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 TOWARDS A SOCIOLINGUISTIC APPROACH
TO LEGAL INTERPRETATION IN A
MULTILINGUAL CONTEXT

Ama F. Hammond*

INTRODUCTION

English is the official language of Ghana, and is used for all government
business and for instruction in schools. The variety of English used in
Ghana is, however, distinguishable from the native varieties' because
English in Ghana has been largely nativised. Nativisation is "a process of
linguistic and socio-linguistic change through which an external language
becomes part of the culture of a community that uses it as an additional
language, while it still retains many features of the language as it is used
by native speakers." 2 Simply put, nativisation refers to those linguistic
changes that English in Ghana has experienced as a result of its contact
with local or native Ghanaian languages. Though the extent of nativisation
can be taken for granted by most Ghanaians, it cannot be ignored by the
courts, especially when the determination of a legal matter hinges on
the interpretation of a nativised expression. In such cases, the courts,
effectively, should seek to determine whether the expression should
be interpreted in light of native English principles and meanings, or in
accordance with the local dialect in which the thought was conceived.
In other words, should meaning be based on the original language from
which the expression was constructed or the language whose form has

* BA (Cape Coast); LLB (Ghana); LLM (Harvard); PhD (Uni. British Columbia);
Lecturer, University of Ghana School of Law.
1 A Minister of Education in Ghana admitted that "English in Ghana is not exactly
like English in any other country." Address of Mr. Harry Sawyer (then Minister of
Education) in M.E. Kropp Dakubu (ed.) English In Ghana (Accra: Black Mask, 1997)
1-3 at2.
2 Lawrence K. Owusu-Ansah, "Nativisation and the Maintenance of Standards in Non-
Native Varieties of English," in M.E. Kropp Dakubu (ed.) English In Ghana (Accra:
Black Mask, 1997) 23-33 at 24.

153
been borrowed as of necessity. It is important to note that determining
whether a word carries its native or nativised meaning is critical to the
protection of rights and the attainment of justice. Thus, judges must be
particularly concerned about how to interpret a traditional or customary
law concept expressed in a foreign language without pruning the concept
of its traditional, legal and cultural foliage. Examining the case of Yaw
Tawiah v. Opanin Kwadwo Baah & Others,3 I demonstrate how legal
interpretation of indigenous legal concepts can fall victim to native
English principles, and argue that legal interpretation must be based on a
sociolinguistic approach to language, an approach that situates language
within the sociocultural context of its users. This paper outlines the facts
of In Re Atta, and examines the relevant portions of the various judgments.
This is followed by a logically constructed argument about the meaning
of the contentious expression inherit me as used by the testator in the
case, and a discussion of five key aspects of the sociolinguistic approach
to legal interpretation. Lastly, the paper assesses the capacity of judges to
deal with nativised expressions, and attempts to strike a balance between
linguistic innovations and grammatical errors.

Had I known...?
Many years ago, I chanced upon a book titled, English in Ghana,4 which
contained a variety of articles written mostly by West African linguistics
and English scholars. Some of the more interesting articles advocated the
recognition of non-native or second language varieties of English.5 The
thrust of the arguments was that non-native users of English naturally
tend to carry, among other things, the phonological processes and rules
from their native language into their English speech and that the resulting
varieties of English had to be considered as "exist[ing] in their own right
and ... suitable models for speakers in those nations for whom they are
intended. '6 Thus, the writers insisted on the institutional recognition

Tawiah v. Baah & Others, [1997-1998] 2 GLR 815-825 [Tawiah].

4 M. E. Kropp Dakubu, English in Ghana,(Accra: Black Mask, 1997).
Ayo Bamgbose, "Non-native Englishes on Trial" in M.E. Kropp Dakubu (ed.) English
In Ghana (Ghana: Black Mask, 1997) 9-22; Owusu-Ansah, supra, note 2 at 23-33.
6 Bamgbose, supra, note 5 at 10.
of Ghanaian English and Nigerian English, among other varieties. The
writers further argued that English in Africa had acquired extra registers
which are peculiar to Africa, and in fact, expressed the socio-cultural
reality of Africans. 7 An example of such a word used in Ghana is chop
bar, which is a small informal restaurant where street food is sold, but
which is unknown to native English. At the time, these arguments seemed
like an excuse for substandard English, even though most of the writers
were quite emphatic that they did not endorse poor grammar. However,
over the years, these arguments, in my opinion, have come to represent a
legitimate call for the universal acceptance of a set of linguistic registers
which actually give meaning to the cultural distinctiveness of Ghanaians.
This is in spite of contrary arguments that "a second language variety of
English is a tongue caught up in a process that tends to transform it swiftly
and quite predictably into an utterly dissimilar tongue."8

THE CASE OF IN RE ATTA (DECD); KWAKO V TAWI4H

The very interesting Ghanaian case of In Re Atta (Decd); Kwako v.

Tawiah illustrates the courts' dilemma in the interpretation of language,
specifically, of indigenous concepts expressed in what may be termed,
Ghanaian English. In this case, one Isaac Ottie alias Agya Atta from a
village called Kenkase Kwabre in the Ashanti Region of Ghana, died in
1982, leaving behind a will in which he made devises of houses and farms
to his wife, children and other relatives. Among the devisees was Kwadwo
Kwako, 9 the defendant-appellant, who in clause 7 of the will was given
six rooms in a named House. Clause 13 of the said will stated further that
"Kwadwo Kwako is to inheritme on my death and all the properties which
I have not devised must go to him. '' 0

7 Bamgbose, ibid., 9-22; Owusu-Ansah, supra,note 2, at 23-33.

8 C.H. Prator (1968) "The British Heresy in TESL" as quoted inAyo Bamgbose, "Non-

native Englishes on Trial" in M.E. Kropp Dakubu (ed) English In Ghana (Accra:
Black Mask, 1997) 9-22 at 10.
9 Hereinafter called Kwako or the defendant.
10 Tawiah, supra,note 3 at 818.
The Plaintiff in this case, did not receive any gift in the will. Nine years
later, the Plaintiff, who described himself as "one of the principal members
of the Bretuo Family or clan of Kenkase-Ashanti and a beneficiary under
the late Isaac Ottie's said will" and "interested in the Residuary Estate
of the said Isaac Ottie" took out an originating summons at the High
Court asking for an interpretation of clause 13 of the will. He argued that
the property devised in the said clause was not a gift to the defendant,
but property which he held in trust for the wider family as customary
12
successor.

On the issue of whether the defendant was to inherit the residuary estate
for himself or to hold it in trust for the family, the High Court held that
the estate was a personal gift to the defendant. The Plaintiff appealed
this decision. Two of the three judges of the Court of Appeal allowed the
appeal, while one dissented on the ground that, there was nothing in the
will which indicated that the Defendant was to take the residuary estate in
any capacity other than his personal capacity. Subsequently, the defendant
appealed to the Supreme Court which held that he was to take the property
in his personal capacity and not hold it in trust for the extended family.13

"Unpacking" the Court Decisions

In the Court of Appeal, one would have thought that the key to ascertaining
the testator's intentions was the determination of the meaning of the
phrase, inherit me. Even though the majority decision of the Court of
Appeal favoured the plaintiff, it was not based on a legal or grammatical
interpretation of that phrase. It was based on the Plaintiffs assertion that
the deceased had during his life time requested that the Defendant be
made his customary successor, to which the family agreed, thus making

Kwako v. Tawiah, [2001-2002] 1 GLR, 339-356 at 343. [Kwako].

