Researching Ghanaian Law
by Victor Essien
Victor Essien holds LL.B.(Hons), LL.M. (Ghana), LL.M. (Int’l), and J.S.D. ( NYU) degrees. He is International Law Librarian and Adjunct Associate Professor of Law at Fordham Law School, where he teaches International Investment Law, Multinational Corporations Law and International and Foreign Legal Research. He was formerly Law Lecturer (on National Service) at the University of Ghana, Legon and the University of Jos, Nigeria. He was also a Consultant to the UNCTC in New York and a Legal Assistant to the Iran-US Claims Tribunal at The Hague, the Netherlands. He was admitted to the Ghana Bar in 1977. He is currently a Member of the Bars of New York State, United States District Court, Southern and Eastern Districts of New York and The United States Court of Appeals, Second and Third Circuits.
Published June 2005
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Table of Contents
Ghana attained independence from colonial British rule on March 6, 1957. On July 1, 1960, it became a republic, the first of four civilian republics that were interspersed with periods of military rule. On January 7, 1993, the Fourth Republic was inaugurated, complete with a new Constitution. The law and legal system in Ghana is heavily marked by its history.
The Portuguese built the first permanent trading post, the Elmina Castle, in 1482. The port town had been christened “El mina”, the mine, homage to the gold riches in those parts. In 1642, the Portuguese lost Elmina to the Dutch. The Portuguese left the Gold Coast permanently.
The next 150 years were defined by conflict and diplomatic maneuvers, as the various European powers, including the British, struggled to maintain or establish a position of dominance in the profitable trade along the Gold Coast.
Both the Dutch and the British formed companies to advance their African ventures and to protect their coastal establishments. The British gained possession of all Dutch coastal forts by the last quarter of the nineteenth century and became the dominant European power on the Gold Coast by 1872.
The British involvement in the Gold Coast was initially through their merchants and traders. It was not until 1844 that Captain Hill, as Governor, signed a treaty with the coastal Fanti chiefs to keep the trade routes open and to protect them from Ashanti incursion. This treaty, the Bond of 1844, also required the chiefs to submit serious crimes such as murder and robberies to British jurisdiction. This laid the legal foundation for subsequent colonization of the coastal area. British control was gradually extended over the other small African states or communities on the coast. In time, this system of irregular jurisdiction was formalized with the establishment of a Supreme Court on the Gold Coast, in 1853, as part of the West African Settlements.
Ten years earlier, the British Settlements Act of 1843, empowered the British Crown to “establish such laws, institutions and ordinances, and to constitute such courts and offices as may be necessary for the peace, order and good government” of the territories concerned. (Section 1 of the British Settlements Act, 1843).
In 1876, the Gold Coast Supreme Court Ordinance (No. 4 of 1876), was passed. Section 14 of the said Ordinance stipulated that:
“The Common law, the doctrines of equity, and the statutes of general application which were in force in England at the date when the colony obtained a local legislature, that is to say, on the 24th day of July, 1874, shall be in force within the jurisdiction of the Court.”
Section 19 of this Act also provided for the application of customary law. This was in conformity with the emerging British colonial policy of indirect rule. Section 19 reads, in part, as follows:
“Nothing in this Ordinance shall deprive the Supreme Court of the right to observe and enforce the observance, or shall deprive any person of the benefit of any law or custom existing in the said colony and territories subject to its jurisdiction, such law or custom not being repugnant to natural justice, equity and good conscience, nor incompatible either directly or by necessary implication with any enactment of the Colonial legislature”.
The legal pluralism that was recognized under the 1876 Supreme Court Ordinance still persists today. It is moderated by elaborate choice of law rules.
The current choice of law rules are stated in Section 54 of the Courts Act 1993 ( No. 459 of 1993), as amended by the Court (Amendment) Act, 2002 (No. 646 of 2002).
