: 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
Official Compilations and Session Laws of Ghana
Unofficial Compilations of Laws
Subsidiary or Subordinate Legislation
Official Sources of Subsidiary Legislation
Unofficial Sources of Subsidiary Legislation
The Rules Generally Known as Common Law
The Rules Generally Known as Equity
Selected Bibliography of Ghanaian Secondary Materials
Constitutional and Administrative Law
Contract, Commercial and Company Law
Family Law, Equity and Succession
Legal Education and the Legal Profession
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.
The current 1992 Constitution is available free of charge online (see also www.loc.gov/guide/ghana.html).
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. The "Decrees" and "Laws", although numbered sequentially, enjoy breaks in the run with each new regime starting its own run.
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.
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:
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.
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.
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.