12 A customary successor is a family member appointed by the customary family to
administer the estate of the deceased for the benefit of the whole family, including
himself. Nii Amaa Ollennu, "Family Law in Ghana" in Le Droit De La Famille En
Afrique Noire et k Madagascar-Surveys made at the request of UNESCO (Paris:
Editions G.P. Maisonneuve Et Larose 11, rue Victor-Cousin, 1968) 159-194 at 187.
13 Kwako, supra, note 11 at 339.
 the defendant a customary successor and trustee of the residuary estate. 4
Additionally, the Court reasoned that if the testator had intended to
make an absolute or even a partial gift to the Defendant, he would have
stated so as clearly as he expressed the other dispositions in clause 7 of
the will.15 The significance of the phrase inherit me was never an issue,
though that of the word inherit was. It would seem that the judges found
nothing semantically wrong with the phrase, if they did, they probably
ignored it as another Ghanaianism.16 Either reason is alarming. Judging
by their pronouncements, the judges did not realize that the phrase was
grammatically wrong. This explains why the majority decision was rather
based on the assertion that the deceased had requested that the defendant
be made his customary successor, and not on an analysis of the meaning
of this all important phrase. 17 It also explains why the dissenting Appeal
Court judge used the expression, and not just in reference to its use by
the testator. He said "the clause looks quite clear and its intention plain,
viz that Kwako should inherit the testator."'18 This is not surprising in a
country where, generally, beg for the road is understood to mean to ask
for permission to leave; booklong refers to a person who has knowledge
derivedfrom school, or books; borrow me means lend me; a person who is
by heart is rough or impulsive;from today onwardgoing meansfrom now
on, and take means to drink or eat.19 Furthermore, barbermy hair means
to get a haircut;I'm going to come means I will be back, and to climb a
20
car means to get in a car.

'4 Tawiah, supra,note 3 at 818.

15 Tawiah, ibid. Per Sarpong JA.
16 A 'ghanaianism' is a vocabulary item peculiar to Ghana. It may be an English item

that has undergone a local semantic shift, an item of local origin used consistently in
English, or a hybrid of the two. Kari Dako, "Code-switching and lexical borrowing:
which is what in Ghanaian English?" (2002) 18(3) English Today, 48-54 at 48.
17 Tawiah, supra,note 3 at 818. Per Sarpong JA.
18 Tawiah, ibid., 821. Per Afreh JA. [Emphasis added].
19 Roger Blench, "A Dictionary Of Ghanaian English" < http://www.rogerblench.info/
Language/English/Ghana%20English%20dictionary.pdf>.
20 "Top 20 Most Irritating Ghanaian English Phrases of All Time," In response, one

commentator said, "you have captured the idiosyncrasies of the average Ghanaian so
well." <https ://inghana.wordpress.com/tag/ghanaian-english/>.

157
In the Court of Appeal, the only person who drew minimal, and
understandably self-serving attention to the actual contentious phrase
was the Defendant's lawyer. According to Sarpong JA (as he then was),
"Learned counsel for the defendant-respondent... contends that the words:
'to inherit me' mean to take for himself absolutely. '21 The attempt by the
dissenting judge in the Court of Appeal to interpret the expression was
rather fruitless because the exercise was limited to the word inherit, and
not the phrase inheritme. The judge said:

The Shorter Oxford English Dictionary,.. defines the word "inherit" as

"(1) To make heir, put in possession; (2) To take or receive (property esp.
realty, title etc) as heir of the former possessor (usu an ancestor) at his
decease . . ." And the Collins English Dictionary... defines it as "(1) to
22
receive (property, right, title etc.) by succession or under a will.

Thus, the judge relied on the dictionary or "plain, ordinary meaning" of

a portion of what should have been a contentious phrase and concluded
that the expression meant that Kwako was to receive the property as a
gift. 23 According to the judge, "[g]iven its ordinary meaning, clause 13 on
the face of it is not capable of more than one meaning." 24 In a number of
circumstances, giving words their "plain, ordinary meaning' is reasonable,
but firstly, the judge failed to determine the actual words that needed to
be interpreted, and secondly, he failed to ascertain the "plain, ordinary
meaning" in context. I argue that the testator's intention to appoint Kwadwo
Kwako as his customary successor, and not to gift the property to him,
is ascertainable from the plain meaning of the words inherit me and not
inherit. It is disturbing that the dissenting judge missed an opportunity
to interpret the will according to what I maintain was the intention of
the testator. Before giving reasons for my arguments, I will examine the
important elements of the Supreme Court decision.

2' Tawiah, supra, note 3 at 818. Per Sarpong JA. [Emphasis added].
22 Tawiah, ibid., 823. Per Afreh JA.

23 Tawiah, ibid.
24 Tawiah, ibid., 821. Per Afreh JA.

158
 As earlier indicated, the Supreme Court held that Kwako took the residuary
estate as beneficial owner.25 Fortunately, the Court rightly recognised that
the decision hinged on a linguistic interpretation. It asked, "[w]hat did the
testator mean when he said 'Kwadwo Kwako is to inherit me'? ' 26 It also
indicated that, "[t]he problem with clause 13 is caused by the verb 'inherit'.
What is the import of the verb 'inherit' in the context of this Will?" 27 The
Court then reasoned that:

The words he chose upon his instructions are 'to inherit

me'; he did not say 'to be my customary successor.' There
must be a reason for this. To "inherit", when used in relation
to succession to property has as its primary meaning the
signification of taking over the property of the deceased
owner. Its import is that the inheritor is to acquire the right
and privilege to enjoy any interest which the deceased
owner had in the property. This meaning does not attach to
the position of a customary successor in the customary law
system of inheritance.28

Thus, like the dissenting judge in the Court of Appeal, the Supreme Court
also proceeded erroneously to interpret just a portion of the disputed
phrase. Holding that the gift to Kwako was absolute, the Court explained
that generally, an absolute gift cannot be "cut down," except by "clear
words," which it argued were found wanting in clause 13 or any part of the
will. 29 It is interesting that while the Court, on behalf of Kwako, noted that,
"there are no magic words which alone can create an absolute interest,"30 it
reasoned that, "[i]t was rather for the testator to have made it clear that he
wanted the appellant to take the residuary estate on behalf of the family,"3
as if there are magic words for appointing a customary successor!

25 Kwako, supra, note 11 at 339-355.

26 Kwako, ibid., 344.
27 Kwako, ibid., 438.
28 Kwako, ibid., 348.
29 Kwako, ibid., 354.
30 Kwako, ibid., 354.
31 Kwako, ibid., 354.

