Indemnty Clause of 1992

The Issues Raised by PNDC Executive Instrument 18 in Light of the Indemnity Provision of the 1992 Constitution.

By Nii Otu Quaye

Executive Instrument 18, promulgated in utter defiance of law and the customary and traditional norms undergirding chieftaincy, is invalid and void of any effect because it carries an evil and unequal hand against one particular chief, and it is baseless where it ignored all requisite legal and normative procedures. Likewise, the Transitional Provision of the Constitution and the ensuing Indemnification Clause, to the extent they seek to protect the Executive Instrument and foreclose any judicial review and amendment thereof, are invalid and must be so declared. Indeed, the Attorney General, the ultimate legal officer for the country, resonated this truism when he decried the EI and declared it invalid, just as some judicial and quasi judicial bodies have effectively and rightly invalidated military governments' arbitrarily confiscated private property notwithstanding the Indemnification Clause.

The Executive Instrument was issued in 1983. Specifically, singling out Mantse Nii Odai Ayiku IV, and without any charges against him, let alone any opportunity for him to vindicate himself, this instrument forthrightly purported to destool him without due process. It is thus unjust, unlawful, and arbitrary and capricious and must, accordingly, be expunged. To be sure, the Government, as the sovereign, has enormous powers over all segments of the Ghanaian society, including the Chieftaincy institution. However, the Government by itself does not have the power to, nor can it lawfully, make or unmake a Chief. Instead, it gazettes or ungazettes a chief after that person has been enstooled as a chief or destooled by the appropriate traditional authorities. With this in mind, a brief overview of the law on chieftaincy, including its undergirding customary and traditional procedures, will put the issues in their proper perspective.

Chieftaincy is a sacrosanct institution embodying the unique cultures, traditions, and mores of the various groups constituting Ghana. While some of these cultures, traditions, and mores vary with the peculiarities of the individual groups, many are the same. Because the EI is targeted to Nungua, we should focus mainly on that Town.

To be the Chief of Nungua, one must be a member of the Royal family, which comprises the Ayiku We, the Kwei We, and the Adjin We. A chief is installed from one We at a time and succeeded by another after the former's position becomes vacant. The only qualified caveat is that all three Wes' turns must be run before the first We's turn can reattach. In other words, except for Regency situations as noted below, no single We may provide successive chiefs uninterruptedly by the two other Wes. The Elders are responsible for the nomination, selection, and prepping of a Chief from any given We at any given time. Once a prospective Chief is selected, he is put in confinement for several months and rigorously and arduously prepped. The prepping is for a lifelong commitment and sacrifice to serve and defend the Town. After the confinement and prepping, the Chief is enstooled and crowned in a process by which he swears a firm oath and commitment to the Town his entire life. In turn, the Town, through the Elders, take a reciprocal oath to support the Chief's occupancy of the Throne for as long as he lives.

The Government is not a party to this contract and cannot abrogate it. All it does constitutionally is add its imprimatur by having the installed Chief gazetted. The purpose of the gazetting is to recognize the chief as installed and thereby promote regularity and uniformity in the Government's dealings with Chiefs throughout the country. Gazetting does not authorize the Government to ignore the customary and traditional norms and procedures, nor does it confer on it the power to single out one or any number of chiefs and gazette or ungazette him (them) wily nilly (without due process) and in blatant violation of the governing norms. Condoning any Government's baseless destoolment of a chief, as purportedly done here, sets a very dangerous precedent for Chieftaincy and the traditional and cultural fabrics holding us up together as a nation.

Although the installation procedures in Nungua may vary a little from the procedures used elsewhere in the country, one settled norm is common and uniform across the country: whether in enskinning and deskinning in the North, or enstooling and destooling in Ashanteland, Fanteland, Eweland, or the GaDangme area, Nungua included, the sine qua non for governmental involvement by gazetting or ungazetting is the traditional process--the Chief must be enskinned or enstooled before the Government can properly be involved. Once installed a Chief of Nungua, the Chief reigns for life. Even where he is debilitatingly sick, he does not vacate his rulership. Instead, a Regent is appointed to assist in the performance of his duties. This Regent can be chosen from any of the three Wes, regardless of which We the debilitatingly sick Chief hails from, and the Regency does not affect the running of the regular cycle. The only qualification to the appointment of the Regent is that the debilitated Chief's We's voice carries the heaviest weight and must be deferred to by all the Elders of the other Wes.

