RESEARCH REVIEW MS 4.2, 1988 THE ASANTEHEMAA'S COURT AMD ITS JURISDICTION OVER WOMEN: A STUDY IN LEGAL PLURALISM* Takyiwaa Manuh I. Introduction This article is set within a discussion of legal pluralism and is in two parts. The first part is theoretical and discusses the concept of legal pluralism and the ways in which populations and sub-groups seek to regulate their behaviours and state sanctioned structures and institutions operating within a nation state. At the same time, there is a selective use by such groups of the official legal system and structures in those areas of their lives which fall within the official.1 transactions outside official In the second part, the Asantehemaa' s court in Kumasi is presented and discussed as an example of legal pluralism in action. The origins, and jurisdiction of the court, the mode of initiating proceedings before it, its relationship with the national legal system, its protection of women's rights and the future of the court are also addressed. II. Legal Pluralism By legal pluralism is meant the situation in whch two or more legal systems interact within a state [Hooker, 1975:6]. This is typically represented by the relations between the imported colonial law, now adopted and added to with elements of 'official customary law'2, and promoted to the status of a national legal system on the one hand, and the operative indigenous legal systems of particular groups on the other hand. Hooker characterises the relations between these two systems as one of dominance and servience, and gives three features of the relationship: i) the national legal system is everywhere politically superior, to the extent of being able to abolish the indigenous system; ii) where there is a clash of obligations between the systems, then the rules of the national system will prevail, and any allowance made for the indigenous system will be made on the premises and in the forms required by the national system, and »taf f seminar in the iii) in any description and analysis of indigenous systems, the classifications used will be those of the national system.3 [See also Woodman 1988] These features arise from a conception of law as a set of consistent principles valid for and binding upon the whole population and emanating from a single sovereign source. However, it is also clear from several studies [Santos, 1977; Moore, 1977; Merry, 1982] that the influence of the dominant sphere is constrained by its accessibility, and actors exercise some degree of choice over alternative fora for dispute settlement. Which legal sphere is increasingly resorted to therefore reflects perceptions on the part of actors as to its ability to protect their right, as well as its consonance with their actual lives [cf Snyder, 1977: 138 on the mobilisation of urban legal institutions by rural villagers in Senegal]. Sally Engle Merry's [1983] research among miners on the Copperbelt in colonial Zambia for instance shows how miners in an urban environment turned away from a mode of resolvihg disputes rooted in their rural ethnic identities to settlement for a more closely connected to the dominant European society and its legal culture. Thus the urban native court, citizens' advice bureau,and churches became the dominant fora. InMerry'• 7^ law appears to have become increasingly irrelevanto the social lives of urban Africans on the in conformity with the change* mode and production whereby production of copper on mines provided the chief means of livelihood for the migrant" workers, and new authority and powe became structured according to one's role in tne V l l l»^ ^^ ^ ^ implications for diverse groups, such as wome . P^ the sphere's definitions of crucial areas o c u s t o d y. in marriage, divorce, property - " ^ ^ J^ Significantly Access to new legal spheres may t*er**°f affect the normative definition of the rights an power of disputants, depending on which party has^ v access and whose rights are e^e 6JJ Thus, for example, positions, access to new spheres *" rights and prerogatives can ^ bargaining power in ^n tO ^ new legal sphere may redefine the rg and reduce the bargaining posi tio».or classic example from Epstein's study disadvantaged whi ch enforce greater Jd relative " h t8 of m en and women ^r hand, a c ± t es & ^ ^g w h e r%h^ ^ t he improve their ^^ ^^ 51 Lunda of Zambia in the 1950s which F-^gests that the imposition of native courts charged with administering customary law actually hindered women from getting divorces. It would appear that before the creation of the court, marital disputes were generally handled by private meetings of the senior kinsmen of the affected kin groups; divorce was generally easy and a woman was welcomed back by her own family, and her parents might themselves take the initiative in removing their daughter from an inattentive son-in-law.4 However, with the statutory requirements that the Native Court issue a certificate to validate a divorce, a body of Lunda law generally developed which followed neither Lunda custom nor English law.5 There were now attempts by the courts to preserve marriage if at all possible