Article 11 of the 1992 Ghana Constitution states that the laws of Ghana shall comprise:
Since the first republican Constitution in 1960, Ghana has had three other Constitutions. These are the 1969, 1979 and 1992 Constitutions.
The earlier constitutions can be located in the historic constitutions volume of Constitutions of Countries of the World. Blaustein, Albert P. and Gilbert H. Flanz, eds. New York, Oceana, 1971-
The current 1992 Constitution is available in the modern constitutions volumes of Constitutions of the Countries of the World.
Oceana’s Constitutions of the Countries of the World is also available online through paid subscription.
Ghana is a unitary state with a unicameral legislature. The 1992 Constitution provides for one Parliament, which exercises all primary legislative functions. There is a Council of State, which is an advisory body to the President. The President may refer bills or even laws to the Council of State for its comments. Parliament, however, is only required to consider or reconsider such comments, and is not bound by them. According to Article 106(11) of the 1992 Constitution, no bill becomes law unless it has been published in the official gazette. The Ghana Gazette is thus an obvious source for locating legislation in Ghana.
Ghana has ten regions. All regions are under the central government and no regional institution possesses any legislative authority.
Legislation passed by the current Parliament, as well as that passed by Parliaments under the prior Constitutions, is labeled as “Acts”. Legislation passed under the military regimes was labeled as “Decrees” except for that under the regime of the Provisional National Defense Council (P.N.D.C.), which was referred to as “Laws”, e.g. the Intestate Succession Law, 1985, (P.N.D.C. Law No.111 of 1985). Colonial legislation was styled Ordinances.
There is no jurisprudential basis for the differences in terminology. All laws continue to apply to the extent that they are not expressly repealed or abrogated. All “Acts” are numbered sequentially with no break in the run, except the Acts of the Constituent Assembly in 1960 which enacted the First Republican Constitution and other legislation to facilitate Ghana’s transition to republican status. The “Decrees” and “Laws”, although numbered sequentially, enjoy breaks in the run with each new regime starting its own run.
Under Article 106(1) of the 1992 Constitution, Parliament’s legislative power is exercised by passing bills that are assented to by the President. A bill may be introduced by a Minister of State or by a private Member of Parliament. Whether it is a Government bill or a private Member’s bill, no bill shall be introduced in Parliament unless it is accompanied by an explanatory memorandum setting out in detail the policy and principles of the bill, the defects of the existing law, the remedies proposed and the necessity for the introduction of the bill. In addition, the bill should be published in the Ghana Gazette at least fourteen days before the date of its introduction. The Gazette is, therefore, a source for locating bills or proposed legislation in Ghana.
In general, a bill must go through certain stages before becoming law. Article 106 (4) through (6) mandate that a bill has to go through a first reading, after which it is referred to a committee of Parliament. This committee shall issue its report to the full house after considering representations from interested parties and the general public. The report of the committee as well as the explanatory memorandum and the bill shall be subjected to a full debate by the full house. It is at this stage that amendments may be entertained. Parliament may then vote to reject or accept the bill in its final form. In practice, Parliament has added two additional stages to the process, namely, a second reading and a third reading. The second reading occurs after a bill has been referred to the appropriate parliamentary committee. It is devoted to a preliminary debate of the committee’s report. The third reading occurs after a bill has passed through the consideration stage. It is signified by a formal Motion and is not accompanied by a debate. After the parliamentary steps have been exhausted, the bill is presented to the President for his/her assent or otherwise.
The President has seven days after the presentation to inform the Speaker of Parliament that he/she assents or refuses to assent to the bill. Where the President refuses to assent to a bill, he/she shall, within fourteen days of such refusal, state in a memorandum to the Speaker his/her reasons for that position and any recommendations for amendments, where applicable. Alternatively, he/she shall inform the Speaker that he/she has referred the legislation to the Council of State for consideration and comment under Article 90 of the Constitution. Parliament shall reconsider this bill in the light of the comments by the President or the Council of State. Such a bill will need the favor of support from two-thirds of all members of Parliament to mandate a Presidential assent and become law.
