David Luca

Legal Systems Very Different from Ours

Spring 2005

 

 

THE ASHANTI LEGAL SYSTEM

 

 

INTRODUCTION & HISTORICAL SUMMARY

                  The Ashanti (or Asante) were a tribal society on the Gold Coast of West Africa in what is now known as Ghana who developed, in relation to their historical tribal counterparts, an elaborate primitive society.  The Ashanti coast was mainly inhabited by the “Asan” people who built a large military state surrounded by small cities and townships, and at the height of their civilization, the Asan numbered around 200,000 people.[1]  The Ashanti dwelled mostly in the surrounding forests and led the life of a sedentary gardener.[2]  The forest was often seen as a place of refuge for the Ashanti people, as they had previously been driven to the forest by the Moslem nomads.[3]   

The Ashanti were under British control as a colony from 1873 until 1951, however, the British domination did little to change or influence the development of Ashanti society.[4]  The British ruled the Ashanti through an indirect system of native chiefdom, so the Ashanti were free to develop their own political, legal, economic and religious systems with little to no intervention from British forces.[5] 

The Ashanti society, while quite complex, was very sprawling and disorganized.  During the sixteenth century, the Ashanti were only a band of local groups, each having a head chieftain[6].  The various groups did not interact as a larger overall society, but each was ruled in accordance with each chieftain’s respective wishes.  As the seventeenth century progressed, the Ashanti found themselves under military pressure from outside sources and began to fight among themselves.[7]  From these internal conflicts rose one Chief, Osai Tutu, who led the effort to unify and strengthen the various Ashanti tribes.[8]

The Ashanti family and political structure is distinctly marked by the maternal lineage and importance of motherhood.[9]  The mother is responsible for directly transferring blood to her offspring while the father is responsible for transferring spirit through his semen to the child.[10]  The Ashanti believed that blood was the basis for descent, land rights, succession of other titles, offices, political appointments, legal responsibilities and other important entitlements.[11]  Therefore, blood received from the maternal side of the family reigned supreme, while the spirit received from the father was clearly secondary. 

Maternal lineage also played a large role in the selection of the lineage head for local tribes.[12]  The lineage head of each individual tribe was responsible for maintaining good relations and respect for the ancestors with whom “the living depends on for help and protection.”[13] 

THE GOLDEN STOOL AND NATIONAL UNITY

Although not grounded in principles of law, the importance of the Golden Stool to the Ashanti people simply cannot be overstated.  Osai Tutu was the Chief responsible for bringing the “Golden Stool” to the Ashanti people.[14]  As head Chief of the Ashanti, Osai was given the Golden Stool by Komfo Anokye, a priest.[15]  It is said that Komfo “who by his magic powers brought the Golden Stool down from the skies, and told the Ashanti it was their national soul and a symbol of their unity.”[16]  The Golden Stool was so sacred in the Ashanti culture that it was never allowed to touch human flesh nor the ground and received the highest security available.[17]

The Ashanti valued the Golden Stool above all else.  In 1896, for example, the Ashanti submitted to the deportation of their then Chief, Prempeh I, rather then resorting to a war in which the Golden Stool may have been forfeited.[18]  To the Ashanti, it simply did not make sense to retain a Chief when their national soul may be in danger.  In 1900 the British “governor” of the Ashanti, Sir Frederick Hodgson, demanded the Golden Stool.[19]  Frederick Hodgson then made the mistake of demanding to sit on the stool in the presence of the Ashanti.[20]  His demands fell on deaf ears, and almost immediately after this incident, the Ashanti prepared for war.  That series of events is what led to the Ashanti-British war of 1900, all over the Golden Stool and Sir Frederick Hodgson’s comments.  The Ashanti were badly beaten in this war, but the stool remained protected, which was the only Ashanti goal.[21] 

THE LEGAL DIVIDING LINE: INTRA OR INTER KINDRED “OFFENSES”

                  The Ashanti divided the operation and function of their legal system into two categories; one for those offenses committed intra-kindred or clan, and one for those offenses committed inter-kindred or clan.[22]  Justice under these two legal systems and the array of punishments were drastically different.[23]

