GIMPA Law Review Vol.1

2 |GIMPA LAW REVIEW VOLUME 1 - No.
Advisory Board:
Justice Sophia Ophilia Adjeibea Adinyira (Justice of the Supreme Court of Ghana)
Justice Emile Short(Former Commissioner of the Commission on Human Rights and

Administrative
Justice, Ghana)
Dr. S.K.B. Asante (Eminent Jurist and International Arbitrator, Paramount Chief of Asokore
Asante and Honorary Chancellor of the Graduate School of Governance and Leadership)
Editor:
Dr. Alex Ansong
aansong@gimpa.edu.gh
Publications Committee:
Rev. Dr. William Edward Adjei
Mr. Tawiah Akyea
Dr. Alex Ansong
The GIMPA Law Review is published by the:
Faculty of Law
Ghana Institute of Management and Public Administration
Green hill
P.O.BoxAH50
Achimota
Ghana
©Faculty of Law, Ghana Institute of Management and Public Administration,2015

GIMPA Law Review, Volume 1, Number 1
3
CONTENTS
THE WHIPS OF JURISPRUDENCE: THE UNWRITTEN “FUNDAMENTAL LAW”,
CONSTITUTIONAL INTERPRETATION AND JUDICIAL DUTY IN GHANA 4
Atidwe P. Atupare
IMPERFECTING PERFECTIONS: CHOICES IN CONSTITUTIONAL METHODOLOGY

AND GHANA’S PRESIDENTIAL ELECTIONS PETITION 44
Kwesi Keli-Delataa
JUDICIAL INDEPENDENCE AND THE EXECUTIVE BRANCH IN NIGERIA 53

Ajepe Taiwo Shehu
ACCORDING APPROPRIATE LEGAL RECOGNITION OF MINORITIES IN AFRICA 70

William Edward Adjei
IS TRADITIONAL KNOWLEDGE INTELLECTUAL PROPERTY? 89

Alex Ansong
TOWARDS THE EFFECTIVE IMPLEMENTATION OF THE ECONOMIC AND

ORGANIZED CRIME ACT OF GHANA: LESSONS FROM THE UNITED STATES 109
Kwaku Agyeman-Budu
FAIRNESS AND INTEGRITY OF THE ARBITRATOR UNDER THE ALTERNATIVE

DISPUTE RESOLUTION ACT OF GHANA, 2010, ACT 798 123
Diana Asonaba Dapaah
LOCATING THE MEANING OF SECTION 74 (1) (A) OF THE MARRIAGES ACT:

A TASK FOR INSPECTOR BEDIAKO 137
Maame Abena S. Mensa-Bonsu
4 |GIMPA LAW REVIEW VOLUME 1 - No. 1
THE WHIPS OF JURISPRUDENCE: THE UNWRITTEN “FUNDAMENTAL LAW”,

CONSTITUTIONAL INTERPRETATION AND JUDICIAL DUTY IN GHANA
Atudiwe P. Atupare*
I. Introduction
In the study of Jurisprudence, the question what is law remains a fundamental one. The
appropriate claim in respect of this question is that such a question when asked requires a
philosophical effort in understanding the nature of law. That is, it seeks to understand the
identity or true properties of law. However, since the days of ancient Greeks and Romans,
answers to this question varied and in our modern context, we are even more divided
over the answers. But there is little or no question that a constitution of a state is a law.
If so, understanding a constitution of a state as a law must form part of the debate and
answers as what is the fundamental nature of law. In this article, we intend to respond to a
particular question: what does law represent, both factually and normatively, in a modern
constitutional democratic state like Ghana.
The idea behind this query is that the constitution, in the course of its judicial interpretation,
must be construed as law. If that is the case, then, our conception of law should influence
the construction or interpretation of the constitution. Yet the objective of this article seeks
one kind of conception of law and for that matter a type of judicial interpretation – law
or the constitution should be conceived and interpreted as an aspirational moral ideal for
the collective wellbeing of the people. Explicit law in the form of a written constitution
is not exhaustive of the fundamental values and valid legal norms necessary for the
wellbeing of a political system and its citizens. Such a legal document must not only be
interpreted as aspirational moral ideal, but also in doing so it should be supplemented by
the unwritten fundamental principles of common law. On that account, judicial duty in
Ghana is not just an uncritical submission to the explicit law, but a substantive justification
of judicial decisions articulated on values that best morally serve the legal order.
Any surrender to the view that positive law exhausts the grounds of judicial justification
of what the law entails is a submission to the Austinian view on the nature of law – that
law is the command of the uncommanded sovereign. Under that approach, judicial duty
and legal reasoning in a state like Ghana will be nothing but an exclusive focus on Acts of
Parliament, policies of the executives made within the confines of delegated power and
written constitutions as the legitimate source of legal norms applicable in the legal system.1
While the values of written constitutions or statutes are not to be discounted, a positivist
conception that valid legal norms are only derivable from such legal enactments is, I will
argue, inappropriate. It presumes that the only relevant point of reference for legitimately
valid legal norms is the plain constitutional text or Acts of Parliament.2 This is a costly
mistake for Ghana’s legal system and judges should not seek refuge in bear constitutional
provisions, for it is an interpretive attitude that is contrary to the conception of law as an
aspirational moral virtue that serves society in the best morally justifiable light.
*Dr. Atudiwe P. Atupare, Senior Lecturer, Faculty of Law, University of Ghana, Legon.
1
David Dyzenhaus, The Grudge Informer case revisited. (Symposium: The Hart-Fuller Debate at Fifty) (2008)
83 New York University Law Review 1000 and Kevin Toh, An argument against the social fact thesis (and some
additional preliminary steps towards a new conception of legal positivism) (2008) 27 Law and Philosophy 445
2
David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency at 68
5 The Whips of Jurisprudence: The Unwritten “Fundamental Law”, Constitutional Interpretation Atudiwe P. Atupare
and Judicial Duty in Ghana
To pursue this objective, the work is broadly divided into three distinct parts. Part one
considers arguments from positivists and non-positivists conceptions of law. This part
basically focuses on a careful review of the Hart-Fuller debate and other neo-natural law
writers on the nature of law and how that might influence judicial duty in Ghana in the
conception of the Ghanaian constitution as law. The second part examines what I shall
term “the unwritten fundamental law” and its operative value to judicial duty in respect
of constitutional interpretation in Ghana. The third and last part attempts a particular
conception of a theory of law for constitutional interpretation in Ghana that unites the core
values underlying the arguments captured under part one and two. This part supposes law
or the constitution as a moral resource, an ideal which must be the working foundation for
the interpretation of the Constitution. Judicial duty in this country must thus be guided by
this conception of law.
II. Law and Judicial Duty – Positivists and Non-Positivists Conceptions

In legal philosophy, it is not easy to understand the question what is the nature of law.3 It
is equally not a straightforward task to understand a “constitution” by way of interpretation
as a law.4 The idea of law, no less the nature of constitutional interpretation, remains one of
the most insistent yet elusive problems in the entire range of legal thought5. The illusiveness
of these issues obscures and perhaps weakens our efforts to define precisely the role for
the judiciary, a branch of government traditionally assigned with the responsibility of
interpreting the law. But it is undeniable that the mission of understanding the nature of
law or interpreting a constitution is an essential one. It is essential to the task of discovering
the normative values that the law or constitution seeks to enunciate and of building
a framework of governmental authority, duties and rights. So we can interpret a law to
understand what the constitution is or interpret a constitution as to understand it as an
embodiment of a unity of a law reflecting both the political and moral values of the legal
system. Getting around this assignment, as acknowledged above, is herculean. That is, if
it is not simple to identify the properties of law and to define it, it certainly is not easy to
interpret a constitution in a reduced form as a law. In that case, the whole question as to
what is judicial obligation6 in a constitutional democracy looks certain to face centuries of
debates.
Yet, it does seem as true that every law or constitution must have a meaning, or (we might say)
a ‘conscience’ perhaps, representing the fundamental values of the community from which it
is so made and recognised. It is these values which must be at the core of judicial obligation
and influence the definition of the nature of law or interpretation of a constitution as law.
Understanding the “internal conscience” of law or of the constitution, properly conceived,
leads in practice to morally superior judicial decisions in the legal system. Understanding
3
Hans Kelsen,‘The Pure Theory of Law and Analytical Jurisprudence’, 55 (1941) Harvard Law Review 44 and
Stanley L. Paulson Radbruch on Unjust Laws: Competing Earlier and Later Views? 15 (1995) Oxford Journal
of Legal Studies 489
4
See Robin Elliot, “References, Structural Argumentation and the Organizing Principles of Canada’s
Constitution” (2001), 80 Canadian Bar Review 67; W.H. Hurlburt, “Fairy Tales and Living Trees: Observations
on Recent Constitutional Decisions of the Supreme Court of Canada” (1999), 26 Manitoba Law Journal 181;
Harry H. Wellington Reviewed work(s): The Constitution, the Courts, and Human Rights by Michael J. Perry
(1983) 97 Harvard Law Review, and Larry Alexander, Frederick Schauer On Extra judicial Constitutional
Interpretation (1997) 110 Harvard Law Review 1359
5
Robson, The Symbols of Government (1935) p. 216
6
Philip Hamburger, Law and judicial duty (Cambridge, Mass. : Harvard University Press, 2008)
what law is or a constitution is as a law, in part, therefore becomes a necessary precondition to

fashioning an appropriate role for the judiciary in a constitutional democracy.7 Clarity about
the nature of law becomes an illuminating postulate for the judiciary, essential to its task
of enforcing the conscience of law or constitution8 when seized with hard legal questions.
It is also important for the judiciary to understand exactly its constitutional obligation as
far as understanding and interpreting the constitution as law in a modern constitutional
democracy is concerned.9 Ideally, this work will provide something of a road map for the
judiciary to help guide it in its bid to discover by way of interpretation what the constitution
represents as law in a State. Without this, the whole exercise of constitutional interpretation
may be reduced to pure metaphysical abstractions by individual judges without recourse
to the conscience of constitution as law. In this section, I explore the Hart-Fuller debate in
order to understand the nature of law and to define judicial obligation for the Ghanaian
courts in interpreting their Constitution as a law,an aspirational moral ideal in protecting
some ordained fundamental values – Fundamental Human Rights.
a. Of the Nature of Law

At law school, we are told as students through the teaching of courses like Jurisprudence
and Philosophy of Law that different semantic theories compete for attention in respect of
answering the question what is law or what is the nature of law. These theories can roughly
be classified as (but are not limited to) legal positivism and natural law. While the former
contends that law as a real social phenomenon is or may be separated from morality and
should be defined exclusively with reference to social facts, the latter argues that law is so
intimately connected with moral ideas that the concept of law must necessarily include a
reference to morality.10 Each of these theories has had serious followers at the bar, on the
bench, and within the legal academy, who have made reasonable and insightful arguments
in support of their peculiar positions. It is tempting for a political opportunist caught up in
the heat of the debate between these theories to remain undecided as to which school to
follow. Their persuasive forces are intriguing, albeit variable in their reach. The contentions
generally revolve around the criteria to apply when resolving disagreements about what
Dworkin terms as true propositions of law.11 That is, what could be counted as law and what
normatively and factually counts as the nature of law? Alternatively, what test must law pass
so as to be accorded the title law in a state?
b. Hart’s Concept of Law and its Conceptual Foundations

John Austin, charting a legal positivist path in the nineteenth century, suggested that a
law in a particular polity is law if it can be proven to be a command of some person or
7
Helen Hershkoff State Courts and the “Passive Virtues”: Rethinking the Judicial Function 114 (2001) Harvard
Law Review, 1833
8
John G. Palfrey The Constitution and the Courts 26(1913) Harvard Law Review 507
9
See Stephen R. Perry Judicial Obligation, Precedent and the Common Law 7(1987) Oxford Journal of Legal
Studies 215
10
Neil MacCormick The Concept of Law and ‘The Concept of Law 14 (1994)Oxford Journal of Legal Studies1
Maher G, Custom and Constitutions 1 (1981) Oxford Journal of Legal Studies 167;Tony Honoré The Necessary
Connection between Law and Morality 22(2002) Oxford Journal of Legal Studies 489; Peter Koller, The
Concept of law and Its Conceptions 19 (2006) Ratio Juris 180 at 181. See also Tony Honoré The Dependence
of Morality on Law 13 (1993) Oxford Journal of Legal Studies 1 Deryck Beyleveld, Roger Brownsword The
Practical Difference between Natural-Law Theory and Legal Positivism 5 (1985) Oxford Journal of Legal
Studies 1; David Dyzenhaus, The Genealogy of Legal Positivism 24 (2004) Oxford Journal of Legal Studies 39
and Eleni Mitrophanous Soft Positivism 17 (1997) Oxford Journal of Legal Studies 621
11
Dworkin Ronald, Law’s Empire (1986) at 33
group with the sovereign power of such a polity. But it would seem that Austin was by no
means the originator of this idea of law being the command of the sovereign. Indeed, John
Erskine, a Scottish natural lawyer wrote in his Principles of the Law of Scotland, 1759 that “Law
is the command of a sovereign, containing a common rule of the life of his subjects.”12 Austin
however, certainly maintains a more expansive version of this command theory of law to
include the habit of obedience and threat of sanctions, an aspect which later generated
legitimate fierce opposition. To Austin, the enforcement of the commands rests on the
threat of sanctions.
The sovereign, in Austin’s view, is some person or group whose commands are habitually
obeyed and who is not in the habit of obeying anyone else.13 Properly conceived, only
rules commanded by the sovereign will qualify as law. On this account, it appears Austin’s
central thesis rests on reducing law as a matter of historical political decisions made by
those who wield political power. This serves as a pointer to addressing any question relating
to the nature of law in an Austinian state. In an event of disagreement about the truth of
propositions of law, it is important to consider whether or not the sovereign of a society had
commanded the rule, and that such a sovereign is in the habit of being habitually obeyed
and obeys no one else. The sovereign in that regard is legally unlimited – thus ‘law is the
command of the uncommanded commanders of the society – the creation of the legally
untrammelled will of the sovereign who is by definition outside the law’.14 It would thus
seem as justified that Austin proposes a trilogy of commands, sovereign and threats of
sanctions as the cardinal pillars of law’s true make up. Once these are present, the question
of what is the nature of law is summarily but appropriately answered.
However, Austin did not end his exposition with the stated trilogy. Like other early positivists,
he also did not consider it relevant that such commands must pass any moral test before
being deemed law. He did not think it necessary that in determining the nature of law it is
necessary to establish an indispensable connection between law and morality. For him the
moral merits and demerits of law are entirely excluded from the legal validity of the law. As
Austin puts it:
The existence of law is one thing; its merit or demerit is another. Whether it be or be
not is one inquiry; whether it be or be not conformable to an assumed standard, is
a different inquiry. A law, which actually exists, is a law, though we have happen to
dislike it, or though it vary from the text, which we regulate our approbation and
disapprobation. This truth, when formally announced as an abstract proposition, is
so simple and glaring that it seems idle to insist upon it. But simple and glaring as
it is, when enunciated in abstract expressions and enumeration of the instances in
which it has been forgotten would fill a volume.15
12
John Erskine Principles of the Law of Scotland (18th edn, J. Rankine, Edinburg, 1890) p.1. See also Hobbes,
Thomas, who is the most famous defender of the idea that law is the command or will of the sovereign
.Leviathan (London, Dent, [1924)
13
John L. Austin, The Province of Jurisprudence Determined (H.L.A. Hart ed., New York, 1954)
14
H. L. A. Hart, ‘Positivism and the Separation of law and morals’71 Harvard Law Review 593 (1958) at 603
15
Ibid at 184. Gray has eloquently re-articulated this distinctions thesis of Austin in 1909 when he wrote: “The
great gain in its fundamental conceptions which Jurisprudence made during the last century was the recognition
of the truth that the Law of a State ... is not an ideal, but something which actually exists. . . .[I]t is not that
which ought to be, but that which is. To fix this definitely in the Jurisprudence of the Common Law, a feat that
Austin accomplished”. The Nature and Sources of the Law (ed.) (1909) at 213
Austin evidently is not enthused with arguments, like those made by some common law
theorists, about the necessity of a moral content in law. The existence of a law should not
be confused with its moral content. Any inquiry about the existence of law confused with
its moral soundness is thus palpably incorrect. Merits or demerits of law are clearly different
from the true existence of law.
Simplistic and convincing as his position may appear in its relative historical context, Austin
has been severely criticised for being narrow. In fact, he has been attacked at least on two
fronts: the deficiency of the command theory and the separation of morals from law. Both of
these propositions may have a limited bearing in contemporary constitutional democracies.
For instance, the difficulty in locating sovereignty in modern constitutional democracies
like Ghana renders the Austinian sovereignty theory manifestly defective. In such states,
the people as a whole retain the power, in the Lockean sense, to change the constitution
through amendment, when the legislative authority is so wicked to design laws against their
general interest. In that case, the assertion that people habitually obey a legally unlimited
sovereign looks feeble. Sovereignty in this case is exercised by the people and obedience in
its non-habitual form, is rendered to the people themselves. Besides, it is even more difficult
for Austin to have a persuasive influence in countries with transitional regimes or regimes
set up through coup d’ etats in Africa and elsewhere. In such states, new leaders are far from
being habitually obeyed by their citizens. His definition of a sovereign may thus need a
revision in such countries.
Salmond is unequivocal in criticising Austin’s command theory for a different reason. He

protests that it does not treat seriously the issue of legal rights, as it obviously fails to provide
for a place within its entire analysis, an ethical basis for rights.16 It ‘attempted to deprive
the idea of law of that ethical significance which is one of its most essential elements’.17
Salmond’s rejection of the command theory based on ethical considerations in respect of
rights resonates well with a functional conception of public law that protects the rights and
well-being of the citizenry. It also speaks to a constitutionally limited government where
law is not the exclusive command of the legislator, but an expression of a composite of well-
considered values of the people from whom the power of the legislator is derived.18
Austin’s position despite its continuing relevance to the whole jurisprudential discourse
about the true nature of law did not find favour even among legal scholars generally
described as positivists. Hart is one such scholar who rejected Austin’s version of law as
merely a matter of habitual command and obedience. Hart proposes a “rule of recognition”,
a test accepted by officials for determining what normative standards form part of the legal
corpus19 or what factual propositions should be accepted as valid law in a community.20
16
Similar protestation came from Hagerstrom who saw the command theory deficient as it cannot account for or
contemplate the notion of individual rights. He does not see commands, which we either obey or we do not obey
conferring rights on the individual. Hagerstrom, Inquiries into the Nature of Law and Morals (Olivecrona ed.
1953) at p.221
17
Salmond, The First Principles of Jurisprudence (1893) at p.98
18
See John, Samples, James Madison and the future of limited government, ed. (Washington, DC: Cato Institute,
2002) chpt. 11; Edward, Harpham, John Locke’s Two Treatises of Government: New Interpretations, ed.
(Lawrence: University Press of Kansas, 1992) and Wojciech, Sadurski, Constitutional theory, ed. (Aldershot:
Dartmouth, 2005) chpt. 1
19
Kent Greenawalt, The Rule of Recognition and the Constitution 85 (1986-87) Michigan Law Review 621 at
621
20
H. L. A. Hart, The Concept of Law (1961) at 97-120
This approach includes within ‘law’ only those rules of law that that master rule validates. For
Hart, unlike Austin, the significance of the rule of recognition is to make law-making subject
to it as “nothing which the legislators do makes law unless they comply with fundamentally
accepted rules specifying the essential law-making procedures”.21
Certainly, in Hart’s view, the sovereign lawmaker must be subject to the secondary rules,
including, most importantly, the rule of recognition; it cannot succeed in making ‘law’ unless
its ‘law’ complies with the master rule that defines what ‘law’ is. But since Hart denies that
the rule of recognition is itself a valid ‘law’, it may be misleading to say that, in Hart’s view,
the sovereign is ‘within the law’. The rule of recognition is ‘law’ only in a special sense; it is
a customary rule or social fact that underpins ‘law’. Nevertheless, if a proposition meets
the requirements of this rule of recognition, then such a proposition can correctly be
designated as law. It thus follows, as summarised by Dworkin that “propositions of law are
true not just in virtue of the commands of the people who are habitually obeyed, but more
fundamentally in virtue of social conventions that represent the community’s acceptance
of a scheme of rules empowering such people or groups to create valid law”.22 Such a view
yields the descriptive, rather than prescriptive posture of positivism and leads to its social
and moral theses, which respectively hold that what is law and what is not law is a matter
of social fact, and the identification of a law is not contingent upon any moral arguments.
Hence, the law’s conformity to moral values or moral ideals is no way a condition for the
validity of law.
Hart obviously agrees with and follows Austin’s position that understanding the concept
of law simply lies in what law is and not what law ought to be. He makes this clear by
maintaining that there is “the need to distinguish, firmly and with the maximum of clarity,
law as it is from law as it ought to be”.23Such a distinction will perhaps “enable men to see
steadily the precise issues posed by the existence of morally valid laws and to understand
the specific character of the authority of the legal order”.24 For Hart ‘the purposes men have
for living in society are too conflicting and varying to make possible much extension of
the argument that some fuller overlap of legal rules and moral standards is “necessary” in
this sense’.25 Hart’s exposition on the nature of law thus embraces the so-called “Separation
Thesis” in legal positivism, which holds that “there is no necessary connection between law
and morals or law as it is and law as it ought to be.”26 This has been understood to mean that
Hart recommends a necessary severability of law from morality. Law, to legal positivism, is
a social fact, ‘a particular way of structuring social life’.27 It is thus essential to the nature of
law that it can be identified without any appeal to controversial moral arguments.28 Law
21
H. L. A. Hart, ‘Positivism and Separation of Law and Morals’ in Hart, Essays in Jurisprudence and
Philosophy (Oxford University Press, 1983) at p.35
22
Ronald Dworkin, Law’s Empire (Harvard University Press, 1986) at 34
23
Hart, Essays in Jurisprudence and Philosophy at p.50
24
ibid at p.53
25
L.A. Hart, ‘Positivism and the Separation of law and morals at 623
26
. Ibid at 602. Andrei Marmor stated that despite some variation in legal positivism, at least all legal positivists
subscribe to this separation thesis. In his view the separation thesis “basically maintains that determining what
law is , does not necessarily, or conceptually, depend on the moral or other evaluative considerations about
what ought to be in the relevant circumstances” Andrei Marmor, The Separation Thesis and the Limits of
Interpretation (1999) 12 Canadian Journal of Law and Jurisprudence 135 at 135
27
David Dyzenhaus, Sophia R.M. and Arthur Ripstein ed. Law and Morality: Reading in Legal Philosophy
(University of Toronto Press Inc., 2007) at p.3
28
Ibid
is law thus when posited, that is, a law duly promulgated or enacted by a body or person
with the authority to do so in accordance with the rule of recognition. There is no necessary
connection between legal validity of the law and its moral merits and demerits.
Joseph Raz adopts a similar legal and political philosophy. For him, when there is legal system
and laws, “the courts are bound to apply[them] regardless of their merit….[L]egal systems
consists of laws which the courts are bound to apply and are not at liberty to disregard
wherever they find their application undesirable, all things considered”.29 He defends the
positivist’s conceptual independence from morality.
Morality is necessarily excluded from the concept of law.30 For him, law is to be identified
by empirical social facts, namely, the common legal resources, such as legislation, judicial
decisions and custom,31 and should therefore be defined without reference to moral
standards. This resonates well with Hart’s conception that the beliefs of the judges do not
count when it comes to the validity of the law and [its legitimacy on citizens]. For Hart law
is law even if judges accepted the rules of their jurisdiction for any other considerations:
“calculations of long-term interest; disinterested interest in orders; an unreflecting inherited
or traditional attitude; or mere wish to do as others do”.32
Both Hart and Raz concurred on this and called such considerations “weak acceptance”33,
which have no weighty count on the validity and [legitimacy]34 of law. However, Raz went
beyond the contours of the weak acceptance: he argues for what he terms as ‘strong
acceptance’. For this, he emphasises that law does serve moral purposes, claim moral
authority and depend on the participants’ moral attitudes.35 Perhaps this has some moral
legitimacy for the law36 so accepted by the judge but does not imply anything similar to the
argument that the content of the law must be morally correct. This reading of Raz might
pose a challenge to Hart as Raz requires that law claims, not possesses legitimacy as part
of the preconditions for accepting law and its authority. Hart does not seem to presuppose
such a notion of law claiming legitimacy as a priori value to validate the authority of law.
c. The Voice of Moderation: The Contingent Mergence of Morality and Law

Leslie Green, a self-proclaimed ‘unrepentant anti-conventionalist positivist’37 however,
invited us not to understand Hart in too literal a sense. For him, Hart did not intend to
recommend any hard separation between law and morals. That is, Hart’s position if properly
conceived does not amount to an absurd view that law and morality should be kept separate.
In defense, Green argued that:
“Morality sets ideals for law, and law should live up to them. Nor did he mean that
29
Joseph Raz, The Authority of Law (1979) at 113
30
Ibid at 47
31
Ibid at 3
32
Hart, The Concept of Law at 198
33
Hart, Essays at 265 and Raz, The Authority of Law (1979) at 155 n.13
34
I bracket the words ‘legitimacy’ in these sentences, since it depends on what sort of legitimacy one is talking
about. Hart and Raz both said that the question of whether a law is valid, legally, is separate from whether a law
is legitimate, morally, and that when confronted with a valid law that was morally illegitimate a citizen is not
morally bound to obey it; indeed, he or she might be morally bound to disobey it.
35
Joseph Raz, The Authority of Law at 37
36
Joseph Raz, On the Nature of Law 82 (1996) Archives for Philosophy of Law and Social Philisophy1 at 16
37
Leslie Green, ‘Positivism and Conventionalism’ (1999) 12 Canadian Journal of Law and Jurisprudence 35 at
p.36
law and morality are separated. We see their union everywhere. We prohibit sex
discrimination because we judge it immoral; the point of prohibiting it is to enforce
and clarify that judgment, and we do so by using ordinary moral terms such as “duty”
and “equality”.38
It appears from the above quotation that conceiving the “separability thesis” is fundamental
in getting at the true position of legal positivism. A literal approach to Hart can thus lead to
an oversimplified but silly conclusion that law and morality must be kept separate. Green’s
concerns about the proper conception of the separability thesis of legal positivism are
elsewhere echoed by Joseph Raz. Arguing in his book The Authority of Law, Raz suggested
that there is a possibility to maintain a logical independence of the separability thesis from
the idea that legal systems contain positive law: “The claim that what is law and what is not
is purely a matter of social fact still leaves it an open question whether or not those social
facts by which we identify the law or determine its existence do or do not endow it with
moral merit. If they do, it has of necessity a moral character”.39 Logically, if it is taken that
positivist conception of the nature of law is simply predicated on social facts, it appears
crude to suggest that such social facts are bereft of any moral content. Running such a
conclusion is to risk the presumption that all social facts by which law can be identified or
its existence determined do not have any moral virtue. Such a position John Gardner claims
will be “absurd and no legal philosopher of note has ever endorsed it”.40
We need to dig deep into the literature to understand such an essential qualification of legal
positivism. Owen Fiss will have us belief that there is a compelling reason to jettison an
incautious embrace of the separation thesis. In Objectivity and Interpretation41 he suggests
two reasons that can whittle down the positivist commitment to a strict separation of law
from morals. First, he argues that judges try to give meaning and expression to public values,
embodied in law, and that their understanding of such values is necessarily shaped by the
prevailing morality. Second, Owen argues that too rigid an insistence on positivism will
inevitably bring into question the ultimate moral authority of the legal text – the justness
of the Constitution.42 Granted that such a difficulty exists with regard to the true meaning
of legal positivism’s separability thesis, it is of no use merely to say that the debate that
revolves around it is “entirely pointless”.43 That is, we still need to articulate its position in an
attempt to understand a proper judicial commitment or role in constitutional interpretation
in a legal system. Perhaps we can better appreciate its attractiveness or otherwise in judicial
construction and enforcement of fundamental values of a constitution by looking at any
evaluative considerations that would justify making or sustaining a possible legal rule.
It has been suggested that the correct appreciation of the separability thesis requires a
clarification of three terms: connection, morality and necessary.44 These seem to be the
building blocks upon which the entire separability thesis rests. For the first two, Green
38
Leslie Green, Positivism and the Inseparability of Laws and Morals (2008) New Your University Law Review
at p.1036
39
Joseph Raz, The Authority of Law (1979) at 38-39
40
John Gardner, Legal Positivism: 51/2 Myths (2001) 46 American Journal of Jurisprudence 199 at 223
41
Objectivity and Interpretation (1982) 34 Stanford Law Review 739
42
ibid at 753
43
Klaus F. Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling, in The Autonomy of Law (Robert
P. George ed., 1996) at 120
44
Leslie Green, Positivism and the Inseparability of Laws and Morals supra at 1041
explains that law is a human institution with both internal and external relations. These
relations such as “social power, social rules and morality” define law in its relationship with
the rest of the social world.45 A connection is thus necessary between the concept of law
and all these social phenomena that help define it, and to remove law from a misleading
conception that it is naturally given. Leslie Green also rejects morality’s connection with
law, limiting his reproof only to two points. He explains that the term morality as used in the
separability thesis denounces both natural law view that “there must be moral tests for law”
and “consensus sociologists” assertion that “all legal systems necessarily embody the spirit,
traditions, or values of their communities”.46
However, in explaining the role of the necessary, he laboured to place a distinction between
contingent connection and necessary connection. While the former variable is absolute, the
latter is not, a choice he prefers. For him, the “separability thesis allows for a contingent
connection between law and morals”.47 The justification for this reading of the separability
thesis Green proposes, rests entirely on his view that Hart has given “necessity” a large and
liberal interpretation” as he fails to articulate a “firmer commitment about its nature”.48 Hart
expressly, Green argues, ‘allows for necessary truths to be contextual – that is, to depend
on the stable empirical features such as our embodiment, our mutual vulnerability, and our
morality, all of which are “reflected in the whole structures of our thought and language”’.49
Given these features of law, accepting a necessary conceptual connection between law and
morals is thus inevitable.
This claim of Green though persuasive, is conceptually problematic. In fact, it is difficult

