Deladem Ohenewaa Mensah, PhD candidate https://www.ntu.ac.uk/about-us/news/news-articles/2023/10/5-minutes-for-black-history-month-with...deladem-ohenewaa-mensah
Photo credit to Akwamumanhene
Before European colonisation, Ghana's pre-colonial criminal justice system drew on traditional customs, community values, and traditional legal practices, much like other African societies. It was less formalised and deeply integrated into the social and cultural fabric of various ethnic groups. Each group had its own methods of upholding law and order. This discussion will provide brief insights into some unique qualities of the criminal justice system, its key priorities and core values, and outline some of the challenges that made it less effective and sometimes abusive.
The legal frameworks of the pre-colonial criminal justice system had uncodified laws generated through oral traditions and customary practices passed down through generations, intending to maintain stability and peace in the community. The focus on restoring harmony within the community rather than isolating or punishing the offender was evident in how crimes and disputes were dealt with.
Traditional authorities such as chiefs, elders, and family heads played a central role in the administration of justice. These leaders were seen as the custodians of the law, tasked with interpreting and enforcing community norms. Criminal justice prioritised reconciliation, restitution, and community involvement in resolving disputes. The justice system aimed to mend relationships using informal processes, focusing on addressing the harm caused by offences and seeking justice through consensus-building rather than through punitive measures. It also emphasised the restoration of between conflicting parties using a hierarchical customary court system.
The customary courts were specifically organised to align with these objectives, operating on the cardinal principles of restoration, accountability, and reconciliation. The courts were presided by the chiefs and their elders and chiefs court and by the family or clan leaders at the family unit levels. At the top of the judicial structure was the chief, who with his elders formed the highest court of justice in the community. They handled cases involving land, theft, marriage, and murder, among others, with the overarching aim that the elders give a balanced perspective in each case. The chief's court was held in public spaces, promoting transparency and accountability. With the chief and elders' deep knowledge of customs and traditional practices, they ensured that justice was delivered fairly and consistently.
Restoration focused on allowing both victims and the offenders to actively participate in defining what the dispute was, the resolution, and what the victim would deem restorative enough for their loss. This was achieved by the courts hearing from both the victim and offender as well as witnesses as to how the offence happened and the steps that had been taken to resolve it. Accountability allowed the customary courts to hold the offender accountable as well as the victim if they played a role in the process that led to the offence. While this system ensured both parties an opportunity to air their side of the grievance, it also meant the victims could sometimes be re-victimised and blamed for the harm they have suffered. However, this gave the victims the opportunity to describe the injustice they had suffered in front of the entire community and the held the offender accountable to both the victim and the community. The customary courts ensured the reconciliation of the litigating parties, their families, and the community at large. The reconciliation was achieved using various techniques including handshakes, hugs, eating from the same pot, drumming and dancing at the village square or at the chief’s palace after the dispute had been settled, and punishment and compensation agreed on.
Before a case got to the chief’s courts, it had to go through the necessary hierarchy or resolution steps which began with the nuclear families of the disputing parties attempting to resolve the issues. If this failed, the case would be passed to the extended families where the family heads, known as ‘Abusuapanyin’ (Akan), would try to resolve the matter. If this too failed, then the matter would be taken to the head of the clan and then to the customary court. In some cases, the traditional priest would be called in to determine the facts, particularly in cases where facts were disputed or where the offender denied the allegations against him or her.
Challenges under the Ghanian pre-colonial criminal justice system
Whilst Ghana’s pre-colonial criminal justice system provided valuable community-oriented approaches and restorative practices, it had some challenges, including a lack of uniformity; the potential for abuse of power and bias; gender inequality; harsh punishments; and limitations in legal rights and representation.
One of the prime challenges was the lack of uniformity across different regions and ethnic groups. Each community and ethnic group had its own set of customary laws, which were passed down orally through generations and over a significant period of time.
Existing differences in customary laws were further exaggerated by the fact that laws were not written, allowing them to change over time. As a result, customary laws could vary significantly from one ethinic group to another, leading to inconsistencies in the way that justice was administered.
The lack of uniformity allowed for individuals from different communities and ethnic groups to be punished differently for similar offences. The result was that the Ghanian justice system was fragmented and localised to the various ethnic divides and communities.
The chiefs, elders, and other traditional authorities possessed a great deal of power within their communities because they were responsible for administering justice. The concentration of power in the hands of this small unit of men within the community presented a potential for prejudice, bias, and abuse. Although it was expected that these revered and trusted leaders would work in the best interest of the community, they were susceptible to being corrupted by the rich, influential, and powerful members of the community. For instance, if a rich person had a land dispute with a poorer member of the community, there was a possibility that the influence of the rich person would mean that the poorer disputing party would lose their rights even in the event that they had the stronger argument. In addition, a community system of justice meant that decisions could be influenced by the personal relationships the leaders had with a disputing party, their social status, or the interests of the ruling elite in the community. This meant that judgment could be partial and potentially biased towards the favourites of the leader who presided over the case. The favouritism, prejudice, and bias could undermine the fairness of the legal process and judgment could be unfairly delivered against individuals who were not in the close-knit network of the leaders.