                  For those offences committed by one clan member against another, the Ashanti would allow the “central figure” of the clan to effectively resolve the dispute with little to no formal proceeding or punishment, as further described below.[24]  However, for offenses committed by one clan member against a member of another clan or tribe, the resolution of the dispute was much taken much more seriously, with stiffer punishments.[25]  The idea behind harsher punishments for inter-kindred offenses was that every offense against a rival clan was a source of potential danger to the entire clan of the offender, as further described below.[26] 

THE ASHANTI LEGAL SYSTEM FOR INTRA-KINDRED OFFENSES

In the Ashanti tribal system, all legal disputes intra-kinsman were believed to be a “efiesem,” or “household dispute” to be resolved at a very informal level.  The term “legal dispute” would actually be a misnomer because the typical subject matter of an efiesem usually involved disputes over women, quarrels over chattels of personal property and in some cases, personal abuse.[27]  These disputes were considered a private wrong between the litigants which was resolved through “private arbitration” without the resort to physical force, retaliation or other formal action.[28]  For example, if a dispute arose between two members of the same kindred, they would consult an elderly and respected member of the tribe to resolve their differences.[29]  That “mediator” would attempt to bring the litigants to an equitable resolution of their issue.[30]  In the case of more complex and important legal disputes, the “plaintiff” could take the case to his or her lineage head, who would then meet with the lineage head of the offender, with the goal being reconciliation or some other compromise.[31] 

The ultimate decision of the mediator was not enforced by the mediator or any other formal system, but instead merely through the Ashanti’s beliefs.[32]  The mediator’s decision was assumed to be from the ancestors, and not really the making of the mediator himself (or herself).[33]  The litigants were expected to abide by the mediator’s decision because the power to punish for refusing to comply with the mediator’s findings lay with the ancestors.[34]  The fear that ancestors would punish litigants though illness or misfortune secured compliance with any “judgment.”[35]  Another consideration was the Ashanti belief that when the living passed onto the world of the dead, ancestors would require an “accounting” of their time on earth.  This accounting would certainly include an inquiry into morality towards fellow kinsman.[36]  Additionally, from a cultural perspective, for a litigant to ignore a mediator’s recommendation would be akin to rebuffing ancestors, unacceptable under the Ashanti way of life.[37]  In sum, although the mediator’s decision did not have any legal enforcement remedy, they were generally accepted by the litigants.[38]  

An example of the strength of the legal enforcement mechanism of the Ashanti is as follows.  In 1942, a slave woman had two daughters, one of which married a local Chief while the other married a commoner.  Both daughters lived in the Chief’s house with his sisters.  The daughter who wed the Chief had four children and the other daughter had two.  After many years, the Chief died and the two daughters of the slave immediately moved out and refused to cohabitate with the Chief’s sisters, with who they had lived for many years prior.  Within a short time, the first daughter lost two of her children, while the second daughter lost both of hers.  The daughters approached the local god, obosom, and asked why such misfortune had befallen them.  The god replied that because the daughters left the house of the Chief after his death, the ancestral spirits were displeased and no longer protected the two daughters or their offspring.[39]  Although this example does not specifically involve a legal dispute per se, the uncompromising belief in the ancestral powers is present, just as in the resolution of legal disputes.

It was understood by the Ashanti that household disputes were to be resolved between the litigants as soon as possible.  The obligation to settle intra-kindred disputes was strong, and the Ashanti would not tolerate outstanding and unresolved disputes.  In fact, the Ashanti said that a “wet house [one that retained unresolved legal disputes] is one in which the head sits moody and brooding because of trouble.”[40]   

At the conclusion of a settlement, the emphasis shifted to one of restoring the equilibrium in the clan.[41]  The Ashanti valued a sense of closure to a dispute, usually through an offering of mpata (“pacification” or “conciliation”).[42]  This offering would consist of a chicken or a few eggs to the injured party, or in cases where a more heinous offense committed, some gold dust or possibly a lamb.[43]  It was usually a foregone conclusion that the Plaintiff to any dispute would accept the mpata to restore equilibrium to the clan, and the dispute was officially concluded at that stage.[44]