The debates of the committee of Parliament as well as those of the full house are recorded verbatim by the Hansard department of the Office of the Clerk of Parliament. These recordings and other documents of Parliament, including bills are published as Official Report or the Hansard of the Parliament of Ghana. It constitutes a rich source for the legislative history of the laws of Ghana. However, in Ghana, Article 19(1) of the Interpretation Act, 1960(C.A.4) as amended by the Interpretation (Amendment) Act, 1961(Act 92), the Interpretation (Amendment) (No.2) Act, 1962 (Act 145) and the Interpretation Act (Amendment) Law, 1982 (PNDCL 12), has codified the common law position against the use of parliamentary debates as opposed to reports, memoranda, even text books, as aids to statutory construction.
During the colonial regime, the government, from time to time, would publish consolidated statutes in force as of a certain date. In 1936, on the authority of the Revised Edition of the Laws (Gold Coast) Ordinance, 1936, a Commissioner was appointed to prepare a revised edition of the laws of the Gold Coast, covering the period from 1852 to 1936. It was published in four volumes. Another revised edition was published in 1954 that extended the accumulation to 1951. That had nine volumes. Regrettably, that practice was not followed after independence except for the singular effort in 1970 with the publication of the Consolidated Acts of Ghana. In 1974, an Index to the Statutes in Force was also published. Datacenta’s electronic Consolidated Statutes menu is not yet complete.
The result is that it is often difficult for even lawyers to tell whether a statute or a particular section of a statute is in force. The Review of Ghana Law publishes a section, titled Statutory Intelligence, where it notes those statutes and sections of existing statutes that have been repealed or amended. It does the same for subsidiary legislation. In 1997, Sozo Law Consult started the publication of a digest of laws passed each year, noting the new laws, amended laws and revoked laws. It is presently current up to 2002. This publication is called Legislative Watch. Accra: Sozo Law Consult, 1997-2002.
Successive Governments in Ghana have been concerned about the difficulty of tracking and locating the laws of Ghana. Until recently, the response was piece-meal, by passing legislation to identify laws that should be repealed or revoked. The relevant legislation are the Statute Law Revisions Act, 1963 (Act 215), the Statute Law Revisions Act,1969(NLCD 355), the Statute Law Revisions Act, 1971 (Act 368), the Statute Law Revisions Act, 1973(NRCD184), the Statute Law Revisions Act, 1973 (NRCD 228), the Statute Law Revisions Act, 1992(PNDCL 295), the Statute Law Revisions Act, 1993 (PNDCL 323), 1996 (Act 516), the Statute Law Revisions Act, 1997 (Act 543).
In 1998, Government assumed a legislative obligation under the Laws of Ghana (Revised Edition) Act, 1998 (Act 562), to revise, compile and publish a consolidated laws of Ghana as of January 1, 1999. It took nine years and two legislative amendments for Government to make good on this promise. Following the Laws of Ghana (Revised Edition) (Amendment) Act, 2006 (Act 711) and the Laws of Ghana (Revised Edition) (Amendment) Act, 2007 (Act 729), the Government of Ghana has now published the Revised Laws of Ghana, 2004, presently comprising seven volumes. It is in a loose-leaf format, allowing for annual updates by means of service issues. It includes a chronological index of statutes from 1852 to 2004 showing the action taken on each law.
The following official sources exist for locating legislation in Ghana. Primarily they are only print sources:
Datacenta is the only note-worthy unofficial publisher of Ghanaian legislation. Its online resources promise to offer the most comprehensive access to Ghanaian legal information, including legislation. Presently, it puts out Ghanaian legislation in the following formats:
Datacenta has formed a partnership with Lexis-Nexis South Africa to electronically publish the Laws of Ghana (Revised Edition), 2004 and its annual updates.
