CHIEFTAINCY IN NORTHERN TOGO

Legally, the administration of justice in Togo is limited to the jurisdiction of the courts of modern law (Tribunaux de Droit Moderne) and the courts of customary law (Tribunaux Coutumiers). Both types of courts are staffed by trained judges with their own assistants, to­ gether with numerous formalities, dossiers , typewriters, etc ; in effect, these are the types of courts that are common in the more industrialized countries . The judiciary in Togo is in many respects patterned on that of the French model even the judge's robel. This dual judicial system, however has been a thorn in the side ofTogolese lawyers for years . It is a situation that does not seem appropriate to a modern world where each citizen is equal before the law whether his case be tried within the court of modern law or one of customary law and where, ideally, then, there ought to be a single system for the administration of jus­ tice. This single national judicial system ought to be enforced by one type of court as well2. 1t is a struggle similar to what waged elsewhere in Africa for many years now, and it has in some cases led to the abolition of the pluralistic colonial judicial system. Now, almost twenty years after having become independent, this desire for a single judicial system is also making itself felt in Togo ; there appear to be plans to abolish the existing dual adjudication of justice3 . Broadly speaking, however, there is yet a third category inc1uded in the judicial system. AI­ though it is only mentioned in passing by the legislature, it nevertheless plays an especially important role in daily legal affairs . This third type of justice is the dispute settlement by the local chief (chef coutumier) . In the legal terminology, the legislature carefully uses phrases such as "the settling of dispute" , or the "reconciliation of the disputing parties in this con­ nection", and not adjudication. Although there is a difference between reconciliation and adjudication for our own Western norms, in tribai concepts of justice such differences may not play such a role. In fact, we know from our own research in Northern Togo that the anufo people refer to the settlement of disputes by the most important traditional leader, the paramount chief, as ad­ judication, in exactly the same way as they do for the settlement of disputes by the lowest of­ ficial court, the Tribunal de Premiere Instance, mostly indicated by its president, the Juge de Paix4 . The juridical position of the local chief in the French colonial period was never completely set. This was left to the governors-general (gouverneurs-general), who repeatedly issued cir­ culars on this subject, taking up the position of the local chief5• Whatever else can be deduced from the French colonial policy with regard to the local chief, it is in any case c1ear that the colonial authorities thoroughly understood that without the local chief's aid, a native administration was impossible. Despite this, they failed to conc1ude


Introduction
Legally, the administration of justice in Togo is limited to the jurisdiction of the courts of modern law (Tribunaux de Droit Moderne) and the courts of customary law (Tribunaux Coutumiers). Both types of courts are staffed by trained judges with their own assistants, to gether with numerous formalities, dossiers, typewriters, etc; in effect, these are the types of courts that are common in the more industrialized countries. The judiciary in Togo is in many respects patterned on that of the French model -even the judge's robel. This dual judicial system, however has been a thorn in the side ofTogolese lawyers for years. It is a situation that does not seem appropriate to a modern world where each citizen is equal before the law -whether his case be tried within the court of modern law or one of customary law -and where, ideally, then, there ought to be a single system for the administration of jus tice. This single national judicial system ought to be enforced by one type of court as well2. 1t is a struggle similar to what waged elsewhere in Africa for many years now, and it has in some cases led to the abolition of the pluralistic colonial judicial system. Now, almost twenty years after having become independent, this desire for a single judicial system is also making itself felt in Togo ; there appear to be plans to abolish the existing dual adjudication of justice3. Broadly speaking, however, there is yet a third category inc1uded in the judicial system. AI though it is only mentioned in passing by the legislature, it nevertheless plays an especially important role in daily legal affairs. This third type of justice is the dispute settlement by the local chief (chef coutumier). In the legal terminology, the legislature carefully uses phrases such as "the settling of dispute", or the "reconciliation of the disputing parties in this con nection", and not adjudication. Although there is a difference between reconciliation and adjudication for our own Western norms, in tribai concepts of justice such differences may not play such a role. In fact, we know from our own research in Northern Togo that the anufo people refer to the settlement of disputes by the most important traditional leader, the paramount chief, as ad judication, in exactly the same way as they do for the settlement of disputes by the lowest of ficial court, the Tribunal de Premiere Instance, mostly indicated by its president, the Juge de Paix4 . The juridical position of the local chief in the French colonial period was never completely set. This was left to the governors-general (gouverneurs-general), who repeatedly issued cir culars on this subject, taking up the position of the local chief5• Whatever else can be deduced from the French colonial policy with regard to the local