unless one party seemed very adamant. When a marriage was finally declared broken, the responsible party was required to pay substantial damages.6 Merry defines a legal sphere as consisting of a system of rules, a set of dispute settlement fora where socially legitimate third parties facilitate arriving at settlements, and some means for pressuring adherence to these settlements usually exist. Each legal sphere is characterised by: i) a set of rules based in custom or enacted by a political authority; ii) a set of regular, accepted procedures for handling disputes, either formal or informal which rely to varying degrees on adjudication, arbitration and mediation7; iii) a political and economic context within which the mediator, arbitrator or judge operates and from which he/she derives power to make decisions and to enforce them; iv) a structure of accessibility specifying economic, gender linked, ethnic and other requirements for access to the legal spheres. Merry also notes the unequal power of different legal spheres which reflect the nature of the particular political entities supporting each. Bonaventura de Sousa Santos1 [1977] research in a favela (squatter settlement) in Rio de Janeiro, Brazil exemplifies the relationship between two legal spheres, the official Brazilian legal system, and the Residents1 Association of Pasargada, (the fictitious name of the favela). Because of the structural inaccessibility of the Brazilian legal system to the poor and needy, and the illegal character of communities such as Pasargada, internal legal systems are created to serve the needs of such communities. These systems become parallel to and sometimes even conflict with 52 state legality. Curiously, the state of tension and ambiguity existing between the Residents1 Association (RA) and the state is not reflected at all levels of the state apparatus. Thus while the relationship between the RA and the police is precarious given, the illegal character of the former, there is room to cooperate and the RA is able to secure the help of the police in its own affairs. Santos notes certain features of the Pasargada legal systen.which make it a desirable alternative to the professionalised, expensive, inaccessible, slow- and discriminatory *ra,ilxan state legal system through a description of i and the setting in which dispute settlement and prevention s/u^ ° "^ t occur. These are: i) its non-professionalism; *«,««« of ii) accessibility: there are minimal costs ±»i Jems of money and time, and it facilitates social **«£**> iii) it is participatory, as evidenced by the of the hearing and the way the " P ^ fn ' £ £ S £ :S notes, this does not meanJ***J*• p r \ f S SS to an errand-boy or i a t i o ns iv) the consensual nature of th< is the ^ ^ t a ^ S r ^ ^ - T ,; explained in part as arising ^o association justice; in part this is axso community life and density <££*£*?££* d ue to the style of factor as n o n_c o e rcive " f1/ .^ W^C Pasargada. a l s o P In such a situation, compronds« ^ °m^u be d a m a g ed by the the high level of social interaction will oe exacerbation of conflict. in much the same ways and to differing extents, there ^ j u d g e n i e nt clan-based, exist within communities in Ghana sue or legal spheres, whether of a t8 ^ ^^ religious or chiefly c h a r af " l J LS a nd create a legality jurisdiction in interpersonal m a«e^ parallel to, or coexistent « "n within all villages, towns, ana councils of elders who a a3u d i c a te involving members of the same' "^ BOmetimee, Profession in non-criminal • * " • * ' ,, criminal monopoly is connivance of the police, the s also dented, and rape and a s sa withdrawn for settlement before sue* ^ ±c g r o Up s, trade or with the in G h a n a, there are m e d i a te in disputes ^^ f or e x a m p le a re of t he s t ate. Thus t r i b u n ai s. 53 III. The Asanteheaaa's Court An understanding of the jurisdiction and functioning of the Asantehemaa's court can be gained by discussing the position of the Ohemaa in Asante law and constitution. III.I The Oheaaa in Asante Law and Constitution Rattray (1923); Meyerowitz (1951); Busia (1951); Oduyoye [1979] and Arhin (1983), among others, have discussed the position of the Ohemaa in Asante law. According to Rattray, the Ohemaa's stool' is the akonua panyin, the senior stool in relation to the chief's stool. She took part in local government and in the selection and enstoolment of the Chief, and exercised the prerogative of selecting a candidate to the stool. She alone had the privilege of rebuking the chief and his councillors in open court, of addressing the court and of questioning litigants. It is in the light of this that Rattray says that the recognised seniority of the female stool was not an empty courtesy title. Petitions could also be addressed to the Ohemaa praying for pardon or mitigation of a sentence. Rattray states that the queen-mother had jurisdiction in her own court over the women connected with her own attendants, and in all cases of dispute between the chief and his wives. At the same time, the queenmother had authority over all the women in the