159
Again, the Supreme Court reasoned that if the Court of Appeal had
considered the Intestate Succession Act,32 it would have realized that
the plaintiff could not succeed on his claim. The Court argued that if
the estate did not go to the defendant, it would fall into intestacy and be
distributed according to the provisions of the Act.33 But this argument can
be counteracted by the argument that the testator, having already discussed
his intentions with the plaintiff and his family, (though this was disputed)
intended the residuary estate to operate like a fully secret trust. In such a
trust, the instrument conveying the property does not disclose evidence of
a trust, although the property is conveyed or given in trust. The striking
feature of such a trust is that it looks like an absolute and beneficial gift
to the transferee in his own right, but the transferee would have agreed to
hold it in trust.34 I insist though that the actual intention of the testator is
clear from the expression, inherit me.

Significantly, none of the members of the Supreme Court drew attention

to the wrong use of the expression inherit me. In fact, the judges rather
proceeded to use the phrase in their deliberations and not just when
referring to its use by the testator. For instance, the Court indicated
that, "clause 13 which says that the appellant should inherit him must
be construed.. .. ,3 Likewise , the Court said about the testator that, "[h]e
declared the appellant to inherit him. "36

Understanding "inherit me" in Context

The use of the expression inherit me is the "clearest evidence of the
socio-cultural determination of language variation, ' 37 and a clear case of
"how the indigenous nature of the ideational content and the sociocultural

32 Intestate Succession Act, 1985 (PNDC Law 111) (Laws of Ghana (Rev. Ed. 2004),
vol. 5, 1951).
13 Kwako, supra, note 11 at 354-355.
34 AKP Kludze, Modern Principles of Equity (VA, USA; Kludze Publications, 2014)
287; Blackwell v. Blackwell [1929] A.C. 318 at 339.
31 Kwako, supra,note 11 at 350. [Emphasis added].
36 Kwako, ibid., 353.
37 Kamal K. Sridhar, "Sociolinguistic Theory and Non-Native Varieties of English,"
(1985) 68 Lingua, 39-58 at 39.

160
norms governing verbal interactions" influence the use of language, and
determine meaning.38 I argue that the phrase inherit me is unmistakably,
a direct translation of the Akan expression dze m'adze. Dze m'adze, a
traditional legal concept, simply means 'be my customary successor.' In
fact, the expression inheritme or the fact of placing the pronoun me after
the verb inherit can only mean that the testator intended the defendant to
inherit his very person or to step into his shoes, that is, be his customary
successor and ensure that the rights of his surviving spouse, children and
extended family are protected. Such creative use of the English language
can largely be traced to the Ghanaian culture where people inherit not only
property, but also metaphorically, people.

A more grammatically acceptable rendition of the concept of succession

to office was made by Sarpong JA. He said, "[a] person may nominate
or desire a person to succeed him .... that person is made the successor
to administer the estate for and on behalf of the family. ' 39 Generally, to
succeed another is to "come next after another person in office or position. "I
I argue that inherit me means the same thing; it means to 'succeed to an
office. The Supreme Court captured the essence of the phrase so aptly that
it is shocking that it failed to realise that inherit in this context had ceased
to be a verb simpliciter, but was a part of what may be likened to a phrasal
verb,4 ' in which case the meaning of the expression could not easily be
determined from the individual parts. The Supreme Court explained, "[a]
side from his powers and obligations in respect of the deceased's estate,
a successor representsthe person of his predecessor in a very real sense;
indeed he may be described as the extension of the decedent's legal
38 Sridhar, Ibid., 50.
39 Tawiah, supra, note 3 at 818. Per Sarpong JA.
40 Merriam Webster Online, Merriam Webster, (Jan. 2017) online: <https://www.
merriam-webster.com/dictionary/succeed>.
41 A phrasal verb is a verb plus a preposition or adverb or both, which creates a meaning

different from the original verb. Phrasal verbs have two parts: a main verb and a
particle. E.g. "It's difficult to make out what she's saying." In this context, make out
means to hear or understand. This meaning cannot be derived from the individual
words, online: <http://dictionary.cambridge.org/grammar/british-grammar/about-
verbs/verbs-multi-word-verbs and https://en.oxforddictionaries.com/grammar/
phrasal-verbs>.
persona." 42 So how could the Court ignore the social and cultural aspects
of translation and the entire context of usage, that is, the fact that both the
testator and the lawyer are Ghanaians, that English in Ghana is largely
nativised, that the testator during his life time had expressed the desire for
Kwako to be his customary successor, (though this was disputed) 43 and
hold that Kwako was the sole owner of the property bequeathed?

The closest thing to recognition of the importance of sociocultural context

in the determination of meaning was when the Supreme Court said, "[t]
he testator was a Ghanaianand an Ashanti."44 By so stating, it would
seem that the Court was hinting at possible relationships among ethnicity,
culture, race and language use, but unfortunately, it did not investigate
the relevance of these relationships to legal interpretation, and the case
before it. The Court rather marred this obvious, but important observation
by hastening to add, "[b]ut this Will was prepared by a lawyer who must
be deemed to have chosen his words with professional insight. The
words he chose upon his instructions are 'to inherit me;' he did not say
'to be my customary successor.' 45 Indeed, "law [and legal concepts] can
only be captured ...in a range of linguisticforms rather than any single
46
form, " and the various forms must be recognised and validated. The
Court seemed more concerned about the fact that the will was drafted by
a lawyer who was deemed to have chosen his words insightfully. 47 Was
the Court suggesting that if Isaac Ottie, the testator, had drafted the will
without the help of a lawyer, the expression would have been interpreted
differently? Irrespective of who drafted the will, it is presumed, in the
absence of any vitiating factors, that once it is signed by the testator, it is
42 Kwako, supra, note 11 at 349. Quoting from Dr. SKB Asante's PropertyLaw and
Social Goals In Ghana 1844-1966, 156-157. [Emphasis added].
a3 Kwako, ibid., 351. The court said that the evidence before it did not establish the
claim.
44 Kwako, ibid.,348. [Emphasis added].
45 Kwako, ibid.
41 Richard Nobles & David Schiff, "Legal Pluralism: A Systems Theory Approach to
Language, Translation, and Communication Law and Language" in Michael Freeman
and Fiona Smith, eds., 15 CurrentLegal Issues, (Oxford: OUP: 2013) 100-114 at 100-
101. [Emphasis added].
47 Kwako, supra,note 11 at 348.

