You can’t restore chiefs’ power to summon by ordinary legislation -Dr. Srem-Sai to Bawumia

Dr. Mahamudu Bawumia, the flagbearer of the ruling New Patriotic Party (NPP), has promised to restore traditional rulers’ power to summon people to their palaces by amending Section 63(d) of the Chieftaincy Act. However, Law Lecturer Dr. Justice Srem Sai has emphasized that once something is declared unconstitutional, not even Parliament can bring it back through ordinary legislation.

Dr. Sai explained that when the Supreme Court deems something unconstitutional, it ceases to exist, and Parliament is bound by the Constitution as well. Therefore, amending Section 63(d) would require a constitutional amendment, not a simple legislation change.

Dr. Bawumia’s proposal to reduce local disputes by granting chiefs the power to summon individuals to their palaces was met with skepticism by Dr. Sai. The Section in question was declared unconstitutional in 2011, and the Supreme Court stated that chieftaincy practices must align with constitutional standards.

Dr. Sai believes that Dr. Bawumia’s proposal is legally problematic as it does not address the need for a constitutional amendment to amend Section 63(d). Additionally, the focus should be on more pressing issues facing the nation rather than criminalizing the refusal to attend a chief’s summons.

Read details

A Law Lecturer Dr. Justice Srem Sai has said it is impossible for the flagbearer of the ruling New Patriotic Party (NPP) Dr. Mahamudu Bawumia amend Section 63(d) of the Chieftaincy Act to restore traditional rulers’s power to summon people to their palaces.

According to the Law lecturer, Section 63(d) does not measure up to the constitutional standards and when a thing is declared unconstitutional, not even Parliament could, through an ordinary legislation, bring such a thing back to life.

“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.” He wrote.

“The second point: when a thing is declared unconstitutional, not even Parliament could, through an ordinary legislation, bring such a thing back to life. This is because Parliament, too, is under the Constitution. The ways to bring such a thing back to life are to amend the Constitution itself or overthrow it.” The Lawyer added.

Dr. Bawumia made this promise when he met the Western Regional House of Chiefs as part of his campaign tour.

The Vice President believes restoring traditional rulers’s power to summon people to their palaces will reduce the number of local disputes in courts.

But Justice Srem Sai believes it was a former paramount chief who saw the evil in the Section, and petitioned the Supreme Court to declare it unconstitutional so it will be legally disturbed if Dr. Bawumia try to amend Section 63(d) of the Chieftaincy Act.

“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.” He explained.

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 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?