Dr Kwaku Anane-Gyinde

Ghana Legal System : Topic Four

Sources of Law
 Sources of Law

• Some definitions
‘The agencies through which the rues of conduct
acquire the character of law by becoming definite,
uniform and compulsory’ –C.K Allen
‘A historical fact out of which rules of conduct come
into existence and acquire legal force’ Oppenheim
‘Source is sometimes employed to denote the
quarter whence we obtain our knowledge of the
law’ Holland
 Sources of Law
• Formal Sources- Gives the law its validity- eg
Constitutions
• Legal Sources- The means by which the law comes
into existence – Legislation & Judicial Precedent
• Material Sources- written material from which
knowledge of law is derived at any given time –
Literary sources
• Historical Sources- Factors that have influenced
the development of the Law
 Sources of Law in Ghana
• Article 11 of the 1992 Constitution- the Laws of Ghana
shall comprise
• The Constitution
• Legislation- Acts of Parliament (Subsidiary Legislation,
Delegated Legislation etc
• Existing Law
• Common Law
• Customary Law
• Islamic Law
• Judicial Precedent
 Provisions of Art. 11
The Laws of Ghana shall comprise
a. This constitution
b. enactments made by or under the authority of Parliament
c. Any orders, rules made by any person, or authority under a
power conferred by this constitution
d. Existing Laws written and unwritten laws of Ghana that
existed immediately before the coming into force of this
constitution
e. The common law &English doctrine of equity
f. Rules of Customary Law
 The Constitution
• 1960 Republican Constitution
• 1969 Second Republican Constitution –note
Art. 65 (8)
• 1979 Third Republican Constitution
• 1992 Fourth Republican Constitution
 1992 Constitution
• Art.1(2) Establishes the supremacy of the
Constitution
• ‘This constitution shall be the supreme law of
Ghana and any other law found to be
inconsistent with any provision of this
constitution shall, to the extent of the
inconsistency, be void’
• Limits the supremacy of Parliament and its
enactments
 Supremacy of the 1992 Const.
• In The New Patriotic Party v. Attorney General
(31 December) case, AiKins affirmed this
position and states ‘ In my view, even though
Parliament has the right to legislate, this right
is not without limitation……..’
 Legislation (Acts of Parliament)
• Parliament is an important source of law
• Parliament can create new laws, amend or repeal
existing laws
• The exercise of this legislative power is subject to
Art. 1(2) and 2(1) of the constitution
• Art. 2(1) a person who alleges that:
• a. an enactment any thing contained in or done
under the authority of that or any other
enactment
 Legislation (Acts of Parliament)
• b. any act or omission of any person inconsistent
with, or in contravention of a provision of this
constitution, may bring an action in the Supreme
Court for a declaration to that effect
• Mensima v. Attorney General [1996-97] SCGLR
676
• Challenged the constitutionality of Manufacture
and Sale of Spirits Regulation (LI 239)
 Constitutional Limitation of Parliamentary
Supremacy
• Mensima v. Attorney General
• NPP V. Attorney General
• No retrospective legislation
• Cannot enact laws to alter Judicial decisions
• Cannot make laws relating to budgeting and
financial matters unless a bill is introduced by
the executive (Art.109) 1992
 The Legislative Process
• Starts with the publication of the Bill
• Introduced with an accompanying memorandum
• Set out the policy principles of the law
• The defects of the existing law
• Remedies proposed to deal with the defects
• The necessity for its introduction
• Published in the Gazette for at least 14 days
before the date of the introduction
 Stages of the Legislative Process
Introduction and first Reading
Committee Stage
Second Reading
Consideration and Passage
Presidential Assent
 Subsidiary Legislation/Subordinate
Legislation/ Delegated Legislation
• Art 4 (7) Subsidiary legislation may be placed
before Parliament
• Published in the Gazette
• Takes effect 21 sitting days of Parliament
unless 2/3 majority or more members of
parliament vote to annul it
 Forms of Subsidiary Legislations
• Statutory Instrument (SI)- Made both directly and
indirectly under a power conferred by an act of
Parliament
• eg, The Local Government Act 198 allows the
Minister to make regulations to give effect to the Act
• Legislative Instrument(LI) Statutory Instruments that
are legislative in character
• It determines or alter the law but does not apply to
a particular case
 Legislative Instrument cont.
• Has direct and indirect effects
