Cameron Miranda
Ghana is a common-law jurisdiction, which means that case law and judicial precedent play a significant role in the country's law and its development. Ghana's common law is defined as including the rules generally known as common law, the rules known as the doctrines of equity, and customary law rules, including those determined by the Superior Court of Judicature. Ghana's current constitution, established in 1992, identifies common law as a source of law in the country. Ghana has had four constitutions since its first republican Constitution in 1960: 1960, 1969, 1979, and 1992. The 1992 Constitution mandates the independence of the judiciary, with the Supreme Court as the final court of appeal. Ghana's legal education system 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).
| Characteristics | Values |
|---|---|
| Case law and judicial precedent | Important components of the law and its development |
| Vesting of judicial power | Article 125(3) of the 1992 Constitution vests the judicial power of Ghana in the Judiciary |
| Independence of the judiciary | Mandated by Article 127 of the 1992 Constitution |
| Supreme Court as the final court of appeal | Stipulated in Article 129 of the 1992 Constitution |
| Court hierarchy | Descending order: Supreme Court, Court of Appeal, and High Court |
| Common law as a source of law | Recognized in Article 11 (2) of the 1992 Constitution |
| Common law definition | Includes common-law rules, doctrines of equity, and customary law rules |
| Influence of British legal system | Present-day British decisions may be cited as persuasive authority |
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What You'll Learn
Ghana's 1992 Constitution
Article 11(2) of the 1992 Constitution identifies the common law as a source of law in Ghana. The common law includes the rules generally known as common law, the doctrines of equity, and 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 that of its colonies.
Article 125(3) of the 1992 Constitution states that the judicial power of Ghana shall be vested in the Judiciary, with Article 127 mandating the independence of the judiciary. The Supreme Court is the final court of appeal, although it may depart from its previous decisions if it deems it appropriate. The Constitution also provides for a Court of Appeal and a High Court, in descending hierarchical order.
The 1992 Constitution also outlines the sovereignty of Ghana, which resides in the people of Ghana, and for whose welfare the powers of government are to be exercised within the limits laid down in the Constitution. Citizens of Ghana have the right and duty to defend the Constitution and resist any attempts to suspend, overthrow, or abrogate it.
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The role of case law and precedent
Ghana is a common-law jurisdiction, and as such, case law and judicial precedent play a pivotal role in the country's legal system and its development. The 1992 Constitution, which is the current constitution, identifies common law as a source of law in Ghana. Common law in this context includes the rules generally known as common law, the rules 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 underpinned the English legal system and those of its colonies.
Article 125(3) of the 1992 Constitution states that the judiciary holds the judicial power of Ghana. The independence of the judiciary is further guaranteed by Article 127 of the Constitution. The Supreme Court is the final court of appeal, as outlined in Article 129. The Supreme Court typically treats its previous decisions as binding but may depart from them if deemed appropriate. The Constitution also provides for a Court of Appeal and a High Court, which are lower in the hierarchy.
Ghana's legal system draws on English common law and colonial-era laws, which continue to influence the country's legal framework. This is evident in the ability to cite present-day British decisions on issues not affected by statute as persuasive authority in Ghanaian courts. This showcases the enduring influence of English legal principles in Ghana's legal landscape.
Case law and precedent are integral to the common law system in Ghana. They provide a framework for resolving disputes, interpreting laws, and guiding judicial decision-making. The hierarchy of courts, with the Supreme Court at the apex, ensures a structured approach to the development and application of case law. The Supreme Court's decisions set precedents that lower courts follow, contributing to a consistent and predictable legal environment.
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The independence of the judiciary
Ghana's legal system was built on Anglo-Saxon common law, statutory law, and other documents, such as those outlining the legal existence of military regimes. The country's legal system also includes customary laws and practices, as well as religious law, especially in the areas of marriage and inheritance.
The independence of Ghana's judiciary is entrenched in the Constitution, which outlines that the judiciary shall interpret, apply, and enforce the laws of Ghana. The judiciary is made up of the Supreme Court, the Court of Appeal, the High Court, and Regional Tribunals, with the Chief Justice as its Head. The Supreme Court is the highest authority and has the power to interpret the Constitution, including determining whether any acts of Parliament or the President are in violation of it.
