Welcome to court rise with me, Martin Kpebu.
This is Episode 2.
And today, we’re going to deal with the matter of the participation of chiefs in partisan politics in Ghana. This is a matter that has raised a lot of debate, and in actual fact, it’s an unending debate. It’s been around for as far as this Constitution, 1992, has been in existence and operation.
The format for today’s episode is that we will discuss the Supreme Court decision- Elorm Kwame Gorni vs Attorney-General, and the constitutional provisions therein on chiefs not participating in active party politics. Then, the next part of this session would be asking practical questions, and also interweaving it with the jurisprudence in other countries.
We’ll look at the Zambian example of saying that chiefs should not participate in active politics at all. The provisions that appear to be more drastic than the Ghanaian one, but perhaps having the same effect. Alright, so now we may go into the case of Elorm Kwame Gorni vs Attorney-General.
Now, this is a case that was filed in the Supreme Court to essentially clarify among others, the meaning of active party politics as used in Article 276 of the Constitution, 1992.
It’s also the case that the plaintiff, Mr. Gorni wanted the Supreme Court to declare that certain statements made by some chiefs in the run up to the 2020 elections, constituted participation in active party politics. And the third one was that he wanted a declaration that an endorsement by a chief of any presidential or parliamentary candidate, prior to, during and after a presidential election, amounts to a breach of Article 276, clause 1 of the Constitution, 1992 of Ghana, and same amounts to an engagement in active party politics as purposed and intended under Article 276 of the Constitution, 1992.
So, these are basically the three things that we would say, are the three reliefs. So, when I say reliefs, it means when you go to court, what you ask from the court is called the relief, the word relief, R-E-L-I-E-F. So, these are the reliefs that Mr. Gorni sought.
Now, having filed that writ, the defendant, i.e., Attorney-General, had to also respond. So, in court, usually, when you start a case, you file your papers, and the other side responds. I’m talking specifically about these constitutional matters. There are other ones that differ. But I’m talking about the constitutional matters. And even the constitutional matters, I’m just talking about what is relevant for the purpose of this episode. So, I should not be taken as giving a lecture on constitutional litigation here. I’m just talking about the salient ones for this podcast.
So having filed the plaintiff’s case, the defendant has to respond. It’s worthy of note that Mr. Gorni also made the National House of Chiefs a party. So, the case was against the Attorney-General and the National House of Chiefs. But after a long while, the National House of Chiefs failed to respond.
So, in order to let the matter proceed, Mr. Gorni went back to court and removed the National House of Chiefs. So, that is how come the National House of Chiefs was no longer a party to the case. So, it’s only the Attorney-General.
Though every case is in the name of the Attorney-General, whether he himself writes the brief or not, we keep saying the Attorney-General, even though in this particular case, you will find that the lawyer who would participate or representing may not be the Attorney-General himself. So, in this particular case, it wasn’t the Attorney-General himself who made the arguments. There was a lawyer and we don’t need to mention his name for these purposes.
So, the Attorney-General’s arguments are basically, maybe five. They are all very interrelated.
Number one, the argument was that active party politics is very clear. So, there’s no need at all for the Supreme Court to go into this matter. Yeah, that’s the argument of the Attorney-General.
By saying it’s very clear that’s his reading of Article 276, clause 1, simply means that a chief is engaged in active party politics if he puts himself up for election. That is to say if he contests election as a candidate, either as a parliamentary candidate or a presidential candidate. So, for the Attorney-General, that was it.
And to be very clear, the Attorney-General further argued that when the chief endorses a candidate, it is harmless because a chief cannot ensure that his people vote for his candidate because there’s no way for him to enforce it. After all, each voter goes into the booth alone. So, for the Attorney-General, an endorsement is harmless.
Now, the Attorney-General also made the argument that curtailing chief’s participation in active party politics means that their rights to freedom of speech, freedom of thought and conscience are being curtailed. So, chiefs should be allowed to participate in active party politics. So essentially those are the arguments.
So, the court had to go into it to determine whether the case really merits the attention of the court. The court looked at it and said the word active party politics has not been defined. And it’s also the case that it’s not all the time that, or active party politics doesn’t mean just putting up yourself for election. That’s key. So, you see that just at that juncture, you see that the Attorney-General’s argument, main arguments beginning to fall apart.
The court made a determination in trying to see whether it should go into the case. It identified a gap in the Attorney-General’s definition of active party politics. And that gap is that the court saw that a person may engage in active party politics but may not put himself up as a candidate either presidential or parliamentary. And so, once there is that gap in what the Attorney-General connotes as the meaning of active party politics, then it tells you that yes, really this is a matter that the court should go into to give further clarity.
