A legal practitioner and law lecturer, Justice Srem-Sai, has voiced concerns over the vice president’s promise to amend the Chieftaincy Act, particularly section 63(d), which pertains to the power of traditional rulers to summon individuals to their palaces.
The Vice President, Dr Mahamudu Bawumia during a campaign event, announced intentions to restore this power to chieftains, a move that Mr Srem-Sai has labelled as “inherently disturbing.”
In a detailed post on X, he outlined the constitutional implications of such an amendment.
Mr. Srem-Sai explained that any law deemed unconstitutional by the Supreme Court is rendered null and void, effectively erased from existence.
He emphasised that ordinary legislation cannot revive such a law; only a constitutional amendment or a complete overhaul of the constitution could.
He referred to a historical ruling from July 2011, where the Supreme Court declared section 63(d) of the Chieftaincy Act unconstitutional. This section previously penalised individuals who ignored a chief’s summons with imprisonment. The court’s decision was based on the principle that chieftaincy must align with the constitutional standards of contemporary governance.
Given this precedent, Mr. Srem-Sai argues that it is not feasible to amend section 63(d) or to introduce new legislation that would criminalise the refusal to heed a chief’s summons without first amending the constitution itself.
“A thing is unconstitutional if it offends a principle in the Constitution. So, when the Supreme Court declares something unconstitutional, the thing becomes void, meaning that the thing ceases to exist – as if it never existed in the first place. That’s the first point.
The second point: when a thing is declared unconstitutional, not even Parliament could, through ordinary legislation, bring such a thing back to life. This is because Parliament, too, is under the Constitution. The way to bring such a thing back to life is to amend the Constitution itself or overthrow it.
Now to Section 63(d) of the Chieftaincy Act: the Supreme Court declared the Section unconstitutional way back in July 2011. The Section sent you to jail if you refused to attend a chief’s summons. Interestingly, it was a former paramount chief who saw the evil in the Section and petitioned the Supreme Court to declare it unconstitutional.
In declaring it unconstitutional, the Supreme Court explained that “chieftaincy is … a part of the contemporary constitutional regime and its incidents must measure up to the standards set in the Constitution.” This means that Section 63(d) does not measure up to the constitutional standards.
This also means that it is not possible to amend Section 63(d) or make another legislation to re-criminalise the refusal to attend a chief’s summons. So, I think, Dr Bawumia’s proposal is, to the extent that it does not call for an amendment of the Constitution, legally disturbed. Inherently.
Granted, however – why would any leader in today’s Ghana and in the teeth of all the grave problems that confront us as a nation, be interested in amending the Constitution or making a law just to make it a crime when a person refuses to attend a summons from any of the over 1000 chiefs in the country?
