He again
quotes Kpegah JSC on this
point. The learned judge in
Republic v Tommy Thompson Books
Ltd., Quarcoo & Coomson
[1996-97] SCGLR 804 at p. 856
said:
“Our culture
and custom abhor insulting the
occupant of a Stool (that is a
Chief); and such a conduct is
taken to be disrespect for the
Stool itself, ipso facto, the
state.”
Before
considering whether the sting
has been taken out of the
plaintiff’s complaint about s.
63(d) by the interpretation
advocated by the second
defendant’s counsel, we would
like to comment on this point
about showing respect to
chiefs. It would not be correct
to assert that each time a
person fails to honour the call
of a chief, that person intends
to disrespect the Chief, nor
that an objective bystander
would necessarily infer that the
conduct of the person summoned
is disrespectful. Whether or
not there is an issue of
disrespect will depend on the
particular facts of each case.
Now to return
to the second defendant’s
preferred interpretation of s.
63(d): We do not see the
perceived advantage, in terms of
consistency with the
Constitution, in criminalising
only deliberate conduct, in
contrast to spur of the moment
conduct. If a businessman in
Accra receives a call from a
chief, say in Brong-Ahafo, in
connection with a fund-raising
drive to build a new Chief’s
Palace in his traditional area
and the businessman, who is not
from that traditional area,
decides after careful
consideration that he is unable
to honour the call because of
pressing commitments in Ghana
and abroad, we do not see why he
should be liable for the
criminal offence created in s.
63(d), whereas if he had turned
down the call without a moment’s
thought, he would not be
liable; according to the
interpretation of counsel for
the second defendant.
Equally, we
are unimpressed with the
argument made in the second
defendant’s amended Statement of
Case that:
“The use of
the word “deliberately”
at the start of the section,
sufficiently offer the person
invited if he has a reasonable
excuse to the call
and the use of the word
“issue” means that the
invitation would state why the
person is being invited. It is
only when the Law omits the
reason for the call or
invitation that it can be said
that the Law is vague.”
In our view,
the use of the word
“deliberately” does not
logically imply that if the
person called by the chief has
an excuse he need not heed the
call.
Clearly, the
crime created by s. 63(d)
imposes a restriction on the
freedom of movement of residents
in Ghana. The crime is
committed if a person
“deliberately refuses to honour
a call from a chief to attend to
an issue.” The plain language
meaning of the text would appear
to make it very wide in scope.
Whenever a Chief calls a person
to attend to an issue, the
person commits a crime if he
deliberately declines to honour
the call. However, the second
defendant in his Statement of
Case has endeavoured to narrow
the scope of the plain meaning
interpretation by proposing the
purposive interpretation that a
person called by a Chief must be
either a subject or resident
within his or her traditional
area. Counsel for second
defendant has submitted that,
having regard to the definition
of customary law, the text of s.
63(d) should be given the
narrower purposive
interpretation indicated above.
Article 11(3) of the 1992
Constitution, as is well-known,
defines “customary law” as “the
rules of law which by custom are
applicable to particular
communities in Ghana.”
Accordingly,
counsel for the second defendant
urges for the consideration of
this Court the following
position:
“It appears
far fetched that a Chief with
authority over Mamprusi
Traditional Area would send for
a Ga subject in Accra to attend
an issue in Mamprusi Traditional
Area when the Ga subject is not
resident within the area and he
is not a subject. Obviously
when the Ga subject goes to
reside in the said Mamprusi area
and an issue arises involving
the Ga subject who hurriedly
leaves the jurisdiction, then
the call can be extended to him
in Accra. The section is not
unreasonable. There must be an
issue, to be determined
concerning the citizen” as
described by the Plaintiff. I
do not think that Chiefs who
over the years have exercised
that jurisdiction to invite
citizens have abused the said
discretion granted them. It is
not necessary to define the
issue or the citizen who must be
called. What about a situation
where a non-citizen, be it a
European, Arabic or American
marries a Ghanaian subject and
an ‘issue’ arises. These days
when we have educated Chiefs, I
belief (sic} such a Chief could
extend a call to the Foreigner
provided there is an issue to be
determined. Since the
legislature cannot foresee every
issue which may arise, it would
be unwise to define the issue.