162
indicative of his intentions. Also, no matter how professionally insightful
the lawyer was deemed to be, he is a Ghanaian and disposed to "culture-
induced [linguistic] innovations." 4 Again, one wonders if the Court
was suggesting that once legally trained, one is separated linguistically,
intellectually and culturally from one's people. In fact, it may not always
be that the educated or legally trained Ghanaian is of "necessity cut off in
great measure from his own country, customs and beliefs [and linguistic
and communicative traditions] as a result of the acquisition of western
education. '49 Moreover, "[lawyers are not infallible. They try in the best
way they possibly can to express the intention of their clients in their own
chosen words. In some cases their choice of construction may coincide
with the exact intentions of a testator whose will they draw up, and in
5
other cases they may fall short of the intentions sought to be generated. 1 0

Also telling is the fact that the testator made some very specific dispositions
in the will even though these dispositions were infused with various
5
Ghanaianisms. '

I devise and give twelve rooms in my house No 54 Block

12 to my grandniece Yaa Dwomo and her brother Yaw
Asante, four rooms to Ama Serwaa. The upstairs chamber
and hall must be given to Kwadwo Dua alias Abokyire
Driver for life, the chamber and hall downstairs are to be
given to Kwame Ottie of Pankrono for life. I devise the six
52
rooms left to Kwadwo Kwako

48 Bamgbose, supra, note 5 at 17.

49 Robert Sutherland Rattray, Ashanti Law and Constitution(London: Clarendon Press,
1929) vii.
50 In Re Amarteifio (Decd);Amarteifio v. Amarteifio [1982-83] GLR 1137 at 1139. Per
Striggner-Scott J.
A 'ghanaianism' is a vocabulary item peculiar to Ghana. It may be an English item
that has undergone a local semantic shift, an item of local origin used consistently in
English, or a hybrid of the two. Dako, supra, note 16 at 48.
52 Tawiah, supra,note 3 at 818.
Why would the testator change the linguistic tenor in Clause 13? I contend
that it is because it was the only or best way he knew to express his
intentions. He saw the need to use the nativised expression inherit me so
that it would be understood by his people in the way he meant it, and if
necessary, be given its local meaning in context. I cannot agree more with
Sarpong JA when he insightfully asked, "[w]hat ...prevents the testator
from making a specific devise of the residuary estate under the will to
Kwadwo Kwako? Nothing!"53 It should not be forgotten that the testator
had already in clause 7 of the will, given Kwako six rooms in a specific
house. This is not to imply that a residuary devisee cannot be given a
specific devise in a will. The Supreme Court clarified that no rule of law
precluded a testator from making separate devises to the same person in
different clauses in the same will.54 Referring to clause 7, the High Court
judge admitted that "this devise.., if read together with clause 13, creates
the impression that under clause 13, Kwadwo Kwako takes the residuary
estate as a customary successor. ' 55 Nonetheless, sometimes, and arguably
in this case, impressions may be good as the truth.

Moreover, even though the High Court erroneously called the lawyer who
drafted the will to give extrinsic evidence, the lawyer's testimony I maintain,
buttresses the fact that the defendant was to be a customary successor, and
held the bequeathed property on behalf of the family. He explained, "[m]
y instructions were that Kwadwo Kwako who was to inherit him [sic] was
to take his residuary estate on condition that he would take care of his
wife. The residuary estate was to go to the family if he failed to look after
his wife. '56 Contrary to the High Court's interpretation, this explanation
shows clearly that Kwadwo Kwako was to take the property as a trustee.
He was, like every customary successor, to use the property mostly for the
benefit of others, and this explains why the property was to be given to
the family if.Kwadwo Kwako failed to honour the obligations imposed on
him. The 'gift' was not absolute; it was conditional upon him performing

51 Tawiah, ibid.
54 Kwako, supra,note 11 at 354.
" Tawiah, supra,note 3 at 820.
56Kwako, supra,note 11 at 344-345.
his customary obligations. This is not to suggest that conditional gifts
establish trusts, though in this case, the circumstances suggest so. In
any case, if the lawyer was as professionally insightful as the Supreme
Court deemed him to be, why did his drafting of the residuary clause not
include everything he claimed in his oral testimony were the instructions
given him by Isaac Ottie? On the basis of my argument and evidence that
Kwadwo was in actual fact a customary successor, the next sentence "and
all the propertieswhich I have not devised must go to him," should have
been interpreted with due regard to the preceding sentence, according to
the canons of interpretation.

It is understandable that the Supreme Court would reason that the words
chosen by the lawyer were "inherit me" and not "be my customary
successor,"57 hence its decision in favour of Kwako. It is also not farfetched
that the same Court noted that if the testator had wanted the appellant
to hold property in trust for the Bretuo family, he would have said so
clearly. 8 However, it is important to note that the transfer of structural
features from a mother tongue to a native variety of English is not unusual
in a country where English is learnt mostly as a second language, and is
thus, highly socially conditioned. In fact, it is very common, and anyone
remotely knowledgeable about how language is learnt knows the effect
of one's mother tongue on the acquisition of a second language. It must
be emphasized that "the transfer of patterns (lexical, pragmatic) from the
mother tongue simply serves the important function of adapting an alien
code to the socio-cultural context of use."5 9 Pretending that the occurrence
of structural transfers is uncommon would be to hold the lawyer who
drafted the will to a linguistic standard to which even the judges did not
seem to measure up. Besides, the fact that English in Ghana is taught
mostly by teachers who are themselves non-native speakers of English
guarantees that the variety of English used in Ghana will increasingly
diverge from the native standards. 60 However, the Ghanaian variety

7 Kwako, ibid., 348.

58 Kwako, ibid.
19Sridhar, supra, note 37 at 52.
I Sridhar, ibid., 51.
must be recognised for what it is. The clarity of inherit me would have
been obvious if the judges had adopted a sociolinguistic approach to the
interpretation of language.

A SOCIOLINGUISTIC APPROACH TO LEGAL

INTERPRETATION

A sociolinguistic approach to legal Interpretation places language

and meaning within the sociocultural circumstances of its users. Ayo
Bamgbose, a Professor of Linguistics, explains that the emphasis on a
sociolinguistic approach is simply "functional use and the adaptation
required suiting the variety to the demands made on it. ' 61 This approach
accepts non-native varieties of English as they are, and not as "imperfect
approximations of native norms. ' 62 Essentially, a sociolinguistic approach
to legal interpretation is a rights-based approach that considers the social
and cultural environment in which language is used. It also emphasizes the
singularity of justice, and the universality and indeterminacy of language
as central to the determination of meaning. This approach recognizes that
"just as "English law ...has been born out of English history and language
and social arrangements, ' 63 Ghanaian law (including legal meaning) must
also be born out of Ghanaian history, language and social arrangements.
I now discuss five main aspects of the sociolinguistic approach to legal
interpretation.

Human Rights and Legal Interpretation

A sociolinguistic approach to the interpretation to language is mindful of the
abuses that are caused by a failure to consider the particular circumstances
of communicators. Pe'rsonalizing legal interpretation to individual and
societal needs, promotes social justice, the rule of law and the protection
of rights. The sociolinguistic approach is not oblivious to the fact that the
content of the law is just as important as how it is communicated, and
that individuals have a right to speak and be understood in a manner that

61 Bamgbose, supra, note 5 at 15.

62 Bamgbose, ibid.
63 Antony Allott, "Law in the New Africa" (1967) 66 (262) African Affairs, 55-63, 60.

166
is consistent with their life experiences. Communication in a manner that
captures a sociocultural context represents a very important human need
and right, which is arguably part of the overall framework of the freedom
of expression, especially in a legally and linguistically diverse community
such as Ghana. The right to freedom of expression, as embodied in the
sociolinguistic approach to interpretation, is an empowerment right which
enables and empowers people to communicate their needs and aspirations
the way they know how to, and insist that the law be made to serve these
needs. Nevertheless, the right to free speech cannot exist in vacuum; it
is realised by a true commitment by the state to the attainment of justice
and fairness. I argue that failure to give effect to the actual meaning of the
phrase inherit me undermined the plaintiffs rights, thwarted Isaac Ottie's
true intentions and unjustly enriched Kwako, while depriving the extended
family of Ottie's residuary estate.