As the Ashanti legal system grew, fines were levied on the persons culpable for these minor offenses.[45]  The central authority who resolved the differences between clan members would collect for his services.[46]  The revenue was used for other governmental functions of the Ashanti, much like our Court system today.[47]  A small portion of the revenue was earmarked for offerings of thanks to the gods in conjunction with a prayer to eliminate disputes inside the clan.[48]

THE ASHANTI LEGAL SYSTEM FOR INTER-KINDRED OFFENSES

                 Inter-kindred offenses are referred to as Oman Akyiwadie, which translates roughly to “things hateful to the tribe.”[49]  An offense committed inter-kindred involved a harsher and more rigid legal reaction from the Ashanti.  Inter-kindred offenses presented a danger to the entire offender’s clan because the entire clan would be held responsible for the actions of one member, and could suffer similar consequences.[50]  An exception would be if the injured party’s clan was to deny the request for retribution, which did happen from time to time.[51]  The Ashanti would avoid inter-kindred clashes at all costs, because it was these disputes that led to tribal wars.[52]  For example, Ashanti children were strictly instructed to avoid quarrels with anybody outside their own “inner circle” for fear of inciting a tribal war.[53]

                  The only way for an Ashanti clan to avoid being held responsible for the acts of one of its members was to expel that member from the clan.[54]  As awkward as it may seem, considering how “tight” the clans were, members were often expelled to avoid the joint liability for the acts of one clansman.[55]  Once expelled, the offending party was left without protection from the angered clan, and was left to fend for himself.[56]  If the member was left alive the best life he or she could hope for, without a supporting clan, was the life of a slave.[57]

PROCEDURE IN THE CHIEF’S COURT

                  In those cases where the offense was not resolved through the household dispute system, a grievance was taken to the Chief’s Court for resolution, and the process became much more formal.  When a dispute arose between two Ashanti members, usually both members involved were arrested by a fellow member.[58]  Both members were arrested and held “imprisoned” (see explanation below) pending the resolution of their case.[59]  The Chief would ask them who was the first to commit an offense, and that person was termed the equivalent of a “Plaintiff” while the other was the “Defendant.”[60]  Accordingly, a day was scheduled for the hearing on the case and until that day, the two members would be forced to wait in “prison.”[61]

                  On the day of trial, the Chief and local Councilors would assemble in the courtyards.[62]  The importance of the underlying case dictated the number of people present for the resolution of the dispute.[63]  The prisoners were present, but they were to remain restrained during the entirety of the proceeding.[64]  The first percipient witness, usually the person who initially arrested them, would then relate what he observed between the two members.[65]  Then the Plaintiff would have a chance to present his case.  In turn, the Defendant was then allowed to state his case.[66]  However, the interesting part of this procedure is that neither the Plaintiff nor Defendant were “sworn in” or promised to tell the truth.[67]  In fact, it was expected that they would each lie to some extent, and they were not expected to tell the truth if it did not benefit them or their case.[68]  At the conclusion of the Defendant’s version of the dispute, the King would then paraphrase both the story of the Plaintiff and Defendant and ask them each individually whether what he understood was in fact their version of the story.[69]

                  After the King got both the respective stories straight, then the entire panel would be allowed to ask questions of the both the Plaintiff and Defendant about their side of the story.[70]  The Plaintiff and Defendant, in order to corroborate any questioned aspect of their story, could then call a witness to bolster their version of the events.[71]  A messenger would then go and find that particular witness from the tribe, and if the witness could not be found, the proceedings were suspended until that witness could be found and brought before the Court.[72]  The messenger was obligated to give an oath before he left the Court to not speak to the witness about anything that he had heard thus far in the proceedings.[73] 

                  When the messenger secured the witness, he/she was brought to Court and would be sworn in, specifically promising to tell the truth.  The penalty of perjury was that the witness would be killed by the gods.[74]  The King would then simply ask the witness “what he knew about the two prisoners before him,” and the witness would tell the King and his Councilors what he saw and/or heard.[75]  If the witness testified in accordance with the Plaintiff, the Plaintiff won.  Similarly, if the witness testified in accordance with the Defendant, the Defendant won.[76]  The guilty person was taken away and would await sentencing.[77]

                  Odanseni Owu N’afu, or when a “witness dies because of his belly,” was a fairly common occurrence in Ashanti Courts.  When a witness died because of his belly, it meant that his testimony was “bought” by one of the litigants.  Because that witness lied under an oath to the Gods, it was believed that the Gods killed him for his perjured testimony.

