WHAT ARE THE SOURCES OF CONSTITUTIONAL LAW?
The sources of constitutional law in a country with a written constitution would comprise of the constitution itself and its amendments, Acts of parliament, Decrees, existing laws and amendments, judicial decisions, etc. The sources of constitutional law may be divided into two:
Legal Rules:
Legislation which is the provided under Article 11, 37, 40, 73 & 75 of the 1992 Constitution. 11 provides for the laws in Ghana in a hierarchical order (the constitution itself, acts of parliament, acts by constitution-authorized persons, existing laws being the written and unwritten laws in force before the coming into force in the constitution be it act, decree, law or statutory instruments which were to come into force after the constitution’s coming into force, common law being common law equity, customary law which are applicable to particular communities in the country). 37 provides for the state to enact appropriate laws to assure enjoyment of rights. 40 and 73 provides for the government in dealings with other nations to adhere to the principles enshrined in international law. 75 provides for parliament to ratify any treaty executed by the president in the name of Ghana by an act of parliament and parliament resolution supported by votes more than one half of all the members of parliament. Judicial Precedents which are the decisions of the superior courts stated authoritatively in our law reports binding on inferior courts.
Judge-made laws may take two forms, common law proper (laws of England and other Commonwealth jurisdictions declared to be laws by judges in their decisions from early times, where a common law is inconsistent with a statute the latter prevails) and judicial power of interpretation which may either amend or repeal an existing law which may be inconsistent with a new law as held in the case of AGYEI TWUM v BRIGHT AKWETEY (2005-06) SCGLR 732 where the SC through the power of judicial interpretation amended the provisions in the 19922 Constitution dealing with the removal of the chief justice through the purposive approach that implicit words be read into the constitution to avert manifest absurdity. Thus there was room for the unwritten in a written constitution removal of justices under Article 146 (3) and (4) reveals a plain language of article 146(6) relating to the impeachment of the CJ which could not have been intended by the framers of the constitution. The omission to provide for a prior determination of a prima facie case would lead to absurdity which the court had power to avert. There was a mistake in 146(6) and prima facie case to be established was an implicit provision.
Section 54 and 55 of the Courts Act 1993 (Act 459) which provide rules which guides the courts in determining the applicable law to apply the personal law of the person, where his personal law is the system of customary law to which he is associated but the common law where there is no found personal law. Or the intended system of law agreed by parties to a transaction to be applicable, in the absence of any intention the devolution of a person’s estate shall be the personal law of that person. With an issue as to title between persons with the same personal law of different, the personal laws of each person shall be applied to achieve a result that with natural justice, equity and good conscience but with title to land, the law of the place where the land is situated shall be regarded. Per 55, any question as to the existence or content of a rule of customary law is a question of law for the court and not a question of fact.
As held in the case of YOUHANA v ABBOUD (1974) 2 GLR 201 C.A, Apaloo JA in determining the issue as to what law governs the succession to the immovable estate in Ghana of a Lebanese who died intestate domiciled in his country of origin stated that ‘we should apply the law of their own homelands unless any strong reasons of public policy which constraints us to decide the question of succession to a domiciled Lebanese either by customary law or English common law. The law of Lebanon is the applicable law to the devolution of the estate’. Also section 119 of the Courts Act also provides for the continuing application of the Statutes of England of General Application (Sections 1 and 2 of both Partitions Act 1539 and 1540, Section 4 of Cestuique Vic Act 1832, Sections 6-8 of Real Property Act 1845, Sections 1 and 2 of Libel Act 1843, Sections 1-5 and 7-34 of Trustees Act 1860, and Section 12 of Charitable Trusts A ct 1969) and 119(2) Sections 49-51 59 71 131 139 145 150-151 154 161 164 184 of Law of Property Act of England 1925, in the 2nd Schedule to the Act subject to any statute in Ghana. Where the court was bound to follow the reasoning used in the prior decision, this principle is known as stare decisis. However where a current dispute is fundamentally distinct from all previous cases, it will decide the as a ‘matter of first impression’ Thereafter the new decision becomes precedent binding under the principle of stare decisis. Under the common law, before the Norman Conquest in 1066, justice was primarily by the county courts, presided by diocesan bishop and sheriff exercising both civil and ecclesiastical jurisdiction by trial of jury.
In 1154 came the first Plantagenet King, Henry II who institutionalized the common law. The procedure practiced in common law is the adversarial system and the form of reasoning is known as casuistry or case-based through the application of the Latin Maxim ‘casu consimili’, meaning ‘in a like case’ which required issuing of writ by the Chancery for any situation that called for a writ similar to one that had previously issued. The name common law because of the replacement of the pre-Norman system of desperate local customs by an elaborate system of law that was common throughout the country. The Lord Chancellor heading the court of chancery was also known as the keeper of the king’s conscience through equity. Both equity and the common law were fused together to be applied by one court under the Judicature Act of 1875, thus in 1876 the establishment of the SC in Ghana. Customary Law refers to the body of rules which have emerged but from the practices and feelings of obligations of men and women in the society. It is not of general application in the entire Ghanaian society.