to reconcile Green’s explanation on “morality” and “necessary”. If the contingent /necessary
connection dichotomy allows for the incorporation into law of “our embodiment, our mutual
vulnerability and our morality”,then it is difficult to accept Green’s view that the separability
thesis rejects the opinion of the consensus sociologists - that is, “all legal systems necessarily
embody the spirit, traditions, or values of their communities.” Nor can he be successful
suggesting that natural lawyers, consensus sociologists and legal positivists belong
to distinct camps as far as the debate on the nature of law is concerned. But if we end it
all here, Green may complain that he has not been faithfully read because his intention
is to fault or qualify the reading of legal positivists’ conception that there is no necessary
connection between law and morality. Though a limited natural mistake by opponents of
positivists, such a reading of the separation thesis does, in Green’s view, distorts the true
arguments of Hart. The separation thesis does not seek to indiscreetly suggest that there
can be no case where morals and law are merged. Positivists merely seek to deny as far as
that argument goes, natural lawyers’ insistence that a law must of necessity pass a moral
test. Morality, positivists in this sense argue, is not a precondition for the validity of law. The
rule of recognition, as espoused by Hart, becomes the benchmark for the validity of a law
and significantly represents a separation between questions of what the law is and what the
law ought to be.
However, it is reasonable to say that there is nothing non-positivist in the assertion that
morality may be part of law. For instance, a positivist legislating for a state can, in accordance
45
ibid
46
ibid at 1042
47
ibid
48
ibid
49
ibid at 1043
with the rules of recognition, overtly authorise a particular law to be predicated on morality.
Alternatively, there can be an explicit authorisation by a positivist legislator that a certain law
be made to pass a moral test. “If the rule of recognition asserts that morality is a condition
of legality, them morality is a condition of legality in that system. If the rule of recognition
incorporates no moral principles, however, then no such principles figure in the criteria of
legality”.50 This will not be antithetical to the positivist thesis concerning the separation
between morality and law so long as it is done in accordance with the socially accepted rule
of recognition. Positivism is not contradicted by clear constitutional provisions incorporating
some critical moral rules of a society. However, positivists will not argue that the necessary
validity of these constitutional provisions with some moral content rests solely on the fact
that they have encapsulated some morality recognised by the society. That is, the moral
worth of these constitutional provisions may not exclusively hold the key to the critical
question of their necessary legal validity.
On the contrary, the fundamental requirement of their legal validity may lie in their conformity
with the officially accepted rules of recognition, simpliciter. It is therefore not correct that
in every case, law must necessarily connect with morality. While this understanding has
its appeal, it in fact begs a further critical question, which is that there is a possibility for
a modern constitutional democracy such as Ghana to consistently enact laws with moral
contents. That is, the rule of recognition can provide that Acts of parliament or even a
written constitution as laws must have some moral content. In such a case, there can be
no difference between positivism and the natural lawyers with regard to the substantive
moral ends of law. Laws enacted in such a state in compliance with this rule of recognition
will definitely have some moral content, an objective the natural lawyers forcefully argued
for. The possible concurrence of the two theories on this point thus lies in the fact that the
validity of the laws promulgated in this example depends both on meeting procedural
requirements – rules of recognition-- and content prescription – morality.
It maybe doubtful though how such reading of positivism answers all charges leveled
against it by its opponents. The fact that morality and law can merge and do merge
sometimes does not fully provide any counter arguments to the contention that they must
necessarily and always meet. According to Klaus, if the law complies with morality, then
it does so only contingently because of certain factual circumstances, but not for intrinsic
moral reasons.51 The major motivation for the separation thesis seems to be muddled in
the distinction between the rationale for the separation, and the content of the law from
which morality must necessarily be separated. In that case, any definition or conception
of the nature of law must be morality-free. Nonetheless, a possible empirical identification
of morality in law as to suggest their possible congruence does not sufficiently answer
the question that hinges on the motivation for the presence of morality in law. That is, the
rationale or reasoned motivation for the inclusion of morality in law is not justified by the
mere presence of morality in law or the contingent case of law’s content being fused with
morality. What the opponents of positivism want to see is that morality is made part of law’s
content because of its intrinsic value.
It is equally the case that the separation thesis attracted fierce opposition from positivists’
opponents because Positivism, still at its core, leaves open the possibility of the moral
50
Jules Coleman, The Practice of Principles (2001) at 108
51
Klaus F. Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling at 126
content of a law to depend on the idiosyncrancies of the legislator. The necessary connection
between law and morality may be contingent upon the personal desires of the legislator or
the general consensus of persons responsible for law-making. The positivist will insist that
a law is law once duly posited by the appropriate authority following the officially accepted
rules of recognition.52 It matters little if such a law is bereft of any moral virtue. Partly, it is this
apparent or real gap in positivist thought on the nature of law, which provokes the healthy
debate between positivism and its opponents.
If the rule of recognition is religiously followed in enacting a particular law, then one is
precluded from investigating the normative moral content of such a law in the course of
determining its validity as law. [But of course Hart and other positivists say that we can
still investigate the moral content of the law to decide, not its validity as law, but its moral
authority for us; and if we think that a valid law is morally repugnant, we can decide to
disobey it (and suffer the legal consequences).] The nature of the law is conclusively provided
for by following the rules of recognition.
The obvious danger associated with such reasoning as made possible by positivism provides
the grounds for its opponents attack on it.53 Tom Campbell views legal positivism not only
as false, but also a pernicious theory of law which protects entrenched interests and renders
courts less than responsive to changing social needs and the wellbeing of oppressed groups
within society.54 It blinds people to the true nature of law and perhaps its influence in
social life.55 Radbruch charged that positivism misleads and corrupts people as it weakens
resistance to state tyranny or absolutism.56 There would be laws as can be exemplified by
those in apartheid South Africa and elsewhere that will trench upon the moral rights of
individuals yet will remain as valid laws57. It is obvious that the injustice of such laws though
cannot be fully masked by the positivist rule of recognition, would prevail. If these charges
stand illuminating on the unattractiveness of positivism in accounting for the true nature
of law, visiting the natural lawyers’ camp for possible better ideas is apt. How attractive and
52
This has to some extent the outlook of Hans Kelsen notion of a higher law which must exist to validate all
laws. But it appears we cannot do without some circularity to explain the validity of law by reference to another
in a pure Kelsenian sense, an exercise that may be largely be contemplated by Hart. See Hans Kelsen, The Pure
Theory of Law, trans. M. Knight (Berkley: University of California Press, 1967)
53
Postema sees Hart’s theory in this light; “At bottom, his claim is that the authority of criteria of validity
ultimately rests not on the justice, correctness, or truth of the criteria as a matter of critical morality, but rather
on convention”. G. Postema, Coordination and Convention at the Foundations of Law (1982) 11 Journal of
Legal Studies 165 at 171
54
Tom Campbell, Prescriptive Legal Positivism: Laws, Rights and Democracy (UCL Press, 2004) at p.23. See
also RW Gordon, ‘New Developments in Legal Theory’, in D. Kairys (ed), The Politics of Law (New York:
Pantheon, 1982)
55
Friedmann, Legal Theory ed. (1953) at 295
56
Radbruch, Dei Erneuerung des Rechts, 2 Dei Wandlung (Germany, 1947)
57
Example of such apartheid South Africa legislations or laws are: Prohibition of Mixed Marriages Act, Act No
55 of 1949(Prohibited marriages between white people and people of other races); Group Areas Act, Act No 41
of 1950(Forced physical separation between races by creating different residential areas for different races);
Bantu Building Workers Act, Act No 27 of 1951(Made it a criminal offence for a black person to perform any
skilled work in urban areas except in those sections designated for black occupation); Prevention of Illegal
Squatting Act, Act No 52 of 1951( this allows the Minister of Native Affairs the power to remove blacks from
public or privately owned land and to establish resettlement camps to house these displaced people); Native
Labour (Settlement of Disputes) Act of 1953(made strike action by blacks criminal); and Reservation of Separate
Amenities Act, Act No 49 of 1953(Forced segregation in all public amenities, public buildings, and public
transport with the aim of eliminating contact between whites and other races) “
successful are they in addressing the question: what is the nature of law in a modern state?
d. The Natural Law Account of Legality and the Procedural Value of Fuller’s Internal
Morality of Law
Writing in 1958, Fuller in his article Positivism and Fidelity to Law – A Reply to Professor Hart
provides one of the most sustaining outlines of attack on positivism in these words: “...we
assert that under some conditions the same conception of law may become dangerous,
since in human affairs what men mistakenly accept as real tends, by the very act of their
acceptance, to become unreal.”58 That is,the positivist conception of the nature of law may,
in Fuller’s opinion, lead to “series of definitional fiats” culminating in seeing law as nothing
but “the command of a sovereign, a rule laid by a judge, a prediction of the future incidence
of the state force, a pattern of official behaviour”.59 This does not serve the ideal of the fidelity
of law. A deserving loyalty to law is contingent upon the recognition that it must represent
a human achievement, not as a simple fiat of power or repetitive pattern discernible in the
behaviour of state officials.60 Fuller further reasoned that the separation thesis as espoused
by Hart makes it possible for the most perverted regimes to write cruelties, intolerances and
inhumanities into law and does not adequately capture the needed hesitancy that morality
will demand of law in order to exclude these evils from our laws.61 We can have a better
appreciation of Fuller’s position as regards the necessary mergence of law and morality
from his articulation that:
“To me there is nothing shocking in the saying that a dictatorship which clothes
itself with a tinsel of legal form can so far depart from the morality of order, from the
inner morality of law itself, that it ceases to be a legal system. When a system calling
itself law is predicated upon a general disregard by judges of the terms of the laws
the purport to enforce, when this system habitually cures its legal irregularities, even
the grossest, retroactive statutes, when it has only to resort to forays of terror in the
streets, which no one dares challenge, in order to escape even those scant restraints
imposed by the pretense of legality – when all these things have become true of a
dictatorship, it is not hard for me, at least, to deny to it the name of law”62
There is a concern here that a legal system is best described as a dictatorship if its laws fail
to encapsulate morality. For this, Fuller suggests a notion of an“inner morality of law” as
the precondition for the validity of law. The inner morality of law represents a normative
account of the nature of law that counters legal positivism, saving individuals from the
problems associated with the idea of the separation of law from morality. Fuller uses the
inner morality of law to argue that no positivist laws can be self-executing as they must
be dependent on meeting moral values at the core of the peoples’ beliefs. ‘No written
constitution can be self-executing. To be effective it requires not merely the respectful
deference we show for ordinary legal enactments, but that willing convergence of the effort
we give to moral principles in which we have an active belief. One may properly work to
amend a constitution …this amounts to saying that to be effective a written constitution
58
Fuller L.L., Positivism and Fidelity to Law – A Reply to Professor Hart 71(1957-58) Harvard Law Review
630 at 631
59
ibid
60
ibid at 632
61
ibid at 637
62
Ibid at 660
must be accepted, at least provisionally, not just as law, but as good law.’63
Fuller’s internal morality of law does not, apparently, contemplate any appeal to a higher
moral law. He does not necessarily and completely join the traditional natural law camp
that advocates that law must concur with a higher law of God discoverable by reason. It
may therefore be a mistake to understand Fuller as advocating a substantive natural law,
with substantive moral principles. In fact, Fuller’s position could be conceived as one that
perceives “law as the morality of order, a functioning order”.64 His concern is better reduced
to a procedural, as opposed to substantive, notion of natural law. In his book The Morality
of Law, Fuller develops a better argument for the internal morality of law by naming eight
conditions that a law must meet. Perhaps the primary aim is not only to create for himself
a procedural conception of natural law, but also to articulate a nature of law as the morality
of order. An effective law with a moral justificatory force must be consistent, unambiguous,
clear, not impossible to obey, and so on. A prima facie obligation to obey a law is thus
contingent upon the said law meeting these a priori moral conditions.
By implication if Fuller is taken as rejecting the separation thesis espoused by Hart, he is to

be understood in this procedural sense. His sense of morality is limited to the desiderata he
names as grounds for a valid law. It is nevertheless unclear to me what could be the fate
of an iniquitous law that meets the requirements of Fuller’s internal morality. More so, if
the necessary validity of law is dependent upon its procedural intrinsic value (and not its
higher moral end), it may be difficult to make a substantive theoretical distinction between
Hart’s ‘rules of recognition” and Fuller’s “internal morality desiderata”. We are at this cross-
roads understanding Fuller without a conceptual hitch due to his failure to articulate any
sustaining meaning for the eight named conditions of the internal morality of law. It is open
to us to associate to any of the conditions our views as what they each stand for. This dry
approach adopted by Fuller precludes us from concluding that his internal morality has a
fixed and substantive grounding as to allow an unqualified association of law to substantive
moral principles.
However, it may seem too simple to read Fuller this way. Confused or loose as his conception
of the nature of law may appear, it is wrong to pitch him in Hart’s camp. The two are completely
different even if they seemingly converge on their procedural prescription. The bearing of
Fuller’s procedural notion of natural law separates him from Hart’s positivistic content of
the rules of recognition. On the account of Fuller’s eight moral precepts that defines his
internal morality of law, it is not unsafe to assert that he recognizes a limited concurrence
of law and morality as a foundation for a legal validity. Thus Fuller’s idea of fidelity of law
counsels a revision of the assertion that the internal morality of law must remain largely a
morality of aspiration and not of duty. At least, formalising his desideratum that prohibits
laws that require the impossible, lays a formidable claim to a broader and purposive reading
of his thesis as demanding a unity of law and morality that “regards persons as free, self-
determining and responsible agents, and that they possess inherent dignity in virtue of
their autonomy”.65
63
Ibid at 642
64
Michael Martin, The Legal Philosophy of H. L. A. Hart: A Critical Appraisal (Philadelphia: Temple University
Press, 1987) at 219
65
Evan Fox-Decent, Is the Rule of Law Independent of Human Rights? 27 (2008) Law and Philosophy 533 at
551. Fuller wrote that “To embark on the enterprise of subjecting human conduct to the governance of rules
involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of
understanding and following rules, and answerable for his defaults. Every departure from the principles of the
It presupposes a moral nature of man and a moral duty not to enact laws that patently
violate such a moral nature. Among the persuasive illustrations cited by Fuller to drive home
this point is the iniquitous law of strict criminal liability, which allows for the conviction of
a person regardless of acting “with due care and with an innocent intent”.66 People subject
to such laws are burden by a demand to obey a law that is by design impossible to obey.67
The moral vice of such laws lies in their disregard to the moral nature of man and their
contempt for reason. The internal morality of law thus have substantive implications in that
it sets limits and establishes a framework within which legislation must operate, a structure
that gives law a measure of moral authority by establishing it to function as law properly
understood as such.68 The internal morality of law seeks to ‘find the good life in a life shared
with others’69 in the legal system. This requires adherence to Fuller’s eight canons of law, a
violation of which would be “a compromise of principle, an impairment of the integrity of
the law”.70
It is important to note however that the overall intellectual weight of Fuller’s exposition
on the internal morality of law to the entire project of the nature of law in a legal system
like Ghana rests on its internal influence to the law. It does not seem to suggest anything
external to the law. To the judge in Ghana, Fuller’s counsel is that he or she must focus on
the internal premises of the law in the course of understanding and expressing the meaning
of the law. The morality that must be made part of the law is internal to the law and not
anything external discoverable by judicial reasoning. This is more or less a cautionary rule
to the lawmaker as well as the law interpreter that anything does not just make law. To the
lawmaker, the eight desiderata are moral procedures in enacting the law, which recourse
must be had.
This has a close semblance to John Rawls original position – of a group of people deliberating
behind a veil of ignorance. Here in reaching an agreement on the principles of justice, the
decision makers are required to shelve their personal interests and demonstrate a willingness
to engage in rational dialogue and to universalise the principles to be agreed upon.71 Rawls
is envisioned here as speaking of morals, but we can discern in the law an insistence on an
analogous set of procedural norms to discipline the interpreter as well as the lawmaker.
Such procedural constrains internal to the law cannot lightly be dispensed with but form an
essential part of the body of law and constitute standards for evaluating the law in judicial
interpretation. The correctness of any interpretation of the validity of law is thus contingent
upon these standards.
law’s internal morality is an affront to man’s dignity as a responsible agent.” Lon L. Fuller, The Morality of Law
at 162-3
66
Lon L. Fuller, The Morality of Law (New Haven: Yale University, 1963) at 77
67
“Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a
legal rule that does not exist, or is kept secret from him, or that comes into existence only after he had acted, or
was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or
changed every minute”. Ibid at 39
68
540
69
Lon L. Fuller, The Morality of Law at 13
70
Ibid at 203
71
John Rawls, A Theory of Justice, (1971). See also for similar vision as shown by Thomas Nagel, where an
individual in order to achieve an objective perspective struggles to stand outside himself and his world. Thomas
Nagel, ‘Subjective and Objective’, in Mortal Questions 196 (1976)
If Fuller nonetheless provides us with a limited argument for uniting law with morality as
a precondition for legal validity perhaps in Ghana, it does not exhaust our quest for much
more sustaining responses to positivism on the discourse over the actual nature of law.
Fuller’s predecessors, his contemporaries and much more recent legal scholars, following
a revised natural law theory maintain that a proper account of the nature of law does not
depend on a mere description of the officially accepted process of how the law is made, but
on its intrinsic value to the entire legal system within which it is so made. Like Fuller, they
argue that certain moral considerations must thus be included in its content as the most
defining foundation for the law.
The difference between Fuller and this group of natural law theorists is that while Fuller
leans towards moral consideration with procedural ends, the others seek to combine
the procedural and substantive ends of law in defining the necessity for the inclusion of
morality into law.72 For them, uniting law and morality is not dependent upon the exclusive
ephemeral whims of the legislator, but a necessity for the legal validity of the law. Kant
saw this as the a priori conditions for law’s binding force. He regards that such conditions
are ‘the basis for any possible giving of positive laws’73 without, which Nigel Simmonds
reasoned that “we have, not law, but a simulacrum thereof.”74 Thus the account of the nature
of law is not exclusive of its moral justificatory force. The nature of law cannot be detached
from our moral understanding and any inquiry into law’s nature does not preclude us from
drawing upon our morality.75 Law is not thus merely a deliberate enactment by the ruling
class in accordance with officially accepted rules of recognition. Law is portrayed here as
a framework of rules promising and beneficially giving to the legal system the values of
human dignity and the attainment of the common good.
e. Dworkinian Anti-Positivism and Substantive Natural Law Account of Legality

One legal scholar who can arguably be understood as the successor of Fuller in leading
the attack against positivism is Ronald Dworkin. But in assuming that role, Dworkin also
seeks to distance himself from some of Fuller’s ideas. Dworkin does not accept without
question Fuller’s claims on the internal morality of law, and argues that it is possible that a
‘perfectly evil statute can be drafted with exquisite precision’76 for a particular legal system.
His complaint, it seems, may be true of some laws of Nazi Germany and apartheid South
Africa and some military decrees in Central America and Africa, which merely conform to
the formal principles of legality, thereby ignoring matters of substantive justice. On this
account, it might seem reasonable to agree with Dworkin when he posits that the principles
of Fuller’s internal morality merely reflect the requirements of legality rather than substantive
ends of law in a particular jurisdiction. The internal morality does not say anything about
whether law makers should prohibit or permit activities over which there is little national
72
Allan T.R.S., Constitutional Rights and Common Law 11 (1991) Oxford Journal of Legal Studies 453;
Kenneth I. Winston, Is/Ought Redux: The Pragmatist Context of Lon Fuller’s Conception of Law 8 (1988)
Oxford Journal of Legal Studies 329; AndrásSajó, Reading the Invisible Constitution: Judicial Review in
Hungary 15 (1995) Oxford Journal of Legal Studies 253; and Richard H. Fallon, Jr. Legitimacy and the
Constitution 118 (2005) Harvard Law Review 1787
73
Immanuel Kant, Metaphysics of Morals (1797), translated by Mary J Gregor, Practical Philosophy: The
Cambridge Edition of the Works of Immanuel Kant ( Cambridge: Cambridge University Press, 1996) at 6:229
74
Nigel Simmonds, Law as a Moral Idea ( Oxford University Press, 2007) at 3
75
ibid at 4
76
Dworkin, Ronald, Philosophy, Morality, and Law: Observations Prompted by Professor Fuller’s Novel Claim
113 (1965) University of Pennsylvania Law Review 672
consensus77 such as contemplated laws on marital rape in Ghana or military decrees

endorsing incarcerations of persons without recourse to the law courts or obeisance to the
established principles of the rule of law and constitutionalism in the Abacha’s Nigeria.
Dworkin’s criticism may be illustrated with this scenario: Suppose a truly wicked tiny band
of military buccaneers in Ghana has captured political power through a bloodless coup d
etat. Suppose further that this group of individuals are nothing but corrupt and rent seeking
persons committed to amassing wealth at the expense of the people but in accordance with
the internal morality of law. As a result, laws are enacted with precision. It follows that the
power holders in this state are able to achieve their selfish objectives by amassing wealth
and consequently run the people into abject poverty. Suppose that the level of successes
achieved in ruthlessly exploiting the people is occasioned by such precision in the law by
following the internal morality of law, and the substantive injustice brought about here may
thus have a causal connection with adherence to the internal morality.78
In such a situation, the difficulty in the hands of Fuller is to distance himself from the wicked
exploits of such individuals. How can Fuller say to us here that a proper account of his
internal morality of law does not lead us to the example just painted? A possible window
for Fuller to escape such a criticism is perhaps to demonstrate that the laws made by such
a military junta are incapable of obedience. Laws that are inherently contradictory and are
impossible to be followed by the people are not laws within the framework of Fuller’s eight
moral procedural precepts. But if the laws are capable of being followed and met all the
requirements of Fuller’s precepts, yet represent substantive injustice, Dworkin’s criticism
which presumes this will hold good.
Perhaps this illustration of Dworkin’s criticism of Fuller fundamentally highlights Matthew

Kramer’s assertion that for reasons of effective control, a despotic government can attain
wicked ends through compliance with these precepts of legality.79 This view, if accepted,
would mean that Fuller’s internal morality of law holds little or no intrinsic moral value. There
may be an instance of substantive injustice to humanity without necessarily breaching
procedural regularities.80
Note however, that Kramer’s observation may concur with Dworkin’s criticism of Fuller, but
the two are jointly poles apart with John Finnis’s assertion that tyranny denoted to pernicious
end would have no reason to submit itself to the discipline of operating consistently through
the demanding processes of law. Finnis by this view does not see how the process of legality
can be of use to a despot whose aim is evil. The despot can just go straight to the evil end
without necessarily following some processes of legality. Nevertheless, the distinction in
methodology and end of the analysis between Finnis on one hand and Dworkin and Kramer
on the other may be accounted for by the legal regimes considered as the focal point of
analysis. While Dworkin and Kramer had within their contemplation a decent political order,
Finnis had the opposite.
Regardless of these differences, it is reasonable to suggest that all illustrative criticisms,
77
539-40
78
This is an example take from the work of Evan Fox-Decent, Is the Rule of Law Independent of Human Rights?
79
Matthew Kramer, In Defence of Legal Positivism: Law Without Trimmings (1999) at 63-71
80
Allan T.R.S., Constitutional Justice: A Liberal Theory of the Rule of Law at 73
obviously point to some gaps in Fuller’s internal morality theory and that it needs some
anchor somewhere without necessarily writing it off. The principles of procedural fairness
and certainty at the core of Fuller’s internal morality are too important to be disregarded in a
constitutional regime like Ghana and one may thus maintain as incomplete, but not jettison
completely, Fuller’s internal morality, with a view to supplementing it with a substantive
account of law that has an intrinsic moral value. It may equally be sound to suppose that
Fuller’s procedural moral precepts make perfect sense when placed within the context of
constitutionalism, as a legal ideal of a modern constitutional regime. Procedural certainty
in the formulation and application of law is vital for formal equality and human dignity.81
Individuals would receive a clear warning in respect of the demands and penalties of law
and government functionaries are expected to follow clear rules in making and enforcing
the law. This procedural certainty and predictability accords the individuals with some
sense of formal equality and dignity. Law in this light is seen, as Trevor Allan suggests in
his reading of Fuller,as a co-operative endeavour between rulers and ruled as government
shows willingness to conform to procedural constraints imposed by the law.82
Be this as it may, it is nevertheless true that the potential dangers as illustrated above make
Dworkin hold Fuller’s internal morality of law account problematic. In other words, the
internal morality alone does not adequately explain and justify limits on morally permissible
content of law. Dworkin has to make such criticisms on Fuller in order to stay consistent
with his attack on positivism’s ‘unacceptable account of the logic of legal standards’83. Even
so, both Fuller and Dworkin are not poles part on the necessary connection of morality
and law. Unlike positivism and like Fuller, Dworkin does not think that there is any sharp
distinction between law and morality. It is not correct, he suggests, pitching in distinct
separate camps what is a legal principle and what is a moral principle. Dworkin reasons that
a moral principle in circumstances of hard cases can also be regarded as a legal principle.
He makes this central to his conception of “the soundest theory of the law”. To justify the
amalgamation of legal and moral principles into an apposite conception of the nature of
law, Dworkin argues that ‘a principle is a principle of law if it figures in the soundest theory
of law that can be provided as a justification for the explicit substantive and institutional
rules of the jurisdiction in question’.84
But Dworkin has to articulate a better theory for this. In The Model of Rules,85 an article
published in 1967, Dworkin remarkably extends the criticism of positivists’ account of the
nature of law for dwelling on merely legal rules. He says in legal reasoning, especially in
hard cases86 where pre-existing rules run out, judges and lawyers rely on standards that are,
strictly speaking, not rules but principles. Such principles, Dworkin argues, work to provide
81
Ibid at 62
82
Ibid at 7
83
Ibid at 687
84
Dworkin, Ronald, Taking Rights Seriously at 66
85
Dworkin, The Model of Rules, 35 (1967) University of Columbia Law Review 14, reprinted in Law, Reason &
Justice3 (G. Hughes ed. 1969), and as Is Law a System of Rules?, in Essays in Legal Philosophy (R. Summers
ed. 1968) [hereinafter cited as Model of Rules]
86
To Philip Soper, the term hard cases “refer to real gaps or lacunae in a legal system, in the sense that legal
standards fail to say anything at all about whether challenged conduct is permitted or prohibited”. Philip Soper
E., Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute 75 (1976-7) Michigan Law Review
473 at 484-5. See also Stone, Non Liquet” and the Function of Law in the International Community,35(1959)
The British Year Book of International Law 124
only a pro tanto reason for a particular legal conclusion as opposed to the legal rules that
are applied in an all-or-nothing fashion. The principles only operate as a guide in legal
reasoning in hard cases towards a certain direction, but do not command or necessitate a
particular conclusion. In Dworkin’s own words, a principle only “states a reason that argues
in one direction”.87 That is so because it is possible for two or more principles to conflict
and if principles would have to dictate a particular conclusion or decision, it presupposes
that nothing can be done in the event of a conflict between two competing principles.
Understandably, Dworkin has to deny certainty in outcome, in the application of principles
in order to give meaning to his suggestion that conflict of principles warrants weighing or
balancing of the relevant principles to determine which of them has the greatest weight
in those circumstances. The aim of Dworkin, it would seem, is to have us denounce the
positivist central tenets that rest on the claim that valid legal rules are exhaustive of law, and
that a case which is not covered by a valid legal rule must be resolved through the exercise
of discretion.
Nonetheless, Dworkin is careful not to be seen as suggesting that written rules or

constitutions are not necessary. After all, his analysis of the American legal system privileges
the written text of their Constitution without necessarily discounting the application of
principles not explicitly stated in the text. To make sense of this, Dworkin proposes some
steps for the judge. First, in a hard case, the judge, in answering a legal question dictated
by the case, has an obligation to explain how his decision is to be affected by the explicit
law, a step which confirms Dworkin’s belief in written laws. In order words, the judge must
show by way of explanation how his chosen answer to the legal question best explains the
explicit law. The answer, Dworkin argues, must be an expression of the explicit law, but not
in the sense of rigidly following precedents or the framers’ intent as the conventionalist
would suggest. To him, the answer must fit a threshold test, which is the proper explication
of the enacted law. However, Dworkin also recognises that there is a possibility that there
are many constructions of the law or arguments on the demands and nature of law to fit this
threshold test. If multiple well considered arguments fit this test, what will the judge do?
At the core of this seemingly confusing question lies the scheme of Dworkin’s second step.
He proposes that the judge that faces such dilemma must make a reasonable justification
for preferring one construction of the law to the other. The judge’s trump card is the best
moral justification of the overt law. The role of this best moral justification is to make the law
reasonably sound.
Relying on these two steps, Dworkin’s attempt to have moral and legal principles united in
a conception of the nature of law, at least in hard cases, can be seen as being driven and
soldered by two words: explanation and sound- justification. The judge not only explains
but does so with the best moral justification at sight so as to make the law in the case at
hand sound in light of the entire legal system.88 Dworkin claims that the reach of legal duty
extends to cases that are not resolved by any socially accepted rule of recognition. A judge
deciding difficult cases must as a matter of law undertake (implicitly or explicitly) a complex
exercise in interpretation, seeking to develop and apply the soundest theory of law.89
87
Dworkin, The Model of Rules at 26. See also Dworkin, Social Rules and Legal Theory 81 (1972) Yale Law
Journal 855and Dworkin, Hard Cases,88 (1975) Harvard Law Review 1057
88
Dworkin, Ronald, Law’s Empire (London, 1986)
89
Kent Greenawalt, The Rule of Recognition and the Constitution at 626. See also Dworkin, Taking Rights
Seriously at 46-130, and the Law’s Empire (1987)
This constitutes the principled basis of law and must be central in determining the question
on the nature of law. The two steps outlined however, should not gesture to the conclusion
that Dworkin supposes law as a combination of both ‘explicit legal materials and the
principled basis of the material’.90 Conversely, the explicit legal materials are the legal data
which have to be accounted for in deciding what law is.91 His notion of moral principles
such as justice and fairness seem to be firmly implanted in and within the framework of the
explicit law, and the determination of the question as to what law is settled by examining
the implication that these principles have in a given case. Dworkin therefore thinks that an
adoption of this conception of law will lead to morally superior legal practice and ‘law will
in fact approximate more to the substantive standards of morality already embodied in the
law’.92
Nevertheless, Dworkin’s closely allied concern is on an unrestrained discretion to be used

by the judge.93 He says this is possible due to positivists’ limitation of law to only valid legal
rules. To avoid that, principles, in Dworkin’s view, must count as legal norms and will fill in
the gap in the event, where valid legal rules run out. In such cases, the principles become
binding legal norms and will operate to constrain the open discretion positivists accorded
judges in such situations. But Dworkin also seeks the understanding that such principles
will not just be principles, but partly because of their moral merit to the legal system, rather
than through positivist styled rule of recognition. However, the rule-principle distinction
developed in this article has attracted a number of responses from positivists. They claim
that Dworkin does not say anything relevant to counter positivism and that it is possible to
have the principles suggested by Dworkin as part of the law.
Joseph Raz in particular thinks that if the legal principles are not incorporated into the
social sources of law, then they simply can be regarded as extra-legal resources upon which
judges can draw to make new law.94 Dworkin in turn responded in Law’s Empire with a
more developed theory, arguing that the positivist approach is guilty of using what he
calls a semantic sting. He says that positivist account of law as limited to rules identified
by a rule of recognition is not theoretically sustainable. He says judges who are part of the
body of legal officials disagree even on the criteria as what counts as law. He sees law as an
interpretative concept, which is an expression of the narrow explicit rules slavishly followed
by the positivists and more broadly, the scheme of principles necessary to justify them.95
His notion of law as integrity commands a horizontal rather than vertical consistency of
principles across the range of legal standards that a legal system should enforce.96 This
requires judges to have a constructive and coherent view of the law that gives it the best
moral light to the legal order.
III. Law and Judicial Duty: The Unwritten Fundamental Law

