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THE POWERS AND INDEPENDENCE OF JUDICIAL COMITES OF HOUSE OF CHIEFS IN GHANA: A CRITICAL APRAISAL I INTRODUCTION Al hierarchical ethnic groups in Ghana, like in many other parts of Africa, had traditional rulers long before colonialism, and the British found it useful to suport this institution in order to use traditional chiefs as auxiliaries to the colonial rule. In spite of the anti-chieftaincy tendencies, chiefs remained popular and powerful, and recognized by previous and the present Constitution of Ghana , While a section of the Ghanaian public showed cynicism towards the eforts of governments since the Second Republic 1970 to give more powers to chiefs to arbitrate on disputes without involving them in active politics, others continued to regard it with respect and reverence. The 192 Constitution, in its efort to preserve the sacred authority of the institution, has provided for the establishment of judicial comites under the various Houses of Chiefs and Traditional Councils solely with the responsibility of determining any cause or mater afecting chieftaincy which was based on certain justifiable grounds. Whether the judicial comites of the Houses of Chiefs and Traditional Councils can be independent of executive and judicial powers of State in the performance of their judicial function? The primary aim of this paper is to criticaly examine the extent of powers granted the Judicial Comites of the House of Chiefs and their independence to arbitrate on disputes within the context of the 192 Constitution of Ghana and the Chieftaincy Act. In particular it states "Justice emanates from the people and shal be administered in the name of the Republic by the judiciary which shal be independent and subject only to this Constitution." The Court Act 193 Act 459 in fulfilment of Article 126 1 b "shal establish the lower courts and tribunals of Ghana as Parliament may by law establish." Notwithstanding this omnibus mandate given by the 192 Constitution to the judiciary�, the determination of Chieftaincy disputes are exclusively vested in the Judicial Comites of the National House of Chiefs, the Regional House of Chiefs, the Traditional Councils and apeal lies to the Supreme Court. In particular Article 273 of the 192 Constitution states: " 1 The National House of Chiefs shal have apelate jurisdiction in any case or mater afecting chieftaincy which has ben determined by the regional House of Chiefs in a region, from which apelate jurisdiction there shal be an apeal to the Supreme Court, with the leave of the National House of Chiefs, or the Supreme Court." " 2 The apelate jurisdiction of the National house of chiefs shal be exercised by a Judicial Comite of the National House of Chiefs consisting of five persons apointed by that House from among its members." " 6 An apeal shal lie as of right in respect of any cause or mater dealt with by a Judicial Comite of the National House of Chiefs under clause 5 of his article to the Supreme Court." "subject to the provisions of the Constitution, the Court of Apeal, the High Court, Regional Tribunal, a Circuit and Comunity Tribunal shal not have jurisdiction to entertain either at first instance or on apeal any cause or mater afecting chieftaincy". The foregoing analyses ilustrate that the powers vested in the Judicial Comites of Chiefs is not absolute but subject to procedural limitations and judicial review and there is also a right of apeal from decisions of the Comites. I HIERARCHY OF ADJUDICATION By hierarchy, the Supreme Court has the final apelate jurisdiction over al maters concerning chieftaincy dispute which are decided by the Judicial Comite of the National House of Chiefs. It was further held that the Supreme Court did not have concurent jurisdiction with the judicial comites of the Regional House of Chiefs in Chieftaincy maters rather it had apelate jurisdiction over decisions of the judicial comite of the National House of Chiefs on chieftaincy mater. However, the provision that gives original jurisdiction t�o the Judicial Comites of Chiefs does not preclude the Supreme Court from exercising the powers of review and exclusive jurisdiction with regard to the production of oficial documents as specified in articles 130, 131, 132, 13 1 and 135 o the Constitution respectively. The Judicial Comite of the National House of Chiefs is the next authoritative body vested with apelate jurisdiction on chieftaincy disputes. Acordingly, it was incumbent on a petitioner who was desirous of the National House of Chiefs to show, at least, in his petition that the Regional House of Chiefs which under normal circumstances should asume jurisdiction could not to do so due to one or more of the reasons spelt out in Article 273 5 of the Constitution, 192, i.e. or b Was not properly within the jurisdiction of a regional house of chiefs, or c Could not be dealt with by the regional house of chiefs." Next to the National House of Chiefs, is the Judicial Comite of the Regional House of Chiefs as provided for by Article 274 3 c and d of the Constitution 192. "A Regional House of Chiefs shal c hear and determine apeals from the traditional councils within the region in respect of the nomination, election, selection, instalation or disposition of a person as a chief. The judicial functions as stipulated in the Chieftaincy Act 1971 Act 370 Section 15 1 read as folows:- "Subject to the provisions of this Act and to any apeal therefrom, a Traditional Council shal have exclusive jurisdiction to hear and determine any cause or mater afecting chieftaincy which arises within its area, not being one to which the Asantehene or a Paramount Chief is a party". Obviously this provision authorizes the judicial comite of the Traditional Council to determine any dispute involving any chief below the status of a paramount chief, such as divisional chief. From the foregoing analysis and the decided cases sited it can be infered that, the work of the Judicial Comites of House of Chiefs and Traditional Councils does not and can not constitute a usurpati�on or duplication of the courts or any other institution. The constitutional guarante for judicial independent is, however, limited in its aplication to the judicial comites of the Houses of Chiefs and Traditional Councils. The Chieftaincy Act gave Paramount Chiefs the prerogative to apoint members of judicial comites for their traditional areas to try cases involving destolment of divisional or sub-Chiefs. For where a Paramount Chief does not favour the destolment of a particular Chief who may have showered favours on him or who is in his god boks, he wil go al out to stubornly kep him on the stol damn the weightines and strength of the destolment charges prefered against the chief in question and by that undermining their power and independence. Also in the apointment of judicial comites, which is the prerogative of the Chiefs themselves Council , the tendency of apointing only favourites is high especialy at the Traditional Council level. The position of the law as provided under the combined efect of Articles 273 4 and 274 6 of the 192 Constitution is that a member of a judicial comite of Traditional Council, Regional and National Houses of Chiefs may be removed from ofice on the ground of proven misbehaviour or infirmity of mind or body by the votes of not les than two thirds of al members of that particular House or Traditional Council. and any chief wishing to do so and seking election to Parliament shal abdicate his stol or skin." Notwithstanding the above provision and paragraph c of clause 3 of article 94 of the same Constitution, a Chief may be apointed to any public ofice for which he is otherwise qualified. C ONCLUSION AND RECOMENDATIONS In respect of the Chieftaincy Act, the judicial role of the Chiefs in the present democratic development is restricted only to the adjudication in the Traditional, Regional and National Houses of Chiefs on causes or maters afecting Chieftaincy, which expresion is defined in Section 6 of Act 370. The Constitution of the Republic of Ghana and the newly enacted Chi�eftaincy Act have placed more powers in the judicial comite of the House of Chiefs. inter ultra in Greenmead
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