According to Bimpong-Buta in ‘Sources of Ghana Law’, (1983-86) RGL (Vol 15) 129 at p.139, customary rules and practices concerns the acquisition of rights in land; matters involving family relationship, and chieftaincy-the living embodiment of the country’s heritage. Upon introduction of British jurisdiction, section 87 of the Supreme (High) Court Ordinance required the SC to observe and enforce ‘any native law or custom provided they were not repugnant to natural justice, equity and good conscience’, this is what is referred to as the ‘repugnancy clause’. The term customary law for the replacement of the native law was introduced in the 1960 by the 1960 constitution. The Interpretation Act 1960, Cap 4 defines customary law in section 18(1) as ’rules of law which by custom are applicable to particular communities in Ghana’.
The repugnancy clause was applied in the cases of IBRAHIM v AMALIBINI [1973] GLR 368 (where Taylor J in determining the validity of a Frafra custom stated the custom does not permit forced marriage and one which compelled one to do so violated demonstrably the fundamental concepts of our law and could therefore not exist in our legal system. The various tribal customary laws became part of the law of the country after the promulgation of the 1960 Republican Constitution and the only test for the validity of was whether they fulfilled those conditions subject to the imperial repugnancy provision of equity, natural justice and good conscience)
ATOMO v TEKPETEY [1980] GLR 738 (where Apatu-Plange J granted the claims of the plaintiff on whether the wayokwe custom (a marriage custom by which a woman was given in marriage to a fetish priest to stop the fetish from causing death of member of her family, the issue of such marriages could not inherit the properties of their natural father, the priest) should be enforced, saying that ‘our custom must move with modern civilization. To deny a child the right to be recognized as the child of his natural father and to compel the natural father to disown and to disinherit him for what after all not of his making seems to me to be out of step with modern reforms and cannot be applied on the defendants as it was repugnant and unreasonable to natural justice, equity and good conscience’)
Similarly in the case of SAAKYI MAMI v DEDE PAULINA & ANOTHER (2005-06) SCGLR 1116, the SC per Brobbey JSC unanimously abolished the Krobo Fia custom of marriage that a woman who contracts a lawful marriage is disqualified from inheriting any portion of her father’s property, is not the type of custom which should be retained let alone practiced in the modern world as it promotes immorality and promiscuity. To assist the court in ascertaining the content of a customary law, section 55(1) of the Courts Act 1993 (Act 459) provides ‘any question as to the existence or content of a rule of customary law is a question of law for the court to determine and not a question of fact’, thus making it possible for the judge to substitute his view of the customary law in place of that provided by even a known custodian of the customs of a community.
Non-Legal Rules:
Conventions per A.V. Dicey ‘conventions, understandings, habits or practices, which though they may regulate the conduct of the several members of the sovereign power…are not in reality laws at all since they are not enforceable by the courts. Laws are enforceable by the courts, most certain and identifiable, while conventions are not and a practice will be recognized as a convention at a point at which failure to act in accordance with it gives rise to legitimate criticism. Written law (or statute) being our legal laws and distinguished from Unwritten law (or common law) being conventions which cannot be recorded in statute-book though may be formally reduced into writing’.
Per Sir Ivor Jennings in The Law and Constitution says constitutional conventions provide the flesh which clothes the dry bones of the law. They are obeyed because of the political difficulties which follow if they are not, as a breach may attract public opinion and political opposition rather than legal action. Austin calls them, the positive morality of the constitution, while J.S. Mill, on his part refers to them as the unwritten maxims of the constitution.
In the cases of A-G v JONATHAN CAPE LTD (1976) QB 752 (where even though the application for an injunction by the AG was dismissed because he failed to satisfy the court that the publication of cabinet discussions and political events would in any way inhibit free and open discussion in cabinet thereafter, the court considered the existence of the convention dealing with the collective responsibility of Cabinet Ministers in the UK) RE AMENDMENT OF THE COSNTITUTION OF CANADA (1982) 135 DLR (held that a substantial degree of provincial consent was conventionally required for the amendment of the Canadian constitution)
MADZIMABUTO v LARDNER-BURKE and GEORGE (1969) 1 AC 645 (where the privy council rejected the assertion that a convention formally recognized by the UK that it would not legislate for South Rhodesia on matters within the competence of the latter’s legislature without its government’s consent, could not be overridden by the British legislation made applicable to South Rhodesia after the unilateral declaration of independence by the latter. Per Lord Reid, although the convention was a very important one, it had no legal effect in limiting the legal power of Parliament).
In the case LIVERSIDGE v ANDERSON (1942) AC 206 the court gave a reason for refusing to exercise judicial review of a minister’s discretionary power, the fact that through the convention of ministerial responsibility, the minister may be responsible to parliament for the exercise of the power. In Ghana, one can refer to the convention by which the CJ exercised discretion in the empanelling of justices to sit in the SC and the COA. On the justiciability of conventions, Munro in Laws and Conventions Distinguished (1975), 91 (Canada) Law Quarterly Rev. 218 at 228 expressed that ‘the validity of conventions cannot be the subject of proceedings in a court of law. There are no cases which contradict these propositions. A court enforcing a convention is so strange that the question hardly arises’. Customs being rules of conduct based upon social or commercial custom which are recognized by judicial decision as having a binding force. The writings of eminent lawyers and jurists which may be of persuasive effect when a court is determining a legal question.