Introduction
Ghana’s legal system is a pluralistic one, drawing its character from a combination of different legal traditions and sources. This hybrid nature is a direct result of the country's unique history, particularly its colonial past and its rich pre-colonial heritage. The system functions through a hierarchical framework of laws and a structured judiciary that interprets and applies them across the nation. The primary sources of law include the 1992 Constitution, legislation enacted by Parliament, the common law (which itself is a mix of received English doctrines and indigenous customary law), and existing laws predating the current constitutional era. This essay will explain how these components interact to create a functioning legal system within Ghana's territory, with a focus on the sources of law and the court structure that enforces them.
The Constitutional Framework and Hierarchy of Laws
The cornerstone of Ghana's legal system is the Constitution of the Republic of Ghana, 1992. It is the supreme law of the land, and its authority is absolute. Article 1(2) of the Constitution states that any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void. This principle of constitutional supremacy establishes a clear and rigid framework within which all other laws must operate. The Supreme Court is vested with the power of judicial review, enabling it to strike down any legislation or executive action that contravenes the Constitution.
The sources of law in Ghana are formally set out in Article 11(1) of the Constitution. This article creates a hierarchy, with the Constitution at the apex, followed by: a) Enactments made by or under the authority of Parliament; b) Orders, Rules and Regulations made under constitutional or statutory powers; c) The existing law, which refers to the written and unwritten laws of Ghana that were in force just before the 1992 Constitution came into effect; and d) The common law.
The functioning of the system depends on the clear ordering of these sources. Parliamentary legislation must conform to the Constitution, and subsidiary legislation must conform to its parent Act and the Constitution.
The Pluralistic Nature of the Common Law
A distinctive feature of Ghana's legal system is the definition of "common law" provided in Article 11(2). In the Ghanaian context, the common law is comprised of two key elements: first, the rules of law generally known as the common law and the doctrines of equity which were inherited from the English legal system during the colonial period; and second, the rules of customary law.
Customary law consists of the traditional norms, usages and practices of the various ethnic communities in Ghana which have, over time, been accepted and assimilated as law. The Constitution elevates customary law to the same level as the received English common law, making it a fundamental part of the national legal fabric rather than a separate or inferior system (Bimpong-Buta, 2005). These laws primarily govern personal matters such as marriage, inheritance, and traditional land ownership. The system functions by allowing courts to apply customary law where it is relevant to a case, particularly when the parties are subject to that specific customary regime. The Chieftaincy Act, 2008 (Act 759) further provides for the codification and application of customary law, particularly in the traditional councils and Houses of Chiefs.
The Court Structure and Application of Law
The laws of Ghana are applied and enforced through a unified judicial system established under Chapter 11 of the Constitution. The judiciary is structured into the Superior Courts of Judicature and the Lower Courts. The Superior Courts are the Supreme Court, the Court of Appeal, and the High Court, each with its own jurisdiction. The Supreme Court is the final court of appeal and has exclusive original jurisdiction in matters relating to the interpretation and enforcement of the Constitution. The Court of Appeal hears appeals from the High Court, while the High Court has broad original jurisdiction in all matters and supervisory authority over the lower courts.
The Lower Courts, consisting of the Circuit and District Courts, handle the majority of civil and criminal cases at the local level. This tiered structure ensures that legal disputes can be resolved at different levels, with a clear path for appeal. In practice, a case involving a breach of contract might be governed by principles derived from English common law, a land dispute in a rural area may be decided according to customary law, and a challenge to the validity of a new tax would be determined by reference to the Constitution and statute. The judiciary’s function is therefore to select and apply the appropriate law from this pluralistic system to the facts of each individual case.
Conclusion
In summary, Ghana's legal system functions as an integrated, pluralistic framework under the supremacy of the 1992 Constitution. It operates by harmonising parliamentary statutes, principles of English common law and equity, and indigenous customary laws. This body of law is given practical effect by a structured hierarchy of courts, from the district level to the Supreme Court, which is tasked with interpreting and applying the relevant legal source to resolve disputes. The system’s functionality lies in its capacity to accommodate both modern statutory governance and traditional legal norms within a single, coherent constitutional structure, thereby regulating conduct and delivering justice throughout the territory of 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.
Constitution of the Republic of Ghana, 1992.
Courts Act, 1993 (Act 459).
Chieftaincy Act, 2008 (Act 759).
