WE MUST REVISIT ASPECTS OF OUR TRADITIONAL CONFLICT RESOLUTION MECHANISMS
The Ghanaian Times Tuesday August 24, 2010
By Cameron Duodu
Disputes between the executive and the judiciary are nothing new. But they should be mediated within the confines of orderly, rational discourse, and not be allowed to descend into emotional name-calling, threats, or ignorant boasts meant to “show where power lies.”
When the Chairman of the NDC boasted that his party would deal with the judiciary, because a judge had given a judgement with which he disagreed, had he read the parts of the Constitution that relate to the appointment and removal of judges?
Does the NDC command the sort of majority in Parliament that could empower it to remove a judge?
When NDC followers poured abuse on their own Attorney-General, because she had lost a case, did they really understand what the Attorney-General’s position is, within the Government?
The Attorney-General presides over a department which assists her to advise the Cabinet on legal matters — advice that might be accepted or rejected. That same department is charged with taking cases to court. When it does so, it always knows that it might win or lose. That is because the law is a matter of interpretation, and people can naturally interpret words — which in reality, what laws are – differently.
In a court, it is assumed the interpretation is done without malice or bias, and lawyers, who can themselves become judges, must be extremely sure of that they’ve got watertight evidence, if they accuse judges of malice or bias.
Indeed, Mrs Betty Mould-Iddrisu is being accused by NDC members in precisely the same manner that Nana Akufo Addo was pilloried by NPP supporters, when he was Attorney-General. But when he was transferred to the Foreign Office, did the NPP stop losing cases? Even if the losses stopped, it was probably because lessons had been learnt about what to take to court, and how.
In my day, I have seen other Attorney-Generals suffer at the hands of their own supporters. Bashir Kwaw Swanzy, Kwame Nkrumah’s brilliant Cambridge-educated AG, was harried after he had lost the treason case against Tawia Adamafio and others in 1963.
So legislation was passed in Parliament, empowering the President to set aside a judgement of the superior court of judicature!
This was so unusual that C L R James, a school-mate of George Padmore’s and a fervent Nkrumah supporter, was scandalised and broke off relations with Nkrumah after Nkrumah had done it. Of course, Kwaw Swanzy’s name will always be associated with Dr Nkrumah’s dismissal of the highest judges of the land.
I also remember how Mr N Y B Adade, Attorney-General for the Progress Party Government, was vilified a great deal by his own side during the emotive litigations in 1970 over the Apollo 568 dismissals. He was largely blamed for Prime Minister Busia’s “No Court” speech, in which Busia claimed that “No court” could force his Government to employ people it did not want to employ in the public services.
A can of worms was opened by that case when, perhaps out of frustration, Mr Adade accused the Acting Chief Justice, Mr Justice Azu Crabbe, of showing bias on behalf of one of the litigants because Crabbe was somehow related to the litigant. Azu Crabbe, in turn, told me in an interview, as editor of the Daily Graphic that Mr Adade was also related to someone concerned in the case. My report of the interview did not hide my exasperation at the way lawyers sometimes behaved towards each other.
What all this shows is that it is pointless to set the judiciary against the executive because of court decisions. The Attorney-General’s department is composed of lawyers. The judiciary, too, is composed of lawyers. Why can’t they conduct cases in the manner lawyers agreed upon, among themselves, for generations? Didn’t they all study for and pass the same professional examinations?
The country at large has agreed to live under a system called the rule of law. The supreme law is the Constitution. And the Constitution delineates the powers and functions of both executive and the judiciary in quite a precise manner. No-one can change that delineation without a referendum.
And I don’t think the NDC, which came to power with a wafer-thin majority, is about to call a referendum to redefine the functions of the judiciary vis-à-vis the executive, is it?
So it is up to all of us, led by our lawyers (both on the bench and at the bar) to learn to live within the confines of our own Constitution.
When I see how emotional people get over court cases, I have to restrain myself from laughing. For we have deliberately thrown out all our own traditional conflict resolution processes, and adopted, instead, both the party-political system of government, which is adversarial, and a judicial system, which is also adversarial.
In an adversarial system, someone always wins and someone else always loses. You go to court hoping your opponent will lose. And if he does lose, you are happy. But if, on the contrary, you happen to be the loser, then you get mad. Is that a fair, or sensible state of affairs?
Maybe to stop being so frustrated, we should revisit some the principles that underlay our traditional system of justice. I don’t mean the system — which has gone beyond its sell-by date — but the ideas that lay behind the system.
I remember that in our town, when the Queen Mother sat down to settle cases brought before her, she would be surrounded by all the elders of the town. Each elder represented a street in the town, so no-one could come to court without having someone amongst the elders who had his or her interests at heart.
