Issue

Is the act of adultery, committed by the Chief’s wife with Appiah, a crime for which Appiah can
be legally prosecuted?

Rules of Law
1. The 1992 Constitution of Ghana, Article 19(11): No person shall be convicted of a criminal
offence unless the offence is defined and the penalty for it is prescribed in a written law.
Analysis
The combined effect of Article 19(5) and (11) is to the effect that a person cannot be
prosecuted for an act which; a) did not constitute an offence at the time of its commission and;
b) is not an offence that is defined in the statute books.
Thus, as adultery is not an act considered as an offence, the punishment for which is
prescribed, in the statute books, it would appear that Appiah cannot be prosecuted for
sleeping with the Chief’s wife. In support of this, the case is cited of Debrah v The Republic1
where the defendant was arrested for behaving in an insulting manner towards the chief. On
appeal, the court held that “A person ought not to be punished for an act, which has not been
prescribed as an offence, and the penalty therefore set down”.
However, the Chieftaincy Act 2008 states that knowingly insulting or disrespecting a chief
by word or conduct constitutes an offence. In Debrah v The Republic 2, the case of the
prosecution failed because they could not prove that the defendant’s conduct was insulting to
the Chief and not to custom. Thus Debrah v The Republic did not emasculate Section 63(c)3.
Again, in Debrah v The Republic, it was stated that simply because the chief found the conduct
insulting did not mean that it was objectively so. Thus, by necessary implication, it is submitted
that once it is objectively proved that knowingly sleeping with the chief’s wife is insulting or
disrespectful to him, one would have satisfied the requirements of Section 63(c) of the
Chieftaincy Act 2008.
It may be useful to provide some context. Under UK laws, it is still considered an offence
of high treason to be caught sleeping with the spouse or consort of the sovereign (in extenso: “if
a Man do violate the King's Companion”)4. Up until 2014, it was possible, in South Africa, for a
wronged spouse to sue the third party for “humiliation” damages in an adultery suit. The South
African Court of Appeal held in the 2014 case of RH v DE 5 is archaic and no longer suited to the
changing values of their society. The Zimbabwean Court in the 2016 case of Njodzi v Matione6
refused to follow the example of the South African Court of Appeal and declare the action of

1
1991 2 GLR 517
2
ibid
3
Act 759
4
http://news.bbc.co.uk/2/hi/uk_news/magazine/7288516.stm
5
(CCT 182/14) [2015] ZACC 18
6
HH-37-16
damages for adultery unconstitutional. Further, a look at the history of adultery at common law
shows that it was long considered a wrong to the innocent party, and although it has been
decriminalized, that, in itself, does not strip it of its nature as a wrong to the innocent party.
The effect of the decision in RH v DE7 is that to determine whether or not an act is
considered humiliating is to consider the values of the said society. The Oxford English Dictionary
provides the synonyms of “humiliate” to include “demean” and “disgrace”. Synonyms for
“disrespectful” include “irreverence”, “impudent” and “disparaging”. Certainly, it is submitted
that sleeping with the Chief’s wife satisfies any or all of these definitions.
In the 1976 case of Aidoo v Adjei8, Apaloo JA stated in obiter that “There is no evidence
of what a “chop bar'' is but I think it is a matter of which I ought to take judicial notice. I am not
going to assume judicial ignorance of what everybody knows in this country”. It is submitted that
in the same vein although there is no evidence in Ghana that sleeping with a person’s spouse
constitutes an insult to that person - committed both by the spouse and the third party
philanderer - it would be disingenuous to claim ignorance of “what everybody knows in this
country”. This is to be considered especially in light of the elevated and sometimes sacred
position Chief’s hold in our society.

Conclusion
Appiah can be legally prosecuted for sleeping with the chief’s wife.

7
(CCT 182/14) [2015] ZACC 18
8
1976 1 GLR 431