Moreover, the Regent must hand over the throne to the debilitated Chief in the event that the latter recovers adequately to resume his Chiefly duties. The closest parallel to this Nungua Tradition is reflected in the history of the Ashantes where, after the exile of the Great Ashantehene, the Regents chosen by the Elders to run the Affairs of the Ashante State handed over the throne to him on his return from the exile.

Destoolment is uncommon in the Nungua Tradition. Indeed, a Chief in Nungua would be destooled only where he commits an ultra heinous crime of sacrilegious proportions. But even in such cases, he is not destooled automatically. Instead, due process is fully employed, subjecting him to a vigorous trial by the Traditional Elders. At this trial, charges under steeply sanctionable oaths must be asserted and proved against the allegedly offending Chief. In addition, he must be convicted beyond reasonable doubts before he could be stripped of his position.

Up until now, the Elders of Nungua have never destooled or preferred any serious charges, let alone any charges, against Nii Odai Ayiku. The so-called destoolment in 1967 is specious; a mere post hoc fabrication coined by individuals who are not Elders or even from the Royal Family. Chief Nii Odai Ayiku and the Stool's Elders have repeatedly challenged these fabricators to prove otherwise by producing documents, citing charges and demonstrating how that fabricated destoolment came about, but all these have fallen on deaf ears, including those of the Ga Traditional Council. Thus, as all readers can see, the prerequisites for destoolment are nonexistent here.

Nor did the PNDC provide or have any basis for the Executive Instrument. Ghana is a society of laws and not otherwise. Because the Executive Instrument failed to meet any of the necessary prerequisites for degazetting a chief [including due process], it is unjust and totally bereft of any legal force, and must be declared accordingly.

Indisputably, the Transitional provisions and the Indemnification Clause provide that no court of law should have any authority to sit on any enactment of any of the previous military regimes or to reverse any action of any of those governments, whether right or wrong. Moreover, Parliament is barred in perpetuity from ever amending the Indemnification Clause. These provisions, without doubt, are arbitrary and capricious, i.e., irrational and run counter to the applicable law on Chieftaincy. Moreover, they contravene several jurisprudential principles. First, it is well settled that one government cannot, by its acts, bind its successors in perpetuity. Not only do the Transitional Provisions' proscription of any power to amend the Clause violate this well-settled principle, but it is utterly disrespectful of the entire Ghanaian populace. Second, the Clause, by foreclosing the authority of the courts to review and possibly overturn any action of any of the previous administrations, impermissibly violates the Separation of Powers principle. Here, let's be mindful that, under that principle, which promotes a balance of power in government by making each of the three organs a check and a balance on the other two, no single organ can lawfully intrude coercively into the affairs of the other two. The purported foreclosure of the courts from sitting on and reviewing PNDC's enactments here is the type of coercive intrusion that is outlawed by this well settled jurisprudential norm.

As one famous and well celebrated case held years ago, it is the province of the courts to state what the law is. In its efforts to shield lawlessness by totally foreclosing the independence and authority of the Judiciary to dispense justice, the Executive instrument lacks any authenticity for validity and it must be expunged.

Nor have the courts allowed themselves to be so unwaveringly pinned to the purported air-tight provisions of the Indemnification Clause, etc. Suffice it to note here that the judiciary, including some quasi judicial bodies in the country, has honorably invalidated acts of the so-called indemnified administrations where warranted, the Indemnification Clause notwithstanding. Notable among these just and impeccable decisions are where, reversing unwarranted acts under our military regimes, judicial and quasi-judicial bodies have side-stepped the Indemnification Clause and given back to people their properties that were unlawfully confiscated under some of these regimes. Here, it should be emphasized that the return of the confiscated property did not include any sanctioning of the administrators. This is perfectly a sound construction of the Clause: the errors should be corrected without any punitive measures taken against the perpetrators of the error. Specifically, in the context of the Executive Instrument, the Executive Instrument should be expunged without sanctioning anyone for its enactment, etc.

I submit: The acts of making the Executive Instrument and the ensuing Indemnification Clause are bad enough, but to condone and enshrine these errors and malfeasance merely by the dint of their enactment is surely unworthy. Courageous trumping of those ill-considered enactments does not reflect disrespect. Instead, it manifests a most becoming entrenchment of law in our society, resonating and vindicating the hallowed "Freedom and Justice" that we hoisted at Blessed GhanaÂ’s Independence in our National Anthem, Pledge, Seal, and Coat of Arms. It addition, it gives real and practical meaning to that feat, trumpeting us as a society of laws, and not one of lawlessness. In a nutshell, lets all eschew corruption and lawlessness and, instead, encourage the running and development of our legal system in a way that posterity will applaud us for, not one that will denigrate us.