chief, it is in any case c1ear that the colonial authorities thoroughly understood that without the local chief's aid, a native administration was impossible. Despite this, they failed to conc1ude In considering the several functions (I restriet mys elf to the legal and political functions) a distinction should be made between two aspects : -his functions as tribal adjudicator; -those functions that the government delegates to, or expects the local chief to perform. With regards to the first mentioned functions, it may be useful to bear in mind van Vol lenhoven's comments, a pre-eminent Dutch scholar on Indonesian customary law (adat law) : In the first instance, to lend support to the observance of customary law (adat) ... ; furthermore, they act as living archives of customary law through the things they wit ness, participate in, pass on to their sons ... ; finally, a right to settle disputes on the principles of customary lawS. If we focus on the last part of this description, we see that French colonial law put rather an immediate end to the thoroughgoing judicial powers of the local chief, powers which had earlier existed in Togo under the German colonial government (1884-1914)9. After 1914, the French legislature issued a series of decrees regulating the behaviour of local chiefs in daily life, and in 1933, it reduced their authority to "conciliation", a solely civil judicial power. 1t was emphasized, however, that a conciliation brought about by a chief did not prevent the contesting parties from using the official judge10• In 1961, the Togolese legislature went still further by not even including the conciliatory function in its Law concerning Judicial Organizationll• This law regulates the relationship between modern law and customarily law, and no longer even mentions the actions of the local chief. Thus, in a strictly legal sense, the predominant opinion among lawyers is that the local chief is merely a government civil servant, and not a judicial authority. But in the affairs  Leiden, 1931, p. 247-256. 9 Van Rouveroy van Nieuwaal, E. A. B., Le droit coutumier dans la periode allemande au Togo, in: Verfassung und Recht in U bers � e, to be published. 10 Chabas, J., La justice de droit loeal en Afrique occidentale, Annales Africaines, 1955Africaines, . 11 J.O. 1961 of daily life, this legal view plays only a small role. In large measure, the people turn to their own local chiefs to find the most appropriate solution in 'cases of conflict. The government also knows that the actions of the local chief are important in daily judicial affairs, so much so, that as a result of such actions, the office of the Juge de Paix is not flooded by disputes with which this judge might not be able to deal12• This situation in which there is a formal denial of this important function that belongs to the local chief is not typical of Togo alone. Harrell-Bond13, for instance, reports the same situa tion to be true of Sierra Leone. It probably also relates to the belief that the local chief ought not to have too much power within the political sphere, and that certainly not if the 10cal chiefs already have great authority among the people. This is true, for example, in the case of a paramount chief in southern Togo, where the government-including the president hirns elf -is forced to take into account the whishes of this chief when making its decisions. Moreover, there is also experience with bad chiefs who only view the settlement of disputes as a primary source of income -together with all the abuses that this entails. However important the settlement of disputes is, this is not the 10cal chief's only function14• His concern and support for the observance of customary law, as van Vollenhoven puts it, must also not be forgotten. With this phrase, van Vollenhoven indicated one of the local chief's especially important functions; his very presence at many matters other than disputes and lawsuits -such as, for instance, concluding an agreement, contracting a marriage, etc.for the very fact of his presence serves as a better guarantee for compliance with the agree ment. Or, as van Vollenhoven describes it: "It is not (here) primarily, or even principally, a matter of substantiating facts, rather, the element that comes to the fore as of far greater importance is that the traditional au thorities, by their presence without protest, by their co-operation, as it were, tacitly imply that the matter concerned, that the trans action being concluded accords with tri bal law, or that it does not go counter to tribaI customs". And the following example, taken from our own investigations supports this. The morning following the consummation of her marriage, among the Islamic Anufom, it is customary for a woman to go to the paramount chief of the place where, two days previous ly, her marriage had formally been concluded by an Imam. Before placing her thumbprint on the civil contract the bride, still in her bridal finery, kneels in front of the paramount chief (for he is concerned with some civil registration). Thereupon the chief asks her: "Do your not reject this marriage?" (akete ma adya?). While at the same time carelessly holding a whip in his hand, three times he pos es this question to her -in a tone whose seriousness cannot be misinterpreted by the woman. He thus means to impress upon her that if she runs away, she will be whipped. In such an event, she would later be liable to the charge of adultery. According to the chief, the intent is that the woman cannot then afterwards claim that she had been forced into the marriage, since she had indeed had the opportunity to make it known if marriage had been against her wishes. This example can be extended over countless instances -for example, in the area of land transactions . The presence of the chief