state and attended ceremonies connected with birth and puberty, and was personally concerned with the morals of the young generation. But the queenmother also appeared to have jurisdiction in certain cases where males were the litigants. Cases could be transferred from the Ohene's court to her court on application of both parties as litigation was cheaper before her court. In addition, the Ohemaa was entitled to a share of court fees (oath fees) derived from cases heard in the chief's court. Arhin (1983) describes the Asantehemaa as a member of the Kotoko Council, the general assembly of Asante rulers. By her membership of the Council, the Ohemaa participated in the legislative and judicial processes, in the making and unmaking of war, and in the distribution of land. Arhin notes further that the Ohemaa of a state also had her own ntam, an oath, which was the formula for invoking the judicial process, and her own court and akyeaae, spokes- persons or linguists, who acted as prosecutor and judge. An Ohemaa was also a refuge for a fugitive from the Ohene's court and he could successfully seek her intervention in cases carrying the death penalty. While the men dealt with aaansea, matters of state, efiesea or domestic matters were dealt with by the Ohemaa.9 54 However in spite of this clear division of roles, female rulers were conspicuously absent from local administration under the various colonial ordinances setting up native courts and tribunals. While indigenous tribunals of male chiefs and elders were recognised and their powers and jurisdiction delineated, nowhere were women accorded any recognition. As Allott (1960), states, 'under the new Ashanti Native Courts Ordinance, the government no longer merely recognised the existing indigenous tribunals, of chiefs and elders, but took powers to constitute and regulate the native courts. Government could now prescribe the membership of the courts, suspend or dismiss members of native courts'.*° This situation was of course not peculiar to Ghana, and much literature exists on how colonialism circumscribed the operation of pre-colonial political institutions and at best, only recognised male elders and chiefs who became, to varying degrees, agents of colonial rule. Rattray expressed regret over the non-recognition of the power of those 'old women', the aheaaa, following his investigations as to their position. Their response was classic: 'The whiteman never asked us this; you have dealings with and recognise only the men, we supposed the European considered women of no account, and we knew you do not recognise them as we have always done'.1 But non-recognition or not, the Ohemaa's court continued to function. Oduyoye (1979) has gone so far as to suggest that it is due to the tenacity of the Ohemaa in administering protective regulations for women that matrilineal inheritance has survived in Asante and is guaranteed in national law. Oduyoye explores the struggle for supremacy of matri- and patri- elements in the family, politics and religion in Asante, and the Ohemaa's traditional role as the protector of women's rights. The Ohemaa administered laws which attempted to ensure that women were not exploited sexually, and this meant placing the f un responsibility for all unauthorised sexual relations and adultery on men. In the case of adultery, »hich is defined expansively in Asante law to include mere touching or playing with parts of the woman's body, and «iminal conversation (aeon), it is said that it is the woman's word that is taken as the truth; her connivance or Ponsent does not reduce the seriousness of the offence as xt 18 the man who is expected to develop self-control because •* the conception of women as virtually unable to look after themselves." T h u B, ln t h is case, the " « *W •!»«* £ ^ in the society and which is normally utilised to 55 keep women in a subordinate position is employed by women to protect themselves. Another important function of the Ohemaa is in ensuring that husbands do not inherit their wives' private property as the couple do not belong to the same abusua, family, and therefore do not have community of property. But the husband is responsible for debts incurred by the wife while she resides with him, and he is responsible for her maintenance and that of her children, and she can sue to enforce it. This is supposed to be an equitable arrangement because the wife's kin group loses her services while she is married and as she now serves her husband, he is responsible for her maintenance and any debts she might incur. It can be seen from the above summary that in Asante law and constitution, the Ohemaa had important roles and particular functions as regards women, and meticulous appli- cation of laws and regulations as regards sexual relations and private property served in some way to ensure that women's level of self-hood and respect was maintained.14 III.2 Hhe Asanteheaaas's Court: Coaposition The Asantehemaa's Court sits once a week, on Tuesdays, unless there is a funeral celebration. The court is composed of the Asantehemaa and chiefs whose stools come directly under the Ohemaa. The question of which stools serve the Asantehemaa is at the discretion of the Asantehene, and at the installation of the chiefs concerned, they swear an oath to serve him and the Ohemaa. Predominantly these chiefs are adlkro of small towns and villages in the Kumasi district most of whom swear their oaths or allegiance directly to the Asantehemaa.15 T he m e m b e rs c Q u rt ^ ^^ ^ ^ ^ ^ f" ?