Article 125(3) of the 1992 Constitution states that the judicial power of Ghana shall be vested in the Judiciary, with Article 127 mandating the independence of the judiciary and Article 129 pronouncing the Supreme Court as the final court of appeal.
Ghana's judiciary has faced criticism for its failure to uphold the rule of law during the post-independence era, particularly under the dictatorial rule of Kwame Nkrumah. The judiciary's independence was compromised, and it failed to defend fundamental freedoms, instead becoming "more executive-minded than the executive". This resulted in the arbitrary dismissal of the then Chief Justice.
However, the political pressures and state instability during that time may have influenced the judges' decisions. The case of Sallah v Attorney-General during the Second Republican era under Prime Minister Kofi Abrefa Busia is seen as an attempt by the judiciary to redeem its image from the post-independence era. Busia emphasised his government's respect for the rule of law, in contrast to Nkrumah, who behaved unconstitutionally by nullifying court decisions.
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The system of legal education
Ghana's legal system is modelled on the English common law system, with its 1992 Constitution ushering in the country's fourth republic. The Constitution is the longest-lasting in Ghana's history, having existed for 31 years.
The General Legal Council, established under Section 1 of the Legal Profession Act, 1960 (Act 32), is tasked with organising legal education in Ghana. The academic component of legal education is 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 programmes are awarded an LL.B. degree. However, admission to the University of Ghana Law Faculty is limited to individuals with an undergraduate degree. After graduating, all aspiring lawyers must undertake a two-year professional law course at the Ghana Law School to become eligible for a Barrister-at-Law certificate.
Ghana's legal system embraces alternative dispute resolution (ADR) mechanisms, and the country's legal periodicals reflect a decided interest in Ghanaian legal literature. The system also recognises the role of customary law, which comprises rules of law and customs applicable to particular communities, as long as they do not violate or contradict the Constitution or other laws.
The Ghana Legal System and Legal Methods is a crucial foundational module for all law students in Ghana. The module covers a range of topics, including the sources of law, classification of law, civil litigation, criminal procedure, judicial precedent, and statutory interpretation.
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The influence of English common law
Ghana is a common law jurisdiction, which means that case law and judicial precedent play a significant role in the country's legal system and its development. Ghana's common law, as defined by Article 11 (2) of the 1992 Constitution, includes the rules generally known as the common law, the doctrines of equity, and customary law, including those determined by the Superior Court of Judicature. This is a reference to the judge-made law that formed the basis of the English legal system and its colonies.
English common law forms the foundation of Ghana's current legal system, and it is the primary source of law in the country. This means that Ghanaian courts often look to English legal principles and precedents when interpreting and applying the law. While Ghana has developed its own unique body of case law and judicial precedent over time, English common law remains a persuasive authority. This is particularly true in areas of law that are not specifically addressed by Ghanaian statutes or precedent.
Additionally, the legal education system in Ghana also reflects the influence of English common law. The General Legal Council, established under the Legal Profession Act, 1960 (Act 32), is responsible for organizing legal education in the country. Graduates of the law programs at the University of Ghana Law Faculty and the Kwame Nkrumah University of Science and Technology (KNUST) are awarded an LL.B. degree, which is the standard law degree in England and Wales.
In conclusion, English common law has had a significant and lasting impact on the legal system of Ghana. While the country has developed its own unique legal framework and jurisprudence, English legal principles and precedents continue to influence the interpretation and application of the law in Ghana. The common law forms the bedrock of Ghana's legal system, and it continues to shape the country's legal landscape even today.
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Frequently asked questions
The common law of Ghana includes the rules of common law, the rules known as the doctrines of equity, and the rules of customary law, including those determined by the Superior Court of Judicature. Ghana's current 1992 Constitution identifies common law as a source of law in the country.
The 1992 Constitution is the most recent of Ghana's four constitutions, following the first republican Constitution in 1960, and the two subsequent Constitutions of 1969 and 1979. The 1992 Constitution states that the judicial power of Ghana is vested in the Judiciary, and mandates the independence of the judiciary.
As a common law jurisdiction, case law and judicial precedent are important in Ghana's law and its development. The Supreme Court is the final court of appeal, and while it treats its previous decisions as normally binding, it may depart from them.
