The role of traditional leaders in modern Africa is complex and has many aspects. It is discussed by advocates of “traditionalists” and of “modernists.” The traditionalists regard Africa’s traditional chiefs and elders as the true representatives of their people, accessible, respected, and legitimate, and therefore essential to politics on the continent. “Modernists,” by contrast, view traditional authority as a gerontocratic, chauvinistic, authoritarian and increasingly irrelevant form of rule that is antithetical to democracy (C. Logan, working paper 93, Afro Barometer).
In modern Africa the “traditionalists” represent the more popular view. An Afrobarometer survey of 36 African countries in 2014-15 found that 61% of people trusted local chiefs. Faith in ancient power structures has increased as people have grown more wary of modern and democratic institutions and politicians (The Economist, 19 December 2017); which is more or less the same as in West Europe. One reason is because the state in Africa is often absent. It is far more effective to ask a chief than a far-ocourt to rule in a case. Because the chief is local, his ruling may be better understood and accepted. Another reason may be that traditional leaders are seen as less corrupt, even though they tend to follow unwritten customs rather than written laws (The Economist, 19 December 2017).
These unwritten rules and customs, also called “customary law”, are defined as meaning the customs and practices traditionally observed among the indigenous African people of South Africa, which form part of the culture of those people (Bekker Seymour’s Customary Law in Southern Africa (1989) 11-13). Some African countries have definitions, whereas in other countries only descriptions can be applied and thus rules are more complex to derive. Allott says about the definitions: “Whether these definitions of customary law contribute anything by way of precision or facilitation of choice of laws is an open question.” (Allott New Essays in African Law 1970, 157).
Modern African Legal Systems
Most African legal systems consist of a complex combination of customary law, religious laws, received law (such as common law or civil law) and state legislation. In particular customary law can be hard to define in a set of rules as we know in continental Europe. The complexity becomes apparent when the application of different sources of law leads to different outcomes in specific legal cases. In Bhe v The Magistrate, Khayelitsha; Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa, for example, the Constitutional Court declared customary rule of male primogeniture, which allows only an oldest male descendant or relative to succeed to the estate of a Black person, unconstitutional and invalid. It also declared unconstitutional and invalid, section 23(7) of the Black Administration Act which unfairly discriminates against women and others with regard to the administration and distribution of black deceased estates. The court imposed, as an interim measure, the provisions of the Intestate Succession Act on estates previously dealt with under the Black Administration Act. It also made special provision for estates relating to polygynous marriages and that estates previously administered in terms of the Black Administration Act must be administered by the Master of the High Court in terms of the Administration of Estates Act.. (J.C. Bekker and D.S. Koyana, The judicial and legislative reform of the customary law of succession, De Jure, 45 Volume 3 2012 pp 568).
In this context some traditional African leaders have started to issue ancient European titles of nobility to westerners in order to help their people fund health care and education. The question arises to what extend such titles can be regarded as legitimate, both from a historic and legal perspective. I will discuss two cases in this respect.
Case study: Ghana
On the internet, examples of European-style titles of nobility can be found that are issued by Togbe Osei III. of Godenu. For example: “The hereditary noble title of “Baron of Todome” has been conferred on November 13, 2016 by H.R.H. Togbe Osei III., by the Grace of God The Dufia of Gbi-Godenu in the Volta Region, Ghana, The Lion of Godenu, officially recognized, protected and guaranteed by the Constitution of the Republic of Ghana.“. The passage fees are used to contribute to important local social projects.
Ghana has a mixed system of English common law and customary law. Article 11(3) of the 1992 Constitution defines customary law as the rules of law which by custom are applicable to particular communities. Customary law is now a question of law to be determined by the courts. In Muslim communities, the reference to customary law is a reference to Islamic law or the Sharia. Customary law is not codified. Under Sections 42 and 43 of the Ghana Chieftaincy Act, 1971 (Act 370), as amended by Chieftaincy (Amendment) Decree, 1973(NRCD 166), Chieftaincy (Amendment) (No. 2) Decree, 1973 (NRCD 226), Chieftaincy (Amendment) Law, 1982 (PNDCL25) and Chieftaincy (Amendment) Law, 1993 (PNDCL 307), the National House of Chiefs and/or a Regional House of Chiefs, can draft their declaration of customary law for approval and publication as a legislative instrument by the President after consultation with the Chief Justice (V. Essien, Researching Ghanaian Law, Hauser Global Law School Program, New York University School of Law, 2005).
I have not discovered in Ghana’s common law nor in Ghana’s customary law (as determined by the courts) a rule or basis that makes it possible to issue European-style titles of nobility. In particular, Ghana’s Constitution makes no mention of such a practice. Therefore, it seems to be the case that this practice has no legal basis. From a historical perspective, the mentioned practice has never occurred. Does this mean that such titles are not legitimate? More specifically, the question is: are there any objections regarding the issuance of western titles by Togbe Osei III and what is their value? I already addressed this question in my article about the former King Kigeli of Rwanda. That case involved a former head of state. In the Ghana-case it concernes a ruling traditional chief, as legally embedded in Ghana’s constitution.
