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Opinions of Wednesday, 2 November 2011

Columnist: Ata, Kofi

Law, Culture and the Challenges of Ghanaians in the Diaspora

By Kofi Ata, Cambridge, UK

This article was precipitated particularly, but not exclusively, by a tragedy in a Ghanaian or a family of Ghanaian origin in London that I read about in the media. I am sure many readers, especially, Londoners may be aware of this case. For those who are unaware, it’s the case of a couple that lost their ten month old baby and were subsequently charged with and tried at the Old Bailey (the Central Criminal Court in London for most serious crimes) for cruelty against a child (force feeding a baby resulting in death). According media reports the father was cleared of the charge but the mother was found guilty and currently on a Judge’s remand at Holloway Prison awaiting sentencing early this month. Last Friday October 28, it was reported on Radio Focus on the “Epone” programme that an appeal has been launched to support the mother in an attempt to prevent a custodial sentence for her. That same day on Nana Henmaa’s “Wo Haw Ne Sen” programme aired by Rainbow Radio, the husband of the convicted woman called in to tell their story and to solicit the support of Ghanaians to sign the petition.

From the discussions that ensued on the above mentioned radio programmes regarding the case, it became clear to me that, “force feeding”, though wrong, cruel and criminal, is indeed, part and parcel of the Ghanaian practice and culture of motherhood. I came to this unscientific conclusion because on both programmes, a number of Ghanaian women or mothers in Europe called in to say that, they were either forced fed as children, knew many mothers in Ghana who forced fed their babies or they had forced fed their babies. In other words the practice was common in Ghana or among Ghanaian mothers in general. It is the admission of what obviously is unacceptable and criminal in the UK but may be ‘acceptable’ practice in Ghana that persuaded me to look at the complex issue of law and culture as a contribution to the family’s petition and to add my support to their cause. I apologise to them if this approach offends them since I do not have their consent to discuss their case through this forum. By doing so, I also do not pretend to represent them because they have their own legal team.

I must admit from the onset that this is the most difficult media article I am writing, not only because of the nature of the case but also, my concern that I cannot not do justice to the complex subject of law and culture, that requires scholarly and intellectual analysis which is not feasible in a media article for public consumption. Again, I am conscious of the danger of it being misinterpreted to mean tacit approval of negative cultural practises. In fact, I should make it crystal clear that I am strongly opposed to outmoded, oppressive and unacceptable traditions, customs and cultural practices, especially those that are inimical to children, girls and women. For example, in Human Rights, I do not share the theory of Cultural Relativism, a concept that human rights should be applied based on cultural differences. On the contrary, my human rights philosophy is grounded in our common humanity and the indivisibility of human rights first and foremost,

In addition to aforementioned objective the article is an attempt to analyse how law and culture can and must go hand in hand, interpreted and applied in the administration of justice in order to ensure fairness and equity. Indeed, when I trained Magistrates and Judges in England on cultural diversity, they admitted that understanding cultural diversity, certainly enabled them to interpret and apply the law better which also improved the administration of justice. I also wish to use this forum to draw the attention of Ghanaians in the Diaspora to the risks attached to some of our customs, traditions and cultural practices in our new environments as well as to offer some suggestions or advice.

What is culture and law? As a one time student of Sociology and International Humanitarian Law, the temptation is to take an intellectual approach to this question but I would try and avoid that and instead, adopt what I call “the Paa Kwesi Minta mentality” (by the way, Paa Kwesi Minta is a Ghanweb reader who claims in his comments that most articles are too long and could have been written in one or two sentences). Bearing in mind his mentality, culture therefore, “is a way of life”. The way we eat, dress, talk, dance, relate to each other, the language we speak, what we wear and how wear it, etc. To be honest, culture is too complex for this simplistic definition. Others say culture is the quantum of traditions, norms, values and beliefs of a people. According to Associate Law Professor Naomi Mezey of Georgetown University Law Centre, the notion of culture is everywhere invoked and virtually nowhere explained and can mean so many things, including collective identity, nation, race, corporate policy, civilization, arts and letters, lifestyle, mass produced popular artefacts, ritual and many others. Raymond Williams, a Genealogist of culture, called culture as one of the two or three most complicated words in the English language and provided what he called social definition, in which culture is a description of a particular way of life, which expresses certain meanings and values not only in art and learning but also in institutions and ordinary behaviour. What is Law then? “Law on the other hand appears easier to grasp if considered in opposition to culture, as the articulated rules and rights set forth in constitutions, statutes, judicial opinions, the formality of dispute resolution, and the foundation of social order” (Mezey).

What are the links between law and culture? Roger Cotterrell Professor of Legal Theory at Queen Mary and Westfield College, University of London’s view on the question of how law should address 'culture' is pressing but since culture is not to be seen as a unity and consists of diverse components and law relates to these components in different ways, when culture is conceptualised in terms of fluid networks of community it becomes possible to analyse not only issues of multiculturalism, but also the ways in which transnational regulation serves social networks that extend beyond the boundaries of nation states. For example, the culture of bearing arms that also leads to culture of individuals turning the arms on others in the United States has its roots in law (the rights of individuals to bear arms enshrined in the American Constitution). At the same, law can be used by way of legislation to influence or change that gun culture in the US. In my view, culture should always be a component of law, its interpretation and application even if on the periphery since most visions of law include culture. The fundamental issue is about how law should reflect, express or even control an aspect of culture but also how culture can influence law. Others posit that when law and culture are thought of together they are conceptualized as distinct realms of action and only marginally related to one another. Legal Anthropologists make sense of law as culture and culture as law, and think of how to talk about and interpret law in cultural terms. The issue is not the differences between law and culture or whether law should be interpreted and applied within the context of culture but law as culture and culture as law. There are more similarities between law and culture than meet the eye. For example, both are law and culture are always evolving, live and develop through time and space.

