Introduction
Every sovereign state possesses a legal system defined by its recognised sources of law, which provide the rules and principles governing the conduct of its citizens and institutions. The Republic of Ghana, a common law jurisdiction with a unique history, has a pluralistic legal system comprising several distinct but interconnected sources. The cornerstone for identifying these sources is the nation's highest law, the 1992 Constitution. Article 11(1) of the Constitution provides an authoritative list of the laws of Ghana. This essay will identify and discuss these primary sources of law, using the 1992 Constitution as its framework. It will examine each source in turn, namely the Constitution itself, legislation, subsidiary legislation, the existing law, and the common law, explaining their roles and relationships within the Ghanaian legal hierarchy. The discussion will demonstrate that while these sources are diverse, they are unified under the supreme authority of the Constitution.
The Constitution
The first and most fundamental source of law in Ghana is the 1992 Constitution itself. This is explicitly stated in Article 11(1)(a), which places the Constitution at the apex of the legal hierarchy. The significance of this position is cemented by Article 1(2), which declares that the "Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void." This supremacy clause establishes the Constitution as the ultimate benchmark against which all other laws and actions are measured.
The Supreme Court of Ghana has the exclusive jurisdiction to interpret the Constitution and enforce its provisions, including the power to strike down any law that contravenes it. A landmark case that illustrates this principle is New Patriotic Party v Attorney-General (31st December Case) [1993-94] 2 GLR 35. In this case, the Supreme Court held that a directive to celebrate the 31st December coup d'état as a public holiday was inconsistent with the spirit and letter of the 1992 Constitution, which espouses democratic values. The court accordingly declared the public holiday and its celebration to be unconstitutional and void. This case powerfully demonstrates that the Constitution is not merely a symbolic document but an active and enforceable source of law that shapes the legal and political landscape of the nation. Therefore, all other sources of law derive their legitimacy from, and must operate in conformity with, the Constitution.
Enactments of Parliament (Legislation)
The second primary source of law, listed in Article 11(1)(b), consists of "enactments made by or under the authority of the Parliament established by this Constitution." This refers to primary legislation, principally in the form of Acts of Parliament. Under Ghana's constitutional democracy, the power to make laws for the country is vested in Parliament, as stipulated in Article 93(2). This legislative power is exercised through the passing of bills which, upon receiving Presidential Assent, become Acts of Parliament and are binding on all persons and institutions in Ghana.
The legislative process is a detailed one, designed to ensure due deliberation and public participation. An Act of Parliament represents the formal expression of the will of the legislature. While Parliament has extensive law-making powers, this power is not absolute. As noted by academics like Bimpong-Buta (2005), all legislation is subordinate to the Constitution. If an Act of Parliament conflicts with a constitutional provision, the Constitution will prevail, and the conflicting sections of the Act can be struck down by the Supreme Court. For example, if Parliament were to pass an Act that retroactively creates a criminal offence, this would violate Article 19(5) of the Constitution and would be declared void. Thus, legislation is a powerful and primary source of law, but it operates within the firm boundaries set by the Constitution.
Orders, Rules and Regulations (Subsidiary Legislation)
Article 11(1)(c) identifies "any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution." This category is commonly known as subsidiary or delegated legislation. It comprises legal instruments made by bodies or individuals other than Parliament, but with an authority that has been granted to them by a parent Act of Parliament or by the Constitution itself. Examples include Legislative Instruments (L.I.s), Executive Instruments (E.I.s), and Constitutional Instruments (C.I.s).
The primary purpose of subsidiary legislation is to provide the detailed rules and procedures necessary to implement the broader principles outlined in a primary Act. Parliament often delegates this function because it may not have the time or technical expertise to legislate on every specific detail (Crabbe, 1993). For instance, an Act establishing a regulatory body like the Food and Drugs Authority may empower the relevant Minister to make regulations concerning food safety standards. These regulations, once made in accordance with the parent Act, have the full force of law. However, like primary legislation, subsidiary legislation is subject to controls. It can be challenged in court on the grounds that it is ultra vires (beyond the powers conferred by the parent Act) or that it is unconstitutional. This ensures that delegated law-making authority is not abused and remains consistent with the higher sources of law.
The Existing Law
A unique and important source of law is "the existing law," as specified in Article 11(1)(d). The term is defined in Article 11(4) as "the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution." This provision serves as a transitional measure, ensuring legal continuity by preserving the laws that were in effect prior to the 1992 Constitution's adoption. This body of law is diverse and includes:
- Written Laws: Acts, Decrees of past military governments (such as the PNDC and SMC), Ordinances from the British colonial period, and subsidiary legislation made under these laws.
- Unwritten Laws: The common law and customary law as they were applied in Ghana before 1992.
However, the preservation of these laws is not unconditional. Article 11(6) crucially states that the existing law shall be construed "with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the provisions of this Constitution." This means that any pre-1992 law that is inconsistent with the rights, freedoms, or structures established by the 1992 Constitution is effectively modified or rendered void. For example, a colonial-era ordinance that permitted discrimination on grounds now prohibited by Article 17 of the Constitution would be unenforceable. The "existing law" is therefore a dynamic source, which is continuously filtered through the lens of the current Constitution to ensure its compatibility with modern Ghanaian democratic values.
The Common Law
The final primary source listed is "the common law," identified in Article 11(1)(e). The definition of the common law in Ghana is distinct from its meaning in England. Article 11(2) clarifies that the common law of Ghana comprises "the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature."
This is a composite source, blending received English law with indigenous Ghanaian law. The "rules of law generally known as the common law" and "doctrines of equity" refer to the body of principles and case law inherited from the English legal system during the colonial period. These principles, such as the doctrine of precedent (stare decisis) and equitable remedies like injunctions, remain influential.
Most significantly, the Ghanaian common law includes "the rules of customary law." Customary law refers to the traditional norms and practices of the various ethnic communities in Ghana, which have been accepted as legally binding. Initially, customary law was treated as a matter of fact to be proven by evidence in court. However, through the process of judicial assimilation, rules of customary law that are frequently proven and accepted by the superior courts can become part of the general common law, binding on all courts without the need for further proof. A case like Atta v Esson [1976] 1 GLR 128 shows the court's role in ascertaining and applying customary law principles. This unique fusion of English common law, equity, and indigenous customary law is a defining feature of the Ghanaian legal system, aimed at developing a jurisprudence that reflects the nation's heritage and values (Offei, 2014).
Conclusion
In conclusion, the primary sources of law in the Ghana Legal System are clearly enumerated in Article 11 of the 1992 Constitution. These sources form a coherent hierarchy, with the Constitution reigning supreme as the ultimate authority. All other sources, including Acts of Parliament, subsidiary legislation, the existing law, and the composite common law, are subordinate to and must conform with the Constitution's provisions. The Ghanaian model represents a pluralistic system that has integrated received English law with indigenous customary law, creating a unique legal framework. The discussion has shown that while these sources originate from different historical and legal traditions, they are woven together under a single constitutional order, providing a structured and comprehensive foundation for the rule of law in Ghana.
References
Bimpong-Buta, S.Y. (2005) The Role of the Supreme Court in the Development of Constitutional Law in Ghana. Accra: Advanced Legal Publications.
Crabbe, V.C.R.A.C. (1993) Legislative Drafting. London: Cavendish Publishing.
Offei, S. (2014) The Law of Torts in Ghana: Text, Cases and Materials. Tema: Sakumo Publishers.
Cases
Atta v Esson [1976] 1 GLR 128
New Patriotic Party v Attorney-General (31st December Case) [1993-94] 2 GLR 35
Legislation
Constitution of the Republic of Ghana, 1992
