Published online by Cambridge University Press: 22 January 2009
As a result of the policy of indirect rule which British administrators introduced into the Colony of the Gold Coast at the turn of the twentieth century, customary courts, or what were called Native Tribunals, became important venues of adjudication for the indigenous population. As a result, however, of the powerful impact of British justice on the Colony, the judicial responsibilities, procedure, personnel and the nature of the customary law that these courts applied underwent profound changes. It was an excellent example of how important was the cultural interchange between European and African ideas during the colonial period, which, however, both academic lawyers and historians have neglected. The former have preferred to focus on the superior courts as venues of juridical interaction while the latter have focused far more on ‘what was said about change than what was said about order’. By looking, however, at this example of cultural interaction on a fundamentally popular level, we can see that this ‘transforming moment’ in the colonial situation can be seen neither as something ‘imposed’ on African society by colonial administrators nor as simply generating new mechanisms for privileged groups to take advantage of. The Native Tribunals never fully came up to what British administrators or African lawyers considered the highest standards of British rule of law. Nevertheless, their most important function was to popularize recourse to judicial institutions which increasingly adopted more and more of the features of the British legal system.
2 Chanock, Martin, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge, 1985), 4.Google Scholar
3 Ibid. 3. Instead, their focus has been much more in seeking to codify what S. K. B. Asante has referred to as ‘pure native law’: Asante, S. K. B., ‘Interests in land in the Customary Law of Ghana: a new appraisal’, The Yale Law Review, LXXIV (1965), 864–5.Google Scholar Examples of such works are: Danquah, J. B., Akan Laws and Customs and the Akim Abuakwa Constitution (London, 1928)Google Scholar; Ollennu, N. A., Principles of Customary Land Tenure in Ghana (London, 1962)Google Scholar, and The Law of Testate and Intestate Succession in Ghana (London, 1966)Google Scholar; Bentsi-Enchill, K., Ghana Land Law: An Exposition, Analysis and Critique (London, 1964)Google Scholar; Kludze, A. K. P., Ghana I: Ewe Law of Property (London, 1973).Google Scholar and Modern Law of Succession in Ghana (Dordrecht and Rhode Island, 1988)Google Scholar; and Asante, S. K. B., Property and Law and Social Goals in Ghana 1844–1966 (Accra, 1975).Google Scholar
5 For example Edsman, Born, Lawyers in Gold Coast Politics c. 1900–1940: From Mensah Sarbah to J. B. Danquah (Uppsala, 1979).Google Scholar
7 This Bond was an agreement which Lieutenant Governor Hill signed with eight Fante chiefs in Cape Coast in 1844. For the text of this document see Crooks, J. J. (ed.), Records Relating to the Gold Coast Settlements from 1750–1874 (London, 1973, first published 1923), 296.Google Scholar
8 Kimble, D., A Political History of Ghana: The Rise of Gold Coast Nationalism 1850–1928 (Oxford, 1963), 304.Google Scholar
9 For a more complete definition of this terminology see Crowder, Michael, West Africa under Colonial Rule (London, 1968), 217–219.Google Scholar For the most complete description of these phases in the Colony of the Gold Coast see Stone, R. L., ‘Colonial administration in South Central Ghana, 1919–1951’ (Ph.D. thesis, Cambridge University, 1975), 61–102.Google Scholar
10 This was how Governor Slater in 1931 described the way he felt this policy should develop: Native Administration in the Gold Coast and its Dependencies (Accra, 1931), 3.Google Scholar
11 The matter had to be important for the litigants to get permission to appeal in this fashion. Usually cases that went through these various stages were important land cases.
12 Mensah-Brown, A. Kodwo, ‘The traditional courts and their successors in Ghana's legal history 1800–1914’ (Ph.D. thesis, London University 1970), 480.Google Scholar
13 The study's chronological end is basically the 1910 Native Jurisdiction Amendment Bill.
14 The most important towns within this area were Cape Coast and Accra. As the source material for this article indicates, they possess the best judicial records, and as a result this study tends to focus most on them.
16 Cruickshank, B., Eighteen Years on the Gold Coast (2 vols.) (New York, 1966: first published 1853), i., 270.Google Scholar This included property in people.