Apart from the plaintiff and the extended family who would have
benefitted from a contrary judgement, Kwako's unjust enrichment and
the consequent loss to the family seems inconsequential. After all, it
was a matter of relevance to only a segment of the Bretuo Family of
Kenkase-Ashanti. But what if a life depended on the interpretation of the
phrase? Would the judges have interpreted the phrase differently? Would
they have dug deeper into the Ghanaian cultural reservoir of possible
meanings? Would they have considered the context of communication and
examined critically the plain/purposeful literal meaning of inherit me? It
is important to note that at all times, legal interpretation must of necessity
consider sociocultural realities, because apart from the fact that no one is
too insignificant to be a creator of meaning, the result of the process of
interpretation can be far reaching andife changing. 64

4 Cover explains in his classic essay, 'Violence and the Word' that "legal interpretation
takes place in a field of pain and death. This is true in several senses. Legal interpretive
acts signal and occasion the imposition of violence upon others: A judge articulates
his understanding of a text, and, as a result, somebody loses his freedom, his property,
his children, even his life. Interpretations in law also constitute justifications for
violence which has already occurred or which is about to occur. When interpreters
have finished their work they frequently leave behind victims whose lives have been
Invariably, when Ghanaian courts adopt exotic approaches to the
interpretation of indigenous legal concepts, it undermines the perceived
aims of the law and the rights guaranteed by law. Also, it undermines
equal "access" to the courts, because the rather "westernized" courts are
unable to give equal and due attention to indispensable local linguistic
innovations, like inherit me, no matter how comprehensible they are.
Additionally, detached approaches to interpretation weaken the people's
sovereignty, their individual self-fulfillment and autonomy. In fact, it is
not for nothing that Indian English is widely recognized as English in
its own right. And Indians do not purport to be speaking native English.
Ghanaians must be bold to claim an identity that includes a Ghanaian way
of communication. Doing so will further embolden Ghanaians to express
their experiences in a manner that is intelligible to them. Freedoms are
undermined when Ghanaian or indigenous experiences are determined
only in light of inherited linguistic registers and meanings.

Admittedly, rights come with responsibilities. It is thus reasonable that

legitimate restrictions are placed on the freedom of expression, but it is
hardly illegitimate to express a customary law concept in Ghanaian English
to a presumably Ghanaian audience. Since native speakers are generally
not the intended addressees in interactions in which innovative varieties
of English are used, treating such varieties as inadequate approximations
of native models imposes "a sociolinguistically unrealistic and irrelevant
standard. '65 I concede that communicators must fulfill the ethics of
freedom and accountability, but I also maintain that these ethics can only
be established and applied in context. In In Re Atta, the ethics of freedom
and accountability should have been determined in light of the fact that
Isaac Ottie is a Ghanaian, and an Ashanti from the Bretuo Family of
Kenkase-Ashanti, and that this heritage comes with its own sociocultural
determinants of meaning.

torn apart by these organized, social practices of violence." Robert Cover, "Violence
and the Word" (1986) 95 Yale L. J., 1601.
65 Sridhar, supra,note 37 at 52.
Examining the Social and Cultural Environment in the
Speech Community
A sociolinguistic approach to the interpretation of language is sensitive to
the general social conditions under which language is used in Ghana. The
approach considers how a person's experiences, influences and culture
help shape how they express themselves. It emphasizes the inevitable
influence of Isaac Ottie's sociocultural environment on his modes of
expression, and his determination of meaning. In other words, the
sociolinguistic approach examines the interdependence of sociocultural
and individual processes in the construction of meaning.66 The importance
of understanding the culturally contingent contexts in which language is
derived and used cannot be overstressed; this necessitates an attempt to
understand meaning from the perspective of Ghanaians, including Isaac
Ottie. The constructions that Ghanaians place on their experiences and the
interpretive meanings they assign to their lives should form an integral
part of the adjudication process.

As is generally known, language is a symbol of identity. The Ghanaian

way of life, customs regarding family, marriage and life generally, are
unique and construct the Ghanaian identity. Accordingly, it is important
to modify the English language to convey the deep meanings and cultural
symbols associated with various aspects of Ghanaian life. To use the
concept of family as an example, it is known that the expression family
is used in Ghana to refer to the extended family, and not just the nuclear
family, a borrowed concept. As is expected, the wordfamily often creates
confusion in Ghanaian jurisprudence. It has become a term of art in the
law of Ghana, and its meaning remains largely unclear.67 Anselm Kludze,
a legal scholar, explains that neither the courts nor lawyers are certain
about its meaning as the term is sometimes used in reference to only a
few persons and at times, a large group of persons, that is, the descendants

6 Vera John-Steiner& Holbrook Mahn, "Sociocultural Approaches to Learning and

Development: A Vygotskian Framework," (1996) 31 (3-4) Educational Psychologist,
191-206 at 191.
67 AKP Kludze, "Problems of Intestate Succession in Ghana" (1972) 9 UGLJ 89, 110.
of a remote ancestor.6 8 A more elaborate and insightful exposition of the
problem of the meaning of the termfamily is given by Lutterodt J. (as she
then was), in the case of Neequaye v Okoe.69 According to her:

The trouble is that for the Ghanaian the word 'family' has
a variety of meanings. Now when the educated top class
Ga Mashie lawyer or doctor writes to his counterpart in
the United States of America telling him he is going to
the Caribbean Islands with his 'family' for a holiday, he no
doubt means (and I am sure his friend would understand
him in the same vein) that he is going away with his wife
and children. I do not think that he has at the back of
his mind his 60-70-year old auntie who lives at Bukom,
although the possibility cannot be ruled out, especially if
she happens to be a much loved auntie who has shown him
extreme kindness during his school days, but ordinarily
she could not be included.. .However, when the same
Ghanaian lawyer, for example, passes by his colleagues
house on Saturday afternoon and informs him that he is
attending a family meeting at Bukom, his friend no doubt
expects a larger group of people than those referred to
above.70

Hence, it is evident that at least in Ghana, "[1]anguage and culture...

represent two sides of the same coin ' 71 and that language use in Ghana,
including its use in relation to legal terminology is culturally embedded
and demands that the courts foreground this fact in the interpretive
process. It should be noted that the meaning of family in Ghana to include
descendants of remote ancestors, is not an extension of the semantic

68 Kludze, ibid.
69 Neequaye & another v. Okoe, [1993-94] 1 GLR 538. [Neequaye]
70 Neequaye, ibid., 547.
71 Shaojun Jiang "ANew Interpretation of Culture in Teaching English as an International
Language" in Yuanzhi Wang (ed.) Education and Educational Technology (Springer
Berlin Heidelberg, 2011) 693-697 at 693. Online: <http://www.springer.com/us/
book/9783642247743#aboutBook>.
range of the term. It is perhaps the more pervasive meaning of the term.
The sociocultural conditions under which English is used in Ghana,
and definitely, among the Bretuo Family of Kenkase-Ashanti, "make it
inevitable that its form will depart from that of native varieties. ' 72 Hence,
a sociolinguistic approach to interpretation evaluates the broad language
environment within a speech community.