So, I already mentioned the three things that the plaintiff sought to get from the court, that’s a pronouncement that certain chiefs had endorsed certain candidates, specifically the NPP candidate president Akufo-Addo and the NDC’s candidate ex-president John Mahama. And that those conducts amounted to a breach of Article 276, clause 1. And thirdly, the plaintiff wanted an explanation, a definition of the term active party politics.
So, with this, the Supreme Court went into the matter. Now, there isn’t enough time for us to be able to go through the analysis bit by bit. We will just go in for the summary.
But it is worthy of note that in our history, that’s in our past, there were times that, in actual fact, chiegs participated actively in politics. It is also instructive to note that chiefs have always been political heads. So, there’s the Native Authority Act. There were chiefs who were in the legislature, etc. Yeah.
It’s very crucial to appreciate that chiefs played such a huge and central role in the local government system in Ghana. We had a Native Authority Act in which the chief provided lots of services. And apart from that, also chiefs could go to Parliament. So, in the legislature, they were there, right? And other instances.
Now, fast forward, it got to a point, the chiefs themselves realized that as a result of the division, etc. that participation in active party politics brought into their society or brought amongst their people, they didn’t want to participate again. So, the chiefs themselves wrote a memo to the government that they didn’t want to be involved in active party politics. So, from the association of chiefs, the colonial era 1951 thereabout.
So, you see this is part of our history, a situation in which chiefs were actively involved. Then they later came saying they wouldn’t participate again. There was one of the elections in the early 50s, in which three (3) chiefs stood as candidates and lost. Yes, three(3) very eminent chiefs stood as candidates and lost.
You may read to find out those chiefs. I don’t need to mention names here right now. Right? So, after all of these, they discovered that for the unity of Ghana among others, they didn’t want to participate in active party politics. So, they should be taken out.
So, fast forward the Supreme Court looked at all of that history and then arrived at the current dispensation, that’s the Constitution 1992. And in the Constitution 1992, there’s the provision of Article 276, clause 1, which says that chiefs should not participate in active party politics.
So now, before we deal with the decision of the Supreme Court, let’s read the provision. Article 276, clause 1 reads, “A chief, shall not take part in active party politics and any chief wishing to do so and seeking election in Parliament shall abdicate his stool or skin.
So, you see, reading the provision, the Supreme Court found that there are some key elements in it. You see, the ‘active party politics’, that’s the first part, and it goes on to say, ‘any chief wishing to do so’, that is to say, wishing to do active party politics has to resign.
So, a chief wishing to do active party politics, has to resign. So, the point is that you see that, after ‘active party politics’, the provision goes on to make the point that and ‘any chief wishing to do so’. So that tells you that ‘any chief wishing to do active party politic’s must resign and so, the point is that active party politics is not only about election.
So, you remember I mentioned earlier that the Attorney-General’s argument began to unravel, as soon as they said, for Attorney-General, ‘active party politics’ meant that the chief putting himself up for election as a presidential candidate or parliamentary one. Anything short of that was not active.
So, you see that the provision itself is very clear that ‘active party politics’ is not only about elections. That’s why the provision says ‘and any person wishing to do active party politics’. It’s separate from, and then continues by saying, ‘and any person seeking election’. So, seeking election is just a subset of active party politics. That is very key.
So, with this analysis, the Supreme Court came to the conclusion that a chief may be caught in active party politics without putting himself up for election.
So the next part, is that having so determined, then the Supreme Court looked at the matter of ‘endorsement’. At the end of all the analysis, the Supreme Court came to a decision that a chief shall not endorse any particular candidate, be it presidential or parliamentary. No endorsement. However, it is within the right of a chief to praise or criticise government programmess and projects. Let’s get the distinction.
Don’t endorse any particular person, but you may praise or criticize government projects. Yes, and to a large extent, it’s good that chiefs can praise or criticize government projects. But then, you may find that in implementing the decision, it appears there will be a leeway for chiefs to participate in active party politics, despite the Supreme Court decision. That is, in the attempt by a chief to praise government policies, it may well be a form of endorsement.
So, let’s take a practical example. The chief who says, let’s say, a presidential candidate goes to the territory of a chief and then, at the durbar the chief informs the citizens:
“Oh, this particular candidate, his government built this road. This is quite a game changer. This road that they built in this community, joining this community to the next one or making for easy transportation, etc. has changed our lives. This is a game changer. This is a generational project. It will bring us dividends, generations upon generations. And that is something that we will forever be grateful for. Blah, blah, blah.”
Now, you can imagine the power of words. Once the chief uses so many adjectives and extols the virtues of the programme. What will that do? It is possible that it will send a signaling effect to some of the people that Nana likes this candidate. And so, the citizens may be willing or the people may be toeing Nana’s line or they will be reading, or interpreting Nana’s words to be that he supports that candidate.