The discretion is for the Chief
and it is assumed he would act
lawfully. The Chief cannot call
anybody when the issue would be
against the laws of Ghana such
as to settle such serious
offences as murder and robbery.
In any case the call must be
limited to the area of authority
of the Chief.”
We are quite
unimpressed by this argument. A
major impediment to the success
of the argument made above is
the fact that there is no hint
of these limitations to the
scope of the crime in the text
of s. 63(d), which, it has to be
stressed, is a penal statute.
As the plaintiff points out, a
penal statute should be clear
and not depend on recondite
interpretation in order for
persons subject to it to know
what their liability under it
is. Presumably the purpose of
the impugned provision, as
deciphered by the second
defendant, is to buttress the
authority of, and respect for,
chiefs in their areas of
authority. However, the actual
text of the provision is much
wider than is needed to fulfil
this purpose. It would appear
to authorise a chief based in
Worawora, for instance, to call
a person resident in Axim to
attend to his call in Worawora.
The issue which arises is thus
whether the response of this
court to this situation should
be to strike the impugned
provision down as an
unconstitutional invasion of the
freedom of movement of persons
within the Ghanaian
jurisdiction, on its plain
meaning, or so to interpret the
impugned provision as to narrow
the scope of the liability that
it imposes and save it from
unconstitutionality. Even the
narrower interpretation may not
save the provision from
unconstitutionality unless a
defence is implied into the
provision which exculpates an
accused if he has a reasonable
excuse.
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. As the plaintiff puts
it in his Statement of Case, a
“citizen’s Freedom of Movement
includes his freedom to stay
away from where he does not want
to be.” It is true that this
court has held that a purposive
interpretation is usually to be
preferrred. (See, for example,
the recent case of
CHRAJ v
Attorney-General & Baba Camara
(Writ No. J1/3/2010, unreported
judgment of the Supreme Court
dated 6th April,
2011)). However, in the
circumstances of this case,
since more than one purposive
interpretation could be
extrapolated from the text of
the provision in question, it is
difficult to establish
authoritatively which of them is
correct. Thus, although a
purposive interpretation could
be attempted by this court to
cut down the scope of the
restriction on the freedom of
movement consequent from the
text of s. 63(d), our
inclination is rather to invite
Parliament to try again to
formulate a clearer and narrower
penal provision, by striking
down the existing provision.
Indeed, it may well be that the
purpose of Parliament was to
confer the wide power of summons
that the plaintiff is
complaining about, in order to
strengthen the authority of
chiefs beyond the borders of
their traditional areas. In
other words, one of the
purposive interpretations
available is equivalent to the
literal interpretation. Another
purposive interpretation would
be to limit the scope of the
chief’s power to call a person
to that which he or she has
under customary law.
As we have
already indicated, striking down
s. 63(d) as unconstitutional
would, to our mind, be
preferable to maintaining it
with a fudged meaning. The
extent of the fudge that may
result from a purposive
interpretation to narrow the
scope of the impugned provision
is evidenced by the fact that
the first and second defendants
are not even agreed on what the
scope of s. 63(d) should be.
Thus, the first defendant, in
his Statement of Case filed on 1st
February 2011 in response to the
additional issues agreed to
between the plaintiff and the
second defendant, submits as
follows:
“The
Constitution gives us the
framework for laws that govern
the people of Ghana, all
citizens are subject to the
constitution and it is submitted
that since customary law in
(sic) included in the common law
of Ghana, all persons within the
confines of Ghana are affected
by the customary law existing in
our diverse traditional systems,
whether you are a subject of the
area or not. If no one is
exempt from enactment made under
the authority of Parliament,
which form part of the laws of
Ghana, then by logical
implication no one is exempt
from the common law of which
customary law is part. From
this logic it is submitted that
a person called by a Chief need
not be a subject of that
particular area where the Chief
exercises his authority insofar
as the summons is in respect of
a matter that has arisen within
the constituency of customary
law within the Chiefs (sic) area
of operation, even though you
are not a subject of that
customary law area. For example
customary law marriages have
different rules depending on the
customs of the area which the
woman hails from. In Ashanti,
the man is expected to bring
drinks, cloth, dowry to the
woman’s father and ask her hand
in marriage whilst in some
Northern Ghana customary
marriages, the man has to take a
cow, kola, cowries, these
customs are different but an
Australia man going to marry
from Northern Ghana has to do
custom and the customary laws of
the area will apply to him in
respect of marriage so also will
the situation be vise (sic)
versa for a man from Northern
Ghana marrying a woman from
Australia. It is submitted that
having regard to the definition
of customary law in the
Constitution, it applies to
everyone in Ghana and insofar as
a Chief summons a person for a
matter that pertains to the
customary law of this area for
which that person is obliged to
heed the call.”
