Samson’s take: The ‘unconstitutionality’ of Manhyia’s ban on movement and curfew

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Some have raised issues with the declaration by Asanteman (Manhyia Palace) that resulted in shops closing down (essential services were exempted) and residents of Kumasi staying indoors leaving the streets completely empty on Thursday.

It was part of rites for its Queen Mother, Nana Afia Serwaa Kobi Ampem II, who was making that very final journey of life to the ancestors. Her burial rites have revealed even richer Ashanti culture and tradition. The media, particularly in Kumasi, celebrated the occasion with days of live coverage and commentary.

It, however, refrained from the questions of constitutional or whatever rights which have been discussed but only privately and on social media. The question as to whether or not a ritual or customary practices of Asanteman should continue to affect life and commerce now that Kumasi is no longer a ‘‘village’’ of a tribe but a modern cosmopolitan city should frame a debate for another day.

For now, my aim is to point to the Constitution to show that what happened, like the annual ban on drumming and noise making here in Accra, is or may not only be lawful but sanctioned by the constitution.

It is provided in article 11 of the Constitution the laws of Ghana include what is known as the common law which the Constitution defines thus ‘‘[T]he common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.’’

The Constitution further defines customary law to mean ‘‘the rules of law which by custom are applicable to particular communities in Ghana.’’

It follows, without further debate, that to the extent that what happened was the observance of a custom of Asanteman, it was constitutional. I must note, immediately, however, that this constitutional blessing does not extend to all customs as the framers enjoined the National House of Chiefs in article 272 to ‘‘undertake an evaluation of traditional customs and usages with a view to eliminating those customs and usages that are outmoded and socially harmful.’’ Ultimately, when the soundness of such customs are challenged in the courts, they are subject to a validity test to ensure they are not repugnant to natural justice, equity and good conscience, or that they are not incompatible either directly or by implication with some existing law.

Our courts have also held in Owusu vr Amoa-Obeng [1992] 2 GLR 293 religious practices or such as border on the supernatural did not qualify as customs. So that when a chief and his elders insisted on enforcing as “customary law” certain rules which prohibited the people in his village from going to farm on certain days and from rearing goats because, according to him, the gods hated goats, Justice Lartey emphasised that “[I]n the instant case…the set of rules referred to by the plaintiffs and admitted by the defendant in the pleadings stems from religious belief the belief that breaches of those rules, among others, would offend the gods or fetishes, in particular, Tano and Kobi. I think it is important to distinguish between customary practices which are purely based on traditional religion or the belief in the supernatural (which is not capable of proof in our courts) and custom known and determined by the courts such as customary marriage, divorce, land tenure, etc”.

A good friend Chris Nyinevi who teaches law at the KNUST Law Faculty presses this point to a conclusion that the ban on movement, though deserving of respect, is not to be elevated to Customary Law since it is rooted in the belief in the supernatural or superstition. He is supported by another good friend Justice Srem Sai who teaches at the GIMPA Law Faculty. But I fear we will be left with little or no customary law if such beliefs were to be separated from our customs.

Well, there hasn’t been any complaint of abuse of fundamental human rights by the act. Many have suggested none will dare for fear of whatever as even members of State security in Kumasi had to comply with the ban or restriction. I will say residents complied out of respect more than for fear of being dealt with by Manhyia.

I conclude with a personal experience. You may recall the 2005 investigations of the infamous disappearance of 77 parcels of cocaine aboard a certain MV Benjamin vessel. One of those named and arrested (Alhaji Moro) was said to be Otumfour Osei Tutu II’s best friend with unhindered access to the palace. Some of the dirt thrown at him when his name first came up among possible successors to Otumfour Opoku Ware II made the gossip at this time. I had the rare privilege of a private conversation with one of his many chiefs who spoke about how disturbed they had been about his friendship with this ‘big businessman’ now linked to the cocaine saga. The palace denied any connection to the claims and a fatwa of sorts issued against any media discussions of that angle. I was a law student and hosted current affairs show – Nightbeat on Luv FM.

I ignored every warning as illegal/unconstitutional, insisted on rights and must have been the only guy acting that foolishly. A man in his fifties who said he was a lawyer and royal would accost me rather dangerously driving his Benz car almost hitting my Fiat Tipo. He trailed me from the Amakom roundabout to KNUST campus where he managed to run ahead and block me around the library. I rolled up. He yelled, insulted and hit my windscreen. He was livid and sounded absolutely bigotry. I left my car in my middle of the road and sought refuge in the library for the period he remained in sight. ‘’If you touch Otumfour you touch the very soul and spirit of the stool and Asanteman!’’ He had loudly repeated to me. When Manhyia called the media, I was singled out for mention and reprimanded in the full glare of colleagues who seemed to immediately abandon me. 

One of his chiefs addressed the media and whom I would later call a friend had this caution: ‘’[Y]oungman, some things are meant only for the eyes, some things are meant for the ears only. Take this advice and you will preserve your life.’’ A heavily built guy had some life-threatening words for me as I made my way out of the palace. In fact, I must have been saved further similar approaches by a gentleman I had encountered many times in the palace and was almost always with the King when he made those his rare official outings. The lesson for me was that the people had such reverence for the Golden Stool and its occupant that their passion to protect same was one that led them to a point of scarifying their lives even. How I wish the State could get half such loyalty and obeisance.

Samson Lardy ANYENINI

January 21, 2017