Well, it doesn’t appear there is much that we can do about it because when it comes to words, it doesn’t look like the Supreme Court can cut down, can restrict, can determine or regulate the kind of words that can be used. But I’m making the point that depending on how the chief speaks, it may be more than an expressed endorsement. That is the point. So, it’s all about language.
Now, let’s look at another chief who says, or the same chief, criticizes a certain government project. for being riddled with corruption:
“This project you put up, cost 1 million Ghana Cedis. If you never understood that this project should cost 1 million Ghana Cedis, it could have been done with 200,000 Ghana Cedis. These are some of the projects that have retarded this country’s growth. One project swallowing up about five other projects and so on and on.
So, that’s a criticism. The chief is allowed to criticize.
Now, depending on the words that are used, do you see that some of the people may take it that Nana is not happy with that particular candidate’s government or that particular candidate. That’s if they are between the two dominant political parties. So, in that context, maybe that Nana doesn’t like them. And so on and so forth.
Take another example. These ones don’t fit into the first category. When the chief comments about a national project or national governance, depending on how it is done, it will be louded as being very patriotic. So, last year, 2023, Otumfuo Osei Tutu II is reported to have stated on Monday, 20th March, 2023, Daily Graphic page 16, the caption is, ‘Demonstrate transparency on economy- Asantehene to government’. When you go on, you find in the story, he talks about the debt exchange.
He talks about fiscal discipline. We need to do fiscal discipline and complaints that there is no transparency. And you know, these are matters that resonate with us as citizens. So, when you read this story, then you are happy that yes, Asantehene has put his foot down and he’s commenting. So, you think that yes, that’s a strong message to government. I hope it’s not ‘motivated-bias’ on my part. ‘Motivated bias’ is where a person develops and holds opinions that advance his own desires.
We need Ghana to get better. So, you find this one, we don’t immediately read politics into it, because it’s a comment on the whole of the government system.
You look at another one. Recently, Okyehene has decried the corruption in Ghana. Yes, he has said that corruption is such a big problem and so, the government should sit up. You see that yes, he is also talking about government programmes not being up to scratch, not being able to fight corruption. So, you see that this one is a broad spectrum. So, you may not specifically read into it that he doesn’t like this particular government or that one.
So, the point is that you may find other comments that may not amount to an endorsement even though they are criticisms or praises. So, that is the law that we have. You may multiply the examples or you look at another one. Though this one is not a chief, but I’m throwing it in to also show that sometimes when you have senior public servants make certain comments, they resonate with citizens and may not be read as politics. So, you look at this one.
Thursday, September 28, 2023. ‘CJ Advocates financial independence of the judiciary’. This was at the annual Bar Conference and you find that this is a Chief Justice asking for independence. This is something of the judiciary. This is something we’ve been fighting for to make the justice system more independent of government, etc. So, you see that this resonates well with us. As I said, this not a pure chieftaincy matter, but I’m throwing it in to just show how certain comments may resonate with the people.
So, having stated this, you would find that the Supreme Court may have given a decision, but when it comes to their implementation, because of the power of language, depending on the status of the person speaking, he may speak and not mention names, but that message he sends across maybe more powerful than an endorsement. An express endorsement I mean. Yes, maybe more powerful than saying, “oh, my people, I want you to vote for Mr. A or Mr. B.” No, depending on how Nana speaks.
One other very good example is one in which a certain presidential candidate went to a certain area to campaign. Then the chief got up and said:
“Oh, Mr. X, I’ve known Mr. X for such a long-time, decades. And in actual fact, Mr. X was even my lawyer. He was my personal lawyer.”
When the chief says this, does he need to say vote for him, depending on how it is said? If Nana says, “I’ve known Mr. X for decades, and he was even my personal lawyer.” I certainly see that in certain context, this is heavier, and this is more resounding than an express endorsement of vote for Mr. X. If a chief were to just say vote for Mr. X without using reasons, I don’t think it will make as much impact as when he himself has testified to the virtues of Mr. X for decades, but doesn’t go on to say that so, I entreat you to vote for Mr. X.
So, at this juncture, it’s instructive for us to look at the reasons for the Supreme Court decision. That is to say why ban a chief from active party politics, but also in the same breath, say that a chief may praise a government project or criticize it, but may not endorse a candidate personally. So, the Supreme Court having reviewed all the literature, accepted the time-honored argument that a chief embodies the soul of the people, the chief is a unifier, the chief leads his people in development, etc.
Yes, so this is what the Supreme Court said:
“We are led to this conclusion by the belief that such an interpretation best vindicates the principles and policy rational or intent behind Article 276(1), which is that chiefs must not take sides or be seen to have taken sides in a partisan political context, as to do so, risks creating or exacerbating social divisions to the detriment of their communities and damaging the prestige, honor and reverence of the stools or skin and the chief’s office.”