The 1992 Constitution classifies subsidiary legislation as part of the laws of Ghana. Article 11(7) of the Constitution provides further that any Order, Rule or Regulation made by a person or authority under a power conferred by the Constitution or any other law, shall be laid before Parliament, published in the Gazette and comes into force after twenty-one sitting days of Parliament, unless two-thirds or more members of Parliament vote to annul it.
The colonial subsidiary legislation was usually published as part of, or as special supplement to, the annual or consolidated compilations of laws after they had appeared in the official gazettes.
Subsidiary legislation in Ghana include legislative instruments, executive instruments, constitutional instruments and regulatory notices of government ministries, government departments and agencies.
According to the Statutory Instruments Act, 1959 (Act 52), as amended by the Official Publications Act, 1959(Act 85), the Interpretation Act, 1960 ( C.A. 4), and the Statutory Instruments (Amendment) Act, 1997 (Act 539), a statutory instrument is an instrument made, whether directly or indirectly, under a power conferred by an enactment. Article 295 of the 1992 Constitution clarifies further that an enactment could be an Act of Parliament, a Decree , a Law or a constitutional instrument, or a statutory instrument or any provision thereof . Section 4 of the Statutory Instrument Act, 1959, as amended, defines a legislative instrument as a statutory instrument declared by the Attorney-General to be legislative in character. As a general rule , an instrument is legislative in character if it determines or alters the law, rather than applying it in a particular case, and has direct or indirect effect of affecting privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. Section 5 of the Statutory Instruments Act, 1959, as amended, states that statutory instruments other than legislative instruments or instruments of a judicial character shall be known as executive instruments.
Article 295 of the 1992 Constitution defines constitutional instruments as instruments made under a power conferred by the Constitution.
The official sources for subsidiary legislation in Ghana are:
Datacenta again offers the best access to subsidiary legislation in Ghana. It offers them as follows:
Ghana, being a common law jurisdiction, case law and judicial precedent play an important role in the law and its development. Article 125(3) of the 1992 Constitution states that the judicial power of Ghana shall be vested in the Judiciary. Article 127 of the Constitution mandates the independence of the judiciary. Article 129 of the Constitution pronounces that the Supreme Court shall be the final court of appeal. The Supreme Court, while treating its previous decisions as normally binding, may depart from them if it appears right to do so.
In addition to the Supreme Court, the Constitution provides for a Court of Appeal and a High Court, in descending hierarchical order. Article 139(4) of the 1992 Constitution empowers the Chief Justice to create divisions of the High Court. A Commercial Court has been thus created. There are plans to create a Tax Court and a Land Court as similar specialized divisions of the High Court. When the Chief Justice created a Fast Track Court , as a high tech division of the High Court aimed at dealing expeditiously with selected cases, its constitutionality was tested in the Supreme Court.(Tsatsu Tsikata v. Attorney-General [Civil Motion No. 11/2002] June 26, 2002.). The Supreme Court, by a 6 to 5 vote, adjudged the Fast Track Courts as constitutional. It appears, though, that in practice, they are becoming as slow as the traditional courts.
The Constitution also allows for the creation of Regional Tribunals, whose membership may include non-lawyers.
The system of law reporting leaves a lot to be desired. The official reporters are often tardy and there was a period when cases were merely reported in digest form and not in full text. Here again, Datacenta’s electronic resource promises to step into the breach. Since 1996, another unofficial reporter has appeared exclusively for Supreme Court decisions. This is the Supreme Court of Ghana Law Reports.
There is no comprehensive index to Ghanaian case law. Each volume of the Ghana Law Reports has a subject-matter index, an index of cases cited and judicially noticed as well as statutes and subsidiary legislation judicially noticed. The Supreme Court of Ghana Law Reports follows this example. The editors of the Ghana Law Reports have, from time to time, published cumulative indexes. Presently, there are cumulative indexes covering 1959-1966 and 1971-1976.