As shown above, there are a number of competing visions of judicial duty in a state. The
root of these visions stems from the varied accounts of the nature and cosmopolitan ideals
90
David D, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy
(Clarendon Press: Oxford, 19991) at 27
91
Ibid
92
Ibid at 28
93
See Dworkin, Judicial Discretion60 (1963) Journal of Philosophy 624
94
Raz, The Authority of Law at 45
95
Dworkin Ronald, Law’s Empire (Harvard University Press, 1986) at 227
96
Ibid
of law. Typical of the common law is the contention that the judge must decide all cases in
accordance with the law. In the 17th century, a section of English lawyers had argued that
deciding cases in accord with the law meant that judicial discretion was limited. Their brand
of limited judicial discretion was of a kind. To them, judges, in the discharge of their duties,
could not question the validity of Acts of Parliament. But this was not without a controversy.
In fact, certain common lawyers argued that law was not to be narrowly conceived, and
that it fell to judges, when applying law, to expound reason, justice and the customs of
the realm. Judicial duty in this sense meant that judges had to do justice as defined by the
law, but in accord with reason and the custom of the land. Indeed, law, as the embodiment
of natural reason and ancient custom, was seen as independent of and superior to both
judicial and legislative will. It followed, from this conception of judicial duty, that arguments
about the moral, and hence legal, propriety of enacted law were possible. This view thus
discounted apolitical absolutist version of law as nothing but the expression of the political
process regardless of its fidelity to the realm and its traditions and values.
This judicial duty to uphold law against even the legislature was sometimes traced to judicial
oaths and thus was seen as intimately connected with the expectations and social demands
of the judicial office. Henry Finch in a classic account following Cicero’s De Office stated that
“office is a duties of attendance upon a charge”.97 In a similar vein, Coke underscores the
linkage between duty and office by stating that “Offices are duties, so called, to put the
Officer in mind of his duty”.98 Little effort is for that reason needed in this case to establish a
relationship between the duty of a judge and his office. The office in part, helps define his
constitutional responsibility, as the law sharpens the needed awareness of this responsibility.
English judges were therefore directed to do that which pertains to justice as dictated,
defined or was reasonably contemplated by the law of the land.99 Judicial duty does not
mean that judges may do anything merely on the basis of their personal desires, transient
whims or premonitions, but ‘that which by law they know to be right.’100
Similarly, in modern constitutional democracies like Ghana, judicial duty has [some]
[significant prominence and value. It is, like the medieval case of England, an investiture
of a constitutional responsibility in the judge to interpret and enforce law in a manner
conformable to the character of the nature of law as defined or contemplated by the
constitution. Obeisance to this duty is necessary in order to protect liberty and freedoms
of the people. At the same time, care must be taken to avoid instances of the legislature
and executive arms of government derisively departing from the recognised fundamental
values of the people. Writing in 1681 Gilbert Burnet sounded an important warning as well
as the most penetrating exhortation in this respect as that “he that holds the high office of
the Judiciary” was “the Chief Trustee, and Assertor of the liberties of his Countrey”101.
A similar view, notably from the English bench, was expressed by Lord Falkland when
English Parliament impeached judges in the Shipmoneycase. Speaking in defense of liberty
and property rights of the English people, Lord Falkland stated that “the Constitution of
the Commonwealth hath established, or rather endeavoured to establish to us the security
of our goods, and the security of those laws which would secure to us and our goods, by
97
Henry Finch, Law, or, a Discourse Thereof, (London: 1627) at 162
98
Coke, Institutes, 3: 185
99
Coke, Institutes, 2:51
100
Giles Jacob, Law Dictionary (London: 1732)
101
Gilbert Burnet, The Life and Death of Sir Matthew Hale (London: 1681) 91
appointing for us judges, so settled, so sworn, that there can be no oppression”.102 This is
equally important for modern states in Africa. The elevated concerns of law in a modern
constitutional democracy would thus encapsulate a judicial duty to interpret and enforce
the constitution as pertains to justice, human well-being and the protections of liberty
and freedoms. There is a presumption that the judicial duty empowers the judge to take a
coherent and functional view of the law that allows recourse to reason and the fundamental
values, properly understood, of the people. Written constitutions in their modern sense only
gave greater, but not exhaustive, prominence and account to these fundamental values of
the peoples, and judges have an obligation to make them all inclusive by casting wide their
judicial spectacles in the discovery and application of such values.103
It matters little that a written constitution has expressly settled all questions of enactment,
intent, formality and clarity. The conscience of the fundamental law must still be respected.
In other words, the ideals of law as encapsulated in the written constitution must discreetly
be of such a nature as to give or promise justice and fairness, and respect to reason, human
dignity, and well-being. Any other law that contradicts this shall to the extent of this
contradiction be held void by the judiciary. In the Rhetoric,104 Aristotle drew a distinction,
for the sake of a normative value, between written law and unwritten law and that every
community has both laws. For the latter, he casts it as the commanding equitable principles
that are “supposed to be acknowledged everywhere”105. It is virtuous, Aristotle advises, for
lawyers to respect authority when the written law supports their case and forsake the vice
by not “trying to be cleverer than the laws”106.
Nonetheless, when the law disfavours their cases, lawyers have an obligation to appeal to
“the universal law, and insist on its greater equity and justice”107. The value of this Aristotelian
exhortation lies in the recognition that a community’s political as well as legal make-up
necessarily includes an unwritten fundamental law, capable of remedying the potential
rough edges of written law. It introduces into constitutional discourse the imperatives
of not recognising a formally enacted constitution as the exclusive source of judicially
enforceable law.108 A legitimate part of constitutional governance would thus require judges
to implore normative content of this unwritten fundamental law in matters of constitutional
adjudication. The entire focus of this aspect of the judges’ work rests on the assumption that
notions such as natural justice and human dignity are shared by the people. Otherwise, this
conception risks the opposition of those who doubt the capacity of judges to discover these
values without a necessary reference to the written law.109
a. The Traditional Roots of the Unwritten Fundamental Law
102
Speech of Lord Falkland, in State Trials 3:1260
103
See Emlin McClain Unwritten Constitutions in the United States 15 (1902) Harvard Law Review 531;
Herbert Pope The Fundamental Law and the Power of the Courts 27(1913) Harvard Law Review 45; Thomas
Poole Back to the Future? Unearthing the Theory of Common Law Constitutionalism 23 (2003) Oxford Journal
of Legal Studies 435 and Susan Sterett Constitutionalism and the Common Law--Nineteenth Century Social
Welfare in the United States 17 (1997) Oxford Journal of Legal Studies 587
104
Aristotle, Rhetoric in The Basic Works of Aristotle (R. McKeon ed. 1941)
105
Aristotle, Rhetoric at 1359
106
Ibid at 1375
107
Ibid at 1374
108
Thomas C. Grey, Origins of Unwritten Constitution: Fundamental Law in American Revolutionary Thought
30 (1978) Stanford Law Review 843 at 844
109
Ibid at 845
Like any other law, rule or regulation, unwritten fundamental law may have a form or
content, though indefinite. In both the medieval era and the recent past, courts of common
law jurisdiction have implied this principle in their decisions.110 In its traditional sense it has
three constituents: it is legally supreme and binds all organs of government; it is unwritten,
as its content is derived from sources external to enactment, for example, in custom and
usage or natural justice and reason, and, lastly, it is to some extent judicially enforceable,
even against express acts of the legislative and executive arms of government111 and judges
may declare statutes repugnant to this law to be void and unenforceable.112 These separate
propositions in part reflect Blackstone’s description of the normative force of the unwritten
common law as “their original institution and authority are not set down in writing, as acts
of parliament are, but they receive their binding power, and the force of laws, long and
immemorial usage, and by the universal reception throughout the kingdom”.113 Strictly, it
is only the second component of the normativity of fundamental law as above-mentioned
that comes within the purview of Blackstone’s assertion – that fundamental law is unwritten.
Blackstone does not seek to suggest that every unwritten law is fundamental law but could
plausibly be implied to mean that some unwritten laws are fundamental laws though other
parts of Blackstone suggest that he did not think unwritten fundamental law could be used
by judges to invalidate Acts of Parliament.
It has been suggested however, that it is not a requirement that all these separate components
of unwritten fundamental law be simultaneously present in order to validate a particular
unwritten rule as a fundamental law. As Mark Walters expressively notes, it is reasonably
possible to accept the validity of one proposition and deny the others. Mark wrote:
“For example, one may accept - as the courts traditionally have done – that the
prerogative powers of the Crown are common law constitutional powers, but still
deny that these powers are supreme and therefore beyond parliamentary authority.
One may also accept the first two propositions but refuse to accept the third: one
might accept that statutes repugnant to fundamental unwritten law are legally void
but conclude as well that they must be judicially enforced until political actors or
institutions direct otherwise. Finally, one may accept a full-scale theory of justiciable
and supreme lex non scripta according to which statutes repugnant to fundamental
unwritten norms are void and courts have the authority to refuse to enforce the
offending statutes”114
The first and second of the three examples quoted above are uncontroversial. Unwritten
law can confer certain privileges on a class of public officials without necessarily holding
110
See some cases decided by the Supreme Court of Canada: New Brunswick Broadcasting Co. v. Nova Scotia
(Speakers of the House of Assembly) [1993] 1 S.C.R. 319(it was held that an express provision of the Canadian
Charter does not operate to preclude the exercise by provincial legislative assemblies of their parliamentary
privileges); Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3, and
Reference re The Secession of Quebec, [1998] 2 S.C.R.217
111
Ibid at 850
112
Mark Walters, The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law
51 (2001) University of Toronto Law Journal 91 at 96
113
Sir W. Blackstone, Commentaries on the Laws of England vol.1 (Oxford: Clarendon Press, 1765; reprint,
Chicago: University of Chicago Press, 1979) at 63-64 paraphrasing Sir M. Hale, The History of the Common
Law of England, 2d ed. (London: John Walthoe and Son, 1716) at 22-3
114
Mark Walters, The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law at
96
that such rules are supreme in the face of enactment. It is not just sufficient to suggest that
such rules are supreme by virtue of the fact that they form part of a collection of unwritten
law recognised over time and applied by courts and officials. Nevertheless, it may appear
problematic to accept the second example - one might accept that statutes repugnant to
fundamental unwritten law are legally void but conclude as well that they must be judicially
enforced until political actors or institutions direct otherwise. Accepting this example, first of all,
may imply that one does but lightly care about the distinction between a mere unwritten law
and unwritten fundamental law implied in the first example. In fact, the first example seeks
to suggest that there may be an unwritten rule governing the conduct of governmental
business without necessarily implying that such a rule is fundamental or supreme. Central
to this is the view that “fundamentalness” is a necessary part of the normative content of
unwritten fundamental law. In that case, if a statute is repugnant to unwritten fundamental
law, it is legally void, not voidable,and judges are thus obligated to set it aside. A requirement
that such a law though void be enforced until set aside by political actors may only conform
to the legal description of voidability of legislation. Another implication in submitting to
this example is that it may only be congruence with a particular theory of parliamentary
sovereignty – the traditional notion of parliamentary supremacy that does not contemplate
any modification on the ability and authority of parliament to make laws, and which invests
parliament with the sole authority of the last word as to the meaning and validity of a law.
Countries that are predisposed to have the fundamental law notion, embodied in their
constitutions as one of the gatekeepers of human dignity and welfare would contemplate
some sense of judicial review to invalidate laws arising from parliaments disposed to enact
wicked laws. This requires that laws repugnant to the unwritten fundamental law do not
escape the judiciary in such reviews.
In countries where sovereignty is difficult to locate or where it is shared (e.g. federal systems),
some level of control is possible of laws made by parliament. Even the history of English
case law suggests that in some limited respect the common law can control parliamentary
acts. Coke’s obiter in Dr. Bonham’s Case115 best supports this view as he wrote: “And it appears
in our books, that in many cases the common law will control acts of Parliament, and
sometimes adjudge to be utterly void: for when an act of Parliament is against the right and
reason, or repugnant, or impossible to be performed, the common law will control it, and
adjudge such acts to be void….”116 Wide as this phraseology may appear as to suggest that
the courts can declare laws void regardless, Coke might better be understood as suggesting
that the courts will construe laws in such a manner as to bring them within the accepted
principles of reason, non-repugnancy and justice, which should underlie every law.117 Thus
it is reasonable and fair to infer that Coke did not only echo the force of the unwritten
fundamental law in this quotation, but that he also suggested that there is and should be
little chance of judges having to enforce an Act of Parliament which is manifestly repugnant
115
Bonham’s Case (1606), 8 Co.Rep. 114
116
Ibid at 118. Repugnancy was conceived (and should be conceived of) in various ways but with similar
conclusion. Plucknett said that it is something that is “distasteful to the court”. Bonham’s Case and Judicial
Review 40 (1926-27)Harvard Law Review at p.32. Professor Thorne posits that repugnancy meant self-
contradiction and suggests further that that was the sense in which Coke used it in Bonham’s case. The
Constitution and the Courts: a Re-Examination of the Famous Case of Dr. Bonham 54 (1938) Law Quarterly
Review 543 ff. Coke himself goes for unreasonableness as the meaning of repugnancy. In Rowles v Mason 2
Browlow p.198 Coke wrote: “If there be repugnancy in the statute or unreasonableness in custom, the common
law disallows and rejects it, as it appears by Dr. Bonham’s Case”
117
Gough, Fundamental Law in English History at 35
to the unwritten fundamental law.
Additionally, one may also understand this obiter to mean that there could be a logical
distinction between the possibility to implement, whether or not it is capable of performance,
an enacted repugnant rule and not to seek to have such a rule judicially enforced even if it is
capable of performance. The first set of examples arising from countries with Parliamentary
supremacy best fits Walters’ example, and perhaps works exclusively with the authorisation
and consent of the prevailing political power in Parliament. An enacted repugnant law
or rule will be valid and operative unless, it is being changed, altered or repealed by the
politicians, and the evil it remits has nothing to do with its successful implementation. In
such a case one might not need the judiciary to command the obedience of a person, since
its implementation may largely be in the hands of civil servants or the police and with a
different form of enforcement mechanism. The second category of example sets in when
the judiciary is being called upon to have such a law enforced as a result of a challenge
to its moral propriety or resistance from the people due to its apparent inequity. The
judicial enforcement of such a rule may be an aspect of general law enforcement, but the
enforcement of the rule in the first case does not inevitably warrant judicial intervention.
Since the unwritten fundamental law conception is ineluctably connected to a certain
judicial obligation to void all laws that conflict with it, the judiciary cannot thus legitimately
partake in the enforcement of an enacted repugnant law. That is, the law cannot get pass
the courts; otherwise, the unwritten fundamental law will lose its vigour to positive law
regardless of the inequity or moral and ethical repugnancy of the latter to the entire legal
system.
Of course, the remarks of Coke should not be construed as free of condemnation or resistance
from other writers. He has been criticised for overstepping his bounds as a judge. According
to Pollock, Coke cannot articulate any meaningful and sustainable legal predicate for his
remarks. Pollock thus thinks that Coke’s un-English assertions as recorded in Bonham’s Case
may be occasioned by his acquaintances with canonists’ readings.118 Had Coke restricted
himself to the English political traditions and constitutional history, Pollock thinks, remarks
of that nature would not have been authored by a judge in England. It is nonetheless,
unclear whether Pollock’s attack on Coke seeks to discount claims about the existence and
influence of the fundamental law in governance in England or are purely assertions directed
at the proper historical construction of the interrelationship between Parliament and the
courts of England.
Truly, this did not diminish the support that Coke enjoyed from other later writers on similar
issues of legal interest. At the forefront is Prof. Thorne, who argues that of the five reasons
assigned for Coke’s decisions in Bonham’s Case, one stands out as a reasoned justification
that can bail out Coke from charges of misconstruction of any constitutional principles in
England or legal heresy. This reason, Thorne claims, was the proven fact that a part of the fine
which was imposed on Bonham was to be given to the college panel before which Bonham
appeared. Such a direct pecuniary interest suggests that the panel was both a party and a
judge, something that conflicts with an element of natural justice embedded in a common
law maxim, which precludes a judge from sitting on his own case.119
Pollock, Expansion of the Common Law at 122

118
Thorne, The Constitution and the Courts: a Re-Examination of the Famous Case of Dr. Bonham 54 (1938)
119
Law Quarterly Review 543 ff.

A similar defense,but one having a more natural law semblance, was offered by Finch. He
argues that though positive laws are important, they do however receive their light from
the law of reason and all maxims and principles of positive law should yield to this higher
law of reason.120 In that case, all laws repugnant121 to the law of reason should be void.122 As
we should not be seen to hold Coke immune from criticisms, such criticisms do not work
to deny the sustaining import of his claims that those laws repugnant to justice, reason
and equity can strictly be interpreted by the courts applying same principles of justice and
reason to exorcise them of their evil.
Besides this limited example of English case law as a judicial embrace of an unwritten
fundamental law, other common law jurisdictions have in the recent past traveled a similar
path. For example, in Canada,123 Mark Walters has successfully inferred the idea of lex non
scripta as a fundamental law from the reasoned judgments of three Supreme Court cases,
namely, the New Brunswick Broadcasting124, Provincial Judges125 and the Quebec Succession
Reference126. In support of the idea of lex non scripta, Mark Walters relied on the word “ages
past”, as used by the Court, which in his opinion was also “embraced by Coke and other
seventeenth-century common lawyers from whom the constitution was based upon
customs practised ‘time out of mind’127. Thus in the process of constitutional adjudication,
the courts may have regard to the unwritten postulates which may form the very foundation
of the constitution.128 In such cases, the unwritten fundamental law is not only supreme but
120
Sir Finch, Law, or a Discourse Thereof at 5-6
121
Repugnancy was conceived (and should be conceived of) in various ways but with similar conclusion.
Plucknett said that it is something that is “distasteful to the court”. Bonham’s Case and Judicial Review 40
(1926-27) Harvard Law Review at p.32. Professor Thorne posits that repugnancy meant self-contradiction
and suggests further that that was the sense in which Coke used it in Bonham’s case. The Constitution and the
Courts: a Re-Examination of the Famous Case of Dr. Bonham 54 (1938) Law Quarterly Review 543 ff. Coke
himself goes for unreasonableness as the meaning of repugnancy. In Rowles v Mason 2 Browlow p.198 Coke
wrote: “If there be repugnancy in the statute or unreasonableness in custom, the common law disallows and
rejects it, as it appears by Dr. Bonham’s Case”
122
Finch, Law, or a Discourse Thereof at 75-76
123
Other examples are found in Mark Van Hoecke, The Use of Unwritten Legal Principles by Courts (1995) 8
Ratio Juris 248
124
New Brunswick Broadcasting Co. v. Nova Scotia (Speakers of the House of Assembly) [1993] 1 S.C.R.
319(it was held that an express provision of the Canadian Charter does not operate to preclude the exercise by
provincial legislative assemblies of their parliamentary privileges)
125
Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), [1997] 3 S.C.R. 3(it was held that
an unwritten principle of judicial independence exists and constrains provincial legislatures when setting
procedures for judicial salaries)
126
Reference re The Secession of Quebec, [1998] 2 S.C.R.217(it was held that there are four unwritten principles
of common law with an operative force in Canada: democracy, federalism, rule of law and respect of minority
rights, and that these principles put parties to a confederation under legal duty to negotiate secession if a clear
majority of the people of a province vote on a clear referendum question in favour of secession)
127
Mark Walters, The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental Law
51 (2001) University of Toronto Law Journal 91 at 92. See also J.G.A. Pocock, Ancient Constitution and the
Feudal Law: A Study of the English Historical Thought in the Seventeenth Century (Cambridge: Cambridge
University Press, 1987) at 30-69
128
Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 752. For arguments see the following
Warren J. Newman, ““Grand Entrance Hall,” Back Door or Foundation Stone? The Role of Constitutional
Principles in Construing and Applying the Constitution of Canada” (2001), 14 Supreme Court Law Review
(2d) 197; John Leclair, “Canada’s Unfathomable Unwritten Constitutional Principles” (2002), 27 Queen’s
Law Journal 389; Jamie Cameron, “The Written Word and the Constitution’s ‘Vital Unstated Assumptions’”
in P. Thibault, B. Pelletier, L. Perret, eds., Essays in Honour of Gérald-A. Beaudoin: The Challenges of
Constitutionalism (Cowansville: YvonBlais, 2002), Dale Gibson, “Constitutional Vibes: Reflections on the
justiciable. Positive law may be controlled by it and it does so in order to bring about justice,
equity and coherence in the constitutional law of the state.
Though Mark Walters did chide the Court for its failure to provide a referential support
for its opinion, he nonetheless understood the majority as suggesting that the framers
of the Canadian Constitution Act, 1867, recognised “certain unwritten norms” as having
“a fundamental and supreme status in Canadian law”129. ‘The notion of fundamental law
superior to positive or written law operating as a sort of moral ballast for the legal system,
providing it with normative consistency, coherence and direction, is a compelling idea found
throughout the history of jurisprudential writing’130. Perhaps this squares up comfortably
with the conception of the validity of law as being contingent upon some permanent, higher,
natural standards or values. The fundamental function of such unwritten but fundamental
principles as part of the constitutional order of a polity, Walters argued, is to “articulate basic
legal assumptions that inhere in the human condition itself and that therefore possess
normative force independent of the legislative enactment”131. Unwritten legal rules thus
offer some standards with transcendental value against which legislative enactments are
to be measured.
The restriction of the focus to legislative enactments, if strictly viewed, excludes from
the scope of Walters’ analysis the possibility of checking executive instruments with the
overbearing hand of these unwritten rules. Perhaps it discounts in, this narrow sense,
executive acts being invested with the status of a law. But it is possible in some constitutional
democracies for the executive like the legislature to drive its law or rules making power
directly from a written constitution. In Ghana, these are referred to as executive instruments.
If these cannot be referred to as law in the broadest sense, then we can understand that
Mark Walters strictly meant law, as enacted by a legislature, which authority may or may not
rest on a written constitution. It is reasonable to come to this point given the fact that the
legal system upon which Walters’ analysis is predicated glorifies as a constitutional principle,
parliamentary supremacy. Be this as it may, a holistic reading of Mark Walters would seem to
encapsulate the concern for correcting both the form and content of a law or valid rules and
regulations through a justiciable fundamental law erected upon unwritten rules of common
law. It matters little here that the laws or rules are not being made by the legislature but rather
the executive. The source of the law or rule may not operate to impeach the application of
unwritten fundamental law. At its core is the compelling need to moderate the function of
law towards justice and human wellbeing and to promote fairness in administrative decision
making and advance the ideals of the rule of law, constitutionalism and human rights in a
democratic state.132 In our particular case, the fundamental law forms a necessary constraint
on the exercise of both legislative and administrative power in order to guarantee individual
rights and freedoms.
Secession Reference and the Unwritten Constitution” (1999-2000), 11 National Journal of Constitutional Law 49
and SujitChoudhry, “Unwritten Constitutionalism in Canada: Where Do Things Stand?” (2001), 35 Canadian
Business Law Journal 113
129
93
130
ibid
131
Ibid
132
C. F. Forsyth, “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, The Sovereignty of Parliament and
Judicial Review” (1996) 55 Cambridge Law Journal 122
Yet one may be careful not to end the argument this way without a caveat. There are some
exceptions especially to the first component of the suggested proposition. Mark Walters
appears reluctant to accept common law constrains, in this fashion, as espoused, on the
legislative authority in Canada unless, and where only in extreme cases, basic human rights
have been egregiously violated.133 For him, the Canadian Charter’s guarantee of human
rights leaves little scope for the application of unwritten fundamental law on statute law
in Canada. Nevertheless, Walters suggested two windows in the constitutional structure of
Canada through which unwritten norms could apply: under s.33 ‘notwithstanding clause’
by which Charter protections of human rights could be suspended, and in situations where
constitutional amendment abolishes fundamental rights134. Perhaps it is difficult not to see
wisdom and to agree with Walters on these points, as they perfectly sit in with the prevailing
constitutional jurisprudence.
But that is not to suggest that his views are necessarily – though comprehensive and
compelling - unproblematic. Despite the persuasive force in Mark Walters’ exposition, he
does not tell us or define what he meant by “only in extreme cases”. This makes it hard to
avert speculation on the phrase “extreme cases” as an exception to getting at the core of
the unwritten common law as a constraint on legislative authority. This may not however
be a problem if Walters is to be understood from the Canadian liberal democratic context.
The Canadian Charter has been comparatively generous with human rights provisions
and would easily support a conclusion of extreme cases where such rights are without a
justifiable reason impinged upon by government. Divergent expectations on the content of
these rights do not introduce into the debate a sustaining relativist argument that precludes
the people of Canada from harbouring a minimum notion of what these rights entail. We
may thus be able to use the Charter to define the parameters of extreme cases relative to
human rights violation.
b. The Supremacy of the Unwritten Fundamental Law

The common law during the medieval and feudal times was in the main arguably the
declaration of courts, not Parliament. It was the product of judicial activities and its substantive
form was mainly custom, declared, not created.135 It has been argued that the idea of law-
making at this time was limited to correcting defects in the machinery of administering
customs or restoring customs following a period of wrongful desuetude.136 Perhaps such
conscious changes were necessary in medieval Europe to ensure that customary law
conformed to changes wrought by rapid social and political developments. Yet it remains
true that these changes did not transform Parliament from a law-declaring body to a fully
blown body of law-making in the modern sense.137 Uninterested by whether the law was
declared by inquest or Council, McIlwain, observes that “there is a law fundamental and
unalterable, and rights derived from it indefeasible and inalienable”.138 Such a fundamental
law implies protection of liberties and entails immunity from arbitrary authority. It points to
a limited government and exists as a controlling force to mischievous governments in the
feudal times.
133
140
134
Ibid
135
Charles H. Mcilwain, The High Court of Parliament and its Supremacy (Yale University Press, 1910) at 44
136
Ibid at 47
137
Ibid 51
138
Ibid 52
In the feudal period in particular, Magna Carta was among the documents that exemplified
the idea of this fundamental law. Coke gave it a voice in the most illustrative fashion as: “I
know, that Prerogative is part of the law, but Sovereign Power is no Parliamentary word: In
my opinion, it weakens Magna Charta, and all our Statutes; for they are absolute without any
saving of the sovereign Power: And shall we now add it, we shall weaken the Foundation
of Law, and then the Building must needs fall; take we heed what we yield unto, Magna
Charta is such Fellow, that he will have no Sovereign”.139 Kings as well as Parliament cannot
relieve themselves of the fundamental law that Magna Charta so laid. It represents a solemn
declaration and promise by the king that the customary rights of the barons shall not be
trampled upon as they had been in the past, but would, instead, be understood in light
of feudal customs.140Although much of its content related to feudal principles that have
since become obsolete, Magna Carta did embody the principle of fundamental law and
therefore it serves as a connection between the challenges of governance in feudal times
and those that exist within the modern state.141 Magna Carta has furnished people over the
centuries and in places distant from its origins with the notion of an enforceable law that
binds the King. This point was not dictated in its express terms but by the character of the
key principles it enunciated. The principle was unchangeable and any palpable derogation
was void. To McIlwain, the fundamental law principle contained in the Magna Carta was an
active living principle, the conception of law superior to every day enactments of the king142.
Aside the Magna Carta, the idea fundamental law was discernible in other writings and
documents as well.143 It was seen as a law which the king could not change and no sovereign
could free itself from it.144 The discourse of fundamental law unfolded most famously in the
seventeenth century struggle between the King and Parliament culminating in the Petition
of Right in 1628. Pym acutely underscored its supremacy over both the King and Parliament:
“All our Petition is for the Laws of England, and this Power seems to be another distrust
Power from the power of the Law: I know how to add Sovereign to his Person, but not to
his power: And we cannot leave to him a Sovereign power: Also we never were possessed
of it”.145
The idea of a fundamental law that was supreme was carried from the medieval era into the
17th century. Throughout the medieval era, law understood political sovereignty as limited.
Bracton would have us belief this, as he wrote in the 13th century that the King was “not
under man, but under God and the law”146. There was no known limitation to the King’s
power except God and law, which refers to the fundamental law properly conceived. The
King could not ignore the dictates of God,which were thought to be principles of equity
and natural justice discoverable by reason and manifested by the established customs and
usages of the people. The content of the law as conceived in this form was thus decoupled
from the mere enactments of the King, and its supremacy was thus divorced from the King’s
sovereign status. It bound the king as well as his subjects in the business of governance and
sought to deny any claim of absolute legal authority. In fact, this notion of the supreme law,
139
Gardiner, Documents, p.7
140
Ibid at 54
141
George H. Adams, American Historical Review, vol. xiii p.237
142
Mcilwain, The High Court of Parliament and its Supremacy at 62
143
See, Wright, Political Songs of England (Comden Society)
144
Pollock & Maitland, H. E. L. vol. I p.181-3
145
Rusthworth vol. I p.562
146
H. Bracton, On the Laws and Customs of England (S. Thomas trans., 1968) at 33
as J. Gough observes, not only survived the Renaissance, but also the Tudor era when state
power was centralised.147 Unsurprisingly when James 1 arrogated to himself an unlimited
legal authority in the early 17th century, he was sharply resisted by the House of Commons on
the grounds that “the ancient and fundamental laws which established the respective rights
of monarch, Lords, Commons, and the people”148 support no such claim. The Commons,
dominated by common lawyers, flatly denied that the King could be above the law.
The traditional terms of fundamental law also governed constitutional discourses around
that time.149 In fact, debates were conducted along the lines of Parliamentarians and
Royalists over the issues of scope and limitation of legal authority in respect of governance.
It was urged for the Royalists that the fundamental law frowns upon any interferences with
the royal prerogative.150 Similarly, the Parliamentarians relied on the traditional terms of the
fundamental law to argue that the Kings as well as Parliament’s authority was constrained.151
McIlwain, referencing Pym illustrates this better:
“The struggle over the Petition of Right and the question of Tonnage and Poundage
did much to familiarize men still further with the idea of fundamental law. For
example, when the Lords would have added to the Petition of Right the clause
saving the ‘Sovereign Power’ of the King, a storm of protest arose in the Commons. To
acquiesce in this addition would be to ‘acknowledge a Regal as well as Legal Power’.
Pym recognises clearly the sovereignty of the fundamental law, not only over the
King, but over Parliament as well. ‘All our Petition is for the Laws of England, and this
Power seems to be another distinct Power from the Power of the Law: I know how
to add Sovereign to his Person, but not to his Power: And we cannot leave to him a
Sovereign Power: Also we never were possessed of it’”152
Notwithstanding the presence of theoretical proponents153 of unlimited sovereignty in