                  The above procedure was adhered to in every respect for formal proceedings in front of the King and his assembled Councilors.  Evidence in any other form was usually considered worthless and subject to ridicule.[78] For example, if a Ashanti member was to stand up during the proceedings without being sworn in and presented evidence to the Court, it was ignored in its entirety.[79] 

SELECTED OFFENSES

                  Although the Ashanti punished a wide variety of behavior, the following are the crimes that have the most historical significance for the Ashanti.

Murder

                  The offense of murder, or Awudiei, is the worst crime one can commit for the Ashanti.[80]  However, the Ashanti defined and construed the offense of murder differently than our society.  The concept of murder would also include certain sexual offenses, such as intercourse with a pregnant woman and intercourse with a pre-pubescent girl.[81]  Although the aforementioned sexual offenses have nothing to do with murder, it is believed that they were included in the concept of murder just because the Ashanti viewed them as so heinous to be akin to murder.[82]

To the Ashanti, murder was so horrible not only because of the tragic loss of life, but also because it signified that one member “took the law into his own hands.”[83]  One of the most jealously guarded prerogatives in Ashanti society was the power of the “central authority” to take another’s life.[84]  In the later stages of the Ashanti culture, all murder trials had to go to the national court, and could not be resolved through clan justice systems.[85]   

                  The Ashanti did require a mens rea or other sign of guilty thoughts, as proven by their treatment of accidental homicides.[86]  Most accidental homicides were the result of hunting activities.[87]  However, a formal investigation into the death of any clan member was always undertaken to insure that a true murder did not in fact take place.[88]  In the case of accidental deaths, the member responsible for the death would be forced to pay the funeral expenses of the deceased, forfeit his gun, offer certain gifts to the family of the deceased and offer sacrifice(s) to the spirits.[89]  However, the Ashanti did not punish members for guilty thoughts or the intention to commit a murder.[90]  The Ashanti also did not have an offense of attempted murder either.[91]  If no clan member died, than the offense of murder was not an option to punish the offender.

                  The punishment for an actual murder committed intra-kindred was simply the expulsion of the clan member, who would be killed, or if he was lucky be relegated to life as a slave.[92]  For offenses committed inter-kindred, the member would still be expelled from his native clan, but the injured clan would then deliver justice for the murdered clansman.  In the case of murder, capital punishment was the norm.[93]  Hoebel raises an interesting occurrence in the Ashanti culture; when a pregnant woman commits murder, the punishment for which being death.  The Ashanti were faced with a serious tribal dilemma: killing the mother for her crime also killed the child, but the child had done nothing wrong.[94] An Ashanti must know why he or she died, and in cases of a pregnant woman who was executed, the child would have no knowledge of why it died.[95]  Therefore, the Ashanti waited for the child to actually be born, and then killed both the mother and child for the murder committed by the mother.[96]

Suicide

                  The Ashanti regarded suicide to be a capital sin except for a few limited circumstances.[97]  Suicide was considered a capital sin when it was undertaken to avoid the consequences of some wrong doing.[98]  This law was related to the Ashanti postulate (described below) which stated that only the Chief could kill an Ashanti member.[99]   Oddly enough, when an Ashanti committed suicide, the dead body was brought into court and the penalty imposed would be the decapitation of the lifeless body.[100]  The decapitation was undertaken in an effort to make sure that the person who committed suicide did not escape any penalties for wrongful conduct.[101]  As described below, the Ashanti death penalty was very gruesome, and suicide was a viable and sometimes desired alternative to the death penalty.[102] 

                  After the Court proceedings and decapitation, the estate of the person who committed suicide would be confiscated by the Chief, and his family disinherited.[103]  The usual items that would be confiscated by the Chief were slaves, bought wives, gold-dust, personal debts due to the deceased, clothes and other personal property.[104]  The one exception to this escheat to the Chief related to the land of the clan member who committed suicide.[105]  The first harvest following the suicide would be the property of the Chief, but the actual land and all subsequent harvests would remain the family’s property.[106]  So, for all intensive purposes, the family of the person who committed suicide would be the only ones to suffer because of they were disinherited and their lifeless family member decapitated.