Let me just end the theoretical analysis as the purpose is not to produce a thesis on law and culture. How do the above theoretical perspectives relate to the plight of a mother who is potentially facing a custodian sentence in just a few days? The tragedy was the direct cause of the application of a practice rooted in Ghanaian culture of motherhood. A cultural practice handed down from generations to generations of mothers in Ghana, Though on face value the practice appears to be cruel and dangerous to the health of babies and children, because it is an acceptable practice and has not been influenced or changed by law in Ghana, the convicted mother in question genuinely believed that what she was doing was right and acceptable. If the mother’s behaviour is to be fully appreciated but not seen as wrong and criminal in the UK, there is the need for law to be interpreted in terms of culture because it is by the dual analysis of law and culture that issues of multiculturalism and ways in which transnational regulation can serve social networks that extend beyond the boundaries of nation states as Proferssor Cotterrell explained. One of the ways that this practice could be changed or stopped is by the law interpreting it as unacceptable but at the same time recognising its genesis and not to treat it as an isolated incident. Sadly, this tragedy has happened in England. For cultural change to happen, at least among Ghanaian mothers in England, the Honourable Judge must interpret and apply the English law within the context of Ghanaian cultural practice of mothers unwittingly force feeding their babies and children. Without such understanding, there is the potential risk of justice being too harsh, though that would not amount to miscarriage of justice.

The cultural practice of forced feeding of babies and children by some Ghanaian mothers is wrong, cruel and against the law. But this case cannot be totally divorced from the application of the intersection between law and culture in the present circumstances. It would be a travesty of justice if the law is not interpreted and applied in terms of “law as culture and culture as law” as suggested by Legal Anthropologists. This is critical for justice to be served because the mother herself is a victim of her culture. Even if the forced feeding of her baby directly led to the baby’s death, she did so genuinely and with a mother’s tender love, care and concern for the welfare of her precious baby. She intended no harm let alone kill the her own baby and I am very positive that if she was remotely aware that forced feeding would have caused harm to her baby, she would not have even contemplated doing it. She has already lost a baby that she would grieve for many years to come and to send her to prison would not serve justice. I am sure that if the Honourable Judge could use his/her authority and powers under the law to influence and change this cultural practice in a positive way by sentencing her to community service, it would enable her to share her experience with other Ghanaian mothers in the UK. That would be more beneficial than giving her a custodial sentence. Your Honour, I plead with you to temper justice with mercy.

According to the father the baby was fed with porridge (kooko) that was sieved to remove any corn particles but medical experts claimed they found food particles resembling oats in the baby’s internal organs. I wonder if the medical experts wrongly assumed that the porridge was made from oats. I am not sure if this was explained to the medical experts and challenged at the hearing since the medical reports could have been compromised. Another potential risk of the case was the use of statistics by the medical experts. Again, according to the father, the experts claimed that the possibility of food entering the baby’s internal organs if not forced fed was highly unlikely and they quoted huge ratio to support their hypothesis. This scares me because it resonates with similar cases in the past involving mothers who were wrongly accused, tried, convicted and jailed for murdering their babies in the UK on discredited statistics. Do you remember the 1 in 73 million ratio given by a world renowned child expert in the trial of the late solicitor, Sally Clark that secured her conviction for killing her babies? Though she was later acquitted and freed she never recovered from her experience and died not long after her release from prison.

There were issues that he mentioned regarding the case that raised concerns for me legally as well as culturally but this is not the forum for it. However, for Ghanaians and people of Ghanaian origin in the Diaspora, we cannot continue to live our lives as if we were in Ghana. It is a fact that culture is the embodiment of our very existence and therefore we cannot do away completely with our culture but we can reform and modify them in our new environment. Even in Ghana customs, traditions and cultures are evolving and changing every day. On a number of occasions, stories are told on the Ghanaian Radio stations in London of Ghanaian Christian pastors in the UK drugging Ghanaian women including married women and having sex with them. That is rape and criminal, yet due to the Ghanaian mentality of “it’s shame”, these crimes are not reported to the police. On “Wo Haw Ne Sen” programme of October 28, a Ghanaian woman called from Italy to say that, her husband or partner sexually abused one of her children which was not reported to the authorities. The children have been taken into care and she is at risk of losing them. All these, can be interpreted as cultural practices of being Ghanaian, where difficult issues are considered a family affair and crimes such as rape are considered taboos and shameful, so it is kept a family secret. What is more shameful than knowingly letting a rapist loose on the street to rape more women?

Until we change our attitudes and mentality to crime and wrong doing, our cultural practices would consume us in the Diaspora. Crime is crime and should be treated as such and reported to the appropriate authorities, no matter who is the victim or the criminal. We must not wait for legal experts to interpret law as culture but we must begin to interpret our culture in terms of law first. That way, we can change customs, attitudes, practices and our culture for the better. We should not wait for a tragedy such as this to happen before we learn lessons from it. This family has been hit by a tragedy and I pray and hope that the Honourable Judge will temper justice with mercy.

By Kofi Ata, Cambridge, UK