the 17th-century England, the debates between these two political actors exemplified the
sense of fundamental law around the time. Perhaps it was seen as a response to political
absolutism – a necessary attempt to justify a measure of control over centralised power.154
Judicial interpretation of law will thus require that all governmental conduct and legislative
enactments conform to the limitations as imposed by the fundamental law. Accordingly,
fundamental law controls legal and political controversy and sows some seeds of legal
limitation on authority and power. It signals the presence of some compelling legal and
political conscience which cannot lightly be discarded by the powers that be.
c. The “Unwrittenness” of the Fundamental Law
147
J. Gough, Fundamental Law in the English Constitutional History (1955) at 12-29
148
at 851
149
ibid
150
J. Gough, Fundamental Law in the English Constitutional History at 74-77
151
at 851. See also Rushworth, J., Historical Collections (London 1682)
152
McIlwain, The High Court of Parliament and its Supremacy
153
Hobbes being one of these proponents. However, J. Pocock suggested that the theoretical proponents of
unlimited sovereignty won little acceptance at the time. The Ancient Constitution and Feudal Law (1957) at 54-
55
154
David D., Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy
Unwritten law in the traditional common law approach is law which is not found in statutes
enacted by competent legislative authorities. The normative force of the unwritten law is
dependent upon custom, usage or the process of reasoning employed by state officials
charged with the responsibility of adjudicating specific disputes.155 The recognition
of the unwritten law as legally binding law does not rest on its lack of writing “but its
acknowledgment as law by some process other than enactment by legislative process”.156
According to William Blackstone, one of the celebrated writers in the common law world,
the unwritten law is made of the general customs or the common law properly so called,
particular customs and certain particular laws, which are by custom observed only in certain
courts and jurisdictions. However, he denies that unwritten law is merely law transmitted
through oral tradition and retained in peoples’ memory. To him, unwritten law also connotes
those legal customs evidenced by the records of courts of justice, books, reports and judicial
decisions and treatises.157 Nonetheless, Blackstone says that the binding power of the
unwritten law is dependent upon their immemorial usage and universal reception. Quoting
Fortescue, Blackstone insists that the customs upon which the unwritten law depends are
as old as the primitive Britons. But he relies on Mr. Selden to suggest that the texture and
wisdom of these customs might have improved upon due the English inter mixture with
some adventitious nations like the Romans.158
Be this as it may, Blackstone’s work has been refined by writers who argue, implicit in
Blackstone’s view, is the idea that unwritten law includes reason. From this perspective, the
central elements of unwritten law are both reason and custom. Held together, the unwritten
law is immutable. But it was not just any custom, it was the immemorial custom often
coherently articulated by Coke,159 Pocock160, Burgess161 and others162 as the bedrock of the
English constitution. It was thus not a constitutional heresy when English lawyers of the
17th-century, like their medieval forerunners, combined reason and custom to form a unitary
system of fundamental law.163 Reason and custom were not traditionally written law, but
unified to form the unwritten law essential to governance of the realm. In their conventional
conception, no one accords them with the status of positive law. They remain largely the
source of the unwritten law in England, and by extension the colonies and former colonies
of Britain that adopted the common law tradition as the basis for their legal systems.
The function of reason however, in the conception of the unwritten fundamental law was
155
Mark D. Walters, The Common Law Constitution in Canada: Return of Lex Non Scripta as Fundamental
Law 51(2001) University of Toronto Law Journal 91 at 95
156
ibid
157
William Blackstone, Commentaries on the Laws of England (1765), Volume I at 64
158
Ibid
159
Coke, Le Size Part des Reports Del Sr. Edw. Coke Chivalier, Chief Justice de Common Bank (London: Rich.
Edw. and Atkins, 1697)
160
J. Pocock, The Ancient Constitution and Feudal Law (1957)
161
G. Burgess, The Politics of the Ancient Constitution: An Introduction to the English Political Thought (PA:
Pennsylvania State University Press, 1992)
162
See H. Bracton, On the Laws and Customs of England (S. Thomas trans., 1968) and J. Gough, Fundamental
Law in the English Constitutional History (1955). Gerald Postema argued that the central idea of the common
law theory that law is not something made by kings, a parliament, judges or somebody of universal rationale
principles. In his view, law represents standards of reason and custom. G. J. Postema, Bentham and the Common
Law Tradition (Oxford University Press, 1980)
163
at 852
tied to the central natural law arguments of the Scholastics and Roman and canon lawyers in
the 16th-century.164 Even in the 17th century world, it was not uncommon to discern examples
of the enunciation of reason as a key component of law, from both academia and the bench.
Reason in its narrow sense here was not the by-product of any dry metaphysical debate. Nor
was it a mere offshoot of everyday ordinary human engagement. In other words, it was not
arbitrary, but represented standards embedded in the law and had stood the test of time,
popular experience and judicial wisdom.165 Also, it was a normative ideal in the sense of its
origin from an eternal source which gave it its immutable character. The element of reason
was the expression of the common good as reflected in commonly shared values such as
justice.
It epitomises legal standards that embody rationality, justice, and fairness.166 Coke represents
the judiciary in a somewhat coherent articulation of this as he observes that the law of nature
was superior to man-made laws, since it was of Divine origin, eternal and unchanging.167
For Coke: “the law of reason” did not mean the untutored reason of everyman, but to the
special “artificial reason” of the law, infused with the dictates of custom, experience and
the professional training of lawyers.168 These words were not the consequence of a solitary
exercise of the courts. It is an authority that rose above the reason accessible to any king,
judge or men at any one time and as Cicero put it “law is the reason, implanted in nature”169
which Coke described as “an artificial perfection of reason, gotten by long study, observation,
and experience, and not by every man’s natural reason”.170
Writing in 1523, Christopher St. Germain gave a similar priority to reason in stating the
grounds for the laws of England. To him, the law of reason was fundamental and ‘ought
to be kept as well among Jews and Gentiles as among Christian men’.171 He adds that this
reason is written in the hearts of men for the purpose of gauging what should be done in the
interest of justice, and any prescription or statute that contradicts it shall be void. It primarily
guides people in a state to the right solution to their problems. Sir Frederick Pollock alluded
to a parallel status and role played by reason in English law of tort. In the particular area
of the law of negligence, Pollock reasons that much depends on the reasonable man in a
given circumstance.172 This is a kind of distilled reason commonly used as a gauge to assess
the rightness of human conduct in a particular event. By analogy, any law or statute that
impeaches or derogates from this reason may be void.
The unwritten law would thus seem as a composite of immemorial custom and reason,
a feature that provides it with the desirable flavour of justness. Not understood in the
true sense of modern codified law, the unwritten law is as central in the past as is in the
164
See Christopher St. German, Doctor and Student (n.p. 1580)
165
David D., Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy
166
Simpson, A. W. B., The Common Law and Legal Theory in Simpson (ed.), Oxford Essays in Jurisprudence
(Oxford: Oxford University Press, 1973) at 79
167
Calvin’s Case (K.B. 1609) 77 Eng. Rep. 377 at 391-2
168
at 853. See also Coke’s Reports vi
169
Cicero, De Legibus (I.vi.18)
170
Coke, Institutes, I:fol.97b.
171
See Christopher St. Germain, Dialogues in English between a Doctor of Divinity and a Student in the Laws of
England (1569 edition)
172
Frederick Pollock, The Expansion of the Common Law, at 107
present to matters of constitutional governance in Britain and other countries of common

law jurisdiction. Legislative enactments in Ghana can have the benefits of a good and just
law for the collective wellbeing of the people if the judiciary implore a similar sense of the
unwritten fundamental law in constitutional adjudication. Reason, justice and equity which
among others define this fundamental law can serve as justiciable legal norms to control
legislation and executive actions.
IV. Judicial Duty and the Moral Resources of Law: Toward a Unified Theory of Law for
Constitutional Interpretation
Following this jurisprudential survey on the nature of law, this section seeks to make sense
of them and to proffer an argument that would unite PART ONE and TWO above into a
single coherent theory of law which should act as an overriding foundational value in the
construction and interpretation of the Ghanaian Constitution as law in the 21st Century.
In the early parts of 1950s in Africa, anti-colonial rhetoric was always unambiguous about
the values of law to the colonies - law must serve our interest, the nationalists said.173Their
objective was to ensure that laws of general application enacted by the Imperial Parliament
actually benefited people in the colonies, rather than permitting the exploitation of their
natural resources by others.174 There was a high sense of contempt for colonialism in the
sense of its negative impact on the natives’ economic and political advancement. Nationalist
leaders demanded of the Imperial Parliament laws that were sensitive to their wellbeing.
Indeed, it is possible to discern beneath this rhetoric, Joseph Raz’s conception of the virtue
of the rule of law as the virtue of a good knife – there is recognition here that law, like a knife,
can be used for good or bad depending upon the purposes of those who use it. Law, like
a knife, can be good for the purpose of advancing the course of colonial peoples through
clear cut propositions, and can as well do badly by facilitating a quick dissipation of their
natural resources to Europe. Law in the latter sense is what the colonial people deny, but
welcome law in the former category as it adds quality to their impoverished conditions
and emaciated dignity. This is what Dyzenhaus makes us believe is the rule of good law.175
173
See Toyin, Falola, (edt.), The Dark Webs: Perspectives on Colonialism in Africa,( Durham, N.C. : Carolina
Academic Press, 2005), Walter Rodney, How Europe Underdeveloped Africa (London: Bougle-L’Ouverture
Publications, 1978); J.D. Anderson, West and East Africa in the Nineteenth Century (London: Heinemann,
1972); and Timothy, Fernyhough, “Human Rights and Pre-colonial Africa” in Human Rights and Governance
in Africa (edt.) Jan Berting et al.( Westport, Conn.: Meckler, 1993). Inglorious, yet some have argued in favor
of colonialism that it was for the good of Africa. To them, colonialism has had positive effects for the continent
and Ghana for that matter. For instance see L.H. Gann and P. Duignan, Burden of Empire: An Appraisal of
Western Colonialism in African South of the Sahara (London: Pall Mall, 1968); and, David K. Fieldhouse, “The
Economic Exploitation of Africa: Some British and French Comparisons,” in P. Gifford and W. Lewis, eds.,
France and Britain in Africa: Imperial Rivalry and Colonial Rule (New Haven, Conn.: Yale University Press,
1971) 593.
174
See K. Mann and R. Roberts, eds., Law in Colonial Africa, (Portsmouth, NH: Heinemann, 1991); Rizzo
Lorena, The Elephant Shooting: Colonial Law and Indirect Rule in Kaoko, Northwestern Namibia, in the
1920s and 1930s (2007) 48 The Journal of African History 245; John R. Schmidhauser, “Legal Imperialism: Its
Enduring Impact on Colonial and Post-Colonial Judicial Systems”, (1992) 13 International Political Science
Review 321; Morris Henry F. and James S. Read, Indirect Rule and the search for justice: Essays in East
African Legal History (Oxford: Clarendon Press, 1972); Alice L. Conklin, Colonialism and Human Rights, A
Contradiction in Terms? The Case of France and West Africa, 1895-1914 (1998) 103 The American Historical
Review 419 and Deflem M., Law enforcement in British Colonial Africa. A comparative analysis of imperial
policing in Nyasaland, the Gold Coast and Kenya (1994) 17 Police Studies 45
175
Frederick Pollock, The Expansion of the Common Law at 220
Good law is thus that law that does what is in the collective wellbeing of the people whose
obedience is required of it. This was the core of the demand of the nationalists.
Legal systems in post-colonial Africa like Ghana deserve and must show similar concerns
of the status of law. Law must be of a legitimate fundamental moral value that contributes
to the dignity of the people and aspire to serve them in the best moral light.176 For Raz, the
journey to this level in a legal system rests on law’s ability to exhibit respect for a certain
internal criteria of legality not unlike Fuller’s “internal morality of law”. As a positivist,
however, Raz denies that these criteria make the law good law, though it may make it a
better law than mere arbitrary rules of men. In other words, the purpose of Raz’s internal
criteria is not to make the law intrinsically morally good, but rather, an efficient law. His
view may therefore be limited to an account of law as an efficient instrument for those who
wield political power, a view which Dyzenhaus sees as a conduit for a society to launch into
substantive injustice with an efficient law.177 Dyzenhaus thinks that this does nothing to
enhance a conception of law as an aspirational moral virtue expressed in the fundamental
values of a legal system. Raz’s views are thus nothing but veiled submission by officials to
the commands of the sovereign. To the extent that Fuller and Raz’s internal criteria can be
seen to combine both substantive and procedural moral values within the law, then their
views meet the objectives of the argument developed within this article. But, otherwise,
their views are consistent with only a limited procedural moral concern for the law, and thus
we part company with them in order to seek an account of law as an expression of people’s
fundamental moral values, for their collective wellbeing.
Following the footprints of Dworkin, Dyzenhaus reminds us that “if one takes the function
of law to be to provide a framework of rules of sufficiently determinate content such that
legal subjects are able to plan their lives securely, then the function is undermined on those
occasions when it is not clear what the law requires of the subject”.178 If our conception
of law is much broader than provided for in the written text (Constitution or Statute), a
broader function of law that can diminish the short-sightedness of this settled written law
is also achieved. Thus a decision in response to a legal question arising due to a gap in the
explicit or written law of the legal system, would not take “place in a legal void”179. In part,
such a conception of law finds limited support in Fuller’s internal morality of law, where
judges will aspire to realise principles of internal morality of law and to rely on them to settle
legal questions.
Dworkin understands this to mean that legal norms applicable to legal questions in a
common law legal order are not found solely in the rules stated in the explicit law, such
that in the event of that explicit rules fail to provide clear answers judges must exercise
unrestrained discretion to create new law. Rather, in such situations the judge will discover
that the broader view of law, as law as integrity, provides principled responses to the legal
questions which in Dworkin’s view portray law in the best moral light180. It thus requires
a thicker conception of law that extends its ambit to the best justifiable moral values not
explicitly recorded in the determinate content of positive law but which are essential
176
Fuller L. L. Morality of law and Dworkin R, The Law’s Empire
177
Frederick Pollock, The Expansion of the Common Law at 222
178
David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency( Cambridge University Press,
2006) at 61
179
Ibid
180
Ibid at 62. Dworkin, Law’s Empire
to human wellbeing within the legal system. This is important if we need to avoid what
Dyzenhaus terms ‘judicial spinelessness’ in an event where an answer to a legal question
is not directly supported by the explicit law. It also gives law a critical moral resource for
evaluating legal responses to legal questions.
Trevor Allan’s theory of constitutional justice is based upon a similar conception of law
as resting upon moral grounds that speak to the collective good of the society. He claims
that if law is to be valid it must be inherently moral, in the sense of being legitimate and
commanding respect from the people of the legal system within which it is made; it must
serve or promise to serve some moral good without which the wellbeing of the people
would be impoverished. Thus the moral propriety of the law has some justification in its
ability to serve the common good. Allan’s defense of this idea is that the legality of law
should depend on a defensible view of the common good. Law must thus conform to
certain standards of justice as are essential to the common good or collective wellbeing
and individual dignity.181 He thinks that these are intrinsic features of the law and they are
fundamentally legal values that a law must be attuned to even if it may for certain purposes
be plausibly defined as the content of any rule whose validity is affirmed by reference to
some morally neutral and purely empirical test or criteria.182
On this account, an initial identification of law and its concrete interpretation in seeking
justice and the common good as constitutional ideals are to be affected by the moral
aspirations of the legal order.183 There is thus no basis in reason to seek a rigid distinction
between the moral aspirations of the legal system and its laws as positivists generally seek
to do. Casting Fuller’s definition of law as one that seeks to make sense of people’s moral
obligation of obedience, Allan reasons that the legal validity of a law must depend on its
moral legitimacy, which purpose is to enhance the individual dignity and the collective
wellbeing. He says that the state’s legal demands on the citizen are to be understood
as making an appeal to the general good. The moral justification of law must thus be a
precondition of its obligatory force and the citizens’ moral judgment should be inextricably
engaged in the identification of law.184
The moral legitimacy of law as argued for by Allan is not however, to be equated with the
view that every individual in the state should always agree with the content of the law before
rendering his/her obedience. That is far from the morally defensible view of the law that
Allan seeks to proffer, otherwise he may reasonably be understood as advocating anarchy
where everyone’s conception of the law is correct. The core of Allan’s argument lies in the
collective good, to which the individual is a part and which forms the moral basis in reason
for the obedience. In fact, this does not preclude occasional individual moral disagreements
with the law, but a morally defensible common good must constitute the foundation for
both the identification and concrete interpretation of the law. It is then obvious that judges
who are called upon to exercise their judicial power in the interpretation and enforcement
of a particular law must reason along those lines that law is nothing but an expression of the
moral postulates of the common good and the preservation of individual dignity. Equally,
legal questions that cannot be answered by an explicit law where there is a gap in the law,
181
Allan T. R. S., Constitutional Justice: A Liberal Theory of the Rule of Law at 5
182
Ibid at 6
183
Ibid at 71
184
Ibid at 75
Allan’s common good can easily square with Dworkin’s theory of law as integrity where
the judge is under a duty in principle to interpret the law in such a manner as to render to
the legal order the morally best results. Allan’s concern is that the moral force of law must
be coextensive with its grounds185 and law must be consistent with the shared moral and
political assumptions that underpin the legal system.186
Allan Trevor clearly disagrees with legal positivists by suggesting that law must both claim
and possess moral legitimacy. Allan’s notion of law as the moral ideal of the collective good
is reflected in Tremblay’s conception of law as justice, a fundamentally moral precept that
must define the validity and content of positive law. Tremblay sees his theory of the ideal
type of law as superior to positive law. It is the ultimate practical reason internal to the
process of adjudication and represents a logical precedence of law over legislation and
judicial decisions.187 It claims a legal norm antecedent to the determination of the validity
of a positive legal rule. So the validity and content of positive law depend upon this norm.
Central to this conception is Tremblay’s view that law be viewed as one of justice. By justice,
Tremblay does not,as this work also urges, seek to resurrect and follow the Christian theory
of natural law which sees God as the foundation of all laws and that all legislation must
conform to some eternal morality discoverable by revelation.188 On the contrary, Tremblay’s
law as justice is premised on three constitutive principles: the law is formally just, the law is
materially just and the law is equitable.
By insisting that law is formally just, he means that similar treatment should be given to those
who are alike from a particular point of view.189 To Tremblay, law as formally just supposes the
existence of some legal norms for just treatment of cases, consistency and equality before
the law. It also implies legal certainty. But he says formal justice in this narrow sense may
be an empty shell if it does not prescribe the relevant criteria for determining the similarity
or dissimilarity between cases or the manner in which they should be treated. This, in his
view, does nothing to impugn the relevance of formal justice to a legal order if this first
principle (formal justice) interrelates with the other two constitutive principles of the ideal
type of law. The first of these two principles is that law must be materially just. Tremblay
thinks that the material justness of law lies in its content being acceptable as morally just.190
This allows the judge in the course of adjudication to elaborate a substantive conception
of justice as the fundamental postulate of the law. Tremblay does not however think that
judges doing this must be ardent disciples of the natural law. Rather, judges would focus on
the fundamental moral values of the law.
Like Dworkin, Tremblay reasons that ‘for any legal question, the law always supplies one
single right answer’ – the morally best or acceptable answer. If that must be so, then it must
be so because law must also be equitable. With this, Tremblay says clarity of a written legal
norm does not mean it sufficiently contemplates all those circumstances in which it must
apply in a given case. A reduction of law to this form would lead, he says, to a disregard of
185
Allan ,T.R.S, Justice and Fairness in Law’s Empire (1993) Cambridge Law Journal 64 at 82-6
186
Allan T.R.S., Constitutional Justice: A Liberal Theory of the Rule of Law at 73
187
Luc B. Tremblay, The Rule of Law, Justice and Interpretation (Montreal &Kingston: McGill-Queen’s
University Press, 1997) at 140
188
Ibid at 168
189
Ibid at 169
190
Ibid at 171
the fact that the law must be acceptable as morally just.191 This requires a proper pruning
of the rule enunciated by the norm in order to bring it into conformity with what is morally
and materially just. A norm formally applicable can thus be set aside if it fails this test. He
is nonetheless quick to observe that law as equitable read in this fashion can disturb legal
certainty, but notes that this only holds good if legal certainty is regarded as rigid or absolute.
It might be reasonable to observe that Tremblay has wittingly combined the reasoning
inherent in Fuller’s internal morality of law and Dworkin law as integrity to propound his
theory of law as justice. Of the three constitutive principles, Tremblay is seen adopting
Fuller’s principles of legality as his first constitutive principle of law as justice. Though he
does not go to the extent of numerical prescription, as Fuller did, it is apparent that he
does want to get to the core of Fuller’s principles of legality. He predicates that objective
on the necessity of ensuring legal certainty, consistency and equality before the law. Had
he stopped at this level, he would not have advanced the argument past Fuller’s internal
morality of the law, and he would have been vulnerable to similar criticisms leveled against
Fuller. His departure from Fuller’s approach marks his association with Dworkin’s. Law as
justice must also include the fact that it must be materially just and equitable.
It may, however, not be a serious claim to make that is what Dworkin explicitly said, but it
can reasonably be implied that Dworkin’s law as integrity points to similar conclusions. Law
must be acceptable and morally just and shown in its best moral light in the service of the
legal order. Judicial engagement in the interpretation of what counts as a true proposition
of law must thus depend on whether or not such propositions not only conform to a certain
empirical criteria of what law is but how such propositions can represent the fundamental
moral values that are morally just. Tremblay may differ from Dworkin when he says that the
ultimate norm that guides judges in the determination of what is morally best is antecedent
to law and judicial decisions, but conforms to Dworkin’s criticism of positivism that there is
no room for an unrestrained judicial discretion where law runs out. There are legal principles
which guide their decisions even if these principles are not a positive law. Tremblay, who
terms this as antecedent legal norms unlike Dworkin terminology of principles, notes that
the end of legal rules does not exhaust legally applicable norms in the resolution of legal
disputes. Like Dworkin, the antecedent norms or principles will fill the void and guide the
judge in explaining and justifying the law or legal answer in the best morally light.
Following similar ideas as Lon Fuller, Trevor Allan, Luc Tremblay and Dworkin, Nigel
Simmonds, in his book Law as a Moral Idea, uses analytical jurisprudence to explore the
debates on the nature of law. Like these scholars, Simmonds advances what might be called
a version of natural law. He sets out not only to interrogate the positivist conception of
law, but to develop a theory of law in which law’s validity is contingent upon morality. His
position is that law should be understood as an attempt to realize an arche type of law, an
archetype which is a moral ideal embedded in our ‘settled intuitions’. Without doubt, those
suspicious of moral ideals are not likely to find moral archetypes philosophically acceptable.
Yet, if Simmonds is right, we need them in jurisprudence.192 For Simmonds, law is dependent
on our ‘settled intuitions’ based on our ordinary linguistic and social practices as well as our
intuitive sense of how law works in a society. It would indeed appear that this point does
not set Simmonds free from the camp of those he seeks to disagree with – Raz, Kramer and
191
Ibid at 173
192
Patrick Capps, Review of Nigel Simmonds “Law as a Moral Iea” (2008) 28 Legal Studies 631
Hart. If law is based on these social factors, as mentioned, is henot squarely within the ‘social
source thesis’ of his positivist opponents? The answer is, no, for Simmonds thinks that our
settled intuitions reflect two features of law: the mundane view of law and the aspirational
view of law, and he emphasises the latter.
Simmonds argues that the mundane view of law (which he disagrees with) only explains
conventional rules that govern human conduct, while the aspirational view of law(which he
agrees with) relates to justice, the rule of law and the protection of the common good. It is his
aspirational view of law that is, for our project, a compelling one. The mundane view of law,
as he correctly points out, does not go beyond an Austinian reductivist jurisprudence that
sees law as the rules of the powerful. Mere conventional rules that govern human conduct,
as the mundane view of law narrowly shows, do not sufficiently justify their normative
moral application in a legal system. The aspirational view of law with its internal features,
justice, the rule of law and the common good, in contrast, points to a conception of law as
an aspirational moral ideal for collective wellbeing. For Simmonds, if law must be good then
it must aspire to an underlying legality or rule of law. He thinks that Fuller’s inner morality of
law expressed by the eight desiderata best exemplifies this. The value of legality is to set us
free from the arbitrary will of the power holders and to act as a normative constraint on law-
making, interpretation and enforcement. In his peculiar phrase, legality is an “independence
from the power of others”.193 But this is not sufficient to suggest that law must be conceived
as a moral ideal. Nor does it explain the justice and common good elements of his law as a
moral ideal. If his argument is that the formal or procedural values of legality are sufficient
for explaining law’s moral character, then Simmonds would not be saying anything different
or better from what we read in Fuller’s Morality of Law. Perhaps one may strain seriously to
find him a distinct academic contribution in the world of jurisprudence.
Yet Simmonds does provide reasons to set himself free from such charges. Like Dworkin,
Simmonds addresses the situation of the hard or penumbral case. For him, this is the
appropriate occasion for the invocation and application of the elements of justice and
common good by the judge in interpreting the law. His vision of justice lies in a set of
principles which ‘apply to all cases with equality and impartiality’ and judges in hard cases
must be guided by their own ‘understanding of the value of justice’194. This may beg more
critical questions than provide a conceptual account of the nature of law: should he be
viewed as advocating an open discretion to judges in hard cases, a position Dworkin
criticises as dangerous or how different is his definition of justice from Tremblay’s conception
of law as formally just? Perhaps one may say that his conception of justice as an equal and
impartial application of rules in all cases looks broader than Tremblay’s view on the subject,
but the justification of such a position does not travel farther than the inclusion of the term
“impartiality”. It is probably plausible that Tremblay would cancel this worry by pointing to
his more expansive conception of law as materially and morally just. If that is the case, it
appears Simmonds has said very little and still has many questions on his hands to address
than answers. In fact, equal and impartial application of rules by judges does not explicate
the normative content of such rules. A wicked rule which is impartially applied may not be
a source of a common good of the people.
193
Nigel Simmonds Law as a Moral Idea(Oxford: Oxford University Press, 2007) at 152
194
Nigel Simmonds Law as a Moral Idea(Oxford: Oxford University Press, 2007) 197
V. Unified Theory of Law, Judicial Duty and Constitutional Interpretation: Legal

Ideal Type as Ultimate Reason
Our selective reliance on Allan, Dworkin, Fuller, Tremblay, Dyzenhaus and Simmonds, as
shown above, to make the point that the written constitution of Ghana be interpreted as
a law for the aspirational moral collective good of the people, does not end the debate.
We must still show how we can sneak in the unwritten fundamental law as a foundational
qualification to these written constitutions in the event of judicial interpretation. To this,
we would rely on the concept of the legal ideal type to establish the connection. In fact,
the concept of ideal type has been part of many disciplines of learning. Tremblay traces
its roots to social theory. But what does it mean? According to Tremblay, “it is a rational,
coherent and abstract mental representation of a thing (for example, social phenomena)
which appears in a confused and incoherent form in the world”.195 It is represented by the
constitutive features of what it purports to construct. But Tremblay does not think that the
ideal type is necessarily the “moral” or an exemplification of the “true” reality.
To him, quoting Max Weber, it is formed by “one sided accentuation of one or more
points of view and by the synthesis of a great many diffuse, discreet…concrete individual
phenomena”196. This is not to say that Tremblay and Weber had the same concept of analysis
in mind. Tremblay acknowledges that the Weberian ideal type in sociology is a means of
understanding human actions and institutions and how these interrelate. Yet Tremblay
does not see any good reason to confine the ideal type to these purposes. To him, the “ideal
type is best seen as a tool for understanding in a clear and pragmatic way the various ideas,
concepts or beliefs that govern human conducts, practices, and discourses that are more
or less clearly defined, articulated, or rigorously understood by those whose actions and
discourses are consciously determined and constituted by them”.197 Accordingly, it can
be used to clarify and describe a body of ideas or concepts which may make sense of the
various features of law.
In that respect, we submit that a conception of law can be a composite of varied ideas or
beliefs but which can be brought together as a fundamental body of beliefs and ideas that
judges can rely on in the course of interpretation in order to make sense of the law in a legal
system. As judges concern themselves with the meaning of the legal norms, it is not wrong
that they determine such normative meaning in accordance with a number of ideal types.198
That is, judges can depend on the positivist views [as in written constitution], anti-positivists
conceptions and unwritten fundamental law as the basis and sources of adjudication. Surely,
this may look problematic at least on one account. Indeed, it is true that constitutional
supremacy represents a certain conception of law which imparts upon legal reasoning.
Positivist judges will normally say that anything that is not supported by the written text is
not law. Accordingly legal validity of a norm entirely depends on the written constitution. It
is thus obvious that a suggestion that the fundamental law of the unwritten common law
in this article be part of the ideals in understanding a written constitution of Ghana as law
will not have a place in such a framework of legal reasoning. Why should judges rely on rules
that are unwritten to impugn written rules of law, the question would fairly be asked?
195
Luc B. Tremblay, The Rule of Law, Justice and Interpretation (Montreal &Kingston: McGill-Queen’s
University Press, 1997) at 137
196
Ibid
197
ibid
198
Ibid at 138. He relied on Dixon to make this point. Dixon, The Law and the Constitution 51 (1935) Law
Quarterly Review 590
The difficulty here, we suggest, is not only one of the “writteness” of the constitution or the
fact that it has been declared the supreme law of the land, but also the conception of law
that says that unwritten fundamental rules will not count in determining the content and
validity of legal norms. I concede that the written constitution is important for purpose of
certainty in governance, but seek to argue that it is not exhaustive of the legal norms or
the fundamental basis for determining the content and validity of law in a legal system of
Ghana. To the extent that they add quality to law and enrich the moral content of law, judges
must consider a conception of law in this legal system as the ideal types that incorporate
the fundamental principles of the unwritten law into the body of the constitutional law that
governs.
An account of law as an aspirational moral idea is enhanced by such incorporation. The

importance of the written text is manifested in a conception of law that ensures that it
exemplifies those fundamental values of the people that make sense of their collective
wellbeing. Rigid focus on the framers intentions may displace the vital role played by the
unwritten fundamental law in shaping the constitution of Ghana as that body of values
capable of protecting individual dignity and providing, sustaining and enhancing the
collective wellbeing or moral good of the citizens. The ideal type of law would thus be
constitutive of principles of the fundamental principles of the unwritten law and such
principles as expressed in the constitution the enforcement of which enhances the common
good.
The object of the unwritten fundamental law does not necessarily contradict Allan,
Dworkin and Tremblay. Repugnancy, reason, justice and custom as the defining elements
of the fundamental law may not be the explicit law in a given state, but are nonetheless
the foundation to all enacted laws. Their service to the legal order lies in controlling both
executive and legislative arms of government from making rules or laws that do not advance
the collective wellbeing of the people. The principles of fundamental law are moral and
ethical precepts that define law as an aspirational moral ideal for the common good. Their
status and role do not change even if one’s focus is on a written constitution which declares
itself as the supreme law of the land. The legal superiority of the constitution is not merely
to be explained by its written character or the self declaration that it is supreme. Rather,
its superiority is justified in the morally acceptable content it provides for the collective
wellbeing of the people. A judge may thus accept the declaration that it is supreme yet
interpret its provisions with the notion of the fundamental law in order to render the
constitution as the best emblem of the aspirational moral ideal of the state.
In spite of the written constitutions, the unwritten fundamental law can serve as anchoring
foundational principles of these constitutions. They will serve to unite the enduring values
of the past and current “practices, expectation and necessities”.199 If this dominates the
constitutional imagination of a young democracy like Ghana, a more plausible foundation
is laid for judges to “speak to the law” without necessarily being seen as its “architects”200.
That is, the fundamental law and its immutable principles of liberty, non-repugnancy,
reason and justice, shall not depart from the constitution this country. Despite its historical
English roots, it is capable of useful and sustainable local expression founded on justice,
199
P. Selznick, The Moral Commonwealth: Social Theory and the Promise of Continuity (Berkley: University of
California Press, 1992) at 450
200
F. Pollock, The Continuity of the Common Law 11 (1898) Harvard Law Review 423 at 433
human happiness and the collective wellbeing, ends which law should seek to promote and
maintain.
The political and social anxieties confronting this young democracy are not distinct in
character and scope from those that occasioned the emergence of the immutable principles
of the fundamental law in feudal and medieval Europe. Substantive equality, justice, human
dignity and human welfare are as important in their modern context as they were in their
distant past. It is not a coincidence that fundamental law discourse emerged at its strongest
in England during the 17th century, when England itself was, in today’s terms, in a “transitional”
state from absolutism to constitutionalism. History and geography though important, do
not sufficiently preclude a firm understanding of the realities of these anxieties faced by
emerging democracies in Africa, especially Ghana.
VI. Conclusion
To conclude, current interstices of constitutional discourses should thus focus on attempts
to diminish the effects of these apprehensions.201 There is a supreme gift in conceiving the
constitution of Ghana as containing a core of values both explicit in the written text and
those external, attainable through the application of the principles of the fundamental law
of reason and justice. In that case, we should be suspicious of grand narratives of law that
suggest that law is merely what is posited by lawmakers who follow some preordained or
officially accepted rules regardless of its moral propriety.202 If law does not serve humanity,
then it better not disservice, but as we cannot live without law, unless we desire a return to
the Hobbesian state of nature, so must we have law that will serve.
Such a service must have a notion of reason and justice and pass a test of morality. This
demands a broader liberal view about the nature of law in a modern state like Ghana and
to impugn the known rigidity of positivism account of law as determinate propositions
achieved through accepted official criteria. The virtues of unwritten fundamental law must
mediate just not in the construction and interpretation of constitution of Ghana, but the
conception of the valuableness of ordinary laws in expressing norms of human dignity
and welfare and justice. The force and persistence of such values must be shown in this
legal system as foundational ideas that protect individuals’ rights and freedoms203 from
the mundane whims of politicians and to distinguish our enduring values from temporary
premonitions of leaders controlled by other less compelling considerations.
201
Tracy Robinson, Gender, Nation and the Common Law Constitution 28 (2008) Oxford Journal of Legal
Studies 735-76
202
Ibid
203
Ibid
44 Imperfecting Perfections: Choices in Constitutional Methodology and Ghana’s Kwesi Keli-Delataa
Presidential Elections Petition
IMPERFECTING PERFECTIONS: CHOICES IN CONSTITUTIONAL METHODOLOGY AND

