Constitutional Provisions and Development: Are Indigenous Institutions Relevant?

Abstract

Constitutions are usually referred to as supreme laws which set out the fundamental framework and bases for the Rule of Law, human rights, governance institutions and arrangements, and aspirations on directive principles of state policy (DPSP). Under Ghana’s 1992 Constitution, the protection of the environment falls under the Directive Principles of State Policy. Article 36(9) of the Constitution requires the State to take appropriate measures needed to protect and safeguard the national environment for posterity and seek cooperation with other states and bodies for purposes of protecting the wider international environment for mankind. Article 41(g) also requires every citizen to contribute to the well-being of the community where that citizen lives; and Article 41(k) further provides that every citizen has the duty to protect and safeguard the environment.

Based on Articles 36(9), 41(g), and 41(k) provisions of Ghana’s 1992 Constitution, the menace of environmental degradation should have been dealt with seriously and curbed. The Constitution clearly provides several environmental safeguards. But it appears these are not being implemented. Thirty years after the coming into force of the 1992 Constitution, environmental degradation keeps getting worse. There appears to be a lack of stringent efforts by governments, institutions, and individuals to implement the environmental protection and safeguards provisions of the Constitution.

This chapter therefore seeks to suggest ways that indigenous institutions can be harnessed to achieve the constitutional mandates on the environment. It will discuss ways in which protecting and safeguarding the environment can be done effectively. It will deal with the question of how citizens should be empowered by the Constitution and indigenous institutional arrangements to ensure the enforcement or implementation of such Constitutional provisions on the environment. Indigenous institutions can effectively complement and enhance the efforts of governments, public servants, the populace to be more effective in that regard.

This chapter will therefore discuss the critical role of indigenous institutions in Ghana and their potential to spur the creation of development-focused constitutional framework attuned to the needs of its people. It provides answers to the question of how the involvement of indigenous institutions in environmental protection governance is to be done in practical terms? Qualitative research methods were employed using a combination of semi-structured interviews with key stakeholders and document analysis to analyse Ghana’s environmental governance approaches, constitutional and statutory provisions on environmental protection, and various documents on customary law and indigenous institutions. The study reveals that the use of localized action to consolidate the gains in applying indigenous institutional rules, laws, and practices as a launch-pad for effective environmental protection invariably finds support in international environmental law principles.