Ghana, Republic of


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

Based on English common law and customary law; over 100 distinct ethnolinguistic groups in Ghana. Gold and later the slave trade attracted European explorers to the region; first the Portuguese in the late 15th century followed by Dutch, Danish, English and Swedish explorers. By the early 19th century, the British came to dominate the ‘Gold Coast’, extending their control further inland. By 1902 most of modern-day Ghana was a British crown colony, with Volta joining Ghana in 1956. The British policy of indirect rule utilised local chiefs in government and administration, thus traditional authorities retained their jurisdiction over the internal affairs of their communities. Following WWII, pressure for self-rule increased, and independence was gained in 1957. Ghana became a republic under the 1960 Constitution and the first prime minister, Kwame Nkrumah, was elected President. By 1964, Nkrumah had centralised power and limited opposition, had himself declared president for life and established a single-party state. A military coup in 1966 brought an end to Nkrumah’s rule. Military rule continued until 1993, with brief periods of democratic civilian rule (1969-1972, 1979-1981). The fourth republican constitution came into effect in 1993, and in 1996, the first elected government to complete its first term was elected to a second term, under the former military ruler Jerry Rawlings.

British-era legislation relating to family law provided for civil registration under a monogamous regime under the Marriage Ordinance 1951. Until now, no single body of law regulates personal status matters. The colonial legislation applicable to Muslims, the Marriage of Mohammedans Ordinance 1907, is limited to administrative or procedural matters such as providing for registration of marriage and divorce. Muslim marriages are also affected by some other laws of universal application. Although the Ordinance has been retained, few Muslim marriages are registered under it and more commonly come under customary legal regimes.

The Ghana Law Reform Commission established in 1968 was given the task of reviewing statutory and customary laws and suggesting reforms. Its first programme identified inheritance and marriage law as among the main areas requiring attention. Among the successes of the Commission are counted the Maintenance of Children Decree 1977 and Intestate Succession Law 1985. The Maintenance of Children Decree establishes Family Tribunals to hear complaints about maintenance of children during the subsistence of marriage and after divorce. The Intestate Succession Law provides protection for children in communities where they are not entitled to shares of their deceased parents’ estates. The unification of family laws was identified in its 1996 report as a goal of the Commission. To that end, the Commission outlined a plan to assess the application and efficacy of existing legislation through questionnaires to be drafted in co-ordination with women’s groups and NGOs.

School(s) of Fiqh Majority of Muslims are Maliki. Other major religions are Christianity and indigenous religions.

Constitutional Status of Islam(ic Law)

Constitution approved 28th April 1992. Adopts no official religion.

Article 11 identifies sources of Ghanaian law as: Constitution; legislation; existing law; and common law. Existing law defined as written and unwritten laws of Ghana predating current Constitution, as adapted to conform to Constitution.

Article 270(1) provides recognition of institution of chieftaincy, together with its traditional councils under customary law and Article 272 states that National House of Chiefs shall undertake progressive study and codification of customary law to establish unified rules and evaluate such laws with aim of "eliminating those customs and usages that are outmoded and socially harmful"

Court System

Higher courts: Supreme Court (highest court of appeal in civil and criminal matters), Court of Appeal, High Court, and ten Regional Tribunals.

Lower courts: circuit courts and tribunals, community tribunals, juvenile and family tribunals;

Traditional courts: National House of Chiefs, Regional House of Chiefs, and Traditional Councils.

Islamic law applied by customary courts under broader category of customary law.

 

Relevant Legislation

Marriage of Mohammedans Ordinance 1907

Matrimonial Causes Act 1971

Wills Act 1971

Chieftaincy Act 1971

Courts Act 1993

Notable Features

Marriage Age: governed by classical or customary law

Marriage Guardianship: Marriage of Mohammedans Ordinance specifies that marriage is solemnised in presence of bridegroom, bride’s wali, and two witnesses; Criminal Code identifies causing someone to marry under duress as misdemeanour

Marriage Registration: Marriage of Mohammedans Ordinance provides for registration of marriage and divorce among Muslims; marriage must be registered within one week

Polygamy: governed by classical or customary law; all customary marriages potentially polygamous under Ghanaian law

Obedience/Maintenance: Criminal Code imposes duty of maintenance of wife and children on husband

Talaq: governed by classical or customary law

Judicial Divorce: possible to terminate customary law marriage by application to court under Matrimonial Causes Act, in which case grounds for divorce include those recognised in personal law of the parties in addition to those enumerated in the Act; under Act, divorce may only be granted if court concludes irreparable breakdown; courts hearing suits for divorce among Muslims directed to apply Matrimonial Causes Act directing guidance by justice, equity and good conscience in determination of post-divorce reliefs and custody

Post-Divorce Maintenance/Financial Arrangements: courts empowered under Matrimonial Causes Act to grant maintenance in addition to matrimonial reliefs recognised under personal law of parties

Child Custody and Guardianship: Matrimonial Causes Act provides that courts may grant custody according to ward’s best interests, and order provision for his/her education and maintenance out of assets or income of either or both parent and courts adjudicating Muslim divorces directed to apply terms of Act in matters of maintenance and custody

Succession: upon death of Muslim whose marriage was registered under Marriage of Mohammedans Ordinance, property devolves according to Islamic law; Wills Act 1971 provides for freedom of testacy, but subject to customary law applicable to testator.

 

Notable Cases

Law/Case Reporting System

Law reporting through Official Gazette. Decisions of Supreme Court, Court of Appeal and High Court published in The Ghana Law Reports Digest.

International Conventions (with Relevant Reservations)

CEDAW – signature 1980, ratification 1986, without reservations

CRC – signature 1990, ratification 1990, without reservations

Legal History:

The legal system is based on English common law and customary law. Over 100 distinct ethnolinguistic groups are represented in Ghana. Gold and later the slave trade attracted European explorers to the region; first the Portuguese in the late 15th century followed by Dutch, Danish, English and Swedish explorers. By the early 19th century, the British came to dominate the ‘Gold Coast’, extending their control further inland. By 1902 most of modern-day Ghana was a British crown colony, with Volta joining Ghana in 1956. The British policy of indirect rule utilised local chiefs in government and administration, thus traditional authorities retained their jurisdiction over the internal affairs of their communities. Following WWII, pressure for self-rule increased, and independence was gained in 1957.

Ghana became a republic under the 1960 Constitution and the first prime minister, Kwame Nkrumah, was elected President. By 1964, Nkrumah had centralised power and limited opposition, had himself declared president for life and established a single-party state. A military coup in 1966 brought an end to Nkrumah’s rule. Military rule continued until 1993, with brief periods of democratic civilian rule (1969-1972, 1979-1981). The fourth republican constitution came into effect in 1993, and in 1996, the first elected government to complete its first term was elected to a second term, under the former military ruler Jerry Rawlings.

British-era legislation relating to family law provided for civil registration under a monogamous regime under the Marriage Ordinance 1951. Until now, no single body of law regulates personal status matters. The colonial legislation applicable to Muslims, the Marriage of Mohammedans Ordinance 1907, is limited to administrative or procedural matters such as providing for registration of marriage and divorce. Muslim marriages are also affected by some other laws of universal application. Although the Ordinance has been retained, few Muslim marriages are registered under it and more commonly come under customary legal regimes.

The Ghana Law Reform Commission established in 1968 was given the task of reviewing statutory and customary laws and suggesting reforms. Its first programme identified inheritance and marriage law as among the main areas requiring attention. Among the successes of the Commission are counted the Maintenance of Children Decree 1977 and Intestate Succession Law 1985. The Maintenance of Children Decree establishes Family Tribunals to hear complaints about maintenance of children during the subsistence of marriage and after divorce. The Intestate Succession Law provides protection for children in communities where they are not entitled to shares of their deceased parents’ estates. The unification of family laws was identified in its 1996 report as a goal of the Commission. To that end, the Commission outlined a plan to assess the application and efficacy of existing legislation through questionnaires to be drafted in co-ordination with women’s groups and NGOs.  

Schools of Fiqh:  The majority of Muslims are Maliki. The other major religions represented are Christianity and indigenous religions.

Constitutional Status of Islam(ic Law): The current Constitution was approved on 28th April 1992, and adopts no official religion. Article 11 identifies the sources of Ghanaian law as: the Constitution; legislation; existing law; and common law. Existing law is defined as the written and unwritten laws of Ghana predating the current Constitution, as adapted to conform to the Constitution. Article 270(1) provides for the recognition of the institution of chieftaincy, together with its traditional councils under customary law. Article 272 states that the National House of Chiefs shall undertake a progressive study and codification of customary law to establish unified rules and evaluate such laws with the aim of "eliminating those customs and usages that are outmoded and socially harmful".

Court System: The higher courts are the Supreme Court (the highest court of appeal in civil and criminal matters), the Court of Appeal, the High Court, and ten Regional Tribunals. The lower courts are circuit courts and tribunals, community tribunals, juvenile and family tribunals; and traditional courts. Traditional courts include the National House of Chiefs, the Regional House of Chiefs, and the Traditional Councils.

Islamic law is applied by customary or traditional courts under the broader category of customary law.

 Notable Features: The minimum marriage age is governed by classical or customary law. The Marriage of Mohammedans Ordinance specifies that marriage is solemnised in the presence of the bridegroom, the bride’s wali, and two witnesses. The Criminal Code identifies causing someone to marry under duress as a misdemeanour. The Marriage of Mohammedans Ordinance provides for the registration of marriage and divorce among Muslims.  Marriage must be registered within one week of solemnisation.

Polygamy is governed by classical or customary law.  All customary marriages are defined as potentially polygamous under Ghanaian law.

The Criminal Code imposes the duty of maintenance of the wife and children on the husband.

Talaq is governed by classical or customary law. It is possible to terminate a customary law marriage by application to the court under the Matrimonial Causes Act, in which case grounds for divorce include those recognised in the personal law of the parties in addition to those enumerated in the Act.  Under the Act, divorce may only be granted if the court concludes irreparable breakdown. Courts hearing suits for divorce among Muslims are directed to apply the Matrimonial Causes Act directing guidance by justice, equity and good conscience in determination of post-divorce reliefs and custody. The Courts are empowered under the Matrimonial Causes Act to grant maintenance in addition to the reliefs recognised under the personal law of the parties. The Matrimonial Causes Act provides that courts may grant custody according to the ward’s best interests, and order provision for his/her education and maintenance out of the assets or income of either or both parents. Courts adjudicating Muslim divorces are required to apply the terms of the Matrimonial Causes Act.

Upon the death of a Muslim whose marriage was registered under the Marriage of Mohammedans Ordinance, property devolves according to Islamic law. The Wills Act 1971 provides for complete freedom of testacy, subject, however, to the customary law applicable to testator. Although Article 22 of the Constitution provides that the government shall endeavour to regulate the property rights of spouses to ensure equal access to jointly acquired property and equal division of such property on divorce, there has been no legislative implementation of the directive as of yet.

Notable Cases:

Law/Case Reporting System: Law reporting is through the Official Gazette. Decisions of the Supreme Court, Court of Appeal and High Court are published in The Ghana Law Reports Digest.

International Conventions (with Relevant Reservations): Ghana signed the CEDAW in 1980 and ratified it in 1986, without reservations.

Ghana signed the CRC in 1990 and ratified it in 1990, without reservations.

Background and Sources: Berry, ed., Ghana: A Country Study, Washington D.C., 1995;  Ghana, Initial, second and third periodic report to CEDAW, 5th July 1991; "Ghana" in Women of the World: Laws and Policies Affecting Their Reproductive Lives – Anglophone Africa, Center for Reproductive Law and Policy & International Federation of Women Lawyers (Kenya Chapter), New York, 1997; Ghana Law Reform Commission, Annual Reports, Accra (1971, 1979-1982, 1996); Mensa-Bonsu, "Family Law Policy and Research Agenda," The Changing Family in Ghana, ed. Ardayfio-Schandorf, Accra, 1996; Redden, "Ghana" in Modern Legal Systems Cyclopedia, vol. 6, Buffalo, NY, 1990; Rubin & Cotran, Annual Survey of African Law, vol. V, 1971.