***** (sP°kespersons). There are six T* t he " ^ S S * -16 The former are also members b U t°O r mtl ly they are a11 n<* Present. The chief ^ of the Ohemaa-s Gyaase or palace organisation. There is a quorum when there are representatives of both Bkonson, S ^ *8 0!9 2* * 1 2 Z' f f TtO *he °hemaa i" female, and is referred to as her Obaapanyin, female elder. But from my information, the other akyeaae are male. Indeed, with the exception of the Ohemaa herself and her Obaapanyin, all the members of the court are male. When the Ohemaa is not present her Obaapanyin sits in her stead. m addition, ahe»aa, , queenmothers, from other towns and villages may sit in at ! the court to learn how to conduct judicial proceedings and may also participate in the proceedings by way of offering opinxons or advice at the end of the proceedings. However, from observation, those who actually conduct the proceedings are male, and although it has not been possible BO far to 56 date their participation and indeed dominance in the court, they seem to be well aware that matters and decisions might well be different if women were the judges.17 The Bodvoafqo, the Ohemaa's attendants and servants, also sit in the court, but have no say in the proceedings. They act as bailiffs, directing summons to chiefs and sub-chiefs to present their objects before the court, and one of them, a young girl, acts as a clay smearer, to the victorious party xn litigation. ,3 Juristiction The Asantehemaa's court is concerned primarily with matters affecting women, principally matrimonial issues of divorce and maintenance; matters arising in the markets; and rights to nfofoa, fallow land. Marriage matters include divorce proceedings, cases between rivals, adultery of the wife, unfair treatment of a wife by a husband and other domestic and interpersonal matters. Cases between rivals often take the form of one 'putting another in fetish , to use the highly evocative colonial term; or invoking an oath against the other, the consequences of which could be fatal. Traditionally, the* market -belongs' to the Ohemaa, and she has jurisdiction over all disputes arising therefrom-All the commodity queens swear their oaths to her, a nd ™ £ £ *; feastdays of the ancestors, these queens bring « ° * " £ ;» as tribute to be used to cook food for the b l af *"**J^f®; They also report periodically on matters xn the ^arket to the Afcyea-e who inform the Ohemaa Thus traders in the market, extortionary acts or of traders which could affect order «* -t to trade are dealt with. In turn, the Ohe matter to the City Council where her achieve the desired result, relationship which has come to exist between . ^S *>%£ modern authority. n. m a a,. -jurisdiction is It would appear that the Ohemaa s ^ territorial, and can be * ^* * * ^ £ £ t i v. of their or by all traders in the market x r r ej origin. While each of the other ethn xc g P nationalities resident in Kumasi have' « j£ chiefs, these may refer matters c<^ * ft° £n Asantehemaa or Asantehene, xn recogu overlordship in Kumasi. of their roles are twofold: to t he The Asantehemaa's dispute s e t t l e m e nV- t he latter role is lg k n o wn as these are adjudicatory and mediatory, the usual mode in matrimonial «s^ Swmtoa, in which the Ohemaa or her n<™ Party to help the parties arrive at a settxem a c ts as a third t- A won,an or a na ^ 57 a man appeals to the Ohemaa to get her partner to continue with the marriage; given the social and political position of the Ohemaa, few men would refuse her mediation even if their minds were firmly made up, and would appear before her to make politely worded refusals. In such cases, there is often a resort to patriarchal ideology of how much a woman's esteem depends on her marital status, and the man is beseeched to forgive and forget. However, it is also true that the Ohemaa is regarded as korafoo, a rival, and apt to take the woman's side in a dispute, particularly whese. unfair treatment is alleged by the wife. Mediation takes place in a discreet manner, and depending on the delicacy of the matters alleged may be held in chambers. Sometimes too, akyea»e are sent out of town to mediate where the Ohemaa"s jurisdiction is invoked However, the Ohemaa's jurisdiction is not limitless, and is circumscribed by national laws. Jurisdiction is refused in criminal matters, such as threats on life, and the matter thatr1hTedlf° ^ court P O l i C e* B Ut lt is C r e s t i ng to note ?u*° " '^ C S r t a in m a t t e rs to the Ohemaa's » « * « *« of the substantial matter P£ I Lf , P ± Ce a nd °t h er A institutions support the A^liZ, fe i n f o~e it, and seek to delineate areaswhich a re \* or national law, and^se "2 S ^ ^ Z Z* " ^ II.4 Initiating Proceedings A person desirous of initiann» the Okyeame and reports ^ ^ insulted me', or 'Nana *,„ K t *e any longe'r.