17 King Aggrey to Governor Pine, 16 Mar. 1865, and to Governor General Blackall, mentioned in Governor Conran's dispatch to the Secretary of State, 24 Apr. 1866, Public Record office, London (PRO): CO 96/67 and 96/71. For an extensive description of this struggle see Kimble, , A Political History of Ghana, 201–220.Google Scholar
18 Mensah-Brown argues that linguistic evidence indicates that the distinction did exist in the Akan jurisprudential tradition: ‘The traditional courts’, 86–7. Unfortunately, however, he relies heavily on the Asante as his model, and pays no attention to the uniqueness of what Sarbah, John Mensah described as the ‘coast district’: Fanti National Constitution (London, 1968: first published 1906), 15.Google Scholar
19 They were ‘officially christened Native Tribunals to distinguish them from courts in non-affected areas’: Mensah-Brown, , ‘The traditional courts’, 365.Google Scholar These other traditional courts (in the interior) District Commissioners were to observe to see if they should be brought under the Ordinance. However, the important ruling in the case of Oppon vs. Akinne in 1887 upheld that these non-affected courts had legal standing in the Colony: Sarbah, , Fanti Customary Law (London, 1968, first published 1897), 232–7.Google Scholar It was not until 1910, with the passage of the Native Jurisdiction Amendment Bill, that the distinction between Native Tribunals and non-affected chiefly courts officially came to an end. From then onwards they were all Native Tribunals.
20 An Ordinance to Facilitate and Regulate the Exercise of Certain Powers and Jurisdiction by Native Authorities, 15 Jan. 1883, 26, c.
22 This applied even to debt enforcement since British courts were very unsympathetic to creditors who charged what British judges considered the exorbitant rates of interest that prevailed in the Colony. In general it was this lack of sympathy and knowledge of local customs that prompted Sarbah, John Mensah to write Fanti Customary Law (1897).Google Scholar Significantly this work deals almost exclusively with civil law.
23 Also with the development of the print media, libel had become the more common action, which served to separate even more the situation in the Gold Coast from the metropole.
24 The District Commissioner of Cape Coast to the Queen's Advocate, 1 Jan. 1894, Ghana National Archives (GNA), Accra: SNA, ADM 11/1/1382.
25 Queen's Advocate to the Colonial Secretary, 3 Mar. 1894, GNA, Accra: SNA, ADM III/I/1382.
27 There was considerable official opposition to this development. See, for example, the District Commissioner of Cape Coast to the Colonial Secretary, 19 June 1885, GNA, Accra: ADM 1084; and the Colonial Secretary to the District Commissioner of Cape Coast, 7 Oct. 1898, GNA, Accra: SNA 11/1109.
28 Governor Thorburn to the Secretary of Native Affairs 27 Oct. 1912, GNA, Accra: ADM 11/1/423.
29 The Commissioner of the Western Province to the Secretary of Native Affairs, 16 Oct. 1912, GNA, Accra: ADM 11/1/1261.
30 The Escort Police were the lowest section of the Colony's civil police force. They were illiterates who were entrusted with only the simplest of police functions. Many were Hausas or from the northern areas of the Gold Coast.
31 Governor Thorburn to the Secretary of Native Affairs, 1 Nov. 1911, GNA, Accra: ADM 11/1/342.
32 Acting Commissioner of the Central Province to the Commissioner of Police, 31 Aug. 1911, GNA, Accra: ADM 11/1/342.
33 The Cape Coast Native Tribunal Civil Record Book, Sept. 1909–12, Sept. 1912, GNA, Cape Coast: ADM 71/1/1/1.
34 Returns From the Native Tribunals Central Province, GNA, Accra: ADM 11/1/1183. It is difficult to be sure exactly what ‘damage’ cases actually consisted of.
35 ‘Annual Reports of the Cape Coast District,’ 1921–8, GNA, Cape Coast: ADM 23/1/392. In 1926, for example, this court generated £844 3s. 6d. in fines and £682 12s. id. from hearing civil cases.