Linguistic Differences and the Singularity of Justice

Generally, one must always consider the particular linguistic circumstances
of the person who seeks justice because justice can be frustrated by
linguistic differences.73 A sociolinguistic approach to interpretation makes
this fact a priority. It regards every individual as capable of creating legal
74
meaning and "promotes the reception of all voices in their individuality.
The approach does not support the imposition of perspectives and meanings
upon others like "Isaac Ottie aliasAgya Atta from the village of Kenkase
Kwabre in the Ashanti Region of Ghana," who, in the 'normal' scheme
of things, is "denied status as [a] meaning-creator[] independent of the
presumed universality of [legal language] . Such denial is the first step
in the creation and institutionalization of injustice. As earlier stated, no
individual is too insignificant to create legal meaning. The views of Jaques

72 0wusu-Ansah, supra, note 2 at 23.

13 Maxwell Alan Miller et al, "Finding Justice in Translation: American Jurisprudence
Affecting Due Process for People with Limited English Proficiency Together With
Practical Suggestions," (2011)14 Harv. Latino L. Rev. 117, 118-120. They explain that
"The demographic makeup and language ecology of the United States have changed
dramatically in recent history, leaving many judges and lawyers wondering how to
properly apply laws to and interpret the rights of people unfamiliar with the American
legal system or with the English language."... "These data suggest that millions of
adults living in the U.S. may be unable to participate meaningfully in court proceedings
without the use of an interpreter. Unfortunately, prison populations are reflective of
this growth. The Bureau of Justice estimates that 64% of state prison inmates in 2001
are racial or ethnic minorities with 21% comprising Hispanics, Asians, and Native
Americans. 27 This trend also highlights the absolute and imperative judicial need to
appreciate, respect, and understand the important role the court interpreter plays in the
criminal justice system."
7 Rick Parrish, Violence Inevitable: The Play of Force and Respect in Derrida,
Nietzsche, Hobbes, and Berlin (Lanham, MD: Lexington Books, 2006) 34.
71 Parrish, ibid.
Derrida, a post-structuralist and philosopher, on language use and justice
are critical to understanding the sociolinguistic approach to language.
Considering the problems associated with language use, interpretation,
and justice, Derrida insists that justice can only be done if the uniqueness,
the "singularity" or the differences of the other are respected. 76 This
suggests that in order to do justice, the lawmaker or adjudicator should
not lose sight of the distinctiveness of the other, but should be mindful
of the point of view of the other, the language of the other and how the
other perceives the world. Fundamentally, Derrida's concept of justice
concerns respect for the other. It is from this respect that justice emanates.
Justice is determined on a case by case basis; each case is 'other,' each
decision is different and requires a unique interpretation.77 Such justice
would have been done if the singularity of Isaac Ottie had been aptly and
constructively taken into consideration.

Furthermore, Derrida, explains that "[i]t is unjust to judge someone who

does not understand the language in which the law is inscribed or the
judgment is pronounced. '78 Though his assertion is somewhat flawed by
the universally accepted clichd that ignorance of the law is no excuse if
such ignorance is the result of the incomprehensibility of the language
in which the law was communicated, it does provoke discussion about
whether native English standards should be permitted to obstruct justice
as was done in In Re Atta. Not having mastery of native English caused
the intentions of Isaac Ottie to be (mis)interpreted in a manner inconsistent
with his social and cultural realities. When we reduce the meaning ofjustice
to the application of the law to the facts, without a careful determination
of the most convincing and plausible meaning of the facts, as defined by
the socio-cultural realities of the parties, like Isaac Ottie, indeed, "the
violence of an injustice has begun. ' 79 According to Robert Cover, a legal
scholar, "[n~either legal interpretation nor the violence it occasions may

76 Jaques Derrida, "'Force of Law: The 'Mystical Foundation of Authority"' (1989-1990)

11 Cardozo L. Rev. 23, 955.
77 Derrida, ibid., 961.
78 Derrida, ibid., 951.
79 Derrida, ibid.
be properly understood apart from one another."80 Thus, judges and law
enforcers must endeavour, in the determination of meaning, to focus on
the uniqueness of the other in order to ensure that justice is done.

The Universality of Language and the Acquisition of Rights in the use

of English Language
It is reported that currently about 1.5 billion people use English as a
first, second or foreign language.81 Speakers have the right to express
themselves in English while filling the needed lexical gaps. Shaogun Jiang
explains that English does not belong to any single nation or group.82 The
sociolinguistic approach to the interpretation of language emphasizes the
fact that English "has ceased to be the exclusive property of any of its
constituent communities" 83 The Bretuo Family of Kenkase-Ashanti also
has a share in it. "[N]obody 'owns' English now - not the British with whom
the language began 1500 years ago, or the Americans who now comprise
its largest mother - tongue community." It has been explained that English
remains a language that we must all express ourselves in to be understood
by the wider community. It has been explained further that it is imposed
on us as a sort of obligation or condition, by a sort of symbolic force
or law in a situation we do not control. 4 Thus, everyone has a share in
the future of English, first, second and foreign language speakers alike."85
The sociolinguistic approach also foregrounds the fact that, "[1]anguage
is an immensely democratizing institution. To have learned a language
is to immediately have rights in it," 86 rights which allow one to use it in

80 Cover, supra, note 64 at 1601.

1 David Crystal, "Emerging Englishes" January (2000) 14 English Teaching
Professional, 3-6 at 3. Online: <www.davidcrystal.com/?fileid=-4038>.
82 Jiang supra, note 71 at 693.
83 Crystal, supra,note 81 at 5.
8 Derrida, supra, note 76 at 923. Chinua Achebe shares the same view about the
imposition of English language, "I think I have said enough to give an indication of
my thinking on the importance of the world language that history has forced down
our throats." See, Chinua Achebe, "English and the African Writer." (1997) 75/76
Transition, 342-49, 346.
85 Crystal, supra, note 81 at 5.
86 Crystal, ibid.
a manner that expresses his or her life experiences, just like Isaac Ottie
chose to have his nephew inherithim.

After all, "we do not examine the correctness of American English by

reference to British English and vice versa"8 7 and of course, "language must
link to underlying legal cultures ... the idea of a language detached from
legal culture flies in the face of the very core ideas of legal language."88
Practically speaking, we cannot have a global legal language. English
as a global legal language is unrealistic. 89 "There are simply too many
potential problems with imposing a Western language and its associated
legal framework on the entire world."90 Recognizing the diversity and
uniqueness of linguistic registers is important. In In Re Atta, Isaac Ottie's
'manipulation' of language shows the potential of English to meet varying
needs, to express Ghanaian linguistic styles and forms. Drawing on the
English language as a linguistic resource and deploying it to give effect
to social realities is the essence of the sociolinguistic approach to legal
interpretation.