^x appeal to " y ^o H f T" *° ^ ^^ the marriage'. The latJr , * ^T 9°" " "* *° " N a n a' someone has ^ T tO In the former case, she is asked if Ji j;e 1 a t OSi"Li° i If the answer is in the positive th. If not, she is told to wait anl see if the insuit will be r e p u t e d^ T / T0^^ ^^ Okyea« to decide whether a complain 8 ±S "P tO t hG and he may advise the complainant i f /^ f O W ld an a C t ±°n' °r g et a b o ut t he c a se as no action is proved mill Okyeame receives a lee' J SS L T ^* ±S m de °Ut' the fee), based on the gravity o f^ "S ** U S e t t l e m e nt tO h lm to c o n t i nae with th ?* *** w l t n e s s e s* """P^int can be laid, zae offence. This may be y 58 decided by the complainant herself or by asking the Okyeame how much is used to make a complaint to the Ohemaa. The fee varies, but is now around £51,400.00. The complaint fee itself is £200.00, the Okyease's fee is £100.00, the messenger's fee is £100.00, and the remaining £1,000.00 are sitting fees for the court, half of which goes to the Ohemaa and the other half to her elders. A messenger is sent to issue a summons to the party named and the complainant bears the expenses connected therewith. The service of summons takes the messengers to many towns and villages in Asante and the complainant bears the expenses of transportation, food and lodging if an overnight stay becomes necessary. The respondent who is thus served can either agree to appear or may refuse. If the respondent agrees to appear the case can proceed. However, should he or she refuse, the complainant is given back her complaint fee and advised to seek an alternative forum. Where the respondent appears, he or she deposits an amount equal to the complaint fee called ntaasoo. If he says he has witnesses they are summoned at his expense. At the close of the case, the guilty party pays all the costs incurred by the victorious party. A date is fixed for the hearing. A party or witness in her period cannot attend (as this is supposed to be a taboo). Where one party is not present when the case is called, she/he has to bear the costs of the other party unless she/he can give a good reason for non-attendance. Where both parties are present, the proceedings can * * * »• ™J respondent is asked if she knows the complainant and that a complaint has been brought against her. If she answers in the positive, the complainant swears an oath to.speak tn truth and is then asked to state her case. This o . t h «» be sworn on the Bible or according to any other system of belief. Afterwards the respondent is t oM to ask any questions. The court can also ask ^es n a nt h as complainant to clarify any matters. « ™« c o^ w i t n e 8 s es witnesses they are called in at this stage. The witn are asked their occupation and * £^J££T% p Parties, part of which is given to t hV *tJe' a re a s k ed 1£ P t i e s, part of which a re a s k ed 1£ f of the case to compensate for their time. Jh e* a*^ they know the parties and the issue that _has^ arisen ^ answer is in the positive, they are asked^ and then to narrate what^ they^ know. The comp to ask any questions of her witness. The^reP ask any questions and the court can also as* M the witnesses. £^J££T% g f their time. Jh e* a*^ i in to t hV*tJe' i£ he or she has t i £ > ns f r om i VJ the end the end t he t ±- t o ld ^ ^ ^ ^ After this the respondent is asKea anything to say. Afterwards his or her witnesses c a l l ed 59 and examined and at the end of the case, the members of the court or assessors are asked their opinions individually. A conclusion is reached that the complaint has or has not been borne out and that even the complainant's own witnesses could not confirm her version. The complaint can be dismissed and a small girl then smears the respondent with clay thus declaring her victorious. The complainant is asked to give the respondent dibim, i.e. to apologise. The complainant may appeal to the Okyeame to do it for her and a fee may be offered to the respondent as compensation which may be accepted or waived. The parties are told that if any further problems arise they will be dealt with severely. At the end of the proceedings, the parties and their witnesses are admonished and told to swear by Nana's 'kokonua',19 her sore foot, that there is no further problem between them. They have to thank the court. The unsuccessful party loses her deposits while the successful party has all her expenses refunded except the 'hwireiibosa', the clay smearer's fee. The elders and others who sat in on the case are given parts of the money forfeited by the unsuccessful party.20 There can be appeals from the Ohemaa's court to the Asantehene's Court or to the Courts of other chiefs where a party is not satisfied with the ruling w J S ! ?1!? jurisdiction will comply with the ruling, but where one i ; £ L rO V eS recalc±trant' ^e police may be asked to S te !vsLn,°n C^t9 a^ r e l n f o r c i n9 the links between the state system and the indigenous system. 