                  However, for the Ashanti, the punishment of the member who committed suicide was for the common good.  The Ashanti believed that the spirit of a suicide would become a saman twetwe, literally a “ghost wandering about in search of his head.”[107]  Furthermore, the suicide’s spirit would not be allowed to enter the land of the spirits until the expiration of his or her destined time on earth, which through the suicide was prematurely curtailed.[108]  Additionally, when the suicide’s spirit was eventually reincarnated, the spirit would return as a tofo sasa, or the “spirit of one who died an unholy death.”[109]  It was believed that the tofo sasa would again meet the same demise on earth when it was reincarnated (death by suicide).[110]  Therefore, the only way to break this cycle and allow the person who committed suicide closure was to “re-kill” him or her by decapitation.[111]  The Ashanti would even dig up buried bodies to accomplish this task.[112]

Sexual Offenses

                  In the Ashanti culture, only certain types of sexual offenses had been enumerated to merit intervention by legal authorities and punishment.[113]  The four main categories of sexual offenses are mogyadie (incest), atwebenefie (sexual intercourse between certain individuals, other than those related by blood), baratwe (sexual intercourse with an unclean woman) and di obi yere (sexual intercourse with another man’s wife, under certain circumstances).[114]  Each of these offenses will be examined in turn. 

                   The crime of mogyadi (literally translates to “the eating up of one’s own blood”) is defined much more broadly for the Ashanti culture than in our society.[115]  For the Ashanti, incest was defined as sexual intercourse not only between two persons of the same blood, but also of those from the same clan even if there was no traceable direct descent.[116]  Incest, by virtue of its punishment, was the worst sexual offense.  Those found to have willfully committed incest were sentenced to death.[117]  However, those who were found to have accidentally committed incest were punished merely by a nominal fine and a sacrifice of some sort to the gods.[118]  The crime of incest is so heinous to the Ashanti that if the offenders were to not be punished it was believed that, “hunters would have ceased to kill the animals in the forest, the crops would have refused to bear fruit, children would have ceased to be born the Samanfo (spirits of ancestors) would have been infuriated, abusua (clans) would have ceased to exist and all would have been chaos in the world.”[119] 

                The crime of Atwebenefie (literally translates to “having sexual intercourse with a vagina near to the dwelling house”) is unknown in our legal system.[120]  It could be argued that our culture frowns on such activity, but does not impose punishment for these interactions as the Ashanti did.  Ashanti law specifies that sexual relations between a man and a certain woman are forbidden, even though not related by blood.[121]  The punishment for this offense was also death, although it did not carry quite the same “stigma” to a clan as incest.[122]  Sexual relations between a man and any one of the following women was forbidden:

                1.  A half-sister by one father, but by a different clan mother;              

                2.  A father’s brother’s daughter;

                3.  A woman of the same father;

                4.  A brother’s wife;

                5.  A son’s wife;

                6.  A wife’s mother;

                7.  An uncle’s wife;

                8.  A wife of any man of the same “company;”

                9.  A wife of any man of the same guild or trade;

                10.  A wife of one’s own slave;

                11.  A father’s other wife from a different clan;

                12.  A wife of one’s own sister.[123]

               

                The crime of Baratwe was sexual intercourse with a woman during her menstruation period.  According to Hoebel and Rattay, the Ashanti thought a menstruating woman was ritually unclean and even to a certain extent, dangerous.[124]  However, for some reason, Hoebel refers to this crime as Oman Akyiwadie, while Rattay refers to it as a different name.  It is unclear which Ashanti name is correct.[125]

                The final, sexual offense was that of Di Obi Yere, or in our society, adultery.  The Ashanti took an awkward approach to this crime, and only punished the male offender if he had sexual relations with the wife of a King or Head-Chief.[126]  It was believed that since the King or Head-Chief was continually in close contact with the spirit world.  The man who had an affair with his wife not only disrespected the King/Head-Chief, but also the ancestors to whom he was in close contact with.[127]  The punishment for Di Obi Yere was the worst imaginable in the Ashanti culture.  The offender who had an adulterous affair with a King or Head-Chief died through Atopere, or the “dance of death.”[128]  In this practice, the sexual offender was dissected into very small bits with such surgical skill that he was actually not killed during two to three days of torture.[129]