So that’s the first point.
And then the Supreme Court goes on to make the second point that:
“We acknowledge that the interpretation of Article 276(1), we endorse here, constitutes a restriction of the fundamental right of chiefs to freedom of speech and expression, as well as freedom of thought and belief. However, we believe that Article 276 (1), which is of equal constitutional statues, is a narrowly tailored and reasonable restriction on the rights of chiefs and is in light of the history and the importance of the concerns as state, justifiable in the public interest. In this, we are again in accord with Nana SKB Asante who has also expressed the opinion that to the extent that this prohibition constitutes a restriction on the fundamental rights of chiefs, such restriction is justifiable in the public interest.”
So, you get to a point, then the Supreme Court goes on to make the point that chiefs are not the only ones whose rights have been restricted. That’s to say the right to freedom of speech, etc. The Supreme Court makes the point that CHRAJ, the Electoral Commission. the Chairperson of the NCCE, the Judges, etc. They also have their rights more or less restricted because they can’t take part in active party politics. So, it’s a restriction that is reasonable in our Constitution 1992.
Now, having so decided, some people have raised concerns that what is the remedy when the chief falls foul of this constitutional provision- article 276, clause 1? Why hasn’t the Supreme Court provided a remedy? Maybe the chief be de-stooled etc? Well, there’s jurisprudence a bit to it, and then one of the Tigereye PI cases, resulting from the Anas documentary. The Supreme Court has made a point that perhaps we may have to look at that, that may be the subject for constitutional amendment in future. If you want to use this as grounds to de-stool a chief, it has to be expressly provided for by law.Otherwise, you can’t just say that based on this Supreme Court decision, if a chief is engaged in party politics based on the Supreme Court decision alone, you are having him destooled. So, we may look at that in future.
And it’s also important to make the point too that the Supreme Court also considered the other examples of active party politics. So, for example, the chief appears in a political party rally and speaking. Obviously speaking at a rally to support a candidate. Obviously, that is active party politics. So, the Supreme Court looked at that. Actually, those were definitions given in the Constituent Assembly. Yes, that participation in a rally, wearing party jerseys and using other party paraphernalia, etc are not allowed. Making a contribution to other party and all that, Supreme Court looked at that. So those are clear examples. Those don’t provide a challenge at all.
The Constitution Review Commission made a comparison with the Zambian Constitution. In Zambia there’s a complete ban on chiefs participating in politics. This is the comment of the Commission at page 534. It says:
“The Zambian Constitution bans chiefs completely from politics and provides that a person shall not while remaining a chief join or participate in partisan politics. The Commission observes that there is no mention of active politics in this provision. And more so, participation in party politics is not defined in that Constitution. That notwithstanding, the provision may have the same effect as pertains in Ghana.”
So that’s just to give comparative jurisprudence, what pertains in Zambia. It’s also worthy of note that the Commission found that in South Africa there’s no such provision. So, let’s read the comment.
It says: “the South African Constitution is silent on whether a traditional ruler may or may not take part in active party politics.”
Then let’s go to Uganda. It says “[I]n Uganda, the Ugandan Constitution of 1995 provides that a person shall not, while remaining a chief, join or participate in partisan politics. That Constitution also does not define partisan politics.”
Then what is the example in Botswana? On Botswana, this is what the Commission says. “The Botswana Constitution of 1966 reserves the position of specially elected member of the National House of Chiefs to persons who have not within the preceding five years actively engaged in politics.” The Botswana Constitution does not explain what constitutes being actively engaged in politics in the section referred to. At least we’ve had some comparative jurisprudence where we’ve seen that in Uganda, Zambia and Botswana, you see that there are attempts to, in similar fashion, keep chiefs away from active party politics.
There is a South African one that is silent on its own. Find out the practical jurisprudence in another episode subsequent to this one.
So, having made all these excurses with this exposition, it is clear that we will certainly need more interpretation, and more decisions on this matter to be able to chart a clearer path on governance system, because much as we recognize that chiefs are such a critical component of our governance, we are also anxious to ensure that chiefs do not participate in active party politics in such a manner as to ruin the institution of chieftaincy as even recognized by the Supreme Court.
And let’s quickly remind ourselves that the Supreme Court had to look at the writings of so many eminent jurists, eminent writers on the institution of chieftaincy including Rathbone and other professors who have studied this institution and have seen that the role that chieftaincy plays, especially in unifying the people and organizing people for development etc is such a critical component of our governance system that it should be guarded jealously. So, every attempt should be made to make sure that the institution works in a way to better our governance but not to sow seeds of discord, calamity, etc. among the citizens.
Look forward to more episodes soon and thank you very much for your attention, for God and country.