Indigenizing Justice: The Legacy of an Inherited Justice System

A few months ago, in the throes of a Covid-ridden year and in the general milieu of an election year, I heard a certain presidential candidate promised that the Supreme Court would sit in Twi if she won. Though this considerably achieved some ridicule and elicited much laughter, it was the issue of the relationship allowance which saw people go bananas. As to the veracity of this more novel claim, I cannot confirm. In the logic of cyber-world, it trended on Twitter, so it must be, of course, be true!

However, it was the issue of the highest court of our land that piqued my interest and set me thinking about access to justice. This was someone who did not understand what happened in any court but genuinely wished to do so. It’s typical. After a much contested-matter, often decided in the courts of law, many people are often at loss, waiting for local media stations to help them understand what the judge has ordered or what the lawyer has said.

This brings to mind another memorable experience during my LLB days at the University of Ghana, somewhere in 2019. An SRC presidential aspirant had, at the vetting stage been disqualified from running in the elections. So, as is customary for aggrieved student politicians, the judicial board of the SRC was drawn into the arena as an umpire. There was the substantive matter about how the constitutional instrument for the election violated parts of the SRC Constitution, etc etc. The usual tired narratives. Before the substantive matter was heard, the judicial board heard an application for an interlocutory injunction to halt the rest of the electoral processes until the final determination of the substantive matter. It was granted. The kind of processions and drum accompaniments around Mensah Sarbah Hall made it seem as if the case had been done and dusted. It was explosive indeed. Many of those who had gone wild with excitement would ask me the next day, ‘what did the court say?’ They too were at loss. They had heard the chairperson of the judicial board say something. They knew the applicants were happy and they too, being on the side of the applicants were happy. A less extreme form of folie à deux?

In these two situations, we find the germ of those subtle, overlooked influences which have an impact in the way justice is accessed in the country. There are those who do not understand the language of the courts. Others too, do not understand the practice of the courts. In fact, there can even be another category of people who do not understand both the language and practice of the courts.

It is not the mere failure to understand the operation of the wheels of justice that is the only problem. The real danger is about how the failure to so understand can metamorphose into something more deadly: the aversion of the justice system itself. If a system does not make sense to anyone, the system is perhaps not of much use to them too. Its logic would be deemed perverse, its machinery perceived slow. Its actors would be seen as curious folks, jesters, where uncharitable. The idea of the rule of law and all its supporting democratic props would not be of much help. So it is, that extrajudicial killings, manifested in all their goriness, can happen. That people would say, it is the failure of the justice system to make itself more accessible, etc. Whenever these things happen, take Major Mahama and Akua Denteh, they raise our moral temperature, challenge our moral compass and offend our moral sensibilities. Afterwards, we wait for another episode to do same, especially to write a few articles with the same tired, and I mean it, tired prescriptions.

Of course, what I just said is the extreme consequences of what the absence of concrete access to justice can potentially cause. The manifestations may be naïve as seen in the examples of our presidential aspirant and my fellow Okpomates or worse as seen in what can happen when people are killed, as Ayi Kwei Armah would say, ‘in a bloody, brutal way’.

Before the first European stepped foot on the shore of what would become Ghana, it is indisputable that native societies had developed their own systems of law which worked for them. It cannot be contested. The native chief’s seat of power, his palace, would often be the seat of adjudication. More importantly, subject to other customary rules, access could be described as unfettered. The chief was for one, and one for the chief and both for the earth. Then came explorers and merchants and in no time, customary law was being supplanted by some new foreign law especially that called the common law. Some put the date of the introduction of that foreign law as 6th March 1844: the date the bond of 1844 was signed. It is still a subject of dispute. What we do know is that it was introduced.

This process was not sudden, it was gradual. In those parts of life where the common law did not supplant rules, a filtering system was introduced to do away with laws which did not meet the criteria of the ‘repugnancy test’: whether or not the law offended justice, equity or good conscience. Thereafter, laws were passed from time to time to regulate native courts. Thus was our situation until independence.

After independence, we did not revert to the pre-colonial position. No, we did not. We instead built our life, work and purpose as a nation-state on those of the colonial government. The foreign law as it were remained. Nonetheless, there was talk about indigenizing our legal system. This is where, in my opinion, we have not come far enough.

The need to indigenize the system was of course shared by most people. That we need a legal system modelled after our values, aspirations and goals. The process of indigenization can simply be described as the process of making something more native. It took three forms: substantive, procedural and institutional indigenization.

On procedural indigenization, we started to say things like ‘customary law is no longer a question of fact, it now a question of law’. We began to have elaborate choice of law rules, right from the Courts Act of 1960 all through to our present Courts Act of 1993. The choice of law rules are not for the faint-hearted. They are delicately crafted and liable to potential confusion. We will deal of those in another part.

Substantively, what has been most difficult, is the ascertainment of these rules of customary law. After all, customary law is like the child which went missing and was found many years after. You really struggle to establish any meaningful and endearing relationship with that child. Such has been our troubles. The situation seems particularly acute because customary law is unwritten.

The process of ascertainment is compounded by the fact that customary law as we had it before the coming of our colonizers might have changed due to several influences such as religion, politics and human rights making it fundamentally different from it was. It is normal that customary law should grow that way. Yet, the legal system is fixated on writing and precedent contrary to the inherent organic nature of customary law. It can be argued that this fixation is not out of place. The dishonesty of some expert witnesses on customary law has given it a very dubious reputation. I remember a judge was got so angry he remarked:

‘Custom is not a matter of convenience or expediency; it is the manner in which people have regulated their affairs and their relationship from time immemorial. For one man or a group of men to state what they know is not the custom when it suits their convenience to do so, and to adhere to the custom when they find it expedient, is to disorganise society and to bring about serious miscarriage of justice. The courts are not there to be employed, through their ignorance of facts, as innocent instruments of oppression and deprivations.’ (Case is Akwei v. Awuletey).

Though he was heavily criticized by an appellate court, the sentiments echoed are real. Not once has it been said that a certain expert witness on customary law has mounted the witness box and told the court, ‘a tissue of lies’.

Institutionally, though laws were passed from time to time to regulate the institution of chieftaincy, the position is at last clear now. That the institution is guaranteed. Nevertheless, in many parts of the country, the effects of old laws which enstooled or enskinned chiefs or withdrew recognition of chiefs some of whom were the rightful chiefs are still being felt. The wounds never healed.

In short, indigenization has been quite a messy affair. I propose a different form of indigenization and it is to this to which we shall turn to in subsequent parts.

Chege in The River Between sent his son Waiyaki to go and learn the ways of the white man. Ezeulu in Arrow of God sent Udoche to do the same. And I….I build my model on the prophecy of Chege and the vision of Ezeulu.