• Creates rights and obligations
• Affects privileges
• Vary or remove obligations
• Eg. Civil Proceeding (Fees & Allowances)
amendment Instrument 1994
• Legal Profession (Professional Conduct
&Etiquette) Rules 1969
 Executive Instrument (EI)
• EI- Usually initiated by the Executive arm of
the state which is empowered to do so
• Eg. Section 4 of the Public Order Act 1994 (Act
491) empowers the Minister of Interior by
executive instrument to impose a curfew on
any part of the country
• Where the circumstances warrant it
 Constitutional Instrument (CI)
• CI- Instrument made under a power conferred
by the constitution
• Initiated by persons, constitutional bodies/
agencies
• CI is subject to parliamentary scrutiny
• It must be construed on one with the
constitution
 Existing Law
• Art.11(1)- Written and unwritten laws of
Ghana existing immediately before the coming
into effect of the constitution (1992)
• This includes Acts, Decree, Laws or statutory
form made or issued before that date on
which the Constitution comes into force
• The existing law shall not be affected by the
coming into force of the Constitution
 Existing Laws Cont.
• The existing law shall be construed with any
• Modifications, adaptations, qualification and exceptions necessary
to conform with the provisions of the constitution
• Read. In Ellis v Attorney General [2000] SCGLR
• Challenged the constitutionality of PNDC Law 294
• The SC held that PNDC Law 294 has been passed as an enactment
• The Land had been acquired and vested in the Republic before the
coming into force of the constitution
• Read Kangah v Kyere [1982] GLR 649- The SC held that the
Chieftaincy Act 371 should be construed as existing law and was
not inconsistent with any provision of the 1979 Const.
 Common Law
• Common Law- The acquired common law and
the doctrine of Equity borrowed from England
• Common law and Equity are adapted and
approved in the constitution
• The legal system has fashioned and received
common law and equitable doctrines to meet
the changing needs of the country
• Read- RE Abotsi: Kwao v Nortey [1990] GLR14 CA
 Customary Law
• Customary Law defined in Art. 11(3) and
Section 18 (1) of the Interpretation Act 1960
• Art. 11(3)- Customary Law means rules of law
which by custom are applicable to particular
communities in Ghana
• Ollenu & Woodman (1985) ‘Rules of law which
by custom are applicable to particular
communities in Ghana’
 Customary Law Cont.
• Under Art. 55(1) of the Courts Act 1993
• The existence or content of a rule of
customary law is a question of law not fact
• For the court to determine
• Judicial notice is taken of customary law
• Customary law unwritten
• In case of doubt as to the existence or content
of customary Law , the court will:
 Customary Law Cont.
• a: The court may consult, reported cases,
textbooks and other appropriate authorities
• b. Adjourn proceedings and hold inquiry to be
attended by persons possessing knowledge of
customary law
• It is flexible and adaptable to changing
circumstances
• Read: Attah v Esson [1976] 1 GLR 128 CA
 Islamic Law
• Application of this law is confined to the adherents of
Islam
• It has no general application
• It is regarded as a variant of customary law
• In Kwakye v Tuba [1963] 1GLR 11 the court held that:
• a. The marriage according to Islamic law is customary
marriage
• b. Does not affect succession to his estate unless it is
registered under ordinance
 Judicial Precedent
• Judicial Precedent- The tendency on the part of
the courts to follow earlier decisions
• The facts of instant case are similar to one already
decided
• Ratio decidendi and Obitur dicta
• Avoiding Ratio decidendi
• a. Distinguishing the facts
• facts of the present case materially different from
previous case
 Judicial Precedent Cont.
• Note: It does not amount to criticism of the
earlier case
• Per Incuriam doctrine- Another way to avoid
ratio of previous case is to hold that:
• The case was decided per incuriam ( through lack
of care)
• The decision was made without taking into
account some relevant precedent or statutory
provisions
 Judicial Precedent Cont.
• Which could have affected the decision in the
previous case
• In that situation the decision will not be
binding on later courts
• Read: Duke v Reliance Systems Ltd [1987] ALL
ER 858 pp 860 CA
 Conclusion
• Definition of sources
• Sources of Law in Ghana
• Constitution, Legislation, Existing Law, Common
Law, Customary Law, Islamic Law & Judicial
Precedent
• Legislation-subsidiary legislation
• Judicial Precedent- Ratio decidendi, obitur dictum
• Avoiding Ratio Decidendi