The Indeterminacy of Language and Meaning

Approaches to legal interpretation may unearth true intentions if they
reflect the fact of the indeterminacy of language. The literary aspect
of Derrida's famous concept of deconstruction focuses on textual
interpretation, to be precise, finding veiled alternative meanings in a text,
thus drawing attention to the indeterminacy of language. Derrida touches
on the challenges of translating ideas from one language to another and
how meaning is lost in the process, just as Isaac Ottie's rendition of "dze
m'adze" into English rendered the former debatably incomprehensible
to the judges. 91 Derrida explains that "[w]hen one translates 'to enforce
the law' into French... 'appliquer la loi,'... one loses this direct, literal
8 Bamgbose, supra,note 5 at 9.
88 Samantha Hargitt "What Could Be Gained in Translation: Legal Language and

Lawyer-Linguists in a Globalized World" (2013) 20(1) Ind. J. Global Legal Stud.,

425-447, 434.
89 Hargitt, ibid., 446.
9 Hargitt, ibid.
91 Derrida, supra,note 76.

174
allusion to the force that comes from within.... ,92 Admittedly, attempts
at translation can strip words of their legal force, but arguably, not their
cultural garment, native ascriptions, and communicative potential.

Prof. Allott shares related concerns about translating concepts from one
language to another. He appreciates the inherent difficulties and the
implications that translation may have for justice and calls for changes. to
the rules of legal interpretation. He says that:

a new field, and one also specific to Africa, has developed:

viz. that of legal translation as between English law and
language on the one hand, and African law and language
on the other. It is not just a question of rendering customary
law in terms which mean something to the western-trained
lawyer; but of expressing the rules and institutions of
western law in a language intelligible to the speaker of an
African vernacular... What will happen to the terms and
formulations of English law in such an event is something
which no one is yet in a position to predict; but it must
inevitably lead to some reduction in verbal distinctions and
refinements and to alteration in the principles governing
statutory interpretation as they have evolved in England.93

However, accepting the fact that "a one-to-one translation is a mere utopia,
and [that] total interlingual symmetry is hardly possible and is subject to
cultural filters and linguistic constraints '94 is an important step towards a
sociolinguistic approach to legal meaning. Unquestionably, the meanings
of certain words will expand, contract or change, depending on the context
or the place in which they are used. Recognizable words, like inherit and
me, will take on different or new meanings, because to reiterate, the way

92 Derrida, ibid., 925.

91 Allott, supra,note 63 at 63.
I Rosanna Masiola & Renato Tomei, "Language, Law and Translation: From Concepts
to Conflicts" (Springer International Publishing, 2015) 10. Online: <http://www.
springer.com/gp/book/9783319142708>.
individuals like Isaac Ottie express or interpret information is heavily
influenced by their cultural background. 95 To ignore this fact is to trivialize
life experiences, the sum of who we are.

Legal realists also seem to appreciate the fact that language is contextual
and in view of this, advocate a purposive approach to the interpretation
of language. "It was by insisting that one always needed to look to
purpose in order to interpret even the plain meaning of words that the
realists unfroze rules, shattering their brittle reified form and dissolving
them back into their constituent policy goals. '96 Postmodernists have
also expressed similar views about language and meaning. Even though
they are more concerned about the indeterminacy of laws, about how any
given set of legal principles could produce competing results, they also
believe in the instability of language. They challenge the view that the
meaning of language resides in language as they believe that "language
is socially and culturally constructed ' 97 and believe "that language must
be understood in relation to the cognitive processes of the people who
speak them."98 According to postmodern scholars, "[t]he assertion that
the determination of meaning is a contextual enterprise is impossible
to refute, and must certainly be central to our understanding of legal
interpretation."" It must not be forgotten that "[1]egal language.. .is both
1 Invoking the notion of relativity
culturally and linguisticallyrelative."" is
not to foreground the absence of absolute linguistic standards of universal
application, though this may be a fact; it is simply to centre the fact that
sociocultural context matters. Accepting the fact of the indeterminacy
of language and its potential to change the meaning and effect of social

95 Jiang, supra, note 71 at 693.

96 J. Boyle, "The Politics of Reason: Critical Legal Theory and Local Social Thought"
(1985) 133 U. Pa. L. Rev. 685, 711.
97 Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's
End (New York: New York University Press, 1995) 245.
98 Minda, ibid., 238.
99 Rosemary Coombe, "Same as it Ever Was:' Rethinking the Politics of Legal
Interpretation" (1988-89) 34 McGill L. J., 603-52, 621.
100 Hargitt supra, note 88 at 431. [Emphasis added].

176
discourse is a prerequisite to appreciating the sociolinguistic approach to
the determination of meaning.

PROBLEMS ARISING: JUDICIAL CAPACITY, SUBSTANDARD

ENGLISH AND PROBLEMS OF INTELLIGIBILITY

A sociolinguistic approach to the interpretation of language raises a number

of issues. Do judges have the capacity to appreciate when language is being
used in its nativized form? Do they require sociolinguists to help them
in their work? Practically speaking, to what extent can the sociolinguist
influence a legal decision? What does nativisation mean for substandard
English? Can nativisation result in unintelligible codes? The next two
subheadings attempt to answer these questions.

The Capacity of Judges in the Determination of Meaning

The problem or the opportunity of nativisation in Africa has long been the
concern of scholars of English and linguistics. In other parts of the world,
legal and socio-legal scholars have given greater attention to language use
in the legal sphere. In Africa, this does not seem to be the case. It would
seem that judges in most multilingual African communities are unaware
of the importance of second language varieties of English, their unique
interaction with native English, and how these factors should influence
legal interpretation. It is doubtful that they are trained to consider these in
legal interpretation. It is important to note that the "distinct languages of
different societies constitute unique worlds for those who live within them.
These are distinct worlds, not merely the same world with differing names
for the same phenomena."'' 1 Thus, it is erroneous to assume that once
something has been written in English, it must carry the same meaning
placed on it by native English speakers.

The expression inheritme may not make sense to a judge who is a native
speaker of English because the English law of succession does not
recognize the concept of a customary successor. However, the fact that the
expression is unknown to English law is no basis for it to be discounted

1 Coombe, supra, note 99 at 611.

177
by a Ghanaian judge. Perhaps, the decision in In Re Atta would have
been understandable if it had been made by foreign or 'socially detached'
judges because they would also have tapped into their context and its
attendant repertoire or field of meanings. Admittedly, meaning "can be
understood only in terms of the contexts that inform and limit the [judge's]
understandings of the social world in which [he or] she lives"10° 2 We are all
situated in differing historical and cultural contexts. 10 3

Accordingly, the determination of meaning requires a capacity to

understand the cultural milieu in which meaning resides, a capacity that
Ghanaian judges are presumed to have, unfortunately. If the judges had
realised that inheritme was an attempt at translation, they would probably
have been conscious of the fact that translation is a linguistic as well as
a cultural act and that in the process of translation, "not only the two
languages, but also the two cultures come into contact. In this sense,
translating is a form of intercultural communication." 1°4 The courts must
increase their sophistication in recognizing and managing the linguistic
needs of litigants. They must seek to penetrate the culture inhabited by
writers, and establish meaning accordingly.105 The courts must come to
terms with the fact that language is not just a vehicle for the transmission
of information, it is not "transparent or neutral, merely a way of pointing
to something outside of itself."1°6Language is 'self-interested' and it serves
concrete goals. It is socially transmitted and it embeds meaning that is
culturally conditioned.