As reflected within the largely patriarchal legal framework that existed in pre-colonial Ghanaian societies, how the presiding elders in most of the ethnic groups dealt with the differences in gender posed a challenge. Women especially, faced pervasive inequalities, were hardly accorded any essential legal rights and were subjected to the authority of their male relatives or husbands. Most of the customary laws in the various ethnic groups favoured men concerning inheritance, property rights, and family disputes. Women were sometimes re-victimised when they attempted to use the legal system to address the abuse they had suffered. They could be accused of witchcraft, seduction, negligence and being complicit in the harm they had suffered. In the event that a woman attempted to access justice, particularly in cases of domestic violence, divorce, or inheritance, they would likely face significant struggles against the patriarchal norms. Normally, the legal system reinforced the male domination structure, and there was little room for women to protest against unfair treatment with the law on their side.
Punishments under the pre-colonial legal system included fines, communal labour, ritual cleansing, shame-walking through the streets, and, in some extreme cases, banishment from the community. Punishments could be severe, especially for repeat offenders and for crimes such as rape, murder, and treason. Such cases could attract severe and, in some cases, brutal penalties such as corporal punishment, banishment, or even execution. The harsh punishments were meant to serve as deterrents and maintain social order, however, they could be disproportionate to the crime committed and could be based on bias and unfair rulings. The use of these particularly harsh punishments could result in a disproportionate justice system which lacked appropriate humanity. These punishments sometimes had counter effects on the communities and created divisions and rivalries that broke down the unity and harmony in some groups.
As far as legal representation under the pre-colonial legal system was concerned, there was no idea of legal rights as is understood in the modern world. There were fewer protections against the arbitrary actions of the authorities and no formal systems of legal representation or appeal. Justice was often summary in nature, with decisions quickly reached by traditional leaders, which could not be challenged. That is to say, the lack of formal legal rights and representation, meant that individuals had very little redress if they felt wronged by the legal process. These points make it hard to prevent or rectify miscarriages of justice due to the absence of checks and balances. As a last resort, an aggrieved party could invoke the gods for defence and invite the deities and ancestors to prove their innocence through spiritual interventions, but if this did not succeed then they would be without remedy’. In the worst cases, an aggrieved party could invoke the gods for defence and invite the deities and ancestors to prove their innocence through spiritual interventions
Pre-colonial Ghana's legal framework effectively maintained social order, reflecting communal values, but faced challenges like lack of uniformity, power abuse, gender inequality, harsh punishments, and limitations in legal rights, emphasising the need for modern adaptation that takes into account the various ethnic values and collective aspirations of the people of Ghana.
Further reading
Akyeampong, E.K., 2001. Between the sea and the lagoon: an eco-social history of the Anlo of Southeastern Ghana, c.1850 to recent times. 1st ed. Athens Ohio: Oxford University Press.
Dzivenu Setri, 2008. The politics of inclusion and exclusion of traditional authorities in Africa: chiefs and justice administration in Botswana and Ghana. Political Perspectives, 2 (1), 1–30.
Gadzekpo, S.K., 1999. History of Ghana since pre-history. Reprinted ed. Accra: Royal Gold Publ.
Gyekye, K., 1997. Tradition and Modernity. 1st ed. United Kingdom: Oxford University Press.
Konadu, Kwasi, and Clifford C. Campbell (eds). 2016 The Ghana Reader: History, Culture, Politics. Duke University Press JSTOR,
McCaskie, T. C.,2000. State and Society in Precolonial Asante, Cambridge University Press.
Nugent, P., 2001. BREAKING WITH ‘TRADITION’ Nkrumah and the Chiefs: The Politics of Chieftaincy in Ghana, 1951–60. By Richard Rathbone. Oxford: James Currey; Accra: F. Reimer; Athens, OH: Ohio University Press.
Nukunya, G.K., 2003. Tradition and change in Ghana: an introduction to sociology. 2nd ed. Accra: Ghana University Press.
Raymond Atuguba, 2022. Customary Law Revivalism: Seven Phases in the Evolution of Customary Law in Sub-Saharan Africa Journal of International Law & Legal Pluralism
Sklar R, 2005. The premise of mixed government in African political studies. In: Indigenous Political Structures and Governance in Africa, University of Ibadan Nigeria, July 2001. Eritrea: African World Press, pp. 3–25.
Weldesellasie, Kebreab Isaac., 2017. The Development of Criminal Law and Criminal Justice in Africa from Pre-Colonial Rule to the Present Day. In Charles Chernor Jalloh, and Ilias Bantekas (eds), The International Criminal Court and Africa Oxford, 2017; online edn, Oxford Academic
Wilks, Ivor, 1993. Forests of Gold: Essays on the Akan and the Kingdom of Asante," Ohio University Press.
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