GHANA’S PRESIDENTIAL ELECTIONS PETITION
Kwesi Keli-Delataa*
“When I was a literature student in college, it was always stressed that the first thing you had to
know about a text was what the words meant in their own time. Nobody cared what sublime
emotions or fantasies the poet’s words stirred in your own breast. The job of a scholar was to
discover meaning, not invent it or impose it….”1
I. Introduction
The presidential elections petition decided by Ghana’s Supreme Court has resurrected the
debate about the appropriate constitutional methodology and interpretive choices to be
deployed by the judicial branch in assigning meaning to constitutional provisions. Judicial
and academic uncertainty, or even reluctance, to pronounce definitively on methodological
preferences has been considered long overcome and even settled2although the Supreme
Court occasionally backslides and has been almost schizophrenic on occasion, much to the
chagrin of a constitutional academy and a bar eagerly in search of a precedential red-tape3.
Yet even in other places where methodological consensus has occurred earlier in time,
or was never crisscrossed with controversy, constitutional theory has remained a growth
industry in scholarly writings and doctrines, even if the goals of constitutional theorizing
have been curiously fragmented and their objectives mired in suspicions of irrelevance4.
As in many branches of law, the lack, or rather inadequacy, of early constitutional theory
and doctrine spearheaded by a vibrant academy and a zealous bench may partly explain
the slowness with which Ghanaian interpretive constitutional methodologies developed. A
part of this is attributable to the country’s cataclysmic political history and several periods of
constitutional suspensions. For this reason, early efforts to mark out the contours of Ghana’s
constitutional jurisprudence have been met with doubt, and even derision.5 Even if we were
to admit that the absence of a constitution does not necessarily equate to the absence of
constitutionalism and those who think so are somewhat in error6, something must be said
for the effect of the absence of a constitution on judging and development of constitutional
doctrine.
Second, not many on the early Ghanaian constitutional bench fully embraced the idea of
referencing jurisprudential thinking from elsewhere in resolving constitutional controversies.
*LLB UG (Ghana), LLM (Boston), Lecturer, Faculty of Law, Ghana Institute of Management and Public
Administration.
1
J. Sobran, Forgotten Checks and Balances, The Human Rights Review 12 (1986), No.1, 104; First released by
Universal Press Syndicate, 12 November, 1985.
2
For evidence of Ghanaian judicial preference for purposive approach to interpretation, see cases of Tuffour
vrs. AG [1980] GLR 637,Kuenyehia vrs. Archer, Supreme Court, 25 May 1993, unreported, New Patriotic Party
vrs. AG [1993-94]2 G.L.R 35, sc., Asare vrs. AG[2012]SCGLR 460, Ghana Lotto Operators Association vrs.
National Lottery Authority [2007-2008]2 SCGLR 1088
3
See Republic vrs. High Court (Fast Track Division), Accra; Ex parte CHRAJ ( Anane, Interested Party) [2007-
2008] SCGLR 213
4
Keith Whittington, Constitutional Theory as “ADVOCACY SCHOLARSHIP”, in Constitutional Theory:
Arguments and Perspectives,[LexisNexis; 2007] p.690
5
See 1Gyandoh and Griffiths’ Sourcebook of the Constitutional Law of Ghana1, (2d) p.vii.
6
Ibid
We may recall Apaloo JA (as he then was) express the view in Salla vrs. AG7 that the constitution
be interpreted not in accordance with some doctrinaire juristic theory8when the Attorney
General referenced Hans Kelsen’s Pure Theory9 of Law in support of his arguments. By this
rejection of the juristic relevance of Hans Kelsen’s pure theory of law to the constitutional
controversy at hand, the court lost the opportunity to incorporate an otherwise significant
jurisprudential endeavor into Ghana’s constitutional doctrine.10 It is worth recalling also
Justice Archer’s renunciation of an understanding of the constitution based on its “spirit”
in NPP vrs. AG [1993-94] 2 GLR 35 (the so-called 31st December case). He queried almost
cynically “wherein lies the spirit of a Constitution? Is it embedded in the whole document?
Or in parts of the document?” He added, “When we interpret statutes, we do not rely on the
spirit of the Act. This maxim of interpretation applies also to a constitution.”
For these reasons and others, the Ghanaian bench has been late to the debate in
constitutional hermeneutics, particularly the relevance of originalism and modern positivism
to constitutional meaning.
The dominance of originalism and modern purposivism as alternative approaches to

constitutional interpretation has been widely acknowledged,11 even if there is less agreement
on the internal mechanics of either theoretical applications12 or their goals.13 Originalists had
to resolve first the question of whether the interpretive enterprise should aim at “original
intent” or “original meaning”14, with “original meaning” dominating partly on account of its
ability to assert the public authority of the text and to yield an interpretive outcome that
best captures the public meaning by de-emphasizing the preferences of political actors,
anachronistic ideas and value regimes15. The modern purposive approach utilizes the intent
of the reasonable author and the legal system’s fundamental values to achieve the central
purpose that the legal text is designed to achieve.16
Different strands of either theory proliferated. S.A. Barber and J.E. Fleming have identified
several brands of originalism namely, narrow originalism, broad originalism, textualism and
concensualism.17 And to these may be added literalism. Although this may be of semantic
significance only, modern purposivism has variously been referred to as purposive
7
Supreme Court, 20th April 1970; digested in [1970] CC 55
8
Ibid
9
Kelsen, H., The Pure Theory of Law (translated by M. Knight), Berkeley/Los Angeles, University of California
Press (1967)
10
Quansah, E.K.,TheGhana Legal System (Black Mask, Accra, 2011) pp. 111-112.
11
But it is a mistake to think there is unanimity amongst scholars about the dominance of originalism and
positivism. Post Robert chronicles the pre-eminence of brands of interpretive methodology namely doctrinal,
historical and responsive interpretation. See Post, Robert, C., Theories of Constitutional Interpretation (1990).
Faculty Series, Paper 209.
12
S.A. Barber and J.E. Fleming, Constitutional Interpretation; The Basic Questions, [Oxford University Press :
2007] pp.79-94
13
Whittington, The New Originalism, Georgetown Journal of Law & Public Policy 2 (2004): 608-609:
Whittington suggests that “old” originalism was preoccupied with the legitimacy of judicial review and
proclaims the commitments of “new” originalism as “one of constitutional fidelity, not of judicial restraint or
democratic majoritarianism”.
14
Whittington, Originalism: A Critical Introduction, F.L.R Vol. 82 (2013) p.4
15
Whittington, Ibid. p.381.
16
Ahon, B., Purposive Approach to Interpretation in Law, (Princeton: Princeton University Press, 2005) p. 88
17
S.A. Barber & J.E. Fleming, Constitutional Interpretation, 2007 Oxford University Press, pp. 67-99
construction,18 purposive interpretation,19 modern principle of construction20 and purposive

approach.21Either theory has its loyal followers both at home and abroad and the literature
is understandably fragmented on which best profits the interpretive endeavour’s chief ends.
In Ghana, the methodological contestation has been between literalism or textualism, both
variants of originalism, and the purposive approaches which, as indicated earlier, had long
been resolved in favour of the latter by doctrine and statute.22 For purposes of this paper,
I would define originalism as an interpretive method that places emphasis on the original
meaning of the text and modern purposive approach as one that utilizes the legal system’s
core values and the central purpose of the legal text as dispositive to the interpretive
enterprise. This article is a critique of both the choice of the modern purposive approach to
constitutional interpretation in Ghana, and more particularly, its pre-eminent deployment
to determine the meaning of article 49 (2) and (3) of the Constitution and ultimately, the
2012 presidential election petition. I argue that while the final verdict may be desirable and
a logical consequence of the interpretive theory adopted, it may not have been anchored
on and supportable by Ghana’s constitutional history and, particularly, Ghana’s constitution-
making habits.23
II. The Election Petition

Soon after the announcement of the results of the 2012 presidential election, Nana Akuffo
Addo, the candidate of the New Patriotic Party (NPP) and two others issued a petition at the
Supreme Court against John Dramani Mahama, the National Democratic Congress (NDC)
candidate in the same election, and the Electoral Commission. The NDC later successfully
applied to be joined as a party. The reliefs sought by the petitioners were as follows:
1. That John Dramani Mahama, the 1st respondent herein, was not validly elected
president of the Republic of Ghana;
2. That Nana Addo Danquah Akuffo-Addo, the 1st petitioner herein, rather was validly
elected president of the Republic of Ghana;
3. Consequential orders as this court may deem fit.
The petitioners challenged the validity of the 1st respondent’s election on six grounds. These
included over-voting, voting without biometric verification, absence of the signature of
presiding officer, duplicate serial numbers on pink sheets, duplicate polling station codes
and the use of an unknown polling station which did not originally form part of the list of
polling stations advertised by the 2nd respondent as part of the 26,002 polling stations to be
used for the elections. At the end of pleadings, the court set down two issues for the trial,
namely:
1. Whether or not there were violations, omissions, malpractices and irregularities in
2. The conduct of the presidential election held on the 7th and 8th December, 2012.
18
Bourchard, Ron A., “A Living Separate and Apart is Never Easy: Inventive Capacity of the PHOSITA as
the Tie that Binds Obviousness and Inventiveness in Pharmaceutical Litigation: University of Ottawa Law &
Technology Journal, 2007 (Canada)
19
Barak, Aharon, Purposive Interpretation in Law, 2005 Princeton University Press. (Princeton, New Jersey)
20
Driedger,E.A. Construction of Statutes, Butterworth & Co. (Canada) 2d., 1983, p.83.
21
Posner, Richard. Pragmatism versus Positivism in First Amendment Analysis. Standard Law Review, Vol.54,
No. 4, 2002, pp. 737-752.
22
Section 10 of the Interpretation Act, Act 2009 requires judges to interpret statutes and documents purposively.
23
The 1992 Constitution is Ghana’s fourth Republican Constitution.
3. Whether or not the said violations, omissions, malpractices and irregularities, if any,
affected the results of the election.
One of the issues that needed resolution as part of the broader issues for the trial was whether
the absence of a Presiding Officer’s signature on the declaration form on which the votes
are recorded, in violation of article 49 (3) of the Constitution, invalidated the results from
affected polling stations. This issue was central to the petitioners’ claims of the presidential
elections being riddled with violations, omissions, malpractices and irregularities, and, if the
court upheld the claim of the petitioners in this ground, 659,814 votes fell for cancellation. If
you consider that only 325, 863 votes separated the 1st petitioner from the 1st respondent in
the disputed election, you got the sense that this issue, and how the court resolved it, had a
lot riding on it. The actual text of the constitutional provisions reads as follows:
“49. (2) Immediately after the close of the poll, the presiding officer shall, in the
presence of such of the candidates or their representatives and their polling agents
as are present, proceed to count, at that polling station, the ballot papers of that
station and record the votes cast in favour of each candidate or question.
(3) The presiding officer, the candidates or their representatives and, in the case of
a referendum, the parties contesting or their agents and the polling agents if any,
shall then sign a declaration (my emphasis) stating-
(a) the polling station; and
(b) the number of votes cast in favour of each candidate or question: and the
presiding officer shall, there and then, announce the results of the voting at
that polling station before communicating them to the returning officer.”
III. Modern Purposivism vrs. Literalism

The majority of the court rejected the suggestion that article 49 (3) be interpreted inflexibly
to require that the absence of a presiding officer’s signature on the polls declaration form
invalidated votes therein contained. Relying on the ‘purpose’ of article 49 (3), the president
of the panel Atuguba JSC said the “the signature in itself has no magic about it”. In his view,
if the underlying purpose of the presiding officer’s signature on the pink sheet is to attest
to the fact of the results being those generated at a particular polling station, that purpose
is sufficiently accounted for by the evidence of signature by polling agents, the counting
of the results in the full glare of the public, the provision of copies of the results to polling
agents, their authentication at constituency collation centres and the strong room of the
2nd respondent. Reliance should not be placed on the words of article 49 (3) to the point of
crushing injustice.
Gbadegbe JSC concurred in the court president’s preferred interpretive approach by

discrediting the idea that the duty created by article 49(3) is exclusive to presiding officers
with fatal consequences for the affected votes in the event of dereliction. In his considered
view, “in order to give a meaning that advances the purpose for which the provisions were
made, it is not proper for the court to look at the act in isolation as the petitioners have
invited us to do in this proceeding”.
Baffoe Bonnie JSC makes the purposive interpretation argument more forcefully when he
said:
“To strictly interpret the word shall to mean mandatory and therefore its violation
should lead to annulment of votes regularly cast, would lead to series of absurdity.
I am here persuaded by the modern purposive approach to interpretation to where

the intent rather than the bare words are used to influence interpretation”.
Owusu JSC on the other hand prefers that the court restrained itself from amending an
entrenched provision of the constitution through the adjudicatory process. She asks in
almost mild condescension, “How can a court under the guise of an interpretation give any
other meaning to 49 (3) other than what is stated in the clause”. Julius Ansah JSC gives
enormous reverence to the Interpretation Act, 2009, (Act 792) which requires that the word
“shall” be interpreted as obligatory or mandatory. Consequently, the failure of presiding
officers to sign the pink sheets as mandatorily commanded by article 49 amounted to
“monumental irregularity unmitigated by any circumstances”.
The other two minority voices on the panel, Justices Dotse and Anim Yeboah have used
verbiage and echoed sentiments closely akin to those expressed by Justices Ansah and
Owusu. According to Justice Dotse, the peculiar characteristic of article 49 as an entrenched
provision requires that it be interpreted to reflect a mandatory duty imposed on presiding
officers. Yeboah JSC a mandatory interpretation on another ground. The framers of the
constitution arrived at the carefully chosen words of article 49 after the benefit of plurality
debates and neither the resultant provision nor words conveying it should be rendered any
less or more than their meaning through linguistic manipulations.
IV. The Desirability of the Modern Purposive Approach for Constitutional

Adjudication in Ghana
The modern purposive approach as a preferred choice of constitutional interpretation
in Ghana has a basis in legislation, somewhat. According to the Memorandum to the
Interpretation Act, the purposive approach to interpretation “takes account of the words
of the Act according to their ordinary meaning as well as the context in which the words
are used”.24 But abhorrence of the literary approach to constitutional interpretation in
particularhas had sufficient doctrinal support25. The Supreme Court in Danso-Acheampong
v. AG [2009] SCGLR 353 at 358 had this to say:
“This reading of the constitutional provision is very literal. These days, a literal
approach to statutory and constitutional interpretation is not recommended. Whilst
a literal interpretation of a particular provision may in its context, be a right one,
a literal approach is always a flawed one, since even common sense suggests that
a plain meaning interpretation of an enactment needs to be checked against the
purpose of the enactment, if such can be ascertained…”
It would appear that these considerations weighed heavily, on at least the majority of the
court, in pressing into service the fullest amplitude of the modern purposive approach to
interpretation in adjudicating the elections petition.
The oracular duty of the Supreme Court and its final execution in the elections petitions has
been reducible to a contestation between two dominant interpretive choices: the modern
purposive approach and literalism or strict constructionism26. There is hardly a doubt that the
24
Memorandum to the Interpretation Act, p. iv.
25
The modern purposive approach has been used in cases such as Tuffour v. AG [1980] GLR 637 and Asare v.
AG [2003-2004] 2 SCGLR 823
26
See Adjei, D., Modern Approach To the Law of Inetrpretation in Ghana, ( Adwinsa Publications; Accra, 2014)
pp.353-356
former held sway in this contestation as the majority de-emphasized the literary implication
of the word “shall” in favour of the purpose of article 49 of the Constitution.
I would begin the desirability of the modern purposive approach as a legitimate tool for
constitutional interpretation in Ghana with Fontana’s27 view that a country’s orientation
towards originalism is a function of whether it operates a revolutionary constitution or a re-
organizational one. Even though the basic crux of Fontana’s claims may be indefensible on
some grounds, I use him as a starting point to show the relevance of context in constitutional
adjudication in general and interpretive choices in particular.
In countries where the constitutions are products of revolutions, the constitutions create the
nation states and those countries tend to be more focused on the founding moments and
their major protagonists and cultural settings as to make originalism a logical choice. This
is to be contrasted with a historical context in which a constitution-making process merely
re-organizes the governance institutions of state and provides opportunity for institutional
succession.28 In the latter, the absence of an extraordinary founding moment makes the
choice of modern purposivism a more appealing interpretive choice.
It is an error to treat the author’s views in absolute terms or as having made a context-neutral
value proposition. As he himself admits, his is not an exercise in absolutism, “it is simply to
say that the more revolutionary the constitutional tradition or the moment, ceteris paribus,
the greater the tendency there is to have discussion of originalism”.29 However, this may
be largely true for some countries. This may explain the dominance of originalism and its
several cousins30 in methodological debates in the United States for instance. The governing
American constitution is a product of the independence revolution authenticated by a
declaration that has life, liberty, pursuit of happiness, representative government and the
rule of law as its central themes.31
The 1992 Constitution of Ghana is a product of the 1981 revolution that created state
institutions and governance structures anew from the Kelsenite perspective, at least. The fact
is some provisions of the 1979 Constitution may have resonance with some core values of
the successor constitution of 1992 but it ceased to have legal effect when it was suspended
indefinitely in the military coup of 1981.Several military decrees supplanted the 1979
Constitution for ten long years and with it, several inglorious years for constitutionalism.
If we accept the view that the 1992 Constitution was a product of a revolution and that
the resulting constitution created state institutions and governance structures anew, and
further that Fontana’s interpretive preferences, relative to the circumstances that birthed a
27
Fontana, D., See Also, 88 Texas L. Rev.p.189.
28
Supra, at p. 196.
29
Ibid, at p. 198.
30
As indicated earlier, literalism, textualism and strict constructionism are all considered, rightly or wrongly,
variants of originalism.
31
Paragraph 2 of the American 1776 independence declaration states as follows: “We hold these truths to be self-
evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights,
that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the governed-That whenever any Form
of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to
institute new Government, laying its foundation on such principles and organizing its powers in such form, as to
them shall seem most likely to effect their Safety and Happiness”.
constitution are valid, our constitutional court should embrace originalism, not purposivism.
Of course, there are hardly any founding persons around the period leading to the
promulgation of the 1992 Constitution whose ideals could be referenced as a strong
rallying point in constitutional adjudication and, even governance, in the sense in which
Fontana’s thesis persuades us. But the Constitution’s founding moment was remarkable and
even emotional as it marked a return to separation of powers, rule of law, constitutionalism
and popular sovereignty which eluded the country for many years. Understandably, these
principles represent founding ideals serving at the top of Ghana’s constitutional food chain.
There is a tendency to view originalism as an obsession in American intellectual debates and

adjudicatory habits, and the whole idea of comparative originalism elsewhere a pathetic
oxymoron. But as Varol Ozan remarked32, constitutional law is now increasingly globalized
and debates on constitutional convergence and divergence are now common place.
Even if Fontana’s distinction between revolutionary and reorganizational constitutions

proves inadequate in supporting our choice of originalism in interpreting the constitution,
there is reason to treat originalism as more of a cultural phenomenon than purely a function
of the type of constitution. This is why even in some countries where the constitutions are
reorganizational, originalism remains the preferred constitutional methodology.33
Varol Ozan’s alternative hypothesis for the choice of originalism, especially the emphasis
on culture, should strike us as interesting because of our own constitution-making habits
and history. The founding of the 1992 Constitution was based on a plural and majoritarian
process with the participation of ordinary citizens through a key representative institution
such as the Consultative Assembly and prominent citizens serving on the Committee of
Experts.34
Ghana’s constitution-making experiences reveal conscious incremental attempts to

improve the text since 1960. A repentant nation with burnt fingers35 from a single executive
arrangement under the 1960 Constitution reverted to a dual executive in 1969, for example.
Regard may also be had to the tremendous improvement to the constitutional architecture
to discourage military interventions under the 1992 Constitution. Article 1 (3) of the 1979
Constitution was found inadequate to achieve the anti-coup objectives of the constitution36.
The relevant provision read “All citizens of Ghana shall have the right to resist any person
or persons seeking to abolish the constitutional order as established by this Constitution
should no other remedy be available”. This has meant that it is only legal to resist a coup
that is in the making; not after it has succeeded.37 Article 3 of the 1992 Constitution has
cured this defect in the 1979 Constitution by empowering all citizens to at all times defend
the constitution and resist any person seeking to suspend the constitution, and to restore it
32
Varol Ozan; The Origins and Limits of Originalism: a Comparative Study, Vanderbilt Journal of Transnational
Law, Vol. 44: 1239.
33
See generally Varol Ozan, Ibid, 1246
34
For popular and institutional participation in the process, see Ocquaye; Politics in Ghana, (Accra: Tornado
Publications,2004) p.488 and Afari-Gyan, The Making of the Fourth Republican Constitution Of Ghana, (Accra:
Friedrich Ebert Foundation:1995)pp. 32-50.
35
The reason why the decision in Re Akoto (1961) G&G 160 is held in infamy.
36
See the case of Ekwan v. Pianim (No.2) [1996-97]SCGLR 120
37
Ibid, p. 145.
after it has been abrogated, suspended or overthrown.38
On the evidence, the 1992 Constitution is a culmination of decades of deliberate

improvements through supply of omissions and the removal of ambiguities. Consequently,
the Ghana constitution has 299 articles as compared to the seven in the United States
Constitution.39 Of course, this is not an exercise in comparative constitutional law.
Constitutional comparativism is a dangerous task to undertake because of the requirements
of autobiographical contexts and other nuanced considerations. Nonetheless, the fewer
articles in the US Constitution increases the juridical task of divining that constitution to take
account of situations not contemplated in the year of founding and the ills of anachronism.
This is why constitutions such as Ghana’s which are comparatively newer and with higher
textual volume should be interpreted differently. At least, the resort to an interpretive mode
that empowers the judicial branch to substitute an original purpose with a convenient
judicial purpose, should be done slowly.
Article 130 of the 1992 Constitution which vests the Supreme Court with exclusive original
jurisdiction in matters relative to the enforcement and interpretation of the constitution
has lessened the severity of the counter-majoritarian debate in Ghana.40 Nevertheless, the
perils of an unelected bench determining meaning outside of the constitutional text in the
name a so-called purposive approach is disturbing. As Bork famously noted:
“[t]he original constitution was devoted primarily to the mechanisms of democratic

choice. Constitutional scholarship today is dominated by the creation of arguments
that will encourage judges to thwart democratic Choice”.41
And seriously, this is not just another old argument in support of originalism. A country
with a history of military forays into politics and so deeply divided politically should choose
less controversial options of constitutional interpretation, one that places more emphasis
on the text and departing only in rare cases. The rare cases should include situations where
the constitution does not specifically provide for a particular situation. This has a better
chance of emphasizing the public authority of the text and lending legitimacy to judicial
determinations of what the constitution means.
A distinction has to be drawn between the meaning of a word or legal rule and the
consequences which should flow out of that word or a legal rule. The controversy about
the word “shall” in article 49(3) of the constitution and about which the Supreme Court had
to make a decision during the elections petition was not necessarily about the meaning
of the word. It was more about the consequences that should flow out of obedience or
lack of it, a situation not provided for in the Constitution. Even so, the text, structure and
history of the constitution should provide the Supreme Court with a major premise. That
premise is in alignment with the core values that the Framers of the constitution intended
to protect.42 The court must then supply the minor premise for resolving the issue at hand.
38
Article 3 (4) of the Constitution.
39
Of course the US Constitution has seen about 27 amendments, including those on the bill of rights.
40
For the history and nature of the debate on judicial supremacy and the counter majoritarian question, see
Barry, F., CountermajoritarianDificulty, Part One: The Road to Judicial Supremacy, N.Y.U.L. Rev. 73 (1998).
41
Robert H. Bork, Tradition and Morality in Constitutional Law, American Enterprise Institute for Public Policy
Research (1984): Washington DC.
42
Robert H. Bork, The Constitution, Original Intent, and Economic Rights, 23 San Diego L. Rev. 823,
826(1986).
So the fact that the Framers could not foresee a particular situation does not warrant a
judicial license to search for a purpose at large. Ultimately, judicial reaction must resonate
with the underlying original intent of the constitutional provision. The strictures in article
49 were no doubt intended at their founding to ensure the integrity of the votes cast in an
election and non-compliance should cast substantial doubt about the attainment of this
original purpose.
V. Conclusion
In conclusion, I do not want to be understood as proposing that the Supreme Court’s choice
of the modern purposive approach to interpreting the constitution was in error nor that the
outcome on that methodological basis impeachable. I say that the statutory and doctrinal
basis for the choice of modern purposive approach to constitutional interpretation is wrong
and say further that adopting an originalist variant of textualism or literalism in interpreting
our constitution agrees more with the founding context of the 1992 Constitution.
Everything in our constitution-making history and habits points to the scrupulous detail
with which the 1992 Constitution was drafted. The consensual and majoritarian quality of
the processes that produced it vindicates an extra-ordinary public ownership of its textual
provisions, and for this reason, the interpretive latitude of the Supreme Court should
be restrained. Sobran’s view may be too simplistic for a task as serious as constitutional
interpretation but he does make a solid point about sticking with the text as long as it makes
sense. Besides, fidelity to the actual textual provisions and their juridical consequences in
relation to the original intent gives the best assurance of legitimacy for the court’s decision.
In my view, there is no need embarking on the search for a purpose when the provision to
be interpreted in its plain textual meaning does no violence to the original intent or any
consequences arising there from. Put differently, there is no need imperfecting a perfection.
JUDICIAL INDEPENDENCE AND THE EXECUTIVE BRANCH IN NIGERIA
AjepeTaiwoShehu*
Abstract
Justice in its widest embrace is not just giving to people that which is legitimately due to them, it
includes all means toward attaining the end of justice; these means include the judiciary and its
personnel. Thus, to ensure justice (constitutional, legal, socio-economic, cultural and political),
there must be enabling environment. This includes but not limited to well-structured judicial
institutions; well-funded to assure their financial and fiscal autonomy. The judicial officials who
are to administer the laws for justice must be well provided for, their tenure once appointed
(or elected) must be secured and adequately insulated from, particularly, political influence or
interference such that determination of disputes of all kinds are based on the facts as properly
put before the judge, the applicable laws freely and professionally applied by the judge and his
conscience. Relying on content analysis of existing literature and constitutional provisions, this
paper empirically examines the framework for judicial independence in Nigeria and by extension
the relationship between the judiciary and the executive branch of the government. This is to
determine the extent of judicial independence from executive involvement in matters that are
purely judicial, which involvement is capable of undermining judicial process and justice in the
society. It is contended that the constitution is hollow pretentious; the provisions fall short of
the need for judicial autonomy. To a greater extent, the judiciary has been made a stooge of the
executive and a horse whip in the hands of the chief executives. This apparently calls for reforms
and restructuring.
I. Introduction
Justice1 is the foundation for peace, stability, progress and sustainable development and
democracy. The need for justice, therefore, is the main focus of the rule of law,2 which
had necessitated the quest for independent judiciary in the history of man on this planet.
Essentially, the prominence of rule of law also called for separation of powers between the
organs of government. As an arm of government the judiciary carries the burden of ensuring
balance between the other branches of government and their agencies so also it does
between individuals and the state officials and amongst themselves. The adjudicatory and
interpretative roles of the judiciary therefore call for personnel, decisional and institutional
independence. The prominence of this independence can better be appreciated if viewed
from utilitarian angle or when it is considered that most of the disputes arising or potential
in developing democracies are more on peoples’ rights; socio-economic and other human
rights. As rightly noted by Tinkham, the role of the judiciary in the society is increasing
*Dr. Ajepe Taiwo Shehu,Senior Lecturer and Head, Department of Public Law, Faculty of Law, University of
Ilorin, Nigeria. Email: atshehu2000@ymail.com, ajepe@unilorin.edu.ng
1
When we talk of justice there is often the need to distinguish between the various uses of the word so that
from the onset the primary purpose of society is not lost. Justice in the sense used here is to distinct from legal
or constitutional justice (the main focus here) from social justice as defined or illustrated by John Rawls. This
clarification is essentially to avoid pitfalls in analyzing the concept. See Rawl, J., A Theory of Justice (Revised
Edition, The Belknap Press of Harvard University Press, Revised Edition, 1999) pp. 1-33 To Rawls, “Justice is
the first virtue of social institutions.” Legal or constitutional justice is seen as the basic foundation of the society;
it is the superstructure upon which all other structure must lean to exist in cooperation and harmony with one
and another.
2
For there to be a just society or generally justice there is absolute need for the rule of law. It is the mechanism
for justice. Rule of law would thus ensure that what is due to individuals is given. See George H. Sabine and
Thomas L.Thorson, A History Of Political Theory (India: Oxford & IBH Publishing Co., 1973) pp. 64-65
54 Judicial Independence and The Executive Branch in Nigeria Ajepe TaiwoShehu
and become more noticeable.3 Societies grow into sophistication in term of population,
social and economic interactions, political engagements, and all forms of legitimate (and
sometimes illegitimate) claims of rights. These dynamics put pressure and demands for
legal and constitutional justice on the judiciary. This presupposes independence for the
judiciary in both decision-making by the judges and the institution of judiciary as a way of
insulating them from the political influence and interference by the political branches of the
government, especially the executive.
A cursory look at the role and influence of the executive branch of government in most
developing democracies and Nigeria in particular shows the image of a supposed monster
that needs to be tamed before getting so wild to destroy the very essence of society-
justice. The executive branch has over the years grow in strength and influence leading to
recklessness and lawlessness,4 such that the other arms of government must be protected
so that the rights of ordinary man on the street can be protected as well. The President of
the Federal Republic of Nigeria is designed so powerfully by the 1999 Constitution of the
Federal Republic of Nigeria (hereafter referred to as “Nigerian Constitution”). He is head of
state, chief executive and commander-in-chief of the armed forces.5 As chief executive, his
powers are so expansive,6 and fluid that there is need for a properly independent, courageous
and incorruptible judiciary. Thus, this paper examines judicial independence especially
from the executive branch. Aside the introductory aspect, the paper has four major parts.
Part two deals with the theoretical framework and part three examines the constitutional
provisions relating to judicial independence and argues that the constitutional provisions
are inadequate. Part four examines the practical reality of the inter-branch relation between
the judiciary and the executive branch pointing out that in as much as the judiciary does
not control the purse of the nation there is no way it can enjoy absolute financial autonomy.
It also points out that, in line with separation of powers, the National Judicial Council (NJC)
should have exclusive power over appointment and removal of judicial officers. Part four is
the concluding aspect and some recommendations are made especially for the enforcement
of principles of independence against the executive officials, especially the minister of
finance and commissioners of finance.
II. Theoretical Framework