One way of dealing with the sociocultural complexities of legal

interpretation is to appoint sociolinguists to assist the judges ifthis is
what it will take to ensure the promotion and protection of human rights.
The absence of such assistance can easily lead to miscarriages of justice.
According to Antony Allott, a legal scholar, the "exploration of the
101Coombe, ibid., 609.
103 Coombe, ibid.
i0 Juliane House, Translation. (Oxford: Oxford University Press, 2009)12.
105 Kenneth L. Karst, "The Interpreters" (1989-1990) 88 Mich. L. Rev. 1655.
'0 James Boyd White, JusticeAs Translation:An Essay In CulturalAndLegalCriticism.
(Chicago: The University of Chicago Press. 1990.) ix.

.178
linguistic aspects
gu- of law, both in Africa and elsewhere
I ...remains to be
done through thejoint efforts ofjurist, anthropologist and linguist."'0 7 Such
a professional, while conversant with the "iteraction between linguistic
and social variables, must also have an appreciable understanding of legal
processes. However, there are important questioifis regarding the actual role
of the sociolinguist. It is not certain the extent to which the sociolinguist
will serve merely as a conduit through which the words of the speaker
or writer are made comprehensible to the court. Regarding whether the
sociolinguistic professional can lay a non-participatory role in courtroom
proceedings and not influence the outcome of adjudication, I maintain that
with clearly defined guidelines, the role of the professional can be limited
to ensuring that the judge is equipped with as much information regarding
the sociocultural context in which language is used.

Nativisation and Substandard English

While I do not endorse substandard English, I am conscious of the fact
that non-native users will inevitably transfer the lexical features in their
mother tongues to the English language. The resulting varieties are neither
"fossilized stages in the acquisition of native speaker norms," 108 nor are
they a variety that represents the "early stages in the acquisition process
that is eventually overcome by the ideal learner."' °9 Kamal Shridhar
insists that these assumptions result from an inadequate appreciation
of the sociolinguistic context in which Second Language Varieties are
acquired." 0

Bamgbose explains that language cannot remain static and that it is an

aspect of growth and adaptation to cultural and linguistic environments
that varieties must develop. 111 Thus, Bamgbose refers to nativisation
as "innovations in language form and language use."11 2 It should be
emphasised that "the universal goal of all non-native language acquisition
107 Allott, supra,note 63 at 63.
108 Sridhar, supra, note 37 at 52.
109Sridhar, ibid.
110Sridhar, ibid.
1 Bamgbose, supra, note 5 at 13.
112 Bamgbose, ibid., 16.
is [not] to develop proficiency in the linguistic norms of native speakers
' Such assumptions are incorrect and reflect
of the target language." 113
"linguistic imperialism."' 114 Thus, deviations from native-speaker norms
must not necessarily be regarded as "deficient approximations."115 ' In

fact, Kamal Sridhar cautions about the dangers in "purely linguistic (i.e.
formal) analysis of a second language variety"; he insists that more than
native varieties, second language varieties "demand sociolinguistics as a
"
congruent 'level' of analysis. 116

I admit that there is a fine line between linguistic innovations and

errors, hence, there are practical problems regarding how to determine
when a variant has attained the status of an innovation and when it is
simply an error. 117 Put differently, Nativisation involves breaking native
speaker norms, which inevitably raises questions about standardization.118
It has been argued that a set of norms becomes the standard when it is
developed for the purpose of communication beyond the boundaries of the
community that established it. 119 But the sociolinguistic approach is not
necessarily about establishing standards, it is not interested in the reach of
language, and it does not focus essentially on communities as creators of
meaning. It does not subscribe to "guiding nativisation along the path of
standardization." 12 0 It views individuals,like Isaac Ottie, as producers and
creators of knowledge and meaning, which need not be endorsed by the
larger community to be deemed acceptable forms of usage. Ultimately, the
focus of the sociolinguistic approach to legal interpretation should not be
on whether the expression measures up to native standards, but rather on
whether the expression is comprehensible in a given sociocultural context,

113 Peter H. Lowenberg, "Sociolinguistic context "and second-language acquisition:

acculturation and creativity in Malaysian English," 1986 5(1) World Englishes, 71-
83, 71.
114 Owusu-Ansah, supra,note 2 at 27.
115 Lowenberg, supra,note 113 at 71.
116 Sridhar, supra,note 37 at 45.
117 Bamgbose, supra,note 5 at 16.
118 Owusu-Ansah, supra, note 2 at 23.
119Owusu-Ansah, ibid., 27.
120 Owusu-Ansah, ibid., 28.

180
and whether giving effect to the culture-induced innovation will safeguard
fundamental human rights.

CONCLUSION

Legal interpretation plays an important role in governance and is integral

to the maintenance of social relations and equality in societies. 2 '
Consequently, the determination of meaning must be based on shared
social, and individual expectations. The courts have a responsibility to
support the creative mobilization of English to express diverse experiences.
Throughout history, dominant cultures have tried to impose their patterns
of speech on others, thereby, regulating the expression of meaning
through speech. The courts must be conscious of this phenomenon if
Ghana wants to make meaningful the freedoms guaranteed its people
by its Constitution. 122 If the courts renege on their responsibility to give
effect, through interpretation, to the cultural distinctiveness of Ghanaians,
they fail in their role as guardians of freedom. The courts must give
hope to Ghanaians that they can be relied upon to recognise and protect
various forms of culturally influenced communication, including what
are arguably, Ghanaian forms of communication. The recognition of
individual cultural backgrounds regarding communicative norms and
standards is central to legal interpretation and the promotion of justice.
Likewise, the importance of communicative behaviour as a reflection of
cultural norms must be considered earnestly in determining meaning. It
must be emphasized that the extended use of a language beyond its native
territory will inevitably entail the detachment of that language from its
original cultural trappings. 123 But the resulting registers are as significant
as the original; they also embody meaning. Their correctness should
not depend on their conformity to native principles. Through linguistic
innovations, Ghanaians express what is important to them, their aspirations
and values. They cannot be denied the right to express these in their
fullness just because they must communicate them according to native

121 Coombe, supra, note 99 at 652.

122 Article 21. The 1992 4t"Republican Constitution of Ghana.
'23 Sridhar, supra, note 37 at 52.
patterns, which in many respects, cannot arguably, convey precisely what
they seek to express without creative alteration. This undoubtedly calls for
innovation and creativity in the form of borrowing, loan translation, code-
mixing, style and register-shift. 124 The dual or hybrid nature of Ghana's
legal system demands a dualist mindset to legal interpretation, otherwise,
justice will be "hopelessly entrapped in language."' 1 25 There must be
a combined effort to examine the multiplicity of issues involved in the
relationships among law, interpretation, language use and human rights.
For instance, how to properly assess the implications of second language
varieties for international communication should continue to engage the
minds of socio-legal scholars. Ultimately, we must all come to terms with
the fact that "the English language will be able to carry the weight of...
[the] African experience. But it will have to be a new English, still in full
communion with its ancestral home, but altered to suit its new African
' 126
surroundings.

124 Bamgbose, supra, note 5 at 9; See also, Masiola & Tomei, supra,note 94 at 10.
125 White, supra,note 106 at 89.
126 Achebe, supra,note 84 at 349.