at agreements concerning the use or transfer of land is in fact an absolutely necessary precondition, recognized as such even by the government15. This once again underlines the fact that the role of the local chief is not limited solely to ar ranging settlement, mediation, or adjudication. For the Togolese government, however, the local chief is primarily an administrative ad junct. He was often appointed during the colonial period16, and was given the responsibility for tax collecting, keeping the civil records (usually under the most primitive conditions, and without trained personnel), and finally, was also required to maintain public order. It is primarily this latter that becomes a substantial task in a changing society, where old, trusted ways and attitudes must be abandoned, and where the new generation no longer unquestion ingly accepts the authority of their elders. One of the continuing concerns of the local chief is the practice of setting fire to the fields after the harvest. For as far back as anyone can re member this has been done in order to promote the fertility of the land. Although such "feux de brousse" (forest fires) have been forbidden for decades now (since 1929), they still take place, wreaking great damage to both flora and fauna. The most extreme way of dealing with this is to hold the local chief responsible, and if he cannot show who the true guilty parties are, then he is locked up in their stead. The appointment of a local chief takes place according to traditional tribai rules, at least in sofar as these exist17. The actual appointment, however, as weIl as the right to the salary that goes with it, is completely in government hands. It is controlled by the Minister of Interior Affairs, under whose jurisdiction the local chief falls. Moreover, the government does not hesitate at all to push its own candidate, both in the elections18 and for the appointment. My film, A TOAD IN THE COUR TY ARD19, clearly shows, however, in what way the people and their traditional leaders, through internal manipulation know how to counter the central government's ascendancy, and thereby manage to have their own candidate appointed. It is nevertheless the case that at present, a candidate needs government support if he wishes to be chosen and appointed. This is not at all a new state of affairs. Busia, the former President of Ghana, describes in great detail how the English colonial administration in the Ashanti kingdom appointed, dis missed, and retained the paramount chiefs -often against the wishes of certain groups20. It is clear that the local chief has become completely subservient to the larger government au thority, and has as his direct superior the head of the district (chief de la circonsciption).

Area of Tension between Local Chiefs -local government and the administration of jus tice
In order to understand why possibilities for tension and conflict are built into the relations between local chief and government, it will be necessary briefly to discuss the administrative division of Togo.  This is based upon the colonial division that had been made by the French authorities. The most important administrative unit is the province (circonscription), subdivided into smaller parts or cantons, which are, in turn composed of several villages. The district head (chef de la circonscription) is at the head of all these units combined.
In most instances21 these administrative units have a local chief, and the hierarchy of author ity is: village chief; cantonal chief; paramount chief. The local chiefs are responsible to the district head, while the lesser local chiefs also recognize the paramount chief as their supreme traditional ruler. The district head never comes from the area over which he governs. His position can be best compared with that of the French administrator, the commandant de cercle. His position is hardly enviable, when the ease with which he can become entangled in the snares and pitfalls that the people and their leaders set for him is considered. In the Mango district alone, in the past 10 years I have seen about six district heads totter and then be discharged from their of fice, because they had been too closely involved in various, diverse local interests. The ex paramount chief, Na Tyaba Tyekura, was also involved in this when, in 1977, rich merchants from neighboring Ghana tried to convince the Imam of N'zara ( = Sansanne-Mango) to in fluence the pilgrims to Mecca that year to pray in Mecca for AIlah's help in bringing down the Togolese government. This caused unrest throughout all of Togo, because many Imams were involved in it, and thereby lost their function and office as religious leader. Thus, the then Imam of N'zara also received a letter with money enclosed, requesting hirn to divide the money among the pilgrims to Mecca. A part of it was intended for the paramount chief. The Imam informed the chief about this, but the latter immediately rejected the offer, because of its potentially explosive character. Nevertheless, the Imam delayed just a bit too long before bringing the matter to the attention of the district head, and thereby made hirns elf suspect as being among those who were plotting to bring down Eyadema, the President of Togo. As a result, the Imam was direcdy taken into custody, and was only freed a year later; further more, the affair caused hirn to lose both his function and his office. For the district head this was a precarious business, as weIl. In any event, it placed hirn in a difficult situation with respect to the paramount chief and the powerful family from which Imams were traditionally chosen. But for the paramount chief, Na Tyaba Tyekura, it was just the beginning of a series of difficulties which ultimately led to his deposition in De cember, 1977 (see note 19).