When this
passage is compared with the
earlier passage quoted from the
Submission of the second
defendant’s counsel, it is clear
that the first defendant has a
wider conception of who may
lawfully be called by a chief,
having regard to the definition
of customary law.
Of course,
this court cannot strike down
the impugned provision if the
defendants can show that the
interference with the freedom of
movement of individuals is
justified in terms of the
Constitution. The next
question, therefore, which needs
to be addressed is whether the
restriction on the freedom of
movement of persons called by
chiefs to attend to an issue,
that is imposed by the offence
created by s 63(d), is
justifiable under Chapter 5 of
the 1992 Constitution.
Article 12(2)
of the 1992 Constitution
provides that:
“Every person
in Ghana, whatever his race,
place of origin, political
opinion, colour, religion, creed
or gender shall be entitled to
the fundamental human rights and
freedoms of the individual
contained in this Chapter but
subject to respect for the
rights and freedoms of others
and for the public interest.”
(Emphasis supplied).
In the light
of this Article 12(2), can the
freedom of movement conferred on
residents of Ghana by article
21(1)(g) of the 1992
Constitution be justifiably
restricted by s. 63(d) of Act
759 out of respect for the
rights and freedoms of chiefs or
for the public interest? In our
considered view, the wide power
of chiefs to summon, on the pain
of a criminal sanction, anybody
at all in Ghana to attend to an
issue of any kind represents an
unwarranted interference in the
freedom of movement of residents
of Ghana and the width of the
power does not make it
justifiable in the public
interest. Even though
criminalising a deliberate
refusal to honour a chief’s call
may strengthen the authority of
chiefs and the respect accorded
them, this consideration is not
a sufficient justification for
the restriction that s. 63(d)
imposes on the freedom of
movement of individuals, even in
a society which reveres its
chiefs.
The first
defendant endeavours in its
Statement of Case to find a
justification for the
restriction on freedom of
movement entailed by s. 63(d) by
invoking clause 4 of article 21
of the Constitution. Article
21(1) proclaims the right of all
persons to certain general
fundamental freedoms which it
lists. Among them, as clause
21(1)(g) is: “freedom of
movement which means the right
to move freely in Ghana, the
right to leave and to enter
Ghana and immunity from
expulsion from Ghana.” Clause
4 then provides certain
derogations from these freedoms
in the following words:
“Nothing in,
or done under the authority of a
law shall be held to be
inconsistent with, or in
contravention of, this article
to the extent that the law in
question makes provision –
a)
for the imposition of
restrictions by order of a
court, that are required in the
interest of defence, public
safety or public order, on the
movement or residence within
Ghana of any person; or
b)
for the imposition of
restrictions, by order of a
court, on the movement or
residence within Ghana of any
person either as a result of his
having been found guilty of a
criminal offence under the laws
of Ghana or for the purposes of
ensuring that he appears before
a court at a later date for
trial for a criminal offence or
for proceedings relating to his
extradition or lawful removal
from Ghana; or
c)
for the imposition of
restrictions that are reasonably
required in the interest of
defence, public safety, public
health or the running of
essential services, on the
movement or residence within
Ghana of any person or persons
generally, or any class of
persons; or
d)
for the imposition of
restrictions on the freedom of
entry into Ghana, or of
movements in Ghana, of a person
who is not a citizen of Ghana;
or
e)
that is reasonably required for
the purpose of safeguarding the
people of Ghana against the
teaching or propagation of a
doctrine which exhibits or
encourages disrespect for the
nationhood of Ghana, the
national symbols and emblems, or
incites hatred against other
members of the community.”