                All other adulterous affairs were not even classified as sexual offenses in the Ashanti culture at all.[130]  In fact, such affairs fell under the category of common “theft.”[131]  In those cases, the offender would be subject to a less serious punishment.  However, the Ashanti had an exception to this relaxed rule in that Ahahantwe (“sexual intercourse in the leaves”), was not a theft.  In cases of Ahahantwe, the adulterous offender would pay a nominal sum to the husband of the woman who he had an affair with, and had to offer one of his own sheep up for sacrifice.[132]  The sheep was sacrificed in the exact spot the affair took place with the following prayer (roughly translated):

“Thursday’s earth goddess, a man has room, he has mat, yet he seduced a woman here on the bare ground; because of that, we have brought you this sheep.  Moreover, if any one does so again, grant that the deed may be publicly known and ‘come out.’”[133]

It was believed that a member who would have an adulterous affair on the earth defiled not only the wife, but also Mother Earth.[134]

Slander and other personal abuses

                  The Ashanti divided personal epithets by their recipient, much akin to adultery.  For those insults that were directed at ordinary men, the resolution of those insults was thought to be a “household dispute.”[135]  However, the same insult directed to a King or Head-Chief would usually result in the punishment of death.[136]  The Ashanti again valued the ancestors and spirits related to the King or Head-Chief, and an insult against either of those classes of people was not acceptable.[137]

                  The usual personal epithets are as follows:

1.       Wo ‘Ni (your mother);

2.       Wo ‘Se (your father);

3.       Wo Nana (your grandparent);

4.       Wo ‘Ni Twe Ase (the origin of your mother’s privates);

5.       Wo Se Twe Se (the origin of your father’s privates);

6.       Wo ‘Samanfo Mfa Ye Ti Nwe (may you ancestral spirits chew their own heads);

7.       Wo ‘Samanfo Mfa Ye Nankasa (may your ancestral spirits take their bones and eat them);

8.       ‘Kwasea ‘Ba (child of a fool).[138]

Hoebel also classified the insult of any man by any woman as a capital crime.[139]  This is not mentioned in Rattay’s work, but Hoebel claims that any woman who called a man ‘Kwasea ‘Ba (child of a fool), constituted a direct attack on that man’s ancestors, and retribution would be had.[140]    

PUNISHMENT IN THE ASHANTI SYSTEM

                  Capital Punishment:  It seems that almost all of the serious crimes noted above carried capital punishment as the remedy for the tribe.  However, the punishment was administered differently depending on the King of the Ashanti or the Head-Chiefs who ultimately administered the punishment.  The most common method was simply to decapitate the guilty member of the tribe with a small knife.[141]  Before the King or Head-Chief decapitated the guilty party, an assistant would thrust a knife through the cheeks of that person.[142]  This act would prevent the criminal from blessing the chief prior to death.[143]  Other common methods of capital punishment were strangulation, clubbing one to death, drowning or burning.[144]

                  Mutilation:  In some cases mutilation was the preferred punishment to death, especially when the accused was not deserving of the death penalty.[145]   When a person was guilty of verbal abuses, such as slander against an elder, it was common to cut off that person’s lips as punishment.[146]  Another punishment for slander was to cut off the right ear of a guilty party.[147]  The right ear was always cut off, because an Ashanti member could use his cloth over his left shoulder (standard clothing procedure) to cover up the deformity on the left side of his head if his left ear was removed.[148]  The purpose was to embarrass through mutilation and not allow the member to cover his deformity.[149]  Cutting off a person’s nose was another popular form of mutilation for those that were well-known in the tribe for being disrespectful, conceited and having an overall bad reputation.[150]  If one of those persons found himself or herself in front of the King of Head-Chief guilty of a crime, one could be assured that such mutilation would be the punishment, if applicable.[151]  Castration was usually reserved for those persons who uttered certain personal epithets or saw the wife of a Head-Chief naked and failed to turn his eyes away.[152] 

                  Flogging:  Anybody who made remarks against the King or how he ruled would be subject to a flogging.[153]  This punishment was relatively common and not really taken too seriously.[154]

                  Imprisonment:  This was not really a punishment in the Ashanti society and was usually only used to restrain persons awaiting “trial” or “sentencing” after the trial by the King and Councilors.[155]  An example of imprisonment was when an Ashanti member was fastened to a log awaiting trial.[156]  The Ashanti did not have formal jails or other facilities to imprison members of the tribe, it was a very impromptu version of “jail.”