The following reporters are available for both modern and colonial cases:
Article 11 (2) of the 1992 Constitution identifies the common law as a source of law in Ghana. The common law is defined to include the rules 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 reference to the judge-made law that propelled the English legal system and those of its colonies. In the context of Ghana’s legal history, even present-day British decisions on issues unaffected by statute may be cited, at least, as persuasive authority.
For some time, even outmoded British statutes which were part of the received law as “Statutes of general application” as of July 24th, 1874, under the erstwhile Supreme Court Ordinance of 1876 were applicable in Ghana. In 1982, by Section 61 of P.N.D.C. Law 42, the revolutionary government clearly modified the force of colonial legislation as follows:
“Notwithstanding the provisions of any enactment, all laws in existence before the coming into force of the Proclamation, especially where they are derived from foreign sources, shall only be in operation to the extent that they are compatible with national aspirations.”
This is a reference to the English doctrines of equity as they have evolved in England and Ghana.
Article 11( 3) of the 1992 Constitution defines customary law as the rules of law which by custom are applicable to particular communities. Customary law is now a question of law to be determined by the courts. In Muslim communities, the reference to customary law is a reference to Islamic law or the Sharia.
Customary law is not codified. Under Sections 42 and 43 of the Ghana Chieftaincy Act, 1971 (Act 370), as amended by Chieftaincy (Amendment) Decree, 1973(NRCD 166), Chieftaincy (Amendment) (No. 2) Decree, 1973 (NRCD 226), Chieftaincy (Amendment) Law, 1982 (PNDCL25) and Chieftaincy (Amendment) Law, 1993 (PNDCL 307), the National House of Chiefs and/or a Regional House of Chiefs, can draft their declaration of customary law for approval and publication as a legislative instrument by the President after consultation with the Chief Justice.
The singular attempt at creating a standard legal citation format may be found in the twin articles of Janet Daniels in 1971 and 1972, namely, “The Practitioner’s Guide to the Effective Use of Ghana’s Law Reports” 3 Review of Ghana Law 5-21 (1971) and “Statute Law in Ghana” 4 Review of Ghana Law 113- 128 (1972). Although dated, they remain a good foundation to build on. Among other things, the earlier article provides an index to the abbreviations used in Ghanaian legal literature. The Cardiff Index to Legal Abbreviations, which covers the United Kingdom and other jurisdictions, including Ghana, is a useful supplement to that effort. Below is an index to some of the most popular abbreviations found in Ghanaian legal literature, in alphabetical order:
A.F.R.C.D. Armed Forces Revolutionary Council Decree
C.A. Acts of the Constituent Assembly
C.A. Court of Appeals
C.I. Constitutional Instrument
C.C. Current Cases
D. & F. Divisional and Full Court Judgments
D.C. (Land) Gordon Woodman’s Ghana Land Cases
D. Ct. Selected Judgments of the Divisional Courts
Earn Earnshaw Gold Coast Judgments (1910)
E.I. Executive Instrument
F.C. Full Court Judgments
G. & G. Gyandoh, S.O. and J.A. Griffiths. A Sourcebook of the Constitutional Law of Ghana
G.L.R. Ghana Law Reports
G.L.R.D. Ghana Law Reports Digest
K.F. King-Farlow Gold Coast Judgments
L.I. Legislative Instrument
L.N. Legislative Notice
N.L.C.D. National Liberation Council Decree
N.R.C.D. National Redemption Council Decree
P.N.D.C.L. Provisional National Defence Council Law
Ren. Renner Gold Coast Reports
R.G.L. Review of Ghana Law
Sar. F.C.L. Sarbah Fanti Customary Law
Sar. F.L.R. Sarbah Fanti Law Reports
S.C. Supreme Court
S.C.G.L.R. Supreme Court of Ghana Law Reports
S.M.C.D. Supreme Military Council Decree
U.G.L.J. University of Ghana Law Journal
W.A.C.A. Selected Judgments of the West African Court of Appeals
W.A.L.R. West African Law Reports
Presently, there are only three reliable legal periodicals in Ghana. The older two are indexed in the Index to Foreign Legal Periodicals. All three are also available, electronically, through Datacenta. These periodicals are:
The following are legal periodicals that also show a decided interest in Ghanaian legal literature:
Under Section 1 of the Legal Profession Act, 1960 (Act 32), as amended, a General Legal Council is established and charged , among other things, with the organization of legal education in Ghana. Sections 13 and 14 of the same statute empower the Council, by legislative instrument, to prescribe regulations for establishing a system of legal education.