It could be hard to embed a local nobility in Ghana’s regions, since there is no legal basis for it. Nobility can even be seen as unlawful. The President of the National House of Chiefs, the Agbogbomefia of the Ho Asogli State, Togbe Afede XIV, recently said one of the objectives of his administration would be to restore the nobility and reverence of the chieftaincy institution to enable it to effectively play its roles in society as expected (Ghanaweb, 2 February 2017, Do not meddle in politics. Togbe Afede tells chiefs). Issuing European-style titles may currently be the only safe way to bestow honours, since Ghana law is neutral about them in the same way as e.g. Italian law.
Like other major Western noble titles, baron is sometimes used to render certain titles in non-Western languages with their own traditions (e.g. the Indian equivalent Rao and the Székely equivalent primor, historically used among a specific population of Hungarians in Transsylvania). From a historic perspective these titles are unrelated and thus hard to compare. They are considered comparable in relative rank. Even in Western Europe the term Baron can hardly be compared among the different European countries or even among different regions within a country. Therefore, when using the title in public, the source of the title should be mentioned; although the word is the same, internationally it has a different meaning.
In my opinion, European-style titles and honours might be unconventional, but can be accepted. There is no authority to forbid the Togbe (literally meaning “grandfather”, the Ewe (1) reference for a chief) to style Europeans and Americans in a Europen manner. I think the Togbe simply wants to make his titles more attractive to westerners, which is understandable. Issuing original Ghanese-style titles to westerners would be unconventional as well and could even be unlawful. On the other hand, at least one example exists that contradicts the latter suggestion. Therefore, it remains an open question to what extend it is legitimate to issue European titles. I tend to see them as legitimate, but only when used in proper circumstances as described below.
- African leaders might not have enough insight regarding the intentions of westerners that want to be involved in charity in Africa in exchange a title of some kind. Frankly, these intentions are not important as long as the titles are bestowed upon worthy individuals and the passage fee is used for the good. However, not taking into account the character and behaviour of the recipients might lead to situations in which the issuer is disgraced. Low passage fees will contribute to attracting gold diggers. More importantly, it also designates low value.
- Today’s internet facilities attract numerous title hunters that make ridiculous appearances on the internet, thus jeopardising the reputation of the honour- or award-issuer. Such persons also decrease the value of the titles that are awarded. It is not easy to spot such title and medal hunters from an African perspective. Therefore, African leaders, that choose to issue titles to fund their regional charities are advised to carefully select a western intermediary of high reputation to represent them in such matters. Appointing the first person who comes knocking on the door is unwise.
- The use of the title should not lead to confusion and irritation with European title holders. Therefore, on social media (e.g. the “Awards” section on LinkedIn) mentioning the title should e.g. read as: Baron of Todome (13 November 2016), title issued by the Togbe Osei III, 25th Togbe of Godenu. Extravagant use of the title should be avoided: less is more.
- I have a problem with use of the terms “King” and “Royal”, without any further explanation. In the context of antiquity and contemporary indigenous peoples, the title can refer to tribal kingship. Germanic kingship is cognate with Indo-European traditions of tribal rulership (c.f. Indic rājan, Gothic reiks, and Old Irish rí, etc.), but it differs from the modern use of the term “King” (head of a state). It needs to be explained that the terms “King” and “Royal” refer to tribal kingship. I suggest that this explanation is put on the website of the House of Godenu.
- I also have a problem with creating all kinds of “Royal” institutions, without any real substance. Some representatives of African Houses have e.g. created non-accredited Royal Universities, Honorary Guards, a Hall of Fame, a Royal Society, a Royal Warrant Holder Society, a Royal Commission of Nobility and Royalty, a Royal College of Technology Foundation, a Royal General Register of All Arms and Bearings and other institutions that try to mimic those of reigning European monarchs. All these institutions are presented in a manner that immediately shows a lack of good taste. In my opinion, these institutions are – to put it in a diplomatic manner – not appropriate and therefore should be avoided. African chiefs have their own identity and should not try to become European because of possible commercial gain. The result of these creations without any substance will be that ancient historic African families are again disgraced by westerners. They will be regarded as fake and ridiculous by the public. An example of a genuine and modest presentation, with a focus on history, research and good intentions, is the website of the House of Rwanda. I suggest this website is used as an example.
Comments and different points of view regarding this article are most welcome.
(1) Ewe (Èʋe or Èʋegbe [èβeɡ͡be]) is a Niger–Congo language spoken in southeastern Ghana by approximately 6–7 million people as either the first or second language.