                  Slavery:  A common punishment for a tribal member who was no longer welcome in his tribe was that he be sold as a slave to another tribe, or to become a slave of the King or other Head-Chief.[157]  Additionally, one who was ordered to pay a fine, although rare, and could not afford to do so would be relegated to slavery to work off his fine to the tribe.[158]

                  Fines:  Some punishments of the Ashanti tribe could be “bought” by the offender and his sentence would then be suspended.[159]  However, it was not often the case that the original punishment would be to pay a fine to the tribe, usually another form of punishment was enforced, and a fine could be paid to avoid that punishment.[160]

THE ASHANTI POSTULATES

                  The majority of the above law and processes were derived from the seventeen major postulates of the Ashanti Culture.  The postulates are reproduced here along with their corollaries.

  1. Postulate I:  The gods and ancestral spirits control and direct the operation of all the forces of the universe.
    1. Corollary 1:  Man is subordinate to the wills of the god and spirit beings; especially the spirits of the ancestors.
    2. Corollary 1’:  The well-being of society depends on the maintenance of good relations with the ancestors.
    3. Corollary 1’’:  The ancestors will severely punish any contravention of their will. 
    4. Corollary 2:  The works of men are destined to be no more than the working out by human endeavor the forces of the universe that come within the ken of men. 
  2. Postulate II:  All men must be allowed to participate, directly or indirectly, in the formulation of laws.
  3. Postulate III:  All major contraventions of the will of the ancestors or the gods are sins.
  4. Postulate IV:  The ancestors will punish the group as a whole, if the group does not punish a sinner and atone for his misdeed.
    1. Corollary 1:  All sins are crimes.
  5. Postulate V:  The ancestors will “try” a man in the spirit world if he takes advantage of a miscarriage of justice on earth.
  6. Postulate VI:  Past misfortunes are a repugnant to the ancestral spirits.
    1. Corollary 1:  To mention such misfortunes causes the ancestors to take unfavorable notice of any situation to which an oath is required.
  7. Postulate VII:  Men are endowed with conscious will, except when drunk or misdirected by an evil spirit in certain limited situations.
    1. Corollary 1:  A man is morally, legally, and individually responsible for his acts.
  8. Postulate VIII:  Blood is physical in nature and is inherited through the mother, thereby creating a physical bond of continuity in matrilineal descent.
    1. Corollary 1:  The primary loyalty of a person is to his maternal lineage.
    2. Corollary 2:  Social status, including chief-ship, relations to property, residence, and burial, is primarily determined by membership in the maternal lineage and clan.
  9. Postulate IX:  Semen (the spirit) is inherited through the father.
  10. Postulate X:  Basic property belongs to the ancestors.
    1. Corollary 1:  While in official position of leadership, he is sacred.
  11. Postulate XI:  A headman or chief is the carnal viceroy of the ancestors of the kinship group he governs, and a stool is symbolic of the collectivity of the ancestors.
  12. Postulate XII:  Men are bound to their by persona fealty as well as by kinship
  13. Postulate XIII:  A man, except as he dies in battle or of natural causes, must know why he dies.
    1. Corollary 1:  Killing within the tribe must be done only by due process controlled by the King, for all other killing is hated by the tribe.
  14. Postulate XIV:  Cursing with a forbidden oath is killing.
  15. Postulate XV:  Incest destroys the universe.
  16. Postulate XVI:  Menstruation is spiritually unclean.
  17. Postulate XVII:  The sex rights of a husband in his wife are exclusive.[161]

Although the Ashanti legal may at times seem haphazard, a quick review of the above postulates and their respective corollaries can provide valuable insight to the structure of the Ashanti legal system as a whole.  The postulates and their cultural underpinnings often directly relate to everyday life and their legal system in general.