At present, the system of legal education involves an academic component completed at the University of Ghana Law Faculty and the Law Faculty of the Kwame Nkrumah University of Science and Technology (KNUST). Graduates of these programs are awarded an LL.B. degree. Admission to the University of Ghana Law Faculty, but not the one at KNUST, is limited to individuals with an undergraduate degree. In order to be admitted to practice law, however, all of these graduates are required to undertake a two-year professional law course at the Ghana Law School, after which they become eligible for a Barrister-at-Law certificate. To obtain this certificate, one must satisfactorily complete a course in customary law. To be enrolled as a lawyer, one has to demonstrate to the General Legal Council that they are of good moral character.
Since 1971, only persons with at least an undergraduate degree may be enrolled as lawyers. The legal profession is regulated by the Legal Profession Act, 1960 (Act 32) as amended by the Legal Profession (Amendment) Act, 1963 (Act 116), the Legal Profession (Amendment) Act, 1964 (Act 226), the Legal Profession (Amendment) Decree, 1966 (NLCD 20), the Legal Profession (Amendment) Decree, 1967 ( NLCD 143), the Legal Profession (Amendment) (No.2) Decree, 1967 (NLCD 213), the Legal Profession (Amendment) Decree, 1969, ( NLCD 338) , the Legal Profession (Amendment) Decree, 1972( NRCD 88) the Legal Profession (Amendment) Decree, 1979 (AFRCD 53), The Professional Bodies Registration Decree, 1973 (NRCD 143) and the Legal Profession ( Professional Conduct and Etiquette) Rules , 1969 ( L.I. 613).
The General Legal Council is the statutory body regulating the profession. The legal profession in Ghana does not observe the dichotomy between solicitors and barristers, inspired by the common law. Section 2 of the Legal Profession Act, 1960 (Act 32) as amended, allows an individual enrolled as a lawyer to practice as a solicitor and a barrister, to be an officer of the court and to sue for and recover his fees.
The Ghana Bar Association is the sole professional association for lawyers in Ghana. Although not the creature of statute, it is recognized even by the Constitution. For instance, the Constitution requires representatives of the Ghana Bar Association to serve on the Judicial Council (Article 153), the Police Service Council (Article 201), the Prison Service Council (Article 206) and Land Commission (Article 259), among others.
Article 75 of the 1992 Constitution grants the President the power to conclude treaties subject to ratification by an Act of Parliament or a resolution of Parliament supported by more than one-half of all members of Parliament.
Ghana is a signatory to many international organizational treaties, including the UN Charter, the African Union Treaty and the Treaty of the Economic Community of West African States (ECOWAS). She is also a signatory to many economic development and human rights conventions. Ghana has signed bilateral treaties with other countries.
There is no official or unofficial collection or compilation of treaties to which Ghana is a party. To discover multilateral treaties in force in Ghana, one may consult the Multilateral Treaties Deposited with the Secretary-General. New York: United Nations, 1982- .
Ghana has two official daily newspapers, namely, the Daily Graphic and the Ghanaian Times. Each of these has weekly companion publications, the Mirror and the Weekly Spectator, respectively. There are also several private daily and weekly newspapers. The better ones all have a web presence or online editions. You can access online versions of Ghanaian newspapers through their links on Ghanaweb.com.