1°.nS W h° hBVe sublnltted to the Ohemaa's Per*S "' relationship of the Ohemaa's court with the police Clearly r -::; ssa fouow^ t L 4 S ^ £ ^ s r/ chief8 have functionaries have in the decree nV also differed with indigenous systems «f as W o ^0'r ^ ««—«*•«** U 9 8 8 al a nd O t h e rS have shown, the Btat7ha7\ltL£»? the systems and i m p o s e d " i t s ^ ^ L S f t0*1 1* *** C O D t e nt °f Be that as it may, theTe iV JSL C O n d l t l o ns f°* recognition, legal system, o f ^ p r o c e e d i n g s^ ^ ^ ^n by the national in the nature of ^ S u S S i TS IT t r l b u n a l* *s being lM 22 cases which set out the criteria 7* *! * 1 O ng l its validity.22 criteria for 60 Generally, for an arbitration to be recognised, the following must be proved: i) that there was a voluntary submission of the dispute by the parties to arbitrators for the purpose of having the dispute decided informally, but on its merits. Voluntary submission has been held not to be the mere presence of a party to a dispute at a meeting.23 To constitute submission to arbitration in such circumstances there must be evidence that the full implications of the purpose of the meeting were explained to each party; ii) A prior agreement by both parties to accept the award of the arbitrators, evidenced by payment of a fee; iii) The award must not be arbitrary but must be arrived at after the hearing of both sides in a judicial manner, and iv) publication of the award. Where these elements are proved, it will operate to prevent a party to the arbitration from relitigating the same subject matter before another forum and the Ohemaa's akyea»e sometimes attend the High Court in Kumasi to give evidence of arbitrations before them, where such matters are sought to be relitigated. V.Ihe Ohe-aa's Court and the Protection of W«en's Rights The Ohemaa's Court is rooted in Asante ^t tocllt constitutional structure, and is sustained by a social context which accords allegiance to the Golden Stool and its subordinate stools. Within the hierarchy of stools, the Ohemaa's has a clearly defined position, as has b e e° **°™ above, in this study, the focus has been on the Ohemaa s judicial functions which primarily revolve a r o u n** the Ohemaa's role as the protector and enforcez_ rights. Given the socio-economic and cultural which have occurred in Ghana as a ^ ^t example, the growth of ^c a t lf ^re ^terogenoufmix & ^ opportunities, health, migration and a mo*• «• J of the population, perceptive changes have als ^^ women's roles, statuses, values and b e l^ fo h e l | aa s u ch as Asante, certain regulatory activities ot ^^ her inspection of pubertal girls have l ag Y redundant. Sexual norms and behaviour h a ve a i S° o v er least for certain W - * ^ 2 S « J? the space available to the cbma* has con but i8 8till important and cases come to^n villages and towns surrounding, and J «" changes have It is not easy to ascertain f6^ ^, * court over time, ^ ^ ^ l occurred in the composition of the Ohemaa s courr 61 and how far the present composition dates in antiquity. Yet it clearly represents a problem if the key institution available to protect women within the indigenous system exhibits such visible male dominance. In this way, the rights protected will largely accord with gender stereotypes of the nature of women and what is in their interests, and will also reflect the dominant views in the society on the accepted roles of women.25 In the final analysis, women's subordination may be perpetuated even as some individuals receive justice and a satisfactory resolution of their disputes before the Ohemaa's court. VI. Conclusion: The Future of the Ohemaa's Court In the discussion above of the Pasargada legal system, Santos noted some features which made it a desirable alternative to the Brazilian state legal system. While the Pasargada and Asante legal systems have entirely different origins and legal statuses in the eyes of their respective national systems, they share some similarities arising from their servient or subordinate positions. Both systems are relatively accessible, do not maintain a professional caste of legal personnel,2^ and have participatory and consensual dispute settlement procedures. But whereas Pasargada law reflects the attempts by poor people to hold their own against the overreacting Brazilian state, this is not the case with the Asante state system. As has already been stated, the Ohemaa's judicial functions are firmly rooted in Asante law and constitution and were accepted by those who owe allegiance to the Golden stool, even when the Ohemaa had no official recognition. The Asantehemaa's court has survived these vicissitudes and has adapted itself to changed circumstances and secured recognition by some state agencies. A further difference is that given its position in the hierarchy of stools in Asante, more attention is paid to rank and class in proceedings before the Ohemaa's court, and it cannot be said that all litigants feel they receive impartial justice. This feeling is exacerbated by the payment of sums of money for various purposes which raise questions of integrity, and it is not unusual for dissatisfied parties to murmur charges of improper conduct, to wit, receiving a bribe.27 Overall however, in proceedings before the Ohemaa's court, litigants interact in a milieu which has correspondence with their social situations and much salience for them. There are no policemen or specially dressed officials and no problems with language. At the same time, there are few delays and cases can often be disposed of at one sitting, 62 and while fees are charged which may be substantial for some, they are nowhere near lawyers' fees. it in in It remains to be seen what further adaptations will occur it in the Ohemaa's court. From enquiry and observation, appears that is not only Ashantis who make use of the court nor only i l l i t e r a te people. Will written records of proceedings be kept in the future as the personnel of the court become increasingly literate? How will the Ohemaa's court deal with new legislation affecting women's and men's property rights which allow a man to inherit his wife's law of private property of Asante property?28 what accommodations with customary law will occur? How far will i ts unificatory and 'modernising' attempts take account of other legal spheres? Answers to these questions may be provided with time, and it is hoped that other studies will begin to focus attention on other dispute settlement fora among different in Ghana. These studies may well indicate the existence of much pluralism in both legal and other spheres of l i f e. legal system contravention the national communities I BOIES 1. S.P. Moore 1977: 160, 161, points out how within a nation state, there a re many parallel bodies not formally linked into any superorddnate administrative system, and she suggests the utility of 'looking at a centralised system of Political administration as existing on top of a ^ e at variety of organised social fields ..., whose members plug into the national system on occasion.1 ,«,„„«, 2. There has been much writing and discussion on the d i v e r9 f^ between the operative customary law, folk law or Peoples law, Of particular groups and customary law as r e c o9n i^° and enforced in the courts. Until independence in all colonies, customary law was treated as foreign law and had to be -proved- by the calling of expert w i t a* fes *t C'^ applied only in civil matters subject to its not_being repugnant to 'natural justice, equity and good c o n s cJ ^. °r some similar formulation. But as W o^» * J j f ®o 181-209] argues, when state institutions are instructed to apply folk law, in practice they do not, b u t a r e a pt to create a new body of law which they ^ £ £ * J^ customary or folk law. Woodman explains the• &• *e rs as t ^s of a more or less conscious state creation o v u l es ^ the central characteristic of the 8 t a*e x eJ . * in t he facilitate new social norms and desired directions, in Ghanaian case, to one of market capitalism. 63 3. Hooker, 1975s 6. Woodman's [1988a: 184, 185] discussion of how customary law is applied makes the important point that by restricting the forms in which claims may be presented, types of remedies awarded, and the modes of enforcing those remedies, state courts have debarred themselves from recognising substantive rights which cannot be asserted and enforced through permitted processes, and rights existing in sociologists customary law are not rights in lawyers' customary law. 4. cf. Rattray, 1929s 18 who says that among the Akan, a wife's uncle or Mother could take steps to dissolve a marriage where they had cause to believe that their daughter was being treated unfairly. punitive measures were enacted 5. This is akin to the description of official customary law. 6. In a similar fashion, Pepe Roberts [1987] has discussed the attempts by the Sefwi State Council to regulate marriage between 1900-1940 in an attempt to restrict women's sexual autonomy and their alternatives to the provision of labour services on husbands' farms. Through a series of bye-laws whereby to combat prostitution, sanctions against divorce and adultery, as well as positive measures to control the rising cost of obtaining a wife, the State sought to deal with the crisis in gender relations brought about by the commoditisation of production. However, these actions did not measurably appear to have succeeded, and although women continued to provide labour services to husbands' farms, they did so under changing conditions and asserted a right to parts of farms. Chanock [1982] has also discussed for Northern Rhodesia the ways in which customary law was remade by elders and males with the connivance of the colonial state to fit into the context of new times in an attempt to regain control over women. But see also woodman [1988a], for a contrary view. 7. Gulliver [1977] discusses in depth an aspect of the process of negotiations in dispute settlement by focusing on mediators. He distinguishes mediation from adjudication and arbitration. Quoting a professional mediator with approval, he says 'Mediation and arbitration have conceptually nothing in common. The nne (ma^<.4.i..i J institutionalised rules, Drocsdnr-00 » ^ S, less clear idea of due procesf n« ^^ is initially no such structuring V * "* a " "• " ne9Otiations there 8. Submission is here used in a wide R* nM before the courts for a varie-v Z T**** p e O p le a p p e" 64 respond to it do so from shared values and beliefs of allegiance to the stool and the supernatural sanctions which could attach for disobedience 9. Rattray, 1929: 316. 