The Stool Is Not The Test: Judicial Review, Customary Adjudication and the Necessary Determination of Chieftaincy Jurisdiction in Ghana

Ghana’s constitutional order has made an unusual choice, for it has entrusted the determination of chiefly status to institutions drawn from the customary order and applying that order’s own law, has guaranteed through Act 759 the customary arbitration by which chiefs have long composed disputes, and has placed both under the discipline of legality administered by the ordinary courts. That choice is coherent only if the courts can tell the difference between supervising a chieftaincy body or customary arbitrator and deciding a chieftaincy cause, and the formulas inherited from the earlier cases, which speak of secondary questions and of determinations that settle a dispute once and for all, point in the right direction while describing outcomes rather than supplying a method.