37 Civil and Criminal Cases Returns. There were 2,931 criminal cases to 2,658 civil cases, GNA, Accra: ADM 11/1/1286.
39 Duncan-Johnstone, A. C., ‘Report of training of Native Administration Police’, Sept. 1928Google Scholar, GNA, Accra: ADM 11/1/1019.
41 Simensen, Jarle, ‘Rural mass action in the context of anti-colonial protest: the Asafo movement of Akim Abuakwa, Ghana’, Can. J. Afr. Studies, VIII (1974), 29.Google Scholar
42 Given the fluidity of the native order in the nineteenth century, it is impossible to begin, as Martin Chanock has pointed out is true also for Southern Africa, with some ‘identifiable baseline’ from which to measure the divergence from the ‘traditional norm’ that British rule was responsible for: Law, Custom and Social Order, 10.
43 Griffith, W. Brandford, ‘The native courts of the Gold Coast’, Journal of Comparative Legislation and International Law, VI (1905), 507.Google Scholar
44 These fees could vary from as little as 2s. 6d. in a sub-chief's court to £4 in a head chief's court: ‘Report of the Commission appointed by the Governor on the 1st of August, 1894, to enquire into various matters relating to Native Courts’, enclosed in the Governor's dispatch to the Secretary of State, 15 Apr. 1896, PRO: CO 96/272.
45 ‘Panyarring’ consisted of seizing the debtor, a relative or even an unrelated stranger, and holding them as a slave until the debt was paid.
49 The Tufuhen is the commander of the asafos, or military companies, which traditionally have provided defense for Akan communities. These institutions are most developed in the coastal fishing communities, which has led some commentators to suggest a strong link with both fishing and the early presence of Europeans as responsible for this development. For a discussion of these issues see Datta, A. K. and Porter, R., ‘The Asafo system in historical perspective’, J. Afr. Hist., XII (1971), 279–99.CrossRefGoogle Scholar
50 ‘Memorandum on native prisons’, enclosed in the Governor's (his father) dispatch to the Secretary of State, to Apr. 1888, PRO: CO 96/191.
51 Cape Coast Native Tribunal Records, 16 Jan. 1911, GNA, Cape Coast: ADM 71/1/1/1.
52 District Commissioner of Cape Coast to the Colonial Secretary, 18 Oct. 1897, GNA, Accra: SNA 11/1108.
53 He demonstrated this by supporting his own brass band, like a number of other wealthy Cape Coasters, while in 1902 he made a trip to Britain and the Continent on business and pleasure: see the Gold Coast Leader, 7–14 Feb. 1903.
54 Between 1896, when the British allowed Kobina Gyan to return from exile in Sierra Leone where he had been sent in 1873 for opposing British rule, and 1918, when Elmina became too divided to agree on a candidate for what was then known as the Edina stool, there were three Omanhens and one Regent. All of the Omanhens were destooled. Kwesi Mensah, who sat longest on the stool, did so for nine years (1903–12).
55 Cathline was the Supi or main commander of Number 6 Asafo, and Smith was the Supi of Number 9 Asafo. There were altogether ten asafos in Elmina.
56 It was not until 1871 that Elmina passed from Dutch to British possession. Also, before this sale took place, Dutch influence on the coast in general was considerably less than that of the British.
57 The British acquired possession of all of Accra in 1867 when they formally exchanged their forts and settlements to the west of the Sweet River (near Cape Coast) with the Dutch in exchange for the latter's possessions to the east of this divide.
58 The Gold Coast Independent, 2 June 1928. Nettey sued the editor of The Gold Coast Independent in 1928 for slander, and it is from his own testimony in this case that this information comes.
59 The Gold Coast Independent, 16 July 1932.
62 The Times of West Africa, 21 May 1932.
63 The Gold Coast Independent, 5 Jan. 1935. In contrast, in 1931 nine out of 38 tribunal registrars obtained certificates after undergoing tribunal registrars courses: The Gold Coast Independent, 14 Mar. 1931.
64 Kojo-Aboagye, A. M., ‘The Tribunal Registrar’, The Gold Coast Observer, 2 July 1943.Google Scholar He was the Tribunal Registrar for the Asiakwa Akyem Abuakwa Tribunal.