There is growing literature on judicial independence but some Scholars; for example, Hensler7
argues that the issue of judicial independence does not worth a substantial investment of
analysts’ time and that the debate over judicial independence diverts attention from more
important questions about how to create a just society, particularly in the United States.8
3
Tinkham, T. ‘Applying a Rational Approach to Judicial Independence and Accountability on Contemporary
Issues’ William Michel Law Review 37:3 (2011) p. 1634
4
Many reasons are responsible for the growth in size, strength, influence and perhaps arrogance in the executive
branch in Nigeria. More prominent was the military coups that were ravaging across Africa. Although the
military wherever they took-over governance and especially in Nigeria never abolished the judiciary, the
legislature was always the first casualty; merging law-making power with executive power and thus became the
superego.
5
See Nigerian Constitution, section 130
6
id., section 5. For an extensive analysis of executive powers of the president under the 1999 Nigerian
constitution, see Aduba, J. N. and Oguche, S., Key Issues In Nigerian Constitutional Law(Lagos: Nigerian
Institute of Advanced Legal Studies, 2014) pp. 253-262
7
Hensler, D.R., ‘Do We Need an Empirical Research on Judicial Independence’ Southern California Law
Review 72 (1999) 708-709
8
id.
Today, most nations of the world, including the Arab nations and even thoseunder military
rule, have judicial independence in one way or another. This is so because, as rightly captured
by Diescho:9
There is a growing recognition and acceptance that, in order for people – as

individuals, communities, organisations and even nations – to live in harmony,
there ought to be a set of rules and regulations that are agreed upon, accepted
and adhered to uniformly and with a fair degree of predictability. In addition, it is
accepted that, in order for peace and equilibrium to exist, which in turn guarantee
fairness and justice, there ought to be an arm of society that is equipped to interpret
the rules without fear or favour. This reality recognises and calls for the institutions
of justice, the courts, to assume an independence to interpret the rules without fear
or favour.10
It would be rather unwarranted to key into Hensler’s argument, even in America, Like in
any’ other human settlements, wherever dispute may arise amongst men, that investing in
the debate “diverts us from more important questions …”11 The primary focus or function of
the judiciary is all about creating a just society. Conceptually, “a just society” should only be
such that the “security and welfare of the people” are the primary function of government,12
and where also there is respect for rights of the citizenry. Generically, “government” is the
totality of the state apparatus for organising the society in an orderly manner, providing
social-economic peace and security, and ensuring prosperity. Thus, the state apparatus are
the legislature, executive and the judiciary. Therefore, investing in the judiciary or devoting
time to debate and analysing judicial independence is investing in a venture to ensure
a just society, and as Fetejohn puts it, it “is also complex in that it really can’t be seen as
something of value in itself but is instrumental to the pursuit of other values such as rule of
law or constitutional values.”13 With deep sympathy one can understand Hensler’s anxiety
and really “until we know and can agree on what we mean by judicial independence, and
why and when we want it, it will be difficult to outline an empirical research agenda on the
subject that will propel us in a useful direction.”14
Really, it may be true that defining judicial independence, like most concepts, may be
difficult and not capable of any universal definition, but it can at least be illustrated in a
way that would bring out its conceptual and normative values. And as John Law15 argues,
any comprehensive and coherent definition of judicial independence must address the
questions: independence for whom, from whom, for what purpose, and how. These are
core definitional tools and finding answers to them would provide a clear understanding of
what judicial independence is all about. Shehu and Tamim16 have tried to provide answers
9
Diescho, J. B., ‘The Paradigm of an Independent Judiciary: Its History, Implications and Limitations in
Africa’<www.kas.de/upload/auslandshomepages/namibia/independence... (accessed on 8 June 2014)
10
id.
11
Hensler, supra note 7, 709
12
See Nigerian Constitution, section 14(2)b)
13
Ferejohn, J, ‘Dynamics of Judicial Independence: Independent Judges, Dependent Judiciary’ www.usc.edu/
dept/law/symposia/judicial/pdf/ferejohn.pdf(accessed on 20 September 2012)
14
Hensler, supra note 7, 720
15
Law, D.S., ‘Judicial Independence’http://ssrn.com/abstract=1557348(accessed 20September 2012)
16
Shehu, A.T. and Imam-Tamim, Suspension of Hon. Justice Isa Ayo Salami: Implications for Rule of Law,
Judicial Independence and Constitutionalism in Abikan&Ishola (eds.), Nigeria Judiciary: Contemporary Issues
in Administration of Justice (Ilorin: University of Ilorin Press, 2013) pp. 35-39
to these important questions directing attention to what judicial independence entails; its
conceptual and normative values. Drawing on the contemporary constitutionalism and the
environment of judiciary in Nigeria, the writers argued that the first question raised by Law,
‘independence for whom’, presupposes independence for the judges17 in their decision-
making and not independence for the entire judiciary as an institution of government.
Certainly, the constitutional provisions18 pertaining to independence of Judiciary centered
more on guaranteeing independence for Judges to ensure their freedom in judicial
decision-making. Therefore, the question as to whom the independence is meant is partly
constitutionally answered, but the provisions do not cover or intended by the framers of the
1999 constitution to cover the judiciary as an institution.
As rightly asserted by Shehu and Tamim, the Judiciary as an institution enjoys largely what
can be termed as cosmetic separation19 from the executive or the political branch, but
certainly, as would be seen soonest, not independence. Presently, as observed by Ferejohn,20
if judges are insulated from political influence, their courts where they perform their judicial
decision-making functions and the judicial system as a whole remain remarkably dependent
on political officials. In Nigeria, the superior courts are created by the constitution,21 but
the National Assembly and the State Houses of Assembly are vested with power to create
court apart from those created by the constitution, subject to certain limitations.22 When
Courts are created by the Constitution or Statutes, the constitution does not provide
the physical structure (Courtrooms). This is something to do with building complexes to
house the courtrooms. Again, the executive officials are directly involved in the design
and construction. Besides, the salaries including other allowances of judicial officers are
determined by the executive officials. Therefore, the “from whom” question may pose some
difficulties depending on the constitutional prescriptions by different nations. In Nigeria,
however, the determination of salaries of judicial officers is constitutionally vested in the
National Assembly and the Revenue Mobilization Allocation and Fiscal Commission.23 While
the Legislature enacts the appropriation law, the actual salaries are determined by the
Commission.24 Although the National Assembly is the law-making authority, the Commission
is an executive agency.25 In other words, the soul of judicial officers is constitutionally tied
to the nuances of the executive branch. Therefore, the answer to the “from whom” question
would be, partly, from the executive branch and this is the concern of this paper.
The judiciary and the judicial officers need independence from several segments of the
society, but it may be difficult to isolate and insulate the judges from the whole segments,
which include certain powerful individuals and groups. Cases coming before the judges are
usually in varying categories; criminal, civil/private, and constitutional matters, which may
involve settlement of disputes of constitutional nature between the executive and legislative
17
id., 42-45
18
see particularly sections 83 and 292,1999 Nigerian Constitution
19
Shehu and Imam-Tamim, supra note 16, 36
20
Ferejohn, J. supra note 13
21
See Nigerian Constitution, Section 6 (5) (a)-(i)
22
id., subsection 5 (j)-(k)
23
id. section 84 (1),
24
A careful reading of the provision would show a division of powers thereon between the legislature and the
commission: “There shall be paid to the holders of the offices mentioned in this section such remuneration,
salaries and allowances as may be prescribed by the National Assembly, but not exceeding the amount as shall
have been determined by the Revenue Mobilisation Allocation and Fiscal Commission.”
25
See Section 153 (1) (n), 1999 Nigerian Constitution
branches; human rights violation, which most often times involve agencies (police, for
example) of the executive branch. Also, there are cases between powerful individuals and
members of the corporate world. Judges are open to series of influence and interference,
the most powerful and most apparent is from the executive branch. However, this poses
the other normative inquiry in the process of understanding what judicial independence
is all about. The inquiry must be hinged on what can be referred to as the “how” question.
There cannot be effective principles of judicial independence without how to effectively
implement the principles.26
The ‘how’ question is significant in the normative inquiry into the problem of judicial
independence. This is about enforcement of independence of the judges whether in the
substantive or procedural decision-making process. Unless the ‘how’ perspective of the
independence is well handled, the primary goals of independent judiciary may never
be attained.27 Judges must be independent in adjudicating in matters brought before
them to ensure justice, fairness, equity, peace, order and good governance. Without such
independence, there can hardly be rule of law and strict adherence to constitutionalism.28
Socio-economic justice, and overall, sustainable democracy demands of independent
judiciary is apparent as it must have been witnessed in the election petition cases, in the
country.29 This paper does not intend to suggest as does Kalan30 analysing the decision
of United States Supreme Court in Bush v Gore, independence of the judiciary from “the
law”.31 To do this would be taking too far the freedom judges have in their interpretative
role or in the settlement of disputes. The courts and judges themselves are creations of the
constitution and the statutes and when they interpret the laws or the constitution they only
expound the provision and cannot go outside the law. To do that would be engaging in
judicial rascality and arrogance and not a claim of freedom.
III. International/Constitutional Framework

Judicial independence has attained international status as evidenced in the United Nations’
26
This apparently calls for empirical research. It is not often that there are no guidelines or constitutional
mechanism for judicial autonomy. The problem has always been enforcement.
27
The approach in Canada is a good example of how independence of the judiciary can be enforced against
members of the executive branch. See, Binnie,I. ,Judicial Independence in Canadawww.venice.coe.int/wccj/
rio/papers/can-binnie-e.pdf(accessed on 8 June 2014) Ferejohn J. supra note 13, also argues the same way and
suggests that “We could construct legal rules – either statutory or constitutional – to restrain public officials
from infringing on judicial authority. These rules would need to have sanctions attached to their violation and
would need to be enforced if they are violated. Alternatively, one could imagine the development of a set of
conventions or norms of self-restraint that politicians somehow consider as binding on themselves – a kind of
political morality –without the necessity for a formal enforcement mechanism. Or, we might imagine that either
formal rules or conventions are enforced politically by the people through the ballot box.”
28
Shehu, A. T., ‘The Imperative of Independent Judiciary for Constitutionalism and Sustainable Democracy in
Nigeria’s Olabisi Onabanjo University Journal of Law 1:2 (2012) pp. 19-31
29
The Courts and Election Petition Tribunals have, in most cases, performed excellently well particularly in
election petitions between 1999 and 2011, ensuring that the democratization process the country has since been
going through was not truncated by the politicians who were always desperate to manipulate electoral rules to
suit their ambitions. See for examples: Udeh v Okoli (2009) 37 NSCQR 496, Odedo v INEC (2008) 36 NSCQR
(Pt. II) 919, BalaHassan v BabangidaAliyu (2010) 43 NSCQR, 139, Albert Akpan v Bob (2010) 43 NSCQR
409, Atiku v Yar’ Adua (2008) 33 NSCQR (Pt. II) 650, Ehuwa v INEC (2006) 28 NSCQR 545, Ezeigwe v
Nwaulu (2010) 41 NSCQR, 500, Amaechi v INEC (2008) 33 NSCQR (Pt. I) 332
30
Kalan, P. S., ‘When Freedom Isn’t Free: The Costs of Judicial Independence in Bush v Gore’<htpp://ssrn.com/
abstract_id=311086 (accessed on 20 September 2012) pp. 1-25
31
id., at 21
espousal of some basic principles as guide to national constitutional perspectives. Most

nations of the world now have judicial independence in one way or the other. It does
not matter whether or not the country has a written, partly written, or even unwritten
constitution, if there be any. This shows a greater concern for the maintenance of balance
in the societies.
a. Basic Principles
At the international level, the United Nations Declaration on Human Rights, 1948 provides
in Article 10 that everyone is entitled to full equality to a fair and public hearing by
independent and impartial tribunals, in the determination of his rights and obligations and
of any criminal charge against him. The African Charter on Human and Peoples’ Rights also
provides for the same rights. The African Charter is domesticated in Nigeria, thus making it
enforceable before any court of competent jurisdiction in the country.32
Besides, there is the United Nations Basic Principles on Independence of the Judiciary.33
The seventh United Nations Congress on the Prevention of Crime and the Treatment of
Offenders was held it Milan from 26 August to 6 September, 1985. The Congress adopted
the basic principles on the independence of judiciary and the General Assembly endorsed
the principles by resolutions 40/32 of 29 November 1985 and 40/146 of 13 December
1985. By the principles, as can be seen from the preamble, every country is expected to
be “inspired” to make efforts to translate the principles into reality. The principles are not
intended to create a set of binding principles of public international law. Rather, they are “…
to assist Member States in their task of securing and promoting the independence of the
judiciary…”34
The basic principles, without defining independence of the judiciary, provide twenty
principles, which can be categorized into general and specific. Principles 1-7 are general,
dealing with contextual matters: substantive, procedural, adjudicative or judgmental
independence. The remaining principles 8-20 are specific matters dealing with freedom
of expression and association; qualification, selection and training; conditions of service
and tenure; professional secrecy and immunity; and discipline, suspension and removal.
Significantly, the principles are to ensure freedom of judges to adjudicate impartially “on the
basis of facts and in accordance with the law, without any restrictions, improper influences,
inducements, pressures, threats or interferences, direct or indirect, from any quarter or for
any reason,”35 and “to ensure that judicial proceedings are conducted fairly and that the
rights of the parties are respected.”36
Surprisingly, the basic principles or rather the United Nations are not interested in financial
autonomy for the judiciary as an institution of government, but interested only in encouraging
each “Member State to provide adequate resources to enable the judiciary to properly
perform its functions.”37 There is need for empirical research on this, at least to understand
32
See African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Cap. A9, Laws of the
Federation of Nigeria, 2004; See Abacha v Fawehinmi (2006) 6 NWLR (pt.660) 228
33
Available at, http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx>(accessed on
July, 2014)
34
See Preamble to the Basic Principles
35
See Principle No. 2
36
See Principle No. 6
37
See Principle No. 7
reasons for the United Nations not insisting on financial autonomy as an inseparable aspect
of independence of the judiciary. However, this may not be too far from the fact that when
it comes to budgeting (appropriation) it is only the State (the political branches) that knows
the purse of the state and are exclusively accountable to the taxpayers.
b. Constitutional Principles
The Constitution of every nation is the Peoples’ Charter on how they intend to be governed
by their elected and unelected public officials. It creates all institutions of government
either directly or indirectly and allocates powers to each of the institutions; it is through the
constitution that all authorities in the states (judiciary, legislature and the executive) derive
their power from the sovereign people of the state.38 Consequently, the Constitution of the
Federal Republic of Nigeria provides principles to ensure and guarantee independence
of the judiciary. It however provides as a fundamental right of the citizens that in the
determination of their civil rights and obligations, including any question or determination
by or against any government or authority, a person shall be entitled to a fair hearing within
a reasonable time by a court or other tribunal established by law and constituted in such
manner as to secure its independence and impartiality.39
Without defining “independence of the judiciary”, it earlier provides as a fundamental

objective and directive principles of state policy that the independence, impartiality and
integrity of courts of law, and easy accessibility thereto shall be secured and maintained.”40
The principles ordained to ensure and maintain the independence of the judiciary can be
categorized into general; those that are for the benefits of the judiciary as an institution
of government, and the specific or personal; those that are for protection of the judges
to secure and maintain their independence in the performance of their functions, now
examined in this order:
i. National Judicial Council

The National Judicial Council (NJC), (or hereinafter referred to as the “Council”) is established
under section 153 (1) of the Constitution, which is entitled “Establishment of Certain
Executive Bodies”, meaning that the Council is an executive body, though established for
the management and oversight of courts and judicial posts created by the Constitution, or
simply put; for the management and oversight of the judiciary created by the Constitution.
The President appoints the chairman and members of the Council subject to provisions of the
constitution and confirmation by the Senate.41 In making such appointments, the President
“shall consult with the Council of State”,42 which is also established as an executive body.43
However, in exercising its powers and functions under the constitution,44 the Council “shall
not be subject to the direction or control of any other authority or person.”45 It is crucial that
the constitution defines “authority” as used in the constitution to “include government.”46
The constitution does not define “person,” we take this to include the president, other
38
See for example, Section 14 (2) (a), 1999 Nigerian Constitution
39
See Nigerian Constitution, Section 36 (1)
40
See id, Section 17 (2) (e)
41
id., Section 154(1)
42
id., Section 154 (3)
43
id., Section 153 (1) (b)
44
See id., paragraph 21, part 1, second schedule
45
id., Section 158 (1)
46
id., Section 318(1)
members of the executive branch and members of the House of Representatives and the
Senate, including their leadership.
Importantly, appointments of persons to the offices of the Chief Justice of Nigeria, Justices
of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge
of the Federal High Court are made by the President upon the recommendation of the
National Judicial Council. Appointments of persons as Chief Judge, Judges of the High Court
of the Federal Capital Territory, Abuja; Grand Kadi and Kadis of the Sharia Court of Appeal,
President and Judges of the Customary Court of Appeal of the territory are also made by the
president upon the recommendation of the Judicial Council.47
At states level, the State Governors appoint and remove upon the recommendations of
the National Judicial Council, subject to confirmation by the States Houses of Assembly,
persons to the posts of Chief Judges and Judges of the High Courts Grand Kadi and Kadis
of the Sharia Courts of Appeal, Presidents and Members of the Customary Courts of Appeal.
Recommendation of persons for appointment is from the list of persons submitted to it by
the Federal Judicial Service Commission (hereafter referred to as the Federal Commission)
in the case of Federal Courts, Judicial Service Committee (hereafter referred to as the
Committee) in the case of Courts in the Federal Capital Territory, and in the case of states
courts mentioned above, by the State Judicial Service Commissions. The Commissions and
the Committee are both executive bodies, though only two of the members, in each case,
are not members of the legal families and are appointed by the president or the governors,
as the case may be.48
ii. Judicial Funding

To ensure financial independence of the judiciary, the constitution charges upon the
Consolidated Revenue Fund of the Federation the remuneration, salaries and allowances
of the Chief Justice of Nigeria, Justices of the Supreme Court, President and Justices of the
Court of Appeal, Chief Judges and Judges of High Courts, Grand Kadi and Kadis of the Sharia
Courts of Appeal, Presidents and Judges of the Customary Courts of Appeal.49 Besides, the
recurrent expenditure of the judicial offices in the Federation is also charged upon the
Consolidated Revenue Fund of the Federation.50 It is important to point-out here for purpose
of clarification that the provisions are silent on the issue of capital expenditure. However,
it is provided that “Any amount standing to the credit of the judiciary in the Consolidated
Revenue Fund of the State shall be paid directly to the heads of the courts concerned.”51
This provision does not implicate itself for “remuneration, salaries and allowances” of the
judicial officers and the recurrent expenditure for the judicial offices since the opening
words “Any amount” cannot be argued to again include remuneration, salaries, allowances
and the recurrent expenditure that are already charged upon the Consolidated Revenue
Fund of the Federation. Certainly, since the earlier provisions do not concern themselves
with the capital expenditure particularly at the state level, it may be taken for granted that
any money standing to the credit of the judiciary of a state would include its budget for
capital expenditure.
47
id., paragraph 21, part 1, second schedule
48
id., paragraph 12(e) part 1, third schedule, paragraph 5(f), part II, third schedule
49
id., Section 84(2)
50
id., Section 84(7)
51
id., Section 121(3)
The President of the Federal Republic of Nigeria, as the Chief Executive officer for the
Federation, is exclusively granted power to prepare annual budget for the Federation in the
form of an appropriation bill.52 It does appear that the remuneration, salaries and allowances
of the judicial officers discussed above and the recurrent expenditure of the judicial offices
are not to be included in the appropriation bill being charges upon the Consolidation
Revenue Fund of the Federation.53
One of the cardinal principles of interpreting constitutional provisions is that the provisions
shall be read together as a community, as a whole. Doing otherwise would do damage to
the intentions of the makers of the Constitution.54 Therefore, from reading together the
provisions of sections 80(2), 81(2) and 84(2) (4) and (7) it may be concluded that except
for capital expenditure, the judiciary enjoys freedom from the executive branch in term of
remuneration, salaries and allowances, and other recurrent expenditure. Furthermore, any
money to the credit of the judiciary in the Consolidated Revenue Fund of the Federation
is mandated to be paid directly to the NJC, and any money standing to the credit of the
judiciary in a state’s consolidated revenue fund of the state is mandated to be paid directly
to the head of the state’s judiciary.
Unfortunately, however, the judiciary or the NJC does not have control over the payment to
or issue of money from the Consolidated Revenue Fund. The President, at the federal level
shares the power with the National Assembly, and the Governors share the power with the
State Houses of Assembly in their respective states.55 Therefore, by virtue of the provisions
of section 80 a situation of helplessness and frustrations may be foisted on the Judiciary
when it comes to release of fund to it from the Consolidated Revenue Fund.
Dahiru Musdapher, the former Chief Justice of Nigeria, in a seminal lecture, observes
that fiscal independence for the judiciary is “still a pipe dream in Nigeria.” He laments and
condemns a situation where the judiciary, particularly at the state level, “has to go, cap in
hand, to the Governors of States, in order to receive the state judiciary’s budget.”56 A situation
he refers to as demoralising and damaging to the independence of the judiciary.57 The
question that must therefore be asked in spite of the constitutional provisions guaranteeing
funding of the judiciary from the Consolidated Revenue Fund of the Federation is: how can
the provisions be enforced so that the executive branch would comply strictly? With these,
we now turn to the specific or personal aspect of independence of the judges as enshrined
in the Constitution.
iii. Independence and Protection of Judges

In line with international standard, the constitution makes copious provisions to shield and
insulate judicial officers from executive’s intimidation, harassment and frustrations in the
52
id, Section 81(1)
53
id, Section 81(2)
54
See, Dapialong v Dariye (2007) 30 NSCQR 1022, 1087-1089, Amachi v Independent National Electoral
Commission (2008) 33 NSQCR 332, 423
55
See generally on control of public fund in Nigeria, Ijaiya, H., ‘The Control of Public Finance in Nigeria’
Nigerian Bar Journal 3:3 (2005) pp. 9-22, Shehu, A.T., Due Process in the Management of Public Funds
in Nigeria in Umozurike, E.C. and Ngwakwe, E.C. (eds.) LAW AND THE CHALLENGES OF NATION
BUILDING IN THE 21ST CENTURY (Lagos: Nigeria Association of Law Teachers, 2009) pp. 110-126
56
Musdapher, D., Challenges of Judicial Reform in the 21st Century: The Nigerian Experience. Paper presented
at the MMA Akanbi Faculty of Law Annual Lecture(Ilorin: University of Ilorin, Nigeria, 2012) p. 13
57
id.
performance of their judicial functions. Once appointed, the remuneration and salaries,
other than the allowance of the judges shall not be altered to their disadvantage.58 Besides,
once appointed, a judicial officer cannot be removed from the bench until he reaches the
age of voluntary or compulsory retirement.59 In the case of Justices of the Supreme Court
and the Court of Appeal, it is sixty-five years for voluntary retirement and seventy years
for compulsory retirement. It is sixty and sixty-five five years for voluntary and compulsory
retirement, in the case of all other judicial officers.60 However, any judicial officer may be
removed before the specified age on the following grounds:
(i) Inability to discharge his judicial function as a result of infirmity of mind or body
(ii) Gross misconduct
(iii) Contravention of judicial code of conduct.
In all situations, the National Judicial Council is the starting point; it is the only authority
vested with power “over disciplinary control”61 of judicial officers and it shall not be subject
to the control or direction of any other authority or person, in exercising this power.62
As a way of insulating judges from arbitrary removal from office to guarantee their
protection and independence in the discharge of their judicial functions, a judge can only
be removed by the “President acting on an address supported by two thirds majority of
the senate”63 or “by the Governor acting on address supported by two thirds majority of
the state House of Assembly.”64 The operative phrase “… acting on an address”, though not
defined by the constitution leaving that to the courts, can only mean ‘an address by the
National Judicial Council since the Council is the only authority constitutionally vested
with power of disciplinary control over judicial officers. All disciplinary measures therefore
start from the Council, pass through the executive branch and end with the legislature.
The Supreme Court has so held in Elelu-Habeeb & others v A.G. Federation & 2008.65 The
President or the Governor cannot just proceed with executing the provisions of section 292
of the constitution without the Council playing the vital role of investigating allegation of
any of the grounds of removal against any judge in the Federation. This is in live with the
principle of separation of powers and it is also logical that all authorities that are involved
in the appointments of judges are also involved in their removal from office on disciplinary
grounds or for infirmity of the mind or body.
IV. Judiciary-Executive Relation

The constitutional provisions relating to judiciary-executive relation as pertaining to
independence of the judiciary in Nigeria has earlier been carefully examined. This part
examines the practical relationship; determining the extent to which the executive branch
has in reality complied with the international standard and the constitutional provisions
relating thereto. The President is the Chief Executive for the Federation and the Governors
are the chief executives of their respective states. However, the extent of executive powers
remains a matter of conjecture; the constitutional provisions pertaining to the extent of
58
Nigerian Constitution, Section 84(3)
59
id, Section 291(10 (2)
60
id.
61
id, paragraph 21(b), part 1, third schedule
62
id. Section 158(1)
63
id, Section 292(1)(a)
64
id, Section 292(1)(b)
65
Elelu-Habeeb & others v A.G. Federation & others (2010) 2 S.C. (pt. 1), 145, 223-230
their powers remain nebulous and ambiguous.66 But certainly, the powers are to the extent
granted by the constitution67 or to the extent of exercise of those powers that are for the
proper execution and maintenance of those powers that are specifically granted, though
not provided, but at the same time not prohibited by the constitution or any law.
The executive powers of the president and the governors as the chief executives in their
respective governments extend to execution and maintenance of the constitution, laws
made by the legislatures and to all matters, with respect to which the legislatures have,
for the time being, powers to make laws.68 Simply put, the powers of the president and the
governors are to properly execute and maintain the constitution; ensure strict compliance
with the constitution by all, including themselves and all other executive officials. So also,
they have the duty to obey all laws made by the legislatures, and ensure that the laws are
faithfully obeyed by all and sundry.
The power of the president covers matters in both the exclusive and concurrent legislative
lists, and the governors have such powers over matters in the concurrent legislative list,
even though no law has been made on the matters by the legislature.69 This is apparently
an implication of extending the powers of the presidents and governors “to all matters
with respect to which the … has, for the time being, power to make laws.” The wordings
of the constitutional provisions are very clear and unambiguous and must therefore be
given their ordinary grammatical meaning. However, the extension of powers of the
president and governors should not be taken as given them liberty to engage in illegal or
unconstitutional acts. The extension is simply to enable the president or the governors take
appropriate measures to ensure the execution and maintenance of the constitution and
all other laws. This is in consonance with presidential, executive power theory; the chief
executive has inherent and stewardship power to ensure the security and welfare of the
people, democracy and sustainable growth and development.
The inter-branch relation between the organs of government is based on the principles
of separation of powers and checks and balances. Essentially, the principles are to achieve
the end of justice, freedom, rule of law, constitutionalism and sustainable development of
human and material resources. This presupposes one organ engaging in oversight of the
other arms, and in the case of the judiciary, it engages in constitutional and statutory review
(scrutiny) of activities of the other arms of the government. This power of judicial review
has certain negative implications for the judiciary and the judges. One, the judiciary is most
likely to be seen by other arms as unwarranted intruder or medullar interloper. Second,
judges may become subject of unnecessary and unwarranted media and political attacks.70
Consequently, independence of the judiciary would become the most affected of such
inter-branch jealousy, intimidation and harassment.
It is therefore important to examine the relationship between the judiciary and the
executive in relation to funding of the judiciary, appointment and removal of judicial
66
Shehu, A.T., ‘Inherent Power: An Examination of Executive Powers of the President under the Constitution
of the Federal Republic of Nigeria’ Kogi State University –Biennial Journal of Public Law 2 (2009)pp.
127-128,Aduba, J. N. and Oguche, S., supra note 6, 253-262
67
See Attorney General, Lagos State v Attorney General, Federation (2004) 20 NSCQR 99, 166-167
68
See Section 5(1)(b), 1999 Nigerian Constitution
69
id. See also Aduba, J.N. et. al. supra note 6, 259-262
70
See for example, Victor Oluwasegun, ‘APC Lawmakers ask NJC to dismiss judge’ The Nation Newspaper
(Lagos) 29 May 2014
officers. This becomes necessary bearing in mind that adequate funding is an essential
and a superstructure for judicial independence. This is also necessary because while the
legislature controls the purse of the nation, the executive branch is in charge of management
of the purse for the benefit of the Federation. The constitution established the Consolidated
Revenue Fund for the Federation and remuneration, salaries, allowances and other recurrent
expenditure for the judiciary are charged upon.
a. The Executive and Judiciary Funding

Although the fund for the judiciary is excluded from the annual budget (Appropriation bill)
for the Federation, no money shall be withdrawn from the Consolidated Revenue Fund
except in the manner prescribed by the National Assembly.71 But certainly, the executive
branch controls and manages the mechanism72 for collecting all revenues or other moneys
accruing to the Federation and paid into the Consolidated Revenue Fund. It therefore
becomes difficult to envisage that the executive branch would have nothing to do with
funding of the Judiciary. It would be like hiding in the plain of the desert to think otherwise
because it is the executive branch that has records of all revenues and moneys in the
Consolidated Revenue Fund, at all times.
The framers of the constitution were quite mindful of the control and management of the
public fund (Consolidated Revenue Fund of the Federation, inclusive) by the President
and therefore provides in the constitution that the money standing to the credit of the
judiciary from the consolidated Revenue Fund of the Federation “shall be paid directly to
the National Judicial Council,” for the benefit of the courts established under section 6 of
the constitution, and also that any money standing to the credit of the judiciary of a state
shall be paid directly to the heads of the courts. This means someone somehow shall pay
the amount due to the judiciary to the Council, or heads of the courts. It is not far fetched to
determine who pays to the judiciary from the Consolidated Revenue Fund. This can only be
the executive branch. It is therefore difficult to warrant how the judiciary would get its fund
without the involvement of the executive officials.
However, in Olisa Agbakoba v. Attorney General (Fed) and Others,73 Justice Mohammed indeed
correctly found that the continuous dependence of the judiciary on the executive branch
for its budgeting and release of funds undermines financial independence of the judiciary74
and ultimately affects dispensation of justice in the country.75 It is also true that there is
nothing in the constitution commanding the Judiciary to submit its annual budget to the
executive for approval, but it is all the same certain that it is only the executive branch that is
expressly granted the power to present annual estimate of expenditure to the legislature.76
Neither is there any provision in the Constitution suggesting that the judiciary has the
power to present its annual budget to the National Assembly as held in the judgment nor
is there any provision in the constitution making the judiciary subservient to the executive
branch in term of funding.77 The approach adopted by Justice Mohammed in the case
71
see Section 80, 1999 Nigeria Constitution
72
All the agencies charged with the collection of revenue for and on behalf of the Federal Government (Federal
Inland Revenue Office, Custom Exercise, Treasury, Federal Pay Office, Central Bank, etc.)
73
Olisa Agbakoba v. Attorney General (Fed) and Others (unreported) suit no. FHC/ABJ/cs/63/2013
74
id., at 38
75
id.
76
See Section 81(1), 1999 Nigerian Constitution
77
id., See Section 4, 5 and 6
was reminiscent of the activist’s approach adopted by Chief Justice Marshall in Marbury v
Madison.78
It is true as observed by Justice Mohammed that the arrangement of constitutional powers

is based on the principle of separation of powers, but he failed to avert his mind to the
simple and logical practice that there is no absolute separation of powers,79 but overlapping
competencies and checks and balances. It is difficult to comprehend the observation of
the judge that “each arm is independent of the other”80 These peculiarities of the 1999
Constitution of the Federal Republic of Nigeria was recognized by the Supreme Court in
A.G. (Abia State) and Others v A.G. Federation.81 Also, the judge failed to avert his mind to the
principles of constitutional interpretation laid down by the Supreme Court in plethora of
cases82 that provisions in the constitution should always be read together as an organic one;
to read or interpret a provision without regards to the other provisions may do damage to
the intentions of the makers of the Constitution. In reaching his judgment, Mohammed J.
closed his judicial eyes to the provisions of Sections 80 (2) and 81(1); 120 (2) and 121 (1) of
the Constitution, though he relied on the A.G. Anambra State v A.G. Federation83 to the effect
that where the words used in a provision are clear and unambiguous they should be given
their ordinary grammatical meaning. It is important to note that the court failed to avert its
mind that what is not expressly mentioned in the constitution is not intended by the makers
of the constitution; “expressio unius est exclusion alterious.”84 It is true that no matter how old
or long a custom or practice is, it cannot replace the plain language of the constitution or
statute. It must also be remembered that, in the same token, to resort to interpretation by
implication when the language of the law is unambiguous would do more damage to the
intendment of the legislature.
However, taken the judgment as the binding authority (at least for now that it has not
been overturned by an appellate court),85 not much has been achieved for the judiciary’s
financial autonomy. This is because even when the judiciary’s budget is submitted to the
National Assembly, it must undergo legislative process which may occasion delay in release
of fund to the judiciary. Besides, the approval by the National Assembly would still pass
through the executive branch for execution; release of the approved estimate from the
Consolidated Revenue Fund is by the executive branch as a trustee or custodian of the fund,
no other authority has the power to physically release, issue from or pay any money into the
Consolidated Revenue Fund of the Federation, subject to approval by the legislature. Thus,
there must be a time-frame within which the executive branch at federal and state levels
shall directly pay to the National Judicial Council or heads of courts the approved estimate.
This is to constrain the executive branch to comply strictly with the provisions of the
78
5 U.S. 137 (1803)
79
See Shehu, A.T., ‘Modeling Separation for Constitutionalism: The Nigerian Approach’ University of
Maiduguri Law Journal 9, (2011) pp. 1-14
80
A careful understanding of the working and intendment of the makers of the Constitution would show that the
constitution favours mutually dependent arms rather than a whole separation
81
A.G. Abia State & 35 Others v A.G. Federation (2000) 3 S.C. 106
82
See, Dapialong v Dariye (2007) 30 NSCQR 1022, 1087-1089, Amachi v Independent National Electoral
Commission (2008) 33 NSQCR 332, 423
83
A.G. Anambra State v A.G. Federation ((1993) 6 NWLR (pt. 302), 692, 726
84
Ehuwa v Independent National Electoral Commission (2006) 28 NSCQR 545, 565
85
The judgment is still standing on its force of law having not being upturned by an appellate court. See Section
287, 1999 Nigerian Constitution. No matter how bad the judgment of a court of competent jurisdiction, it is yet
the law until set aside by an appellate court. See Shell Petroleum v Limited (2006)4 F.W.L.R. 6232, 6242
constitution in that regard. Also, there must be sanction for dereliction or noncompliance
such that refusal to release the fund within the time-frame would attract legal sanction such
as imprisonment of the minister of or commissioner for finance, as the case may be.
b. The Executive and Appointment of Judicial Officers