With respect,
none of these derogations
justifies the restriction on
freedom of movement entailed by
s. 63(d).
In our view,
therefore, the declaration
sought by the plaintiff in
paragraph (a) of the reliefs
endorsed on his Writ of Summons
should be granted. The
inconsistency of s. 63(d) of Act
759 is primarily with article 21
(g) of the 1992 Constitution.
An invocation of article 14 is
less relevant in this context,
since, prior to conviction, a
person “called” by a chief does
not lose his personal liberty,
by which is meant his freedom
from confinement.
The text of article 14(1) is as
follows:
“Every person
shall be entitled to his
personal liberty and no person
shall be deprived of his
personal liberty except in the
following cases and in
accordance with procedure
permitted by law –
(a)
in execution of a sentence or
order of a court in respect of a
criminal offence of which he has
been convicted; or
(b)
…”
However, our
upholding of the plaintiff’s
argument relating to article
21(g) implies that s. 63(d) of
Act 759, being void for
unconstitutionality, cannot
serve as a viable legal basis
for a criminal prosecution that
could deprive an accused of his
or her personal liberty. The
fundamental freedom infringed by
s. 63(d) is thus freedom of
movement as prescribed in
article 21(g), rather than the
personal liberty protected by
article 14(1) of the 1992
Constitution.
That takes us
next to a consideration of the
unconstitutionality of s 63(d)
of Act 759 from the other angle
advocated by the plaintiff, in
paragraph (b) of the reliefs
sought in his Writ, namely, that
it is “legally vague and
overbroad and also accordingly
unconstitutional”.
The plaintiff
relies on
Tsatsu Tsikata v The Republic
[2003-2004] SCGLR 1068 to
found his argument. In that
case Modibo Ocran JSC,
delivering the majority judgment
of the Supreme Court, said (at
p. 1091 of the Report):
“Thus our
constitutional case law has
already taken affirmative
cognizance of the doctrine of
void-for-vagueness. The absence
of provisions in the 1992
Constitution directly mentioning
the doctrine is of no import to
its relevance and validity.
Indeed, in the the United States
Supreme Court case of
Papachristou et al (supra),
Justice Douglas put the general
rationale for the doctrine in a
wider context: “Living under a
rule of law”, he wrote, “entails
various suppositions, one of
which is that all persons are
entitled to be informed as to
what the state commands or
forbids.” And in Kolender,
Chief of Police of San Diego
(supra), the United States
Supreme Court declared that the
doctrine of void-for-vagueness,
even though not expressly
mentioned in the United States
Constitution, was squarely
placed within the ambit of the
Due Process Clause of the
Fourteenth Amendment. The Due
Process Clause, it should be
noted, is analogous to articles
14 and 19 of the 1992
Constitution of Ghana. We
therefore hold that the
void-for-vagueness doctrine
represents a legitimate standard
under the 1992 Constitution for
the judicial review of
legislation.”
What this
court needs to do therefore is
to measure s. 63(d) of Act 759
against the void-for-vagueness
standard in order to determine
whether it is constitutional or
not. Does s. 63(d) sufficiently
inform persons who are charged
under it of the conduct
prohibited under it and what
they must have done to comply
with the statute? Conversely,
does s. 63(d) sufficiently
inform law enforcers of the
prohibited conduct which they
must prosecute? Answering these
two questions should assist in
determining
whether
s. 63(d) is void for vagueness.
These two questions can
alternatively, borrowing from
Mr. Justice Douglas’ formulation
in
Papachristou et al v City of
Jacksonville 405 US 156; 92
S.Ct. 839; 31 L. Ed 110; 1972 US
Lexis 84, be put as
follows: does the impugned
provision fail to give a person
of ordinary intelligence fair
notice that his contemplated
conduct is forbidden by the
statute or does it encourage
arbitrary and erratic arrests
and convictions?
