Introduction
The legal system of Ghana is pluralistic, drawing its laws from a variety of sources that have developed throughout its history. The 1992 Constitution of the Republic of Ghana provides a clear and hierarchical framework for these sources. Article 11(1) of the Constitution is the primary provision that enumerates the laws of Ghana. This essay will examine the principal sources of law in Ghana as identified in the Constitution, supported by relevant statutory provisions and decided cases.
The Constitution
The foremost source of law in Ghana is the 1992 Constitution itself. This is explicitly stated in Article 11(1)(a). The Constitution is the supreme law of the land, and its authority is established by Article 1(2), which provides that any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void. The Supreme Court has the power of judicial review to enforce this supremacy. A landmark case demonstrating this principle is New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, often referred to as the 31st December Case. In this case, the Supreme Court held that a public holiday celebrating a coup d'état was inconsistent with the democratic principles of the 1992 Constitution and was therefore unconstitutional and void. This affirms the Constitution’s position at the apex of the legal hierarchy.
Legislation
The second major source of law consists of enactments made by or under the authority of the Parliament established by the Constitution, as stated in Article 11(1)(b). These are known as Acts of Parliament. The power to legislate is vested in Parliament by Article 93(2) of the Constitution. In addition to primary legislation (Acts), this category also includes subsidiary or delegated legislation. Article 11(1)(c) lists Orders, Rules, and Regulations made by any person or authority under a power conferred by the Constitution. These instruments, such as Legislative Instruments (LIs) and Executive Instruments (EIs), allow the executive branch and other bodies to make detailed rules to implement the broader principles set out in Acts of Parliament, provided they do not exceed the authority granted by the parent Act.
The Existing Law and The Common Law
Article 11(1)(d) recognises the "existing law" as a source of law. Article 11(4) defines this as the written and unwritten laws of Ghana as they existed immediately before the coming into force of the 1992 Constitution. This is a broad category that preserves laws from previous legal regimes, including statutes passed by former military governments (Decrees), provided they are consistent with the new Constitution.
A crucial component of the "existing law" is the common law of Ghana, which is also listed as a source in its own right under Article 11(1)(e). The Ghanaian common law is unique and is defined in Article 11(2) as comprising two elements: firstly, the received English common law and rules of equity that were inherited from Ghana's colonial past; and secondly, "the rules of customary law which have been included as part of the common law of Ghana by the courts." This means that as the superior courts decide cases based on customary law, those principles can become assimilated into the general common law, applicable to all persons in Ghana.
Customary Law
The final main source of law is customary law, identified in Article 11(3) as "the rules of law which by custom are applicable to particular communities in Ghana." Unlike the common law, customary law is not uniform and can vary significantly between different ethnic and local communities. Historically, customary law had to be proven in court by witnesses as a question of fact, as established in the old case of Angu v Attah (1916) P.C. ‘28-‘45, 43. However, this position has been modified by legislation. The Courts Act 1993 (Act 459), for instance, provides that courts can treat customary law as a question of law and take judicial notice of customs that have become well-known. Customary law is dynamic and evolves to meet changing social conditions, but it is only valid to the extent that it does not conflict with the Constitution or other statutes.
Conclusion
In conclusion, the sources of law in Ghana are clearly laid out in Article 11 of the 1992 Constitution. They form a distinct hierarchy, with the Constitution reigning supreme over all other laws. Below the Constitution are Acts of Parliament and subsidiary legislation, followed by the body of "existing law" which includes the Ghanaian common law (a mix of English law and assimilated custom) and, finally, the diverse systems of customary law applicable to specific communities. This framework provides a structured and pluralistic basis for the administration of justice in Ghana.
References
Cases
- Angu v Attah (1916) P.C. ‘28-‘45, 43
- New Patriotic Party v Attorney-General (31st December Case) [1993-94] 2 GLR 35
Legislation
- Constitution of the Republic of Ghana, 1992
- Courts Act 1993 (Act 459)
Books
- Bimpong-Buta, S.Y. (2005) The Law of Interpretation in Ghana: Exposition and Critique. Advanced Legal Publications.
- Date-Bah, S.K. (2011) Reflections on the Supreme Court of Ghana. Wildy, Simmonds & Hill Publishing.