As must have been gleaned from the preceding parts of this paper, appointments of judicial
officers is on a quartet arrangement. The Judicial Service Commissions (Federal and State)
play advisory role, the National Judicial Council recommends to the Chief Executive persons
for such appointment from the list submitted to it by the judicial service commissions.86 The
Chief Executive, as the appointing authority, appoints for confirmation by the legislature.
Simply put, the process starts from the Federal or State Judicial Service Commission, to
the NJC, the Governor, or President, as the case may be, and finally to the Senate or State
Assembly.
The appointment procedure is an antithesis and a brazen violation of the principles of

separation of powers; apart from the judicial council and commissions being executive
bodies, the President or the Governor of a State is not a member of the judiciary. Therefore, if
the judiciary does not have any role to play in the appointment of Federal or State executive
officials, the executive branch should not have any role to play in the appointment of judicial
officers, except to gazette such appointments.
The present constitutional approach is an affront to independence of the judiciary and it is

also capable of creating confusion and controversy between the executive branch and the
Council. A case in point is the constitutional crisis between the NJC and the Governor of
Rivers State arising from the appointment of Chief Judge of that State, notwithstanding the
judgment of Justice Lambo Akanbi.87 The facts of the case are as follows: on the approach
of retirement of the Chief Judge of Rivers State, Justice Iche N. Ndu, the Rivers State Judicial
Service Commission commenced the process of appointing a new Chief Judge for the State.
It considered five and eventually narrowed down to two candidates: Justices P.N.C. Agumagu
and D.W. Okocha. The Commission finally picked P.N.C Agumagu as the most suitable of all
the candidates considered and accordingly advised the NJC.
Rather than recommending Agumagu to the Governor for appointment as the Chief Judge,
the Council recommended D.W. Okocha on the ground that the candidate is the “most
Senior Judge” of the Rivers State High Court, and also that P.N.C Agumagu is the “President
of the Rivers Customary Court of Appeal and not the most Senior Judge on the High Court
Branch of Rivers State.” The judgment of Lambo, J. found in favour of the plaintiffs that the
recommendation of D.W. Okocha by the Council was wrongful, null and avoid on the ground,
amongst others, that the “most senior judge” as a criteria is unknown to the Constitution.88
The Council was consequently restrained from acting on its recommendation of D.W.Okocha
J. to the State Governor. Purportedly acting on the judgment, the Governor went ahead and
sworn-in Agumagu J, whereupon the Council went ahead and suspended him from the
Rivers State Judiciary.
It would be clear from the judgment of the Court that the Council acted extra-constitutional
86
See Nigerian Constitution, paragraph 21, part I, paragraph 6, part II and paragraph 2, part III, second schedule
87
Governor of Rivers State and others v National Judicial Council and others (unreported); Suit No FHC/PH/
CS/421/2013 delivered on the 18 March, 2014
88
See generally, Nigerian Constitution, sections 271(1) and paragraph 6(a)(i), part II, second schedule
by recommending D.W. Okocha J on the ground of “seniority” rather than on “suitability”

as provided by the Constitution. It is also clear from the judgment that as at the time the
Governor forwarded the name of Agumagu J to the State House of Assembly there was
nothing like recommendation from the Council, to the effect. In effect, the confirmation
and swearing-in of Agumagu J. as the Chief Judge of Rivers State were exercise in futility as
the condition precedent (recommendation by the National Judicial Council) has not been
satisfied. The judgment of the court only nullified the recommendation of D.W. Okocha
and it cannot replace the recommendation of P.N.C. Agumagu, which the Council must
subsequently forward to the Governor, if found obliged.
The crisis between the Council and the executive branch in Rivers State is a clear indication
that the constitutional procedure for appointing judicial officers is faulty and it is capable
of eroding judicial independence. While it is proper for the judicial service commission to
advice on the suitable persons to be appointed, it is not proper that the council recommends
to the Chief Executive from the list of persons submitted to it by the Commission. The
executive branch is a distinct body from the judiciary and if the judiciary does not have a
say on who becomes Ministers or Commissioners, the executive should also be spared of
having a say in who becomes a judge. This would be appropriate for separation of powers
and independence of judiciary, though there may not be absolute separation of powers
anywhere in the world, the executive should at the same-time not be the appointing
authority.
c. The Executive and Removal of Judicial Officers

Removal of a judicial officer is a shared responsibility between the Judicial Service
Commissions, National Judicial Council, the Chief Executive and the Legislature.89 The
commission is vested with the power to recommend the removal to the Council and the
Council recommends to the Chief Executive, and the legislature sanctions it. It is important
to note that the words “recommend” and “advise” mean same and are advisory in nature.
Thus, the two words used by the Constitution either in relation to appointment or removal
of judges have the same implication; the authority to whom the advice or recommendation
is given is not duty bound to rely or accept such advice or recommendation. This does
not suggest that the President or Governor could act independently or outside the
recommendation of the Council, the same way the Council could not ignore the advice
from the Commission. This constitutional approach is prone to abuses as it is capable of
obstructing administration of justice as being witnessed in Rivers State, now, and as in the
examples below:
i. Plateau State
Justice Atsi was the Chief Justice of Plateau State. The State Governor served on him a letter
with reference No. GH/S/AI/25.1/VOL. I/X and dated 12 April, 2004.90 The letter indicated
that security reports have shown that the Chief Judge has been incapacitated to perform
the functions of his office.91 On the 16 April, 2004 the Governor suspended him from office
vide a letter with reference No. GH/S/AI/2/S.1/VOL.I/XX purportedly acting on Resolution
No. S/PLHA/ADM/24/VOL.III/352 dated 16th April, 2004.92 Subsequently, the state House
89
See Nigerian Constitution, section 292
90
Dadem, Y. Y., ‘Removing the Judge: Challenges to Judicial Independence in Nigeria’ The Nigerian Law
Journal 16:1 (2013) pp. 72-100
91
id.
92
id., 88
of Assembly invited Justice Atsi to appear before it to answer to some allegations leveled
against him by the State branch of the Nigerian Bar Association. He was found guilty of the
allegations and the House recommended that he be compulsorily retired. He was finally
compulsorily retired by the State Governor vide a letter: GH/S/AI/2/S.I/VOL.1/X, dated May
10, 2004.93 He, however, challenged his compulsory retirement in suit no. FHC/J/CS/35/2007,
which was eventually settled-out-of-court, and he was to be reinstated to his office vide a
letter with reference no. GH/S/AI/2/S.1/VPL.1/XX dated April 30th, 2007.94 It is patently clear
that the procedure adopted to suspend Justice Atsi as the Chief Justice of Plateau State was
unconstitutional, null and void; there was no recommendation to that effect from the State
Judicial Service Commission to the Council, and there was none from the Council to the
Governor.
ii. Kwara State

On the May 4, 2009, the Kwara State Governor removed Justice Raliat Elelu-Habeeb from
office as Chief Judge, having been appointed on March 8, 2008. The procedure adopted in
her removal was not much different from that of Justice Atsi by the Plateau State Governor,
except that she was accused of some criminal activities and personalization of power to
appoint staff of the judiciary. The Governor had in a letter dated April 5, 2007 and personally
signed by him leveled some allegations against Chief Judge Elelu-Habeeb. He pointed to
the then on-going strike by the state judiciary staff. She was accused of not returning the
travelling allowances given her to attend the World Jurists, Association’s Biennial Congress
in Kiev, Ukraine, which was later postponed. She was also, among others, accused of side-
tracking the State Judicial Service Commission in appointment matters. On May 5, 2009, the
House of Assembly sat to deliberate on the request by the Governor that the Chief Judge
Elelu-Habeeb be removed from office. Erroneously relying on S. 292 (i) of the Constitution,
the House finally resolved that the Chief Judge be removed from office and so did the
Governor.
Dissatisfied by her removal, she challenged it at the Federal High Court, Ilorin by an
originating summons filed on May 6, 200995 raising two questions for determination by the
court: whether by provisions of sections 153(1)(i), 271 and paragraph 21(a) of part 1, third
schedule to the Constitution the House of Assembly has power to initiate or carry out any
exercise of disciplinary control and or proceeding on her, and whether the House was not
usurping the power of the NJC by inviting her to appear before it.96 She claimed five reliefs
and the Court granted all. The judgment was however challenged at the Court of Appeal
and further at the Supreme Court, where, per Mohammed, JSC, the apex court affirmed the
decision of the Federal High Court and restored the Chief Judge to her office.97
V. Conclusion
The foregoing has shown that the constitutional framework for judicial independence is
deficient and therefore there is need for reform. The National Judicial Council and all the
Judicial Service Commissions that are presently categorized as executive bodies should be
removed from that categorization and be regarded as judicial bodies to reflect their true
93
id., 89
94
id.
95
Elelu-Habeeb&Anor v. A.G. Federation & 2 others (2012) 2 S.C. (pt. 1)145
96
id., 147
97
id., 171
nature in line with principles of separation of powers. The executive branch should cease to
be the appointing authority of judicial officers, and their removal should be purely by the
NJC, subject to confirmation by the Senate of the State House of Assembly. The NJC should
only notify the executive any time the NJC exercised its power of appointment and removal
to enable the executive to gazette the appointment or removal.
Also, there should be legislation to enforce constitutional provisions on judicial funding,

and sanction should be put in place for noncompliance by the executive officials. It should
be appreciated that the judiciary does not control the purse of the nation and cannot
therefore be expected of absolute independence from the executive branch. All need be
ascertained therefore is enforcing the principles of judicial independence as are provided by
the Constitution and the basic principles against the executive branch. It may however be
argued by some that there should be no other legislative enactment since the constitution
makes provisions for judicial independence. The principle of covering the field would not be
tenable because the constitution has only provided the broad principles without providing
for enforcement procedure. This gap makes the principles mere window dressing without
enforcement mechanism. Legislative enactment is therefore the only possible means of
ensuring that the political branch would not only have respect for judicial independence,
they would ensure adequate and effective compliance with the extant constitutional
provisions relating to the judiciary.
70 According Appropriate Legal Recognition of Minorities in Africa William Edward Adjei
ACCORDING APPROPRIATE LEGAL RECOGNITION OF MINORITIES IN AFRICA
William Edward Adjei*
I. Introduction
As conflicts within countries become increasingly prevalent throughout the world, the
international community is awakening to the critical need to address the question of
minorities.1 However, many African states are of the view that the minority problem
is essentially European and are reluctant to admit that Africa is not immune to ethnic
concerns.2 At the same time, many ethnic minorities, indigenous minorities, ethnic groups,
communities and peoples living in Africa are suffering from lack of attention certain African
States give to their rights and therefore their concerns.3 Evidently, in the multi-national
construct that is Africa, there are many more “peoples”, described as minority groups or
ethnic groups, than there are states. When the minority group is mentioned most people
tend to picture a group of people who are disadvantaged because of their small numerical
number in relation to a large group but this is not always the case as the term minority
group describes a category of people who have unequal access to positions of power,
prestige, and wealth in a society and who tend to be targets of prejudice, discrimination
and subordination. When addressing the United Nations General Assembly in April 2000,
Secretary-General Kofi Annan remarked that:
Most conflicts happen in poor countries, especially those which are badly governed
or whose power and wealth are very unfairly distributed between ethnic or religious
groups. So the best way to prevent conflict is to promote political arrangements in
which all groups are fairly represented, combined with human rights, minority rights
and broad-based economic development.4
Unfortunately, in their efforts towards nation-building, the independent African States

disavowed cultural diversity as divisive, and unity was postulated in a way that assumed a
mythical nation-state amidst multi-ethnic states. The challenge was to forge disparate ethnic
groups into a nation-state with which individuals would identify when the colonial map of
Africa was drawn up with no regard to the boundaries between ethnic groups, linguistic
*Rev. Dr. William Edward Adjei, Lecturer, Faculty of Law, Ghana Institute of Management and Public
Administration.
1
See Mark Lattimer, Executive Director of the nongovernmental organisation Minority Rights Group
International MRG. In a press conference in January 2006, Lattimer observed that “in every world region,
minorities and indigenous peoples have been excluded, repressed and in many cases, killed by their
governments.”. The event was the lunch of the first edition of The State of the World’s Minorities Report
compiled by MRG with assistance of various United Nations agencies.
2
Before the African Commission on Human and Peoples’ Rights, in response to the question as to whether there
was domination of one people by another, the Ambassador of Ghana answered: “Well, I must say the obvious
answer in the case of Ghana is no. There is no domination of one people, one ethnic group against the other.
That is quite obvious,” (see Ghana, Examination of State Report, 14th Session, December 1993). Similarly,
Gabon reported to the UN Human Rights Committee that there is no problem of minorities in Gabon because
the population is fully integrated socially”, (CCPR/128/Add.1, 14 June 1999, paragraph 50.
3
See for example, p. 17, Report of the Special Rapporteur on the Right to Education, Vernor Munoz Villalobos,
on his visit to Botswana 26 September – 4 October 2005.
4
U.N. Secretary-General: the Main Types and Causes of Discrimination, U.N. Publ. 49, XIV. 3. Also available
at: http://digitalcommons.wcl.american.edu/hrbrief/vol9/iss3/7.
variations and regional power bases.5 As a consequence of the threats and discrimination
they face, minority groups have experienced cultural erosion and invisibility as citizens. They
are frequently excluded from taking part fully in the economic, political and social life of their
countries. Lack of recognition has also led to the inadequate provisions of social services,
such as education, in rural and minority dominated area, resulting in disproportionately high
levels of poverty.6 Today, minority communities face new challenges, including legislation,
policies and practices that may unjustly impede or even violate minority rights.
In order to secure the rights of minorities, the challenge today is to accommodate ethnic
diversity, to promote the richness of ethnic groups’ values, traditions and customs to combat
political, economic and social exclusion, and to respect the rights of all ethnic groups in
development matters in line with their fundamental rights as articulated in international
law.7 In effect, this leads to the protection and promotion of human rights, constitutional
and legal recognition, constructive co-existence, conflict prevention, and serve as a means
of countering the manipulation of ethnic identities for political gains. Hence, the place
to begin in order to achieve these objectives is by legally recognizing the existence of
minorities in Africa.
This article then, addresses the various questions of minority identity in Africa, especially,
the difficulty of using the term “minority” as elaborated at the international level. Thus, some
relevant international documents for the protection of minorities will be analysed, while
some definitions by prominent authors assessed to bring out those perceived difficulties. The
article also establishes some criteria for the recognition of those groups who may be termed
“minority” for the purpose of according rights in line with international legal standards.
Attention is also given to the African Charter on Human and Peoples’ Rights, highlighting
and discussing some principles as most relevant to the minority rights protection in Africa.
Essentially, this article will argue that the protection of minorities’ identity through their
effective participation in public affairs, is an inalienable right conforming to the principles
embodied in the United Nations International Covenant on Civil and Political Rights, and
according to the spirit of the African Charter. And finally, conclusion is presented which
highlights the main principles that sustain the article.
II. Defining Minorities in Africa: What Constitutes Minority?

“Who is minority? Who defines minority? Who are the beneficiaries of minority rights?”8
International law found it difficult to answer these questions. Hence there is no legally
binding and universally accepted definition as to which group constitute minorities.9 The
5
Almost all of Africa’s modern boundaries are the result of the European scramble that followed the Berlin
Conference of November 1884. Moved by a legitimate fear of conflicting territorial claims, African leaders
affirmed in the 1963 OAU Charter their “adherence to the respect of the sovereignty and territorial integrity of
each state” (Article III). It was these arbitrarily delineated and artificial borders the African states – with the
exception of Morocco and Somalia – accepted as their borders in the OAUH 1964 Cairo Resolution, which
says that all member states “pledge themselves to respect the borders existing on their achievement of national
independence.
6
See for example, Botswana: Annual Poverty Monitoring Report – 06/07, Poverty Strategy Unit, Botswana
government, August 2007. See also On-line web sites, www.sarpn.org.za/documents.
7
See Patrick Thornberry, International law and the Rights of Minorities, Oxford: Oxford University Press, 1991.
8
Fact Sheet No. 18 (Rev.), Minority Rights, 7, accessed via http://www.unhcr.org/refworld/pdfid/4794773e0.pdf
on (Dec. 08, 2011).
9
See EideAsbjorn and Daes, Erica-Irene: “Working Paper on the relationship and distinction between the rights
of persons belonging to minorities and those of indigenous peoples”, available at the United Nations paper E/
CN.4/Sub.2/2000/10,July 2000.
word is interpreted differently in separate societies. Those working to secure rights for
minority groups generally describe them as a non-dominant group of individuals who share
certain national, ethnic, religious or linguistic characteristics that are different from those
of the majority population. The range of those defined as minorities requiring protection
is huge, including groups as diverse as the pygmies10 across Central Africa and the Ogoni
people of Nigeria. Since the early 1960s, over 40 tribal groups have been identified in Kenya
alone illustrating the complexity of uniting diverse peoples whose commonality is sharing a
nation’s territory. The largest group today, the Kikuyu, comprises well over 4 million people,
while smaller groups may comprise only several hundred or a few thousand members. How,
then, are minorities defined?
In this section, the principal issue that will be explored is the perceived difficulty of using
the term “minorities”, as expressed at the international level, to refer to marginalized ethnic,
linguistic and religious groups in Africa. The examples of the colonial and minority white-
ruled states of Angola, Mozambique, South-West Africa (now Namibia), Rhodesia (now
Zimbabwe) and apartheid South Africa give a negative connotation to the term “minority”
in the eyes of some African States. However, the criteria elaborated at the international level
may not fully reflect the complexity of multi-ethnic states in Africa that are highly diversified
in terms of ethnicity, religion and language, and made up sometimes of more than 250
different ethnic groups, as is the case in, for example, Nigeria or Cameroon.11
Similarly the distinction between minority groups and indigenous peoples is not always
clear-cut and this is equally the case in the African context. Nevertheless, the term “minority”
is still relevant in Africa and the international human rights legal framework provides
minimum standards for domestic application. The criteria recognized in international law
should guide our reflection and help to identify possible applications that may best fit in
Africa.
a. International Recognition of Minorities

Who are minorities under international law?
Prior to analysing some doctrinal proposals for a definition of “minority”, certain UN
documents that are potentially relevant in this regard should be referred to. In 1992, the
United Nations adopted the Declaration on the Rights of Persons Belonging to National
or Ethnic, Religious and Linguistic Minorities (UNDM).12 This is the first and only UN human
rights instrument devoted solely to minority rights. It ties minority rights to the “development
of society as a whole and within a democratic framework based on the rule of law.” This
was inspired by Article 27 of the International Covenant on Civil and Political Rights (ICCPR)
10
Notably, the Pygmies of the Great Lakes region have different names depending on where they live. Hence
they are called Batwa in Rwanda, Burundi, Uganda and the eastern region of the Democratic Republic of Congo
(DRC). They are called Bambuti in the Ituri Forest of the DRC and Bakain the Labaye Forest of the Central
African Republic and in Minvoul Forest of Gabon. They call themselves Yaka and Babendjelle in the North-
West Congo basin, and Baka and Bagyeli in Cameroon.
11
A Minority Rights Group International (MRG) Briefing – May 2003.
12
The Declaration elaborates and expands on the principle contained in Article 27 of the ICCPR. Its preamble
states that it was “inspired by the provisions of Article 27 of the ICCPR. The Declaration also supports the view
that the obligations of Article 27 are active. Declarations of the General Assembly are not binding on States,
but provide a basis for the progressive development of international law. See Ian Brownlie, Principles of Public
International Law, 5th ed., Oxford, New York, 1998, p.14; See also Dunbar, R. (2001), “Minority Language
Rights in International Law”, International and Comparative Law Quarterly 50, 90-120.
which states:
In those States in which ethnic, religious or linguistic minorities exist, persons

belonging to such minorities shall not be denied the rights, in community with the
other members of their group, to enjoy their own culture, to profess and practice
their own religion, or to use their own language.
As indicated, Article 27 recognizes and establishes rights of individuals belonging to

minorities; that is, not the group as such, but individuals are to enjoy the rights “in
community with other members of their group”. The realisation of the rights, therefore,
relates to the ability of a group to maintain its identity, such as its culture, language and
religion. Special measures may be required to protect this identity. As revealed in the above
text, it is a cautious and tentative article, which reflects the very limited space that states
were prepared to allow minority rights and it prompts the following observations:
(1) Rights of minorities may not be universal rights: since the groups may not “exist” in
all States;
(2) The text refers to the rights of persons and not of groups, thus limiting the community
or collective dimension of the rights;
(3) The members of minorities are not described as having the rights – rather the rights
“shall not be denied” them.....;
(4) The article does not clearly implicate state action or resources to benefit minorities.
Accordingly, authors differ over how to interpret Article 27 of the ICCPR. Some analysts
see Article 27 as a group protection device. Other authors see Article 27 as only protecting
individuals and not groups. Another group of analysts, including Patrick Thornberry, sees
Article 27 as granting entitlements to minorities. Nevertheless, Thornberry, in International
Law and the Rights of Minorities13 offered an interpretation of Article 27 of the ICCPR, which
tried to overcome some of the above-mentioned limitations. The basis of his argument
is that a purely negative reading of Article 27 does not correspond with the principle of
effectiveness in the interpretation of treaties, which assumes that the article must add to
other treaty principles, notably freedom of religion, equality and non-discrimination.
Article 27 0f the ICCPR, contrary to Thornberry’s defence of Special Rapporteur Capotorti,

does not create positive state obligation. The phrase “minorities shall not be denied the
right....” obligates state parties to refrain from the interference with the group identification
process. States cannot prevent a minority from using its own language, running its own
schools, etc. States should also protect the minority from interference from other groups as
well. However, States do not have any positive duties to guarantee entitlements to minorities.
States should not, contrary to Thornberry, “take such measures as are necessary in order
to assist the minority language to be thought in schools and Universities when a minority
desires this would, prima facie, is a breach of Article 27.”14 It is also appropriate to note that
an important distinction between “indigenous peoples” and “minority” is automatically
made when Article 27 of the ICCPR and various articles in the Declaration on Minorities
use the wording “rights of persons belonging minorities”, thus indicating an individualistic
approach. While the category of individual rights is more attuned to the traditional Euro-
13
Patrick Thornberry, International Law and the Rights of Minorities, Oxford: Oxford University Press, 1991.
14
Ibid., p. 197
Centric notion of human rights as accruing to individuals, the category of group rights has
been espoused more recently by African nations in the search for their own expression of
human rights.
Arguably, despite the references to minorities found in international legal instruments, there
is still no legal definition of minorities likely to command general approval. Indeed, it is often
postulated that there is little need for a single definition, which could prove unnecessarily
limiting. Special Rapporteur Francesco Capotorti was assigned the task of preparing a study
pursuant to Article 27 of the ICCPR. In this study, Capotorti defined a “minority” as:
A group numerically inferior to the rest of the population of the state, in a non-
dominant position, whose members being nationals of state possess ethnic, religious
or linguistic characteristics differing from those of the rest of the population and
show, if only implicitly, a sense of solidarity, directed towards preserving their culture,
traditions, religions and language.15
Jules Deschenes, proposed a refinement of this definition in 1985 again at the request of the
United Nations Sub-Commission, which states:
A group of citizens of a state, constituting a numerical minority and in a non-dominant

position in that state, endowed with ethnic, religious or linguistic characteristics
which differ from those of the majority of the population, having a sense of solidarity
with one another, motivated, if only implicitly, by collective will to survive and whose
aim is to achieve equal with the majority in fact and in law.16
While both definitions contribute to an understanding of the concept of minorities, they

are not without their difficulties. It is critical to note that both definitions presume a
positive identity of minority groups. Capotorti’ definition deserves more close scrutiny. One
obvious difficulty with Capotorti’s definition, readily acknowledged by him, is that the term
“minority” connotes a numerical minority, which is not entirely satisfactory where there
may be no clear numerical minority or majority. And, indeed, a distinct ethnic group can
constitute a numerical majority and still be in a non-dominant position and thus be similarly
entitled to the application of many minority standards in order to ensure their rights to
non-discrimination and to the protection of their identity, which form the foundation of
minority rights. For example, the status of blacks under apartheid in South Africa serves
as a glaring historical example of a disadvantaged group that constituted the numerical
majority. This numerical factor raises a couple of interesting questions, such as whether a
numerical threshold should be formulated, in the sense that for groups that consist of two
persons, it would not be reasonable to grant them minority status, and the concomitant
rights. However, it is quasi impossible to identify a strict numerical threshold or even a
minimum percentage vis-a-vis the rest of the population. Each specific situation should
indeed be judged on all its concrete characteristics, and it is thus preferable to adopt a
pragmatic approach in this respect.
On the other hand, one could also argue that, while it seems advisable not to include a
15
F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, New
York, United Nations, 1991, para. 568. Also available On-line at:
16
See Proposal Concerning a Definition of the term “minority”, UN Doc.E/CN.4/Sub.2/1985/31. See also
Croatian International Relations Review, Vol. XI No. 38/39 2005.
numerical threshold in a definition of the ‘minority’ concept, the size of the population
groups arguably has implications for the respective degree of State obligations, in line with
consideration of proportionality.
Similarly, another interesting question is whether or not ‘minority’ can also be identified at a
sub-state level, and thus in reference to the population of the sub-state unit, instead of the
population of the state. Pre-eminent in the case-law of the International Covenant on Civil
and Political Rights (ICCPR) is the case Ballantyne, Davidson and Mclntyre v. Canada (1993)17,
where the United Nations Human Rights Committee made the lapidary statement that a
state “may choose one or more official languages, but it may not exclude outside the spheres
of public life, the freedom to express oneself in a language of one’s choice.”18 The cases dealt
with English-speaking citizens living in Quebec, the French-speaking province of Canada.
The applicants regarded themselves as persons belonging to a linguistic minority, and they
claimed that their rights under Article 27 of the ICCPR had been violated when they were
prohibited from using a language other than the official one (French) in advertisements.
The United Nations Human Rights Committee did not regard the applicants as persons
belonging to a linguistic minority. According to the HRC, the reference to a state in Article 27
of the ICCPR refers to the ratifying state as a whole; in the case of a federal state that means
all parts of the federation. The Human Rights Committee argued that minorities as referred
to in Article 27 are minorities within such a state and not minorities within a province of that
state. A group may constitute a majority in a province, but still be a minority in the state and
thus be entitled to the benefits of Article 27.19 Hence, English-Speaking citizens of Canada
cannot be considered a linguistic minority.20
Consequently, this finding has been regarded as narrow by four members of the Committee,
who observed in their individual opinion that that term “minorities” should not be interpreted
“solely on the basis of the number of members of the group in question.21 They argued that
to take a narrow view of the meaning of minorities in Article 27, could have the result that
a state party would have no obligation under the Covenant to ensure that a minority in an
autonomous province had the protection of Article 27 where it was not clear that the group
in question was a minority in the state considered as a whole entity.22 Even though well-
justified in circumstance where an autonomous province or region or federal State have the
17
Ballantyne, Davidson, Mclntyre v. Canada, communications Nos. 359/1989 and 385/1989, U.N. Doc. CCPR/
C/47/D/359/1989 and 385/1989/Rev.1, (1993) (views adopted on 31st March 1993, forty-seventh session).
18
See Patrick Thornberry and Maria Amor Martin Estebanez, Minority Rights in Europe.
19
This view has been criticized because it would limit the scope of Article 27 and raise the questions regarding
the human rights duties of an autonomous regime with a state. A future linguistic rights case submitted to the
HRC may be able to change the precedent set by this case.
20
Referred to No. 16. para. 11.2. See also Human Rights Committee, General Comment No. 23, The Rights of
Minorities, on Article 27 of the ICCPR.
21
Ibid., appendix E, Individual opinion submitted by Mrs. Elisabeth Evatt, co-signed by Mr. Nisuke Ando, Mr.
Marco TullioBruni Celli and VojinDimitrijevic (concurring and elaborating).
22
Ibid. Also the NGO Asian Indigenous and Tribal Peoples Network [hereinafter ‘AITPN] supports this
individual opinion. They state that “the definition of minorities automatically implies a group of persons who are
“numerically” lesser than the rest of the dominating community of communities in politico-administrative unit,
either as a state or a province of a state, having political, administrative and legislative power to discriminate
against the minorities on the basis of their different ethnic, religious or linguistic origin [emphasis added] (in
AITPN Report 1999, The Universality of Indigenous Peoples, Commentary and recommendations to the Special
Rapporteur on the Study on Treaties, agreements and other constructive arrangements between States and
Indigenous population”, p. 42, on file with the author).
power to discriminate against minorities within that area, this opinion is usually not shared
by the international community. Again, the limiting criterion of citizenship can be used to
exclude certain groups from their rights as minorities and has in fact not been accepted
as a defining minority characteristic. This is because so many rights and protections flow
from state institutions, and so when individuals are not recognized as citizens of the state
where they live in they constitute an extremely vulnerable group. Given that the number
of migrants worldwide is 150 million and growing, and an additional number of individuals
find themselves made non-citizens by changing borders or legislation, this is wide-reaching
and dangerous problem. In such situation, the United Nations Human Rights Committee
(HRC) has stated in a General Comment 23 on ICCPR Article 27 that:
The existence of an ethnic, religious or linguistic minority in a given state party does
not depend upon a decision by the State party but requires an establishment by
objective criteria.23
However, recognition is essential in order for members of the group to enjoy their minority
rights. Respect for minority rights assists in achieving stable and prosperous societies, in
which human rights, development and security are achieved by all, and shared by all. Thus,
recognition should include not only their physical existence, but should extend also to their
identity, understood in the way the minority itself understands it. This means that States
must abstain from deliberate assimilation policies.
b. Minority Rights in an African Context: Some Criteria

The ethnic composition of African States is complex and the question of minority status,
especially in terms of the non-dominance of particular groups, is complicated by the way in
which political elites have exploited ethnic or religious difference for political ends. Though
no official consensus exists on who constitutes minorities in Africa, criteria drafted in line
with international norms would generally include: any ethnic, linguistic or religious groups
within a state; in a non-dominant position in the state in which they live; consisting of
individuals who possess a sense of belonging to that group; determined to preserve and
develop their distinct ethnic identity; discriminated against or marginalized on the grounds
of their ethnicity, language, or religion.
In practice, some numerically smaller groups, through alliances with other groups, may exert
political dominance. This is the case, for example, in Nigeria where historically dominant
minority such as the Efik or the Ijaw find themselves marginalized politically.24 In Rwanda
the Batwa were the third largest ethnic group after the Hutus and Tutsis. The Batwa were
recognized as pygmy people and were predominantly hunters and gatherers. They were
forced to leave the forest without adequate economic alternatives. Also Tanzania is one
nation with 143 different ethnic groups within it.25 Many of these groups are disadvantaged.
Consequently, changes in the political fortunes of these alliances may change the situation
23
Human Rights Committee, General Comment No. 23, The Rights of Minorities, on Article 27 of the
International Covenant on Civil and Political Rights. See also Tsekos, Mary Ellen, “Minority Rights: The
Failure of International Law to Protect the Roma”, Human Rights Brief 9, no. 3 (2002) Art 7: 26-29.
24
See Ilenre, A. Ethnic Minority and Indigenous Rights Organisation of Africa (EMIROAF), Nigeria.
25
Mugarura, Benon, African Indigenous and Minority Peoples’ Organisation, Rwanda. Mr. MoringeParkipuny
delivered these remarks before the Sixth Session of the United Nations Working Group on Indigenous
Populations in Geneve, Switzerland in August 3, 1989, on “The Human Rights Situation of Indigenous Peoples’
in Africa.”
of an ethnic group from a position in which they had access to power to that of a non-
dominant status. This is further complicated by the fact that many ethnic groups in Africa
have traditional economic or social interactions with neighbouring peoples that may be the
basis of political rivalries or alliances depending on circumstances.
Denial of citizenship to particular groups is another issue with minority identification.