In his
submission made in response to
the twelth issue of the
Memorandum of Agreed Issues,
counsel for the second defendant
urges that the onus rests on the
plaintiff to demonstrate in what
manner s. 63(d) is “vague” and
“overly-broad”. Issue twelve
states: “Whether or not the
subsections of Section 63 of the
Chieftaincy Act 2008 (Act 759)
by being referred to as “overly
broad or vague” are meant to say
that they are inconsistent with
Article 19 of the Constitution
1992.” As shown above, Tsatsu
Tsikata v The Republic has
demonstrated that the
void-for-vagueness doctrine
is part of our constitutional
law. The response of the
defendants to the plaintiff’s
complaint that the impugned
provisions are legally vague is
an assertion that in fact they
are clear and unambiguous. This
is the argument which needs to
be dwelt upon.
S. 63(d) may
have given chiefs excessive
power, but the range of that
power would appear to be clear
enough, if one goes by the
literal interpretation of the
provision. On the literal
interpretation used earlier in
this judgment to declare the
provision unconstitutional in
relation to relief (a), which
interpretaion, as pointed out
earlier, could also be a
purposive one, a person must not
deliberately refuse to honour a
call from a chief to attend to
an issue. Although the nature
of the issue is not specified,
this fact, to us, implies that
it can be any issue whatsoever.
What the sub-section gives fair
notice of to any person of
ordinary intelligence is thus
that if a chief calls him to
attend to any matter at all, he
should honour that call. The
mischief in the provision is not
its lack of clarity, but the
width of the power it confers on
chiefs. Although it could be
argued that the fact that there
are credible purposive
interpretations alternative to
the literal one outlined above
demonstrates that the provision
is incurably vague, we are not
impressed by that argument.
That brings
us to the other prong of the
plaintiff’s challenge under
relief (b), namely that the
impugned subsection is
“overbroad”. His Statement of
Case does not spell out what he
means by overbroad. It would
seem that he wants to invoke
case law from the United States
that deals with overbreath in
criminal statutes. In the
United States the concept of
overbreath is distinct from the
concept of vagueness. Since the
plaintiff has done so little to
spell out his case on this
issue, we are not inclined to
accept his invitation to import
United States case law on this
matter, particularly as we have
already found s.63(d) void for
unconstitutionality on other
grounds. In fairness to him, we
do acknowledge that in his
counsel’s Written Submission
filed after the plaintiff’s
agreement on issues with the
second defendant, counsel
explains that legislation is
overbroad if it is so broadly
written as to cover both
legitimate and illegitimate
actions. He asserts that, under
the doctrine of overbreath, even
legislation prohibiting acts
which may legitimately be
prohibited may be struck down,
if its breath includes both
legitimate and illegitimate
conduct. This is because of the
chilling effect of overbroad
legislation in potentially
prohibiting legitimate conduct.
He further contends that It may
also give unfair discretion to
police and other law enforcement
agencies and, like vague
statutes, offend due process.
While counsel’s submissions
flesh out the plaintiff’s
Statement of Case a little, we
would still prefer not to base
our decision on the
unconstitutionality of s. 63(d)
on this ground. We think that
more detailed legal argument is
needed before this Court decides
whether to apply the doctrine of
overbreath of a criminal statute
to strike it down.
Our
conclusion on whether s. 63(d)
is constitutional is thus that
the first remedy endorsed on the
plaintiff’s writ should be
granted, since the plain meaning
of s. 63(d) authorises conduct
by chiefs which is likely to
interfere with the freedom of
movement of persons, including
those not subject to them, and
in relation to issues whose
nature is unspecified and
therefore wide. As the
plaintiff points out, not even
the President of the Republic,
who is vested with the Executive
authority of the State, has a
direct power similar to that
conferred on chiefs to compel
persons to honour their
invitation. Whilst this
potential unjustified
interference by chiefs with the
freedom of movement of persons
within the Ghanaian jurisdiction
could be averted to a degree
with a purposive interpretation
which narrows the scope of s.
63(d), such an interpretation
would result in an unclear
criminal statute which would
pose a challenge for due
process.
It would be unwise for this
court to rewrite a criminal
statute which appears, on its
plain meaning, to be
unconstitutional. It is a much
better outcome for this court to
strike down the offending
legislation and for Parliament
itself then to rewrite the
statute in the light of the
Supreme Court’s view. In our
view, a statutory provision
which limits itself to a chief’s
call within his or her
Traditional Area and provides a
defence for a person who is
called but has a reasonable
excuse not to heed the call
would have a better chance of
passing the constitutionality
test.