CONCLUSION

                  The Ashanti tribes were a very structured and organized people, albeit that they had no formal infrastructure or government.  Through mostly their belief in the ancestral spirits and supreme status of their Chief, fairly consistent legal rules and procedures developed I the Ashanti tribe.  Through the use of postulates and the classification of disputes as either intra or inter-kindred, a legal system flourished based on little to no precedent.

It is interesting that British control over the Ashanti had little to no effect on the development of their legal system.  In fact, the British did not really even attempt to control the development of the Ashanti, and the Ashanti were free to create their own legal system according to their own religious, spiritual and cultural beliefs.  The result of this un-inhibited growth was a legal system simple, but in the same vein quite complex when compared to other tribal societies.



[1] Hoebel, E., The Law of Primitive Man (Harvard, 1967), p. 211

[2] Garbrah, Steve, www.ashanti.com.au, Last updated 2001

[3] Hoebel at 212.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 214

[10] Id.

[11] Id.

[12] Id. at 215

[13] Busia, K.A., The Position of the Chief in the Modern Political System of the Ashanti, (Oxford, 1951), p. 26

[14] Id. at 212

[15] www.ashanti.com.au

[16] Busia, p. 4

[17] www.ashanti.com.au

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Rattay, R.S., Ashanti Law and Constitution, (Oxford, 1929), p. 286

[23] Id.

[24] Id. at 290

[25] Id. at 291

[26] Id.

[27] Id. at 287

[28] Hoebel, p. 216

[29] Id.

[30] Id.

[31] Id. at 216 and 218

[32] Id. at 287

[33] Id. at 329

[34] Id. at 330

[35] Busia, 25, 29

[36] Hoebel at 217

[37] Id.

[38] Id.

[39] PM at 217

[40] Rattay, 390

[41] Hoebel at 218

[42] Id.

[43] Id.

[44] Id.

[45] Id. at 233

[46] Id.

[47] Id. at 234

[48] Id.

[49] Hoebel at 294

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Hoebel at 219

[55] Id.

[56] Rattay a 291

[57] Id. at 289

[58] Id. at 380

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id. at 384

[68] Id.

[69] Id. at 380

[70] Id.

[71] Id.

[72] Id. at 381

[73] Id.

[74] Id.

[75] Id.

[76] Id. at 382

[77] Id.

[78] Id. at 385

[79] Id.

[80] Hoebel at 219

[81] Id. at 235

[82] Id.

[83] Rattay at 295

[84] Id. at 290

[85] Hoebel at 235

[86] Rattay at 296

[87] Id.

[88] Id.

[89] Id. at 290

[90] Id. at 297

[91] Id.

[92] Hoebel at 219

[93] Rattay at 375

[94] Hoebel at 238

[95] Id.

[96] Id.

[97] Rattay at 299

[98] Rattay at 299

[99] Hoebel at 236

[100] Id.

[101] Rattay at 302

[102] Id.

[103] Hoebel at 237

[104] Rattay at 301

[105] Hoebel at 237

[106] Id.

[107] Rattay at 299

[108] Id.

[109] Id.

[110] Id.

[111] Id.

[112] Id.

[113] Hoebel at 239, Rattay at 304

[114] Rattay at 304

[115] Id.

[116] Id.

[117] Hoebel at 239

[118] Id.

[119] Rattay 304

[120] Id. at 305

[121] Id.

[122] Id.

[123] Id. at 305-306

[124] Hoebel at 239, Rattay at 306

[125] Id.

[126] Rattay at 306

[127] Id at 307

[128] Hoebel at 240

[129] Id.

[130] Rattay at 306

[131] Id.

[132] Id. at 308

[133] Id.

[134] Id.

[135] Hoebel at 241

[136] Rattay at 310

[137] Id.

[138] Id.

[139] Hoebel at 241

[140] Id.

[141] Rattay at 375

[142] Id.

[143] Id.

[144] Id. at 376

[145] Id.

[146] Id. at 377

[147] Id. at 376

[148] Id.

[149] Id.

[150] Id. at 377

[151] Id.

[152] Id.

[153] Id.

[154] Id.

[155] Id. at 378

[156] Id.

[157] Id.

[158] Id.

[159] Id.

[160] Id.

[161] Hoebel at 252-254