65 The Acting Colonial Secretary to the Governor, Mar. 1918, GNA, Accra: ADM 11/1/676.
66 Kojo-Aboagye, ‘The Tribunal Registrar’.
68 Etsir nsa-nkredzi, as J. M. Sarbah spells it, literally means ‘tokens or price of the head’: Fanti Customary Laws, 47.
69 K. Sekyi to A. F. E. Fieldgate (Commissioner of the Central Province) criticizing how Coker had conducted his ‘queer tribunal’, 8 Sept. 1939, GNA, Cape Coast: Sekyi Files, Correspondence with Officials, 332/1964.
71 Traditionally the Akyem Abuakwa people, like all Akans, are matrilineal. In introducing Christian marriage, the Basel missionaries upheld the ideal of the nuclear family in which a father's main obligations were to his wife and children. They, rather than his maternal family, were to inherit his property. ‘Christian succession’ was a compromise between these two extremes.
73 The most controversial aspect of this Ordinance was that it made contracting these forms of marriage exclusive under the threat of prosecution for bigamy.
74 The Gold Coast Leader, 26 Aug. 1922.
76 Native Marriage File, 6 Apr., 1930, GNA, Cape Coast: ADM 23/1/446. Not only Akan customary inheritance was under attack, but also the ‘confused’ Ga practice. According to ‘Lobster’ in The Times of West Africa, 23 Apr. 1934, the time had come for ‘overhauling’ these customs and, instead of dealing with ‘nauseating stool disputes’, this was what he felt the Ga State Council should do.
77 Letter from Bannerman Martin, Secretary of the Central Provincial Council, to The Gold Coast Independent, 9 Dec. 1933.
81 Ibid. This was not simply replacing matrilineal inheritance with patrilineal, but an attempt to conform to English Common law under which property passed from parents to their children.
82 The Ga Mantse's Native Tribunal Book, 1925. I would like to thank Nii Amugi 11, the present Ga Mantse, for permission to look at these records.
83 Report of the Native Tribunals Committee of Enquiry, 15.
85 From 1859 divorce laws in the Colony followed those laid out in the Matrimonial Causes Act of 1857. Divorce a vinculo (a dissolution of a marriage) was only possible on the grounds of adultery. In contrast to men, however, who only had to prove that their wives had committed adultery, women had to prove adultery compounded with either incest, rape, sodomy, desertion or cruelty.
86 For example there was a case of this sort in 1926 which The Gold Coast Independent followed in great detail from 6 March to the 22 May, and one in 1927 that the paper once again covered verbatim from 26 March to 16 April.
87 The Times of West Africa, 22 May 1933.
90 Text of the Bond of 1844, in Coombs, (ed.), Records Relating to the Gold Coast Settlements, 296.Google Scholar
91 Hailey, Lord, Native Administration in the British African Territories (London, 1951). Part III, 211.Google Scholar
92 Report of the Commission of Inquiry into Expenses Incurred by Litigants in the Courts of the Gold Coast and Indebtedness Caused Thereby (Accra, 1945), 35.Google Scholar
94 Report of Commission on Native Courts, 24, 26.
95 Ollennu, N. M., ‘The influence of English law on West Africa’, Journal of African Law, V (1961), 34.Google Scholar For similar views on the part of British administrators around the time of independence see Roberts-Wray, Kenneth, ‘The adaptation of imported law in Africa’, Journal of African Law, IV (1960), 66–77.CrossRefGoogle Scholar
99 Chanock, Martin, ‘A peculiar sharpness: an essay on property in the history of Customary Law in colonial Africa’, J. Afr. Hist., XXXII (1991), 88.Google Scholar
100 How much British justice actually lived up to the ideal can also be debated. Chanock considers this assumption ‘one of the most stubborn of fantasies about British life itself’: Law, Custom and Social Order, 5. Pursuing this line of approach, however, does run the risk of being overly pedantic.
101 Harvey, William, Law and Social Change in Ghana (New Jersey, 1966), 237.CrossRefGoogle Scholar Neither was there much success in improving the educational level of the magistrates in these courts, which was also one of the stated aims of the judicial reforms. According to the Minister of Justice in Ghana's first independent government, ‘the incumbent Magistrates were noneducable’: Ibid. 238.