Ghana

TOPIC: SOURCES OF LAW IN GHANA AND HUMAN RIGHTS by Adjepong Eric Kwarteng

OUTLINE:

• INTRODUCTION

• SOURCES OF MODERN LAW

• SOURCES OF LAW IN GHANA

• HUMAN RIGHTS AS A NEW WAVE IN LAW

• OBSEVATION AND CONCLUSION

• REFFERENCES

Introduction

Human nature is very complex and as a result, any contact between two or more people may result in actions justifiable and not justifiable, rational or irrational. Hence; society being complex with many people interacting with each other consistently, need to have regulations on these actions of humans. The regulations on the various actions in society thus are known as Law. The law is the standard measurement of actions in every human society. Traditional Laws thus, come with sanctions and are penal in nature. Today, the legal philosophy is changing very fast especially in the late 20th century to this 21st century. Starting from the late 1950s till date, many new perceptions to the law have been realized. Laws are made to protect minority and the weak unlike ancient laws that sought to focus on communal harmony. Human rights evolved from this individual protectionism in the modern laws. In this paper, the main agenda is to describe the current adoption of human rights law in Ghana and some challenges. For the human rights law in Ghana to be understood, we need to first get the understanding of the sources of Ghanaian laws.

Sources of Modern Law

Many scholars believe that law has no specific origin. Other schools of thought also believe that law originated from the earliest civilizations. I personally believe that law the origin of law is as old as the human institution. Based on the definition of law at the beginning of this paper, I can confidently say that law began right from the time when two or three humans first existed and had contact; even before the start of villages and the further growth of towns and cities which resulted in civilizations. To dig into the origins of modern law, one can find relationships between modern Legal traditions and the ancient legal traditions. One of the first codified laws in the legal history is the “code of Hammurabi”. The Code of Hammurabi is a well-preserved Babylonian law code, dating back to about 1772 BC. It is one of the oldest deciphered writings of significant length in the world; most of today’s laws have the elements of the Hammurabi’s code. Notwithstanding that, the Mosaic Law (Ancient Israel) was also another form of codified law from which a lot of modern Canon Laws of Europe take their roots from. The origin of modern law has a long list of sources which cannot be listed in a single paper such as this one. The Egyptian laws, Greek Laws, Roman Laws, Greco – Roman Laws and Germanic Laws are the origins of the modern Laws.

Most of these mentioned laws were made by decrees of the Kings ruling the Lands. As time went on, and many of these civilizations became more enlightened, and laws were enacted by assigned law makers and in some respects scholars of law. This era began the evolution of modern law.

In this paper, I will look into two of such modern legal systems; that of Ghana and how these laws are influenced by the culture. Also, I will like to state that, the modern laws Ghana were as a result of great influence from the European legal traditions

Sources of Law in Ghana

Laws in Ghana used to be ethnic and clan based until the late 18th century when Britain occupied Ghana as a protectorate and subsequently colonized it. During the periods that predate the colonization, the law of one ethnic group was only for residents of their land and has no power on others. These laws were based on the moral values of the people. The kings were the arbitrators of the law and hence were mostly seen as not under the law. Many laws were made by such Kings in most communities. Many ethnic groups on the other hand were acephalous and had their laws emanating from their religious beliefs and practices. The creation of a single state and a colony by the British in the early 19th century laid the foundation of the current legal tradition of Ghana.

Ghana is a common law country with lots of its legal tradition inherited from England during the colonial days. Laws in Ghana are a fusion of British laws and traditional or customary laws of the Ghanaian ethnic groups. The following refers to the ways by which the laws of Ghana were created, as stipulated in the 1992 Constitution; the current Republican Constitution of Ghana.

Article 11 of the 1992 Ghana Constitution states that the laws of Ghana shall comprise: The Constitution; Enactments made by or under the authority of the Parliament established by the Constitution [or legislation];Any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution [or subsidiary or subordinate legislation];The existing law or the written and unwritten laws of Ghana that existed immediately before the coming into force of the 1992 Constitution; and The common law [or the English common law, English doctrines of equity, and the rules of customary law]

The sources of laws in Ghana in this respect are very conspicuous but have a deeper meaning that cannot be easily understood and interpreted by the lay man. The first source of the law in Ghana is from the constitution. The constitution in Ghana was drafted in 1990 and was accepted as the Supreme law of the land in 1991. It ushered the country from a regime of military rule to civilian and constitutional democracy which started in 1992. The sources of the constitution include: laws in the previous constitutions, Decrees by formal military governments, convections of tradition, court Rulings, (Supreme and High courts) and new enactments which were voted as part the constitution in a referendum. After the introduction of the1992 Fourth Republican Constitution, any new law can only be made by Parliament, Supreme Court verdicts and Independent Institutions powered directly by means as a constitutional provision. There are occasions where the Presidency can make laws known as Presidential Instrument but such laws are for emergencies and they must conform to the constitution since it is a constitutional provision. The final source of law in Ghana is the common law [or the English common law, English doctrines of equity, and the rules of customary law].

In many cases, there are many laws that are not written in Ghana which are referred to as conventions or traditions and must be obeyed. Most of these laws are penal laws and a breach can lead to legal action and punishment. It is very vivid that, the legal system in Ghana has its uniqueness due to the socio – economic and cultural influences. It has many similarities with other systems as well. Now let us consider the law and human rights in Ghana.

Human Rights Law in Ghana and Some Challenges

Ghanaian human rights laws have their start from the United Nations ‘Charter, conventions and recommendations. Ghana has one of the best human rights laws, practices and provisions in Africa. This is due to the political history of the country. Cases of human rights and abuse are handled by an independent judicial system.

Ghana has a very good developed judicial system based on the principle of Rule of Law. Not all, freedom of the media, which I believe is very keen to the democratisation process is at its peak in Ghana. Ghana is a country of approximately twenty-six (26) million people with about three hundred (300) Radio stations and thirty (30) Television stations broadcasting in almost all the approximately thirty-seven (37) indigenous languages and about twenty (20) newspaper agencies making information dispensation and transparency very vivid. About ninety-eight percent (98%) of these media outlets are privately owned thereby making it almost impossible for any government to solely control the information dissemination in the country.

Also there is the national commission on civic education instituted by the constitution whose duties include mass education on political, social and economic issues through national campaigns, schools and the media. Due to the high profile of equality and equity in Ghana, we have had a woman served as Speaker or Chair of Parliament, many other women also serving in ministerial positions and as members of the legislation. Currently, the Chief Justice of the Supreme Court of Ghana is a woman- Justice Georgina Theodora Wood.

Ghana has significantly over the past two decades moved from the period of human rights violations to a stage where human rights sit atop all national priorities. The Ghanaian today prefers to live poverty in freedom than live extravagance in servitude. Although economically, governments of Ghana are still struggling to improve the lives and wealth of its people, the Ghanaian is not living in a state of oppression and suppression with human rights being abused.

There are many problems still pending in Ghana with regards to human rights issues. The diversity in culture, religion and ethnicity makes it difficult for certain practices which are deemed human rights abuse to win the support of everyone; hence, generalization of what is an abuse is a problem. The rate of literacy is another problem. Although the country is increasing literacy rate than ever in their history, many illiterates especially those in their mid-forties are still a huge number therefore, education on human rights abuse such as mob actions takes a long time to penetrate the population.

Conclusion

Law has been a part of every society for a long time and societies have developed many complicated laws to deal with other people. Modern laws were not an invention but rather an innovation from the ancient laws such as the Hammurabi’s codes and Mosaic laws. Ghana as a developing country although has many economic, social and political limitations, has managed to put human rights into the core of the national policies. Human rights laws which developed from the gradual understanding of protection for the weak and minority has gained global attention since its start after the world war two. Human rights law will continue to be the core of other laws for a long time hence, we must continue to put efforts into making sure that majority of the people in the world have their fundamental rights protected.

References:

Boahen, A. (1981) history of Ghana Oxford Press, London

Ghana Bar association; www.ghanabar.org /about-us/index.html

Prof. Mousourakis; comparative law, University of Tsukuba, Lecture 2013

Supreme Court of Japan, Judgments; http://www.courts.go.jp/english/judgments/index.html

The 1992 Constitution of the Republic of Ghana, retrieved on 17th February 2014, from, http://www.judicial.gov.gh/constitution/chapter/chap_12.htm

Waseda University Law Journal; http://www.waseda.jp/hiken/en/jalaw_inf/topics/004kaino.html