However, we
would not grant relief (b) since
we do not consider s. 63(d) as
legally vague. As to whether
the impugned provision is
overbroad or not, we do not find
that the plaintiff has done
enough to challenge the
constitutionality of the
provision on this score and
therefore we do not find it
justifiable to give judgment in
his favour on that issue.
The
constitutionality of subsections
(a), (b),(c), and (e) of Section
63 of Act 759.
The
plaintiff’s case on subsection
(a) is that it is vague as it
does not clearly define when a
person qualifies to act as a
chief and what are the functions
referred to in its text. He
indicates that some functions
performed by chiefs are also
legitimately performed by people
who are not chiefs, for
instance, the pouring of
libation on ceremonial
occasions. In relation to
subsection (b), he maintains
that it is simply unclear and
overbroad and does not give
notice to the subject as to what
specific conduct is made
criminal. The specific defects
of the other impugned
subparagraphs, namely, (c) and
(e) are not spelt out, except
that the plaintiff asserts that
a penal statute has to be clear
in its meaning, application and
scope. In relation to these
subparagraphs, the plaintiff
seeks relief (c), which is a
declaration that the subsections
are legally vague and overbroad
and also inconsistent with the
spirit and letter of articles 14
and 21 of the 1992 Constitution
and accordingly void.
The
plaintiff’s case on subsection
(a) is adequately answered by
both defendants who point out
that both article 277 of the
1992 Constitution and Act 759
define who a chief is. The
second defendant maintains that
subsection (a) is clear and that
the functions of a chief need
not be defined in it to make it
clear. The functions of a chief
are clear enough under customary
law. We agree with the second
defendant that the subsection is
self-explanatory and its
language admits of no
ambiguity. Our view on issue 6
of the Memorandum of Agreed
Issues, namely, “whether or not
sub-section (a) of Section 63 of
the Chieftaincy Act (Act 759)
can be said to be vague when the
Chief is defined by both the
Constitution 1992 and the
Chieftaincy Act 2008 (Act 759)”,
is thus that it is not vague and
does not fall foul of the
void-for-vagueness standard.
Equally, we
do not consider that subsections
(b), (c) and (e) of s. 63 of Act
759, which were earlier set out
in this judgment, are legally
vague and inconsistent with the
spirit and letter of articles 14
and 21. Furthermore, we do not
intend to base any decision as
to unconstitutionality on the
doctrine of over breath, for the
reasons we have already set
out. Accordingly, we are unable
to grant the declaration sought
by the plaintiff under relief
(c) endorsed on his Amended Writ
of Summons.
Relief (d)
Finally,
regarding relief (d) endorsed on
the plaintiff’s Amended Writ,
this court will grant it only in
relation to relief (a). In
other words, s 63 (d) of Act 759
is hereby expunged, deleted and
struck out from Act 759 on the
grounds of its
unconstitutionality. This court
unquestionably has the authority
to make this order under article
2 of the 1992 Constitution. The
order is made for the reasons
already extensively canvassed
above. No other subsections are
to be deleted, expunged or
struck out.
Conclusion
The
plaintiff’s action thus succeeds
only in part. Relief (a) is
granted in full and relief (d)
in part. Subject to this, the
action is dismissed.
(SGD) DR. S. K.
DATE-BAH
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A. ADINYIRA
(MRS)
JUSTICE OF THE SUPREME COURT
(SGD) R. C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT
(SGD)
J.V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) B.
T. ARYEETEY
JUSTICE OF THE SUPREME COURT
(SGD) N.S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO-BAMFO
(MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL:
MRS. AMA
BANFUL WITH CECIL ADADEVOH,
SENIOR STATE ATTORNEY WITH MISS
HELARA FRENCH, ASSISTANT STATE
ATTORNEY FOR THE 1ST
DEFENDANT.
PLAINTIFF
APPEARS IN PERSON
MR. AYIKOI
OTOO FOR THE 2ND
DEFENDANT |