The administrative setup is rather easy to show schematically: The local chiefs who are subordinate to the paramount chief actually serve two masters : on the one hand they are responsible to their highest traditional leader , and on the other, the central government also expects explicit loyalty from its local representative. Moreover, the paramount chief's position is very ambivalent as weIl, for, while his tide rests upon a tradi tional basis22, and his own people expect that he will remain loyal to the principles of the soc iety, he must also conform to the (high) expectations that the government now requires of rum. In implementing unpopular decisions, he risks losing the trust and support of his peo pIe; but on the other hand, he jeopardizes his position in the eyes of the government if he is not sufficiently loyal to the central authorities. Many a chief does not possess enough skill at balancing to enable rum to retain his equilibrium on such a tightrope23• One extremely thorny question, for example, is the present requirement of compulsory par ticipation in every party assembly. Insufficient participation in Party assemblies (Rassem blement du Peuple Togolais), that is not enthusiastic enough results in criticism of the tribal chief by the government, which then accuses hirn of disloyalty. But, on the other hand, he can also count on dissatisfaction among his people when he is away at Party assemblies, be cause he is then less available for to consult on diverse and varied matters.
Besides the continual threat of conflict between government and local chief -for, in many in stances, their interests are not parallel -there is a less obvious, but nonetheless significant area of conflict between the paramount chief and the lowest official court of customary law (the Tribunal Couturnier de Premiere Instance). The Tribunal was set up under the Loi rela tive a l'Organisation of the 12th of June 1961 and is thus an official court. It is staffed by an African lawyer (trained in French law) known as the "Juge de Paix", who is advised, but not bound by two African assessors. The competence of the Juge de Paix is restricted to civil matters ("en matiere civile et commerciale") and to minor criminal cases which the Juge de Paix tries without assessors. In general the territorial jurisdiction of this kind of court is lim ited to one circonscription. The J uge de Paix and the paramount chief sit a stone' s throw from one another, territory and settle disputes between people who live in the same territory (the Mango circonscription). However, not only is there no contact between them, they cannot stand the sight of each other. They repeatedly accuse one another of "dass justice", "misuse of power", etc. This, at least, had been the situation at the time of my investigations (1969-1971 ; 1977-1 978). This tension is itself quite understandable, given for example, the Anufo system of exchange wo men divorce, and the restitution of marriage payments. The J uge de Paix and the paramount chief have different viewpoints concerning these matters24• The differences may be attribut able to different cultural backgrounds, education and the positions of the Juge de Paix and rus traditional counter part, the paramount chief: the first represents "modern" and mosdy western law (which in official and educated cirdes is also regarded as "progressive"), while the paramount chief represents traditional rules and values. This does not mean, however, that in his decisions the paramount chief ignores rapidly changing ideas about an institution like marriage, such as the fact that nowadays a woman cannot be forced to marry a man whom she does not want. On the other hand, in certain situations the Juge de Paix must ap ply customary law, and cannot act in utter disregard of traditional ideas. Nonetheless, there is a tension between the J uge de Paix who is directed by the central government to introduce new institutiöns, and the conservatism of the paramount chief. Consequently, the two legal institutions are more or less in competition with each other. Since both are available to men and women looking for a favorable disposition of their dis putes, there is an excellent opportunity for many a litigant to play off these institutions against each other. At the same time, litigants are the means by which the paramount chief and the juge de paix compete with each other: thus every case is potentially an affair of four parties engaged in mutual manipulation. At any event, the Juge de Paix and the paramount chief must always each take account of the existence and views of the other25• If we were to summarize the position of the paramount chief in Northern Togo, no better de scription could be given than that of Na Tyaba Teykura hirns elf, the ex-paramount chief of the Anufom; "before the arrival of the white man, my position as paramount chief was like a woman who carries her jug of water on her head. While she carries it, she walks without any problem, but in entering her hut she must lift the jug off her head and carry it in front of her stornach. It is that moment that any misstep would be fatal to her equilibrium. Such is my position in these days" .