The complainant would then be called to state his or her case. This was done by the complainant in person — not through an impersonal presentation by someone else, that is, a lawyer. So the elders could watch the person‘s demeanour all the time.
If he or she stumbled over an aspect of the case, the elders made a mental note of it. If he or she got emotional or even broke down, in the course of the presentation, they would comfort him or her with soothing words, usually a proverb full of meaning.
They would then ask the complainant whether he or she had any witnesses to support hid/her case. And they would ask the witness questions. Most of the questions would be meant to tease out the real truth and expose any untruths contained in the well-rehearsed presentation earlier placed before them by the complainant.
Then, they would go through the whole process again with the person complained against. They would then retire to a secluded place in the palace to “consult the old woman”. This was a mythical old woman who had lived so long that she could not be shown top the public, and who knew everything that there was to know about life. No member of the public ever got to know what was sad during the consultation.
After they had consulted to their fill and reached agreement, they would come back with a verdict. This was usually so sagacious that it was almost always accepted by both parties. The parties would accept it because the experience of standing before elders they respected, and being allowed to tell everything like it was, would have had a therapeutic effect on them and relieved much of the pain that made go to court in the first place.
Interestingly, the party found “guilty” was not punished, as such, but asked to pay something to “conciliate” the person wronged. This “conciliation”, known as mpata, was not the same as a “compensation” or a “fine”. It was much more subtle than that — it was meant to address the litigants’ emotional needs by actually making them feel reconciled one to the other. Sometimes, after the mpata had been accepted, the litigants would be made to embrace each other, to cheering by members of the public.
Indeed, when the mpata was proposed, whoever was to receive it (the mpata) was deliberately asked whether he or she would accept it. Once it was accepted, the two people were meant to live together, henceforth, in harmony in the same village.
The litigant could refuse the mpata and appeal to the Chief of the town. But that would almost always be a pointless effort, inasmuch as the Queen Mother and her most important elders would also sit in with the Chief, and unless a really strong new case was presented, the same verdict would prevail as in the Queen Mother’s court.
The emphasis on conciliation was purposely meant to ensure that should there be an emergency in the town — such as a war — the level of co-operation expected from the populace to enable them to ward off the external danger, would not be jeopardised by the ill-feeling between members of the group about to be attacked. Our history is full of mighty states weakened by unsettled disputes: the Ashanti empire weakened considerably after the Dwaben people had deserted it and founded New Juaben (Koforidua) further south. A dispute with Bekwai also weakened the Ashanti campaign against the British during the Yaa Asantewaa war. So if you do not know history, you might think that there are too many “disputes” amongst us that waste a lot of time. The objective is to ensure that true harmony exists amongst our people. Of course, that desire for harmony can be abused by a selfish
Desire to grab other people’s property or steal stools from their true owners.
Of course, magistrates’ courts and superior courts of judicature were brought in by the British, either to totally negate our traditional system, or to lessen their importance. So now we have this adversarial system of “you win, I lose; you lose, I win.”
Almost no attempt is made at reconciliation under our current system, although mediation processes are possible within it. Anyway, by the time a loser has paid the winner’s “costs”, in addition ton his/her own counsel’s fees, his or her anger would have doubly heightened and reconciliation would be virtually impossible.
So we now live in a continually adversarial mode: we fight each other at elections; we fight each other over legislation in Parliament; and we fight each other over legal and constitutional issues in the courts.
Can our frail society, in which so many people go to bed hungry every day; sick people are unable to receive adequate medical treatment; people whose homes are destroyed by floods receive very little assistance; while stupid “people of influence” do not scruple to flaunt their conspicuous wealth before all and sundry, endure so much adversarial squabbling and survive?
I remember the shock with which I saw the pictures of Elizabeth Ohene’s brother, who had been brutally assaulted at a polling station in the Volta Region, during the election in 2008. And only last Sunday, a young friend of mine recalled the fear that engulfed him in Accra, as he ran away from his office, in the last hours before the 2008 election result was declared, on hearing that office after office after office was closing for the day? This was after some irresponsible FM stations had carried some false reports that incited people to converge on the Electoral Commission offices, armed with cutlasses and cudgels.
We are definitely sitting on a time-bomb, with the fuse in the hands of FM stations, some of which are only interested in engendering controversy, so that advertisers would consider them as popular stations whose services would yield dividends if utilised. If we don’t find ingenious ways to defuse the situation and continue to prime the time-bomb with unnecessary rantings about legal matters which only few of us really understand, it will explode beneath us.
The Kenyans sat down unaware of where their society was at, until their time-bomb exploded, even though they knew of what had happened in Rwanda. In both countries, loud-mouthed semi-literates were left unchecked to stoke the fires of national doom.
In Ghana, our history is full of useful lessons. Let us then revisit that history — to learn useful lessons from it. Otherwise we shall condemn ourselves to relive the worst parts of that history.