Despite the fact that the right to a nationality is a well-established tenet of international law,
the question of citizenship continues to be a major concern in Africa. This poses a special
problem for the norm of equality and is linked to participation in public life or access to
land, as is the case in the Democratic Republic of Congo, Kenya, Zambia and Cote d’lvoire.26
Nonetheless, to provide some general guidance on who constitute minorities in Africa in
line with international standards, the following elements could be considered:
(a) Any ethnic, linguistic or religious groups within a state;

(b) In a non-dominant position in the state in which they live;
(c) Consisting of individuals who possess a sense of belonging to that group;
(d) Determined to preserve and develop their distinct ethnic identity; and
(e) Discriminated against or marginalized on the grounds of their ethnicity, language or
religion.27
In view of the aforementioned criteria, it could be remarked that recognition of minorities

in Africa would lead to achieving the aims of preserving their identities and of obtaining
equality with all other groups in that state, including in relation to participation in political
life as well as in developing matters. Needless to say, there are many ethnic groups to which
these elements as outlined above would apply, although they may or may not identify
themselves as minorities, for example: the Bakilayi and Karimajong in Uganda, the Ijaw
and Ogoni in the Rivers State of Nigeria, the Wayeyi, Bakalaka and Bakgaladi in Botswana,
the Herero in Angola, the Konkomba in Ghana, the Twa in Burundi, the Bakweri and Bagyeli
in Cameroon, the Sengwer, Maasai and Ogiek in Kenya, the Haratin and Black Africans in
Mauritania, the Afar in Djibouti, and the Khoisan in South Africa.
c. Self-Identification as a Determinant Factor

A key criterion, which is increasingly accepted internationally in the determination of
minority status, is that of self-identification. Self-identification of minorities and acceptance
as such by a group is an essential component of their sense of identity. Minority’s continued
recognition and existence as ethnic or linguistic group is closely connected to their
possibility to influence their own fate and to live in accordance with their own cultural
patterns, social institutions and legal systems. On this basis, it is the individuals and thus
groups themselves who should self-identify as minorities, irrespective of whether they are
described as “nationalities”, “communities”, “ethnic groups”, “peoples”, or “nations” by states.
Notably, self-identification is also central to identification as an indigenous people, as can

be seen for example in Article 1 (2) of the International Labour Organisation’s Convention
26
See for example, K. Singo’ei, Kenya’s Untouchables: The Nubians’ Struggle for Recognition of their Rights,
briefing paper, Centre for Minority Rights Development, Nairobi, 2003.
27
See SamiaSlimane, Recognizing Minorities in Africa, briefing, Minority Rights Group International; Cynthia
Morel, Defending Human Rights in Africa: The Case for Minority and Indigenous Rights, Essex Human Rights
Review Vo. 1, No. 1.
Concerning Indigenous and Tribal People in Independent Countries28 and in the Committee
on the Elimination of Racial Discrimination’s General Recommendation VIII.29 Although at
the international level, indigenous people often feel that it will be important to emphasize
their differences with minorities, and therefore to defend their need for separate standards
under the international law, in African context, indigenous peoples or ethnic communities
often adopt a more flexible approach. Many ethnic groups in Africa describe themselves
as indigenous minorities.30 The names of their organisations reflect this peculiarity; for
example: the Working Group on Indigenous Minorities in Southern Africa (WMSA)31, the
African Indigenous and Minority Peoples Organisation (AIMPO) in Rwanda32, and the
Minorities Autochtones Pygmees du Gabon (MINAPYGA).33
It is noted that the international standards in place to protect and promote the rights of
indigenous peoples aim to address and redress the particular forms of abuses and violations
that they are likely to suffer. Significantly, however, minorities who may not self-identify as
indigenous may also have similar legitimate claims regarding their relationship to land34
and with regard to their demands for autonomy35, and this is equally the case in Africa.
In 2000, the African Commission on Human and Peoples’Rights (ACHPR) adopted a Resolution
on the Rights of Indigenous Peoples’ Communities in Africa in which it decided to establish
a working group of experts on the rights of indigenous peoples or ethnic communities in
Africa36 with mandate to:
28
Article 1 (2): “Self- identification as indigenous or tribal shall be regarded as a fundamental criterion for
determining the groups to which the provisions of this Convention apply.”
29
The Committee on the Elimination of Racial Discrimination, having considered reports from state parties
concerning information about the ways in which individuals are identified as being members of a particular
racial or ethnic group, is of the opinion that such identification shall, if no justification exists to the contrary, be
based upon self-identification by the individual concerned.” (38th Session 1990)
30
See Sanders, Douglas (1999). “Indigenous Peoples: Issues of definition”. International Journal of Cultural
Property 8: 4-13; African Commission on Human and Peoples’ Rights (2003) “Report of the African
Commission’s Working Group of Experts on Indigenous Population/Communities”. Given the extensive and
complicated history of human migration within Africa, being the “first peoples in a land” is not a necessary
precondition for acceptance as an indigenous people. Rather, indigenous identity relates more to a set of
characteristics and practices than priority arrival. For example, several populations of nomadic peoples such as
the Tuareg of the Sahara and Sahel regions now inhabit areas where they arrived comparatively recently; their
claim to indigenous status (endorsed by the African Commission on Human and Peoples’ Rights) is based on
their marginalisation as nomadic peoples in states and territories dominated by sedentary agricultural peoples.
31
See for example, Robert K. Hitchcock, Diana Vinding, Indigenous Peoples’ Rights in Southern Africa,
IWGIA, 2004.
32
(AIMPO) is an organisation working with Batwa in Rwanda.
33
The government of Gabon recognised the Minorites Autochtones Pygmees au Gabon (MINAPYGA; the
Indigenous Pygmy Minorities of Gabon) organisation of Bokayoin 1997, which is one of three such indigenous
organisations in the country; the other two recognised groups are the Edzendgui and the Association pour le
Developpement de la Culture des PeuplesPygmees du Gabon.
34
See for example, R. Plant, Land Rights Minorities, London, MRG 1994.
35
P. Leuprecht, “Minority Rights Revisited”, in P. Alston (ed.) Peoples’ Rights, Oxford, Oxford University
Press, 2001.
36
The Working Group on Indigenous Populations/Communities in Africa was established by the African
Commission on Human and Peoples’ Rights with the adoption of Resolution 51 at the 28th Ordinary Session
(Cotonou, Benin – 23 October to 6th November 2000). See for example, Naomi Kipuri “The Working Group
of the African Commission on Human and Peoples’ Rights on the Situation of Indigenous Populations and
Communities in Africa”, paper prepared for the IFAD Governing Council meeting, held on 15 and 16 February
2005, also available on On-line Website, http://www.un.org/esa/socdev/unpfii/documents/workshop_IPPMDG_
kipuri_en.doc (accessed May 2013). See also IWGIA, ACHPR Working Group on Indigenous Populations/
Communities in Africa, http://iwgia.org.sw20773.asp (accessed 10 June 2010)
(a) Examine the concept of indigenous people and communities in Africa and
(b) study the implications of the African Charter on Human and Peoples’ Rights and
wellbeing of indigenous communities especially with regard to the right to equality (Articles
2 and 3), the right to dignity (Article 5), the protection against domination (Article 19), self-
determination (Article 20), the protection of cultural development and identity (Article 22).
It is hoped that the objectives and the application of the African Charter on Human and
Peoples’ Rights, will do much to strengthen the application of international standards in the
African Continent to enhance the protection of minority rights.
III. The Minority Rights Approach Adopted by the African Charter on Human and
Peoples’ Rights
The African Charter on Human and Peoples’ Rights was under discussion from 1961, and
was adopted in 1981 by the Organisation of African Unity. This Charter first of all tried to
keep as closely as possible to what had been drafted at the international level, in particular
the Universal Declaration of Human Rights of 1948. The 1981 African Charter on Human
and Peoples’ Rights could not but reflect the fundamental objectives of state sovereignty,
territorial integrity and integrity of borders declared in the 1963 Organisation of African
Unity (OAU) Charter, which was basically concerned with relations between states. As
such, it is safe to say that it was not the intent of the drafters of the 1981 Charter to equate
the term “peoples” with the notion of minorities or ethnic groups. Rather the concept of
“people” was identified with the African nation-state. While the promotion of human rights
was not identified as a focus in the OAU Charter, the recently adopted 2000 constitute
Act of the African Union includes the promotion and protection of human and peoples’
rights in accordance with the African Charter among its objectives. In the same spirit,
the African Commission has crossed the Rubicon and abandoned the strict state-centred
approach when referring to the concept of “peoples’ rights” recognized in the Charter.
The Commission no longer hesitates to regard “peoples” as referring to identifiable ethnic
communities. Fortunately, despite the absence of an explicit reference to minorities within
its provisions, due recognition has nonetheless been read into the African Charter by the
African Commission.37
a. The Rights of Peoples under the ACHPR38

At the international level, several legal instruments have been adopted to give effect to the
demands made in the name of human rights. The most important of these are the Universal
Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights
(ICCPR, 1966), and the International Covenant on Economic, Social and Cultural Rights
(1966).39 Together, these constitute the International Bill of Rights. As a result, Regional
Organisations have been encouraged to develop their own human rights regimes.
Africa has followed this tradition of establishing a regional human rights regime through
37
See Communications 54/91, 61/91, 98/93, 164-196/97, 210/98 Malawi African Association, Amnesty
International, MsSarrDiop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et
Ayants – Droit, Association Mauritanienne des Droits de l’Himme/Mauritania, 11 May 2000, para. 131.
38
For a traditional understanding of peoples’ rights, see generally J. Crawford (ed), The Rights of Peoples (OUP,
Oxford 1988).
39
Report of the African Commission Working Group on the Rights of Indigenous Populations/Communities,
also available at: http://www.iwgia.org/sw2073.asp -- in particular at pp. 7-12, 48-67, 72-73, 81-82.
the African Charter on Human and Peoples’ Rights.40 Admittedly, the African Charter
contains a series of group rights attributed to “peoples”.41 Although the African Commission
has not yet defined the term “peoples” contained in the African Charter, a brief look at the
jurisprudence of the African Commission clearly shows that the notion of “peoples” has not
been interpreted as covering the notion of nation-state. Similarly, while the Charter makes
no specific reference to minorities, the Commission has clearly read it into the Charter. The
minority rights approach is also reflected in the Reporting Guidelines for Article 19 of the
ACHPR which requires that states give information on “the constitutional and statutory
framework which seeks to protect the different sections of the national community”, and
refer to “precautions taken to proscribe any tendencies of some people dominating another
as feared by the Article.”42
In 1993, during the examination of the state report of Ghana, the notion of “peoples” in
Article 19 of the ACHPR was interpreted by the Ambassador of Ghana as referring to the
domination of one ethnic group by another, and not simply as the domination of one state
over another43 - (Article 19 states that “all peoples shall be equal; they shall enjoy the same
respect and shall have the same rights. Nothing shall justify the domination of a people by
another”). Similarly, the African Commission was confronted by allegations of discriminatory
practices against certain sectors of the Mauritanian population, and expressed the view
that: At the heart of the abuses alleged in the different communications is the question of
the domination of one sector of the population by another. The resultant discrimination
against Black Mauritanians is, according to the complaints, the result of a negation of the
fundamental principles of the equality of peoples as stipulated in the African Charter on
Human and Peoples’ Rights and constitutes a violation of its Article 19 of the ACHPR.44
Again, in 2001, the African Commission referred to Article 24 of the ACHPR, which states:
“All peoples shall have the right to a general satisfactory environment favourable to their
development” as applying to the Ogoni community of Nigeria. In its decision to date, the
Commission has referred to the Ogoni as “peoples”45, “communities” and “society”.46 In 1992,
40
See for example, Ouguergouz. F., The African Charter on Human and Peoples’ Rights: A Comprehensive
Agenda for Human Dignity and Sustainable Development in Africa, Martinus Nijhoff Publishers, The Hague/
London/ New York, 2003.
41
See Pamphlet No. 6 of the UN Guide for Minorities. The establishment of the African Commission’s Working
Group of Experts on the Situation of Indigenous marginalised groups in Africa is “heralded as recognition of
the existence of particular marginalised groups in Africa, identifying themselves as indigenous peoples whose
rights are protected by the African Charter.” See also N. Kipuri “The Working Group of the African Commission
on Human and Peoples’ Rights on the Situation of Indigenous Populations and Communities in Africa”, paper
prepared for the IFAD Governing Council meeting, held on 15 and 16 February 2005.
42
See Guidelines for National Periodic Reports, Second Activity Report of the African Commission on Human
and Peoples’ Rights (adopted June 1989), Annex XII, Guidelines para. III.2.
43
See Examination of the State Report of Ghana, 14th Session, December 1993.
44
Communications 51/91, 61/91, 98/93, 164/97 and 210/98, Malawi African Association; Amnesty International;
MsSarrDiop, Union Interafricaine des Droits de I’Homme v. Mauritania, Thirteenth Annual Activity Report of
the African Commission on Human and Peoples’ Rights, 1999-2000, AHG/222 (XXXVI), Annex V, para. 142.
45
See Communications 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project,
Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, 24th Ordinary Session,
Banjul October 1998, para. 110.
46
In the case of Social and Economic Rights Action Centre for Economic and Social Rights v. Nigeria, the
African Commission noted, in relation to Article 21, which provides for peoples’ rights to freely dispose of
their wealth and natural resources, that “in all their dealing with the Oil Consortiums, the Government did not
involve the Ogoni communities in the decisions that affected the development of Ogoniland” (para.55). The
Commission further noted that “the survival of the Ogonis depended on their land and farms. These and similar
a claim was brought before the African Commission by the Katangese Peoples’ Congress
for the recognition of the independence of Katanga, a province of Zaire (now Democratic
Republic of Congo). In this case, the African Commission adopted a progressive approach in
respect to the right to self-determination contained in Article 20 (1) of the ACHPR in tandem
with the right to existence.
Although the Commission found no evidence of violation of any rights under the Charter,
its decision recognized the population of Katanga as a “people”, meaning a group within the
state of Zaire. It then elaborated on the content of the right to autonomy the Katanga people
could exercise within the territorial borders, through “independence, self-government,
federalism, confederalism, unitrism or any form of relations that accords with the wishes of
the people”.47 The Commission further stated that:
In the absence of concrete evidence of violations of human rights to the point that
the territorial integrity of Zaire should be called to question and in the absence
of evidence that the people of Katanga are denied the right to participate in
governments as guaranteed by Article 13 (1) of the African Charter, the Commission
holds the view that Katanga is obliged to exercise a variant of self-determination
that is compatible with the Sovereignty and territorial integrity of Zaire.
Notably, the reporting Guidelines for Article 20 requires that “All communities are allowed
full participation in political activities and are allowed equal opportunities in the economic
activities of the country both of which should be according to the choice they have made
independently.”48 The inclusion of these economic, social, and cultural rights in the African
Charter49 is in accord with the general international practice as evidenced for example by the
Universal Declaration of Human Rights, and the International Covenant on Civil and Political
Rights, which states in its preamble that “the ideal of free human beings enjoying civil and
political freedom and freedom from fear and want can only be achieved if conditions are
created whereby everyone may enjoy his civil and political rights, as well as social and
cultural rights”.
The African Charter also makes provision for ‘third generation’ rights or ‘rights of solidarity’50:
these are for example, the rights to a healthy environment, development, national and
international peace and security51, solidarity and the equal enjoyment of common heritage
brutalities not only persecuted individuals in Ogoniland, but also the Ogoni community as a whole. They
affected the life of the Ogoni Society as a whole” (Communication 155/96, 30th Ordinary Session, Banjul, The
Gambia, October 2001, para. 67.).
47
Communication, 75/92, Katangese Peoples’ Congress v. Zaire. In this decision, the Commission recognized
that “There may be controversy as to the definition of peoples and the content of the right. The issue in the case
is not self-determination for all Zairians as a people but specifically for the Katangese. Whether the Katangese
consists of one or more ethnic groups is, for the purpose immaterial and no evidence has adduced to that effect”
(Eighth Annual Activity Report of the African Commission 1994-5).
48
Guidelines, III. 14.
49
See Roland Adjovi,” Understanding The African Charter on Human and Peoples’ Rights”: How does the
African Charter interact with or enrich the international project? Article/ 5 November 2012.
50
See Article 22 Right to Economic, Social and Cultural Development; Article 23 Right to National and
International Security and Peace; and Article 24 Right to a General Satisfactory Environment.
51 See for instance: A/RES/39/11 Declaration on the Right of Peoples to Peace.
of mankind.52 It could be accurately contended that the harbinger of these third generation
rights is the Universal Declaration of Human Rights, which provides that “everyone in
entitled to a social and international order in which the rights and freedoms set forth in this
Declaration can be fully realised”.53
The non-discrimination principle as an avenue to secure ethnic, linguistic and religious

rights Article 2 of the African Charter states that:
Every individual shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in the present Charter without distinction of any kind
such as race, ethnic group, colour, sex, language, religion, political or any other
opinion, national and social origin, fortune, birth or other status.
The scope of racial discrimination prohibited under the African Charter is very wide. The
African Commission applied the right not to be discriminated against, in tandem with
the right to equal treatment before the law, to protect linguistic and religious status. The
Commission also places an obligation on states to adopt special measures for the benefit of
individuals and groups, when that is necessary, to overcome discriminatory patterns in the
cultural, economic, social and other fields. The Commission referred to the United Nations
Minorities Declaration when stating that:
Language is an integral part of the structure of culture; it is in fact its pillar and means
of expression by excellence. Its usage enriches the individual and enables him to
take an active part in the community and in its activities. To deprive an individual of
such participation amounts to depriving him of his identity.54
The Commission also considered the violation of religious rights in relation to the principle
of non-discrimination.55 Moreover, the Commission adopted a dynamic approach towards
minorities when considering Article 17 (2) on the right to freely take part in the cultural
life of the community. The Guidelines requires information from states on “measures and
programmes aimed at promoting awareness and enjoyment of the cultural heritage of
national ethnic groups and minorities and of indigenous sectors of the population”.56 As
regards the right to education, the Guidelines draws states attention to their obligation to
report on “the promotion of understanding, tolerance and friendship among all nations and
all racial, ethnic or religious groups” and on measures taken for special groups including
“children belonging to linguistic, racial, religious or other minorities, and children belonging
52
African Commission on Human and Peoples’ Rights, Communication 155/96 Social and Economic Rights
Action Centre (SERAC) and Centre for Economic and Social Rights CESR) / Nigeria, October 2001. In that
decision, the African Commission found that the Federal Government of Nigeria has violated Article 24 and
invited it “to ensure protection of the environment, health and livelihood of the people of Ogoniland.”
53
Declaration on a Code of Conduct for Inter-African Relations, Assembly of Heads of State and Government,
30th Ordinary Session, Tunis, Tunisia, 13-15 June 1994.
54
Communications 51/91, 61/91, 164/97 to 196/97 and 210/98, Malawi African Association v. Mauritania,
op.cit, Annex V, para. 131.
55
See for example, the case regarding Christians in Sudan. Communications 48/90, 50/91, 52/91 and 89/93
Amnesty International; ComiteLoosliBachelard; Lawyers Committee for Human Rights; Association of
Members of the Episcopal Conference of East Africa v. Sudan, Decisions of the 26th and 27th Ordinary Sessions
of the African Commission, Thirteenth Annual Activity Report of the African Commission on Human and
Peoples’ Rights 1999-2000, pp. 108-118.e.
56
Guidelines, III. 14 (IV).
to indigenous sectors of the population, where applicable.”57 Thus, from the above discussion,
one can say that the principles adopted by the African Charter on Human and Peoples’
Rights are clear and consistent with international standards. What is needed is appropriate
legal recognition to prevent conflicts in Africa.
b. Managing Ethnic Diversity Through Legal Recognition: A Means for Conflict

Prevention in Africa
The questions of minority identity and conflict prevention are among the most controversial
individual questions confronting states in Africa.58 Another question also is about whether
the problem is a lack of capacity, analysis, political will, or action? Whether it is about respect
for minority rights or maintenance of peace, the primary concern of many governments
tends to be the potential disruption that they expect, and fear, as a result of minorities
asserting their rights. The States often assume that recognizing minority rights, or granting
special treatment – in particular any arrangements delegating political and economic
functions to groups, will fuel secessionist claims that would threaten national unity, political
independence and territorial integrity. However, it is widely recognized that there is a direct
link between conflicts and the violation of minority rights. The Organisation of African
Unity’s Assembly of Heads of State and Government have noted this when it adopted in
1994 the Declaration on a Code of Conduct for Inter-African Relations, which stipulated:
Peace, justice, stability and democracy call for the protection of ethnic, cultural,
linguistic and religious identity of all our people including national minorities and
the creation of conditions conducive to the promotion of this identity.59
In 2000, the Secretary-General of the OAU noted that “the absence of a culture of tolerance
also contributes to the creation of division between different ethnic groups and leads to
internal conflicts.”60 Thus, it is wrong to think that managing ethnic diversity in Africa dooms
it to endemic civil conflict. Poverty, underdevelopment, unemployment, and political
exclusion are the root cause lurking behind social fractionalisation. But socially fractionalised
societies like most in Africa require careful management. African countries need to seek
inclusive, participatory and democratic policies compatible with their ethnic diversity.
Under the right conditions, diversity can promote, rather than impede, social cooperation
and stable growth.
In many parts of Africa, certain groups feel marginalized, as they are victims of policies of
assimilation, separatism and integration. As a result of the state’s attempt to absorb them
into other groups or dominant cultures, these ethnic groups not only have the perception
of being disadvantaged through non-recognition, but are de facto excluded from political
power and from administration in public matters, and risk the extermination of their culture
and, at times, of their very existence. As indicated earlier, the situation of the Sengwer in
57
Guidelines, II. 47 and II. 48.
58
This section draws heavily on an MRG briefing paper prepared in view of advocacy before the African
Commission on Human and Peoples’ Rights: S. Slimane, Recognizing Minorities in Africa (Minority Rights
Group International, 2003), also available at http//www.minorityrights.org.
59
Declaration on the Code of Conduct for Inter-African Relations, Assembly of Heads of State and Government,
30th Ordinary Session, Tunis, Tunisia, 13-15 June 1994.
60
Statement made by His Excellency Salim Ahmed Salim, OAU’s Lessons from a Decade of Conflicts:
Prospects of Peace and Security by the Year 2000, 31 January – 2 February 2000, Ouagadougou, Burkina Faso.
Kenya61, and the Wayeyi in Botswana62, illustrate the struggle for recognition as a distinct
group within the state as a sine qua non of ensuring their participation on an equal basis in
decision-making processes that can directly affect their community.63 Thus, failure to accord
appropriate legal recognition to ethnic groups leads to tensions and can eventually result in
their absorption into other groups. It is safe to say that a nation cannot be based on forced
assimilation or ethnic subordination. The very survival of the identity of these communities
is at risk owing to the continuing intent to bring them under the sovereignty of other ethnic
groups. Without the protection of minority rights, the continued existence of ethnic groups
cannot be guaranteed, nor can their non-subjugation by other groups be prevented, and
peace and security guaranteed.
Although some states are of the opinion that the existence of different standards of
treatment would be tantamount to discrimination, on the contrary, an understanding of
minority participation in public affairs and cultural diversity as the varied expression of our
common humanity are keys to the peaceful and lasting resolution of conflicts involving
minorities in Africa.
IV. Towards Effective Participation in Public Affairs and Representation of Minorities

Although the right of minorities to public participation has been addressed only recently,
its origins lie in the Universal Declaration of Human Rights (UDHR) and the International
Covenant on Civil and Political Rights (ICCPR), which protect the right of all citizens to
take part in government or in the conduct of public affairs. Thus, in the interpretation of
ICCPR Article 27, the Human Rights Committee recognizes that the enjoyment of minority
rights may require positive legal measures in order “to ensure the effective participation of
members of minority communities in decision which affect them.”64 As observed, in Africa the
issue of the right to participate effectively in cultural, religious, social, economic, and public
life is a major concern raised by marginalized ethnic groups. Professor Asbjorn Eide, Chair of
the United Nations Working Group on Minorities, points out that “by minority participation
in all forms of public life in their country, they are both to shape their own destinies and
to contribute to political change in the larger society”.65 Undoubtedly, participation is a
key aspect of the contemporary politics of recognition pursued by many groups in Africa,
suggesting the importance of group-differentiated rights as a characteristic route to
fulfilling their aspirations.
In this section, some of the obstacles that have the effect of excluding or severely limiting
the effective participation of minorities in the public sphere of political participation and
61
The Sengwer recommended to the Constitution of Kenya Review Commission that “Sengwer be recognized as
separate and distinct ethnic group in Kenya”, Memorandum from Sengwer of Kenya, presented to Constitution
of Kenya Review Commission on 10 July 2002, p. 22.
62
The Wayeyi are one of the minority tribes in Botswana, which are not recognized in the Constitution, the
Chieftainship Act or Tribal Territories Act. The Wayeyi efforts have been primarily focused on establishing
cultural autonomy and linguistic rights. They are seeking autonomy from the Botswana tribe, who, although a
minority in the Northern District, rule over other tribes including Wayeyi.
63
See Article 2(3) of the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious
and Linguistic Minorities, which states: “Persons belonging to minorities have the right to participate effectively
in decisions on the national and, where appropriate, regional level concerning the minority to which they belong
or the regions in which they live.”
64
See General Comment No. 23, paragraphs 6.1, 6.2, and 9.
65
Asbjorn Eide, Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2001/2, 2 April, para. 32.
representation will be outlined. The purpose of this approach is to raise the awareness
that, recognizing minority groups in Africa is the first step to guarantee their right to equal
treatment with other groups.
a. Exclusion of Minorities from the Political Process through Denial of Citizenship

Despite the fact that the right to a nationality is a well-established tenet of international
law, the question of citizenship continues to be a major concern especially in Africa which
poses a special problem for the norm of equality and is linked to participation in public
life or access to land, as is the case in Democratic Republic of Congo, Kenya,66 Zambia and
Cote d’lvoire. Yet, effective participation of ethnic minorities in public life is an essential
component of a peaceful and democratic society. Historically, some states in Africa have
limited political participation and representation to certain categories of individuals by
making it more difficult for members of certain minority groups to become citizens.
b. Obstacles to the Exercise of the Right to Vote

Central to concepts of democracy and participation in public affairs is the right to vote and
to choose those who govern. In the case of restrictions as to the right to vote, these are no
longer widespread today since for the most part states tend to conform to the international
standards enshrined in the International Covenant on Civil and Political Rights. Article 25
states:
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in Article 2 and without unreasonable restrictions:
1. To take part in the conduct of public affairs, directly or through freely chosen
representatives;
2. To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression
of the will of the electors;
3. To have access, on general terms of equality, to public service in his country.
Yet, historically, in Africa, citizens who belong to linguistic, ethnic or religious minorities,
and sometimes citizens who belong to majorities who were politically powerless, were
not allowed to become voters or take part in the conduct of public affairs, directly and
through freely chosen representatives. This constitutes a serious obstacle to the effective
participation of minorities in the political and public life of the state, since it results in an
inability to elect individuals who would be able to represent their interests at the political
level to a degree which approximately reflects their members. A variety of techniques were
used in the past in different parts of the world to disenfranchise members of a linguistic,
ethnic or religious minority (and sometimes majority). These could include being able to
demonstrate an ability in the official or national language in order to be registered or entitled
to vote, a requirement as to land ownership, or even being able to understand the national
constitution to the satisfaction of state officials, who happened to be mainly members of
the linguistic, ethnic or religious majority or dominant community.
c. Under-Representation of Minorities in Political and Public Life

The failure of the state to allow all ethnic groups to effectively participate in public life has had
66
See for example, K. Singo’ei, Kenya’s Untouchables: The Nubians’ Struggle for Recognition of their Rights,
briefing paper, Centre for Minority Rights Development, Nairobi, 2003.
disastrous consequences in many regions in Africa. As the issue of power sharing is acute in
multi-ethnic states in Africa, conflicts can emerge when there is even the perception by the
ethnic groups that they are disadvantaged. This kind of suspicion is often manipulated and
politicised and can only be prevented if members of the various ethnic groups have fair and
equal opportunities in all sectors of public life, and if the minority groups are recognized.
A much more difficult problem to address is the tendency for minorities to be under-
represented in political and public life. As noted earlier, it is undeniable that in most
political systems in Africa, minorities tend to find their votes ‘diluted’. Especially, if they
are not territorially concentrated, the number of elected officials who are members of a
linguistic, ethnic or religious minority tends to be much lower than the actual percentage of
the population, which a minority constitute. In effect, this delimitation of electoral borders
can constitute a serious obstacle to the effective participation of minorities in the political
and public life of the state. Ignorance and lack of understanding, as well as doctrines of
superiority and racism, constitute further stumbling blocks.
d. Exclusion of Citizens who are Members of Minorities from Holding Public Office
While an inherent difficulty in electing persons who belong to minorities is a very real
obstacle in terms of effective participation of minorities in the public life of many states,
there are practices that constitute even more serious obstacles. A number of states have
requirements and even constitutional provisions which tend to exclude citizens who are
persons who belong to minorities from running for public office or from being elected.
For example, some electoral laws in some of the African states contain provisions whereby
candidates standing for local government could be required to pass a formal language
examination, as a pre-condition for presenting their candidacy. Obviously, this is a very
clear obstacle to effective participation and political representation of minorities. Generally,
they would appear to be discriminatory restrictions contrary to Article 26 of the ICCPR and
Article 2 in conjunction with Article 25 of the Covenant.
The models of decentralization in Uganda or federation in Nigeria and Ethiopia constitute

avenues to accommodate ethnic, religious and historical cleavages, and protect the
essential right of participation. However, while these models are in line with the framework
of minority rights that provide tools to guarantee the right to equal treatment with other
groups, to cultural autonomy and to relate political autonomy, they still pose enormous
difficulties.
Securing minority rights is a challenge that African States should aim to meet, as conflict,
unequal opportunity and a disregard for the right of minorities’ development create the
greatest obstacles to sustainable development for the entire continent.67 In its “Appeal to
the people of Africa”, the 2001 New Partnership for Africa’s Development (NEPAD) document
acknowledges that Africa is a “continent whose development process has been marked
by false starts and failures”.68 Undoubtedly, African minorities are seeking a new start. As
emphasized earlier, a first step would be to recognize their right to fully and effectