WHAT ARE THE SOURCES OF GHANA LAW?
MEANING OF SOURCES OF LAW
The terms sources of law may have several meanings.
• It may mean that which gives the law its formal validity (formal source) for example the constitution.
• It may also mean the direct means which law is made or comes into existence (legal source) for example legislation and
• It may also mean the written materials from which we obtain knowledge of what the law is or was at any given time (literal source) for example Sarbah’s Fanti Customary Laws and Rattrays Ashanti Law and Constitution.
• It may mean factors that have influenced the development of the law, and from which the content of the law may be traced (history or material source)
• According to C.K. Allen , ‘Law in the making’, sources may be said to be those agencies by which rules of conduct acquire the character of law by becoming objectively definite, uniform and above all compulsory.
There are primary and secondary sources of law in Ghana. The primary sources of law in Ghana are the Constitution, legislation and the common law. Whilst the secondary sources are writings about law in books, especially scholarly works, legal periodicals, government publications, law reform documents, parliamentary debate, newspapers containing edited law reports.
It is in this context that article 11(1) of the Fourth Republican Constitution, 1992 defines the Laws of Ghana (the primary sources) as comprising :
a. This Constitution
b. Enactment made by or under the authority of parliament established by this constitution [legislation];
c. Any Orders, Rules and Regulations made by any person or authority under a power conferred by this constitution [subsidiary or subordinate legislation];
d. The existing law; [the written and unwritten law that existed immediately before the coming into force of the 1992 Constitution]and
e. The common law [the English common law , English doctrines of Equity and the rules of customary law]
THE CONSTITUTION AS A SOURCE OF LAW
Article 1(2) provides that : this constitution shall be the supreme law of Ghana and any other law found to be inconsistent shall to the extent of the insistency be void. This therefore establishes the supremacy of the constitution. This suggests therefore that the supremacy of parliament is limited and parliamentary enactments and those of previous legislation are subject to the supremacy of the Constitution. In New Patriotic Party v Attorney General (31st December Case ) Aikins JSC said: in my view, even though Parliament has the right to legislate, this right is not without limit and the right to enact law that 4 June and 31st December should be declared public holidays cannot be left to linger in the realm of public policy. Such legislation must be within the parameters of the power conferred on the legislature and under Article (2) of the Constitution, 1992, any law found to be inconsistent with any provision of the Constitution (supremacy of law shall, to the extent of such inconsistency , be void.’ This dictum reiterates the fundamental nature of the constitution. All laws derive their validity from this constitution and although there were existing laws before the coming into force of this constitution, in so far as they are not inconsistent with the provisions of the constitution, will continue in force as if enacted , issued or made under the authority of the constitution. This can be seen from article 11(4), (5) and (6).
LEGISLATION
Legislation can create not only new law but can also alter or repeal existing laws as well as affect the existence and content of other sources of law. Article 93(2) vests the legislative power in parliament which will be exercised in accordance with the provisions of the 1992 Constitution. Parliament therefore is not supreme in so far as the exercise of its legislative powers is subject to the provisions of the Constitution. This can be seen in article 1(2). The effect of article 2(1) was considered by the Supreme Court in the case of Mensima v. Attorney – General. The plaintiffs who were members of a registered cooperative union broke off from the union and formed a limited liability company, they were prevented from distilling the said gin by the officers of the cooperative union; they were harassed and their products ceased by the officers on the grounds inter alia that , they did not belong to any registered distiller’s co-operative union; and also having no licence as required by regulation 3(1) by the Manufacturer and Sale of Spirits Regulations ,1962. The plaintiffs brought an action in the Supreme Court under Article 2(1) of the 1992 Constitution for a declaration , inter alia, that regulation 3(1) of L.I 239 , which made it mandatory for an applicant “for the issue distiller’s license” to belong to a registered distiller’s cooperative, was inconsistent with the letter and spirit of the 1992 Constitution, particularly the exercise of their fundamental right of freedom of association guaranteed under article 21(1)(e) of the 1992 Constitution. The court declared regulation 3(1) of LI 239 null and void for being inconsistent with the letter and spirit of the 1992 Constitution, particularly Article 21(1)(e) thereof because of its mandatory requirement for an applicant for a distiller’s license to belong to a registered distiller’s cooperative. The court went further that “…Article 1(2) of the 1992 Constitution is the bulwark which not only fortifies the supremacy of the Constitution but also makes it impossible for any law or provision inconsistent with the Constitution to be given effect to. And once the constitution does not contain a schedule of laws repealed by virtue of its provision, whenever the constitutionality of any law vis-a-vis a provision of the constitution is challenged the only court is to examine the relevant law and the constitution as a whole to determine the authenticity of the challenge. And in this regard, the fact that the alleged law has not specifically been repealed is totally immaterial and afford no validity to the law. for article 2(1) contains a built-in mechanism which automatically comes into play
whenever it is found that a law is inconsistent with the constitution”
The lack of jurisdiction of the legislative supremacy of Parliament , if also emphasized in the dictum of Aikins JSC in the 31stDecember case: “ in my view , even though Parliament has the right to legislate, this right is not without limit , and the right to enact a law that 4 June and 31 December should be declared public holidays cannot be left to linger in the realm of public policy. Such legislation should be within the parameters of the power conferred on the legislature, and under Article 1(2) of the Constitution, 1992 any law found to be inconsistent with any provision of the Constitution (the supreme law ) shall to the extent of such inconsistency be void.”
Parliament’s legislative power is further limited in other aspects:
Its power do not extent to the making of a law to alter the decision or judgment of any court nor may it create a law which operates retroactively, Article 107. Also in Article 3(1) Parliament has no power to legislate for the creation of a one – party state, nor can it make laws relating to chieftaincy without have referred the draft to the National house of Chiefs for advice in article 106(3) of the Constitution. Finally Parliament cannot make laws relating to financial and budgetary matters “unless the Bill is introduced or the motion is introduced by , or on behalf of the President”.
SUBSIDIARY/DELEGATED/ SURBODINATE LEGISLATION
According to Victor Essien, “Researching Ghanaian Law” this legislation is one made by a subordinate body, such as a District Assembly or a Minister of State, under the authority of Parliament or the Constitution, usually through the delegation of the legislative power in a statute. This is also affirmed under Article 11 of the Constitution that any orders, rules and regulations made by any person or authority a power conferred by this constitution as part of the sources of Ghana law. In terms of article 11(7), subsidiary legislation when made shall be laid before Parliament , published in the Gazette and will come into force after twenty –one sitting days of Parliament, unless two –thirds or more of members of Parliament vote to annul it . Parliament lacks power to amend any such subsidiary legislation except to annul it or allow it to come into effect.
WHAT ARE THE FORMS OF SUBSIDIARY LEGISLATION?
STATUTORY INSTRUMENTS: these are instruments made directly or indirectly, under a power conferred by an Act of Parliament or a Decree of law. For example section 158 of the Local Government Act 1993 gives the Minster of Local Government and Rural Development the power to make regulations for the purpose of carrying the Act into effect. Any regulation made by the Minister in pursuance of this power will be called a statutory instrument. The Statutory Instrument Rules 1960, LI 39 govern the form of a statutory instrument. There are two kinds of statutory instruments-legislative instruments and executive instruments.
LEGISLATIVE INSTRUMENT (LI): These are those statutory instruments made under powers expressed to be exercisable by legislative instrument. For example section 73 of the Economic and Organized Crime Act 2010 (Act 804) under which the A-G and the Minister of Justice may by legislative instrument make regulations for , inter alia, tracking tainted property and for seizure of such goods. Generally such instruments will determine or alter a law rather than applying it to a particular case. An example of legislative instrument is the legal profession Rules 1969, LI 613.
EXECUTIVE INSTRUMENTS: These are instruments which are neither legislative instruments nor instruments of judicial character. The executive arm of state is usually empowered to issue such instruments. Example is section 4 of the Public Order Act 1994, Act 491 which empowers the Minister of Interior by executive instrument to impose curfew on any part of the country if the circumstances warrant it.
CONSTITUTIONAL INSTRUMENTS: These are instruments made under a power conferred by the constitution. For example , the Commission of Inquiry Instrument, 2009 which appointed a commission of inquiry under article 278 of the Constitution to inquiry into the operations of the Ghana @ 50 Secretariat and matters incidental to the Ghana @ 50 Celebrations. Constitutional instruments must be construed as one with the Constitution.
In Mornah v Attorney General [2013] SCGLR (Special Edition) 502, the Supreme Court ruled that a constitutional instrument, which permitted the Supreme Court to engage in official business and thus sit on presidential election petition from day to day, including Saturdays, Sundays and public holidays, violated the Public Holidays Act, 2001 (Act 601).
THE EXISTING LAW: Article 11(4) of the 1992 Constitution provides that the existing law shall except as otherwise provided in article 11(1) of the 1992 Constitution comprise the written and unwritten laws of Ghana, as they existed immediately before the coming into force of the Constitution and any act, decree, laws or statutory instrument issued or made before that date, which is to come into force on or after that date. It should be emphasized that article 11(5) states that the existing law “shall not be affected by the coming into force” of the Constitution and that under article 11(6) , the existing law “shall be construed with any modifications, adaptations , qualifications, and exceptions necessary to bring it into conformity with the provisions of the Constitution.”
Thus in Ellis v Attorney-General, SC upheld an enactment, ie the Hemang Lands (Acquisition and Compensation) Law, 1992 (PNDCL 294), as an existing law. The plaintiff, claiming that PNDCL 294 had unlawfully expropriated his lands, sued for a declaration that PNDCL 294 was a nullity for being inconsistent with or contravening the Constitution, 1992. The Supreme Court rejected the claim because PNDCL 294 as an enactment, had been passed and the plaintiff’s lands had been acquired and vested in the Republic before the coming into force of the Constitution on 7 January 1993. In his opinion in support of the decision, Atuguba JSC said at page 41 “PNDCL 294 relates to matters concluded by it both in terms of the vesting of the plaintiff’s lands in the PNDC on behalf of the Republic and as to the quantum of compensation for the same. As these matters do not fall to be done on or after the coming into force of the 1992 Constitution; that Law, even if it is regarded as an operative existing law within the meaning of article 11(5), is incapable of infringing the 1992 Constitution.”
Also in Kangah v. Kyere the Supreme Court held that the Chieftaincy Act 1971 (Act 370) should be construed as an existing law in so far as it was not inconsistent with any provision of the Constitution 1979 and that the operation of the Act was not affected by the Constitution.
The decision in Ellis v AG and that in Kangah v Kyere may be contrasted with the decision in Mensima v Attorney –General[1996-97] SCGLR 676 . In this case, the plaintiffs, members of a registered co-operative union, broke off from the union and formed a limited liability company. The object of the company was to distil a locally manufactured gin called akpeteshie. They were prevented from distilling akpeteshie by the officers of the co-operative union; they were also harassed and their products were impounded by the officers on the grounds , inter alia, that they did not belong to any registered distiller’s co-operative union and did not have a licence as required by regulation 3 (1) of the Manufacture and Sale of Spirit Regulations 1962 (L I239), which provided that : “Every applicant for the issue of a distiller’s licence shall be a member of a registered Distller’s Co-operative.”
The plaintiffs therefore sued in the SC under article 2(1) of the Constitution 1992 for a declaration, inter alia that regulation 3(1) of LI 239, which made it mandatory for an applicant “for the issue of a distiller’s licence” to belong to a registered distiller’s co-operative , was inconsistent with the letter and spirit of the Constitution, particularly the exercise of their fundamental rights of freedom of association guaranteed under article 21(1) (e) of the Constitution. The Supreme Court , by a majority decision, upheld the claim. It was held that as an existing law, regulation 3(1) of LI 239 was inconsistent with article 21(1) (e) of the Constitution, 1992 and therefore void.
THE COMMON LAW: Article 11(2) of the Constitution says that the common law of Ghana comprise of the rules of law 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.
What is meant by customary law included in the above definition of the common law of Ghana has been defined by article 11(3) of the Constitution as “the rules of law which by custom are applicable to particular communities in Ghana.
According to section 18(1) of the Interpretation Act, 1960 (CA 4), customary law, as comprised in the laws of Ghana, consists of rules of law which by custom are applicable to particular communities in Ghana, not being rules included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable to general application.
In 1876 when Ghana was colonized, the British passed the Supreme Court Ordinance of 1876 where under section 87 it was stated that in the adjudication of cases, the colonial judges had to have regard to local custom and usage. During the mercantile period, Capt. McClean used judicial assessors to adjudicate cases outside the forts and castles. This was regularized in 1876 by the SC Ordinance.
In Angu v Attah, it was held that a rule of customary law has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular have , by frequent proof in the courts become so notorious that the courts take judicial notice of them. Expert assistance may be sort by the court.
The courts are however not to apply or adopt a customary law , rule or principle which is contrary to statute or natural justice equity and good conscience.
ASCERTAINMENT OF CUSTOMARY LAW-SECTION 55 OF COURTS ACT, 1993 (ACT 459)
1. Any question as to existence or content of a rule of customary law is a question of law for the court and not a question of fact.
2. If there is doubt as to the existence or content of a rule of customary law relevant in any proceedings before a court, the court may adjourn the proceedings to enable an inquiry to be made under subsection (3) of this section after the court has considered submissions made by or on behalf of the parties and after the court has considered reported cases, textbooks and other sources that may be appropriate to het proceedings.
3. The inquiry shall be held as part of the proceedings in such manner as the court considers expedient, and the provisions of this Act relating to the attendance and testimony of witnesses shall apply with such modifications as may appear to the court to be necessary.
4. The decision as to the persons who are to be heard at the inquiry shall be one for the court, after hearing the submissions on it made by or on behalf of the parties.
5. The court may request a House of Chiefs, Divisional or Traditional Council or other body with knowledge of the customary law in question to state its opinion which may be laid before the inquiry in written form.
It should be noted also that section 54 of Act 459 contains the choice of law rules. Contains the personal law rules. See Youhana v Abboud
Application of English Statutes of General Application –Section 119 of Act 459 :
(1) Until provision is made by law in Ghana, the Statues of England specified in the Second Schedule to this Act shall continue to apply in Ghana as statutes of General application subject to any statute in Ghana. (Sections 1 and 2 of the Partitions Act; section 4 of the Cestiuque Vic Act ; Sections 1 to 8 of the Prescription Act; sections 6 to 8 of the Real Property Act; sections 1 and 2 of the Libel Act; Sections 1 to 5 and 7 to 34 of the Trustee Act; Section 12 of the Charitable Trusts Act)
INTERNATIONAL AGREEMENTS:
Article 75 :
(1) The President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana.
(2) A treaty , agreement or convention executed by or under the authority of the President shall be subject to ratification by –
(a) Act of Parliament; or
(b) a resolution of Parliament supported by the votes of more than one-half of all the members of Parliament.
Thus, under Article 75, an international instrument will not be part of the laws of Ghana unless and until the said treaty, agreement or convention has been ratified by parliament and same has been incorporated into our laws. (In the CIBA case however, Bamford Addo JSC expressed the view that where the said treaty is self executing, it may be applicable notwithstanding the fact that it has not gone through the ratification process)
The Government of Ghana is reminded under Article 73 of the Constitution 1992 to conduct its international affairs in consonance with the accepted principles of public international law and diplomacy in a manner consistent with the national interest of Ghana.
Article 40 of the 1992 Constitution indicates that the Government shall seek the establishment of a just and equitable international economic and social order as well as promote respect for international law, treaty obligations and the settlement of international disputes by peaceful means.
40(d) adhere to the principles enshrined in or as the case may be, the aims and ideals of the Charter of the UN; the Charter of the AU; the Commonwealth; the Treaty of ECOWAS as well as any other treaty of which Ghana is a member.
THE FOLLOWING MUST BE NOTED :
• Where there is a conflict between two different types of laws, the latter statute prevails
• Where a statute conflicts with the common law or the customary law, the provisions of the statute prevail
• Where there is a conflict between different sources of law within the common law, English statutes will take precedence over the common law in the narrow sense and equity; while rules of equity will prevail over the rules of common law.
IMPORTANCE OF THE SOURCES OF LAW
• Knowledge of the sources of law enables a distinction to be drawn between rules which are proposed or desired or morally worthy to be laws and rules which are actually laws.
• Also once the sources of law are known; it is possible to determine where one should look to discover the law on a subject. For instance if a rule is set forth in an act of Parliament then one can be sure that thisis a source of law.