Custom in funerals
A man may have a hundred children and live many years; yet no matter how long he lives, if he cannot enjoy his prosperity and does not receive proper burial, I say that a stillborn child is better off than he. It comes without, it departs in darkness and in darkness its name is shrouded. Though it never saw the sun or knew anything, it has more rest than does that man.
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Ecclesiastes 6:3-4.
Last week, I was exercised by a news item to the effect that a certain chief has announced the nature and form of funerals in his area. My initial reaction was whether custom is what a chief decrees or something which evolves out of the experience of the people and thus, becomes a norm within that community after which the traditional authority is empowered to enforce the custom on behalf of the community.
Funerals in the country, particularly in the Ashanti Region, have become expensive and a dread. However, I have always had problem with attempts by traditional authorities to set limits for funeral expenditure without looking at tradition itself. Indeed, my anxiety was compounded when my father died. As an ‘Obrempon’, we were told my father deserved a fitting funeral by the traditional authorities.
The body had to be guarded by ‘Abrafoo’. The divisional chief who came had to be catered for, including those who carried him in the palanquin. We also provided the materials and personnel for the musketry. All that cost money. Additionally, we were told that if any chief made a donation, we were obliged to go and thank them after the funeral with drinks and twice whatever amount was donated to us. We, thus, prayed that none of the chiefs who came should make a donation.
In the face of these realities and the biblical statement that no matter how well you live, if you do not receive a proper burial, which includes a funeral, you are worse than a stillborn child, how can custom arbitrarily impose limitations on funerals, even if that is desirable and convenient?
We need to guide and guard against excessive intrusion into the rights and privileges of individuals so that customary law would be respected and the trend towards revolt will abate because custom properly defined and set, must be a practice agreed upon to serve the public good.
Recently ,the president of the Ghana Bar Association, Nene Amegatcher, is reported to have expressed reservation about some customary laws and indicated that he would mount a legal challenge to the authority of the Ga Traditional Council to ban drumming in Accra annually as well as the recent ban on funerals imposed by the Asantehene Otumfuo Osei Tutu II, in the Ashanti Region prior to celebrating his 15th year of reign.
One may be inclined to ask, does Article 11 of the 1992 Constitution of the Republic of Ghana, not define the laws of Ghana thus, “The laws of Ghana shall comprise: this constitution; enactments made by or under the authority of the Parliament established by this Constitution; any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution; the existing law and the common law.”
Does it not provide that, “the common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature ” . Does it not further point out that “ for the purposes of this article, customary law means the rules of law which by custom are applicable to particular communities in Ghana.”
But the Constitution also states that, “all customary practices which dehumanise or are injurious to the physical and mental well-being of a person are prohibited” and that, “every person is entitled to enjoy, practice, profess, maintain and promote any culture, language, tradition or religion subject to the provisions of this Constitution.”
So then, in the scheme of things, how should customary law be enforced or applied? What does it mean to say “the rules of law which by custom are applicable to particular communities”. Does that mean customary law is applicable to indigenous people or all those residing within an area of customary jurisdiction?
Chiefs should not unilaterally and without proper consultation at a traditional council meeting, impose a custom on the people. New rules cannot be continually imposed on the people in the name of custom. We need to limit the imposition of new rules of customary law so that what existed before the promulgation of the 1992 Constitution will be respected just as we respect the customary laws we inherited from the English through colonisation.