10. Allott, 1960: 108. 11. Rattray, 1923: 84. 12. Oduyoye, 1979, follows Meyerowitz in positing a time when the Ohemaa ruled in her own right. 13. Oduyoye, op. cit. p.12. 14. Oduyoye, ibid. 15. These are the Kokoben dikro; Seedi dikro; Kodee Pintin Nkwanta dikro; Oyo dikro; Oti dikro; Akoko amon dikro; and the Ofoase dikro. All these sub-chiefs swear directly to the Ohemaa. 16. It was explained to me that these were divisions like the Nifa and Benkum. 17. Interview, Okyeame Kwaku Nsiah. 18. On whether it was proper for an oath to be sworn on a pregnant woman given her ritual state of danger, I was informed that it was not an abuse of the oath. She can swear to exonerate or defend herself. Source: Interview, Okyeame Kwaku Nsiah. 19. This is the Ohemaa1 s taboo, and refers to an occurrence in the past which is remembered with great sorrow. 20. Thus I was presented with ^40 for being present at a court sitting in 1985 and witnessing the conduct of a case. 21. See for instance Arhin (forthcoming) on chieftaincy under the CPP. 22. See for instance Aniamoah v. Otwiraa [1961] GLR 405; Osae v. Apenteng [1961] GLR 615; Asare v. Donkor Serwah II [1962] 2 GLR 176; Donkor v. Isifu [1963] 1 GLR 418; Mosi v. Fordjuor [1962] 2 GLR 74; Budu v. Caesar [1959] GLR 410; Asano v. Taku [1973]2 GLR 312. These cases refer to arbitral proceedings before different fora in various communities in Ghana. 23. Donkor v. Isifu [1963[ 1 GLR 418. 25. Thus my main informant, Okyeame Kwaku Nsiah, said to me, 'Women's dignity depends on male protection; let us have good marriages and good virtuous women1. 26. While there is no professional caste of people who subsist mainly on their legal fees and other payments, it is evident that at least the officials in the Asantehemaa's court are professionals and are well versed in substantive Asante law, evidence and procedure. 27. I witnessed this on at least two occasions in a single day. When the Okyeame heard the murmur, he asked the complainant to withdraw the charge or face a contempt action. The charge was withdrawn. 65 T 28. By the provisions of the Intestate Succession Law (PNDC L.lll), either surviving spouse can inherit property, real and movable of the deceased. REFERENCES 1. Arhin, K., 1983. The Political and Military Roles of Akan Women, in Female and Male In West Africa, C. Oppong ed., Georga Unwin and Allen, London. 2. Athin, K., to appear. The Search for Constitutional Chxef- taincy, in Proceedings of a Symposium on the Life ana Work of Kwame Nkrumah, Institute of African Studies, Legon. 3. Allott, A., 1960. Essays in African Law, London: Butterworth and Co. 4. Busia, K.A., 1951. The Position of the Chief in the Modern Political System of Ashanti, London, Oxford University Press. 5. Chanock, M., 1982. Making Customary Law: Men, Women, and Courts in Colonial Northern Rhodesia, in African Women and the Law, Hay and Wright, eds., Boston University Papers on Africa, VII. 6. Ghana Law Reports, Council for Law Reporting, Accra. 7. Gulliver, P.H., 1977. On Mediators, in Social Anthropology and Law, I. Hammett ed., op. cit. 8. Hooker, M.B., 1975. Legal Pluralism: An Introduction to Colonial and Heo-colonial Laws. Oxford: Clarendon Press. 9. Laws of the PNDC 1985. Accra: Assembly Press. 10. Merry, S.E., 1982. The Articulation of Legal Spheres, in African Women and the Law, Hay and Wright eds., Boston University Papers on Africa, VII. 11. Meyerowitz, E., 1951. The Sacred Akan State, London: Faber and Faber. 12. Moore, S.F., 1977. Individual Interests, in Social Anthro- pology and Law, lam Hammelt ed. London: Academic Press. 13. Oduyoye, A.M., 1979. Female Authority in Ashanti Law and Constitution, in African Notes VIII, University of Ibadan, Nigeria. 14. Rattray, R.S., 1923. Ashanti. London: Oxford University Press. the Clarendon Press. 1929. Ashanti Law and Constitution. Oxford at 15. Roberts, P.A., 1987. The State and -the Regulation of Marriage: Sefwi Wiawso (Ghana), 1900-1940, in H. Afshar ed., Women, State and Ideologyt Studies from Africa and Asia. Macmillan. 16. Santos, B. de Sousa, 1977. The Law of the Oppressed: The Construction and Reproduction of Legality in Pasargada. Law and Society Review (Fall) 5f, 6. 17. Snyder, F.G., 1977. Land Law and Economic Change in Rural Senegal: Diola Pledge Transactions and Disputes, in Social Anthropology and Law, Hammett, I. ed. op.cit. 18. Woodman, G., 1988. How State Courts create customary law in Ghana and Nigeria, in Indigenous Law and the State, Bradford W. Morse and Gordon R. Woodman (eds ), Foris Publications, Holland/U.S.A. leas.j, roi* 19. Woodman, G. and B.W. Morse, 1988. Introductory Essavt The State's Options, in Indigenous Law and the State, Bradford W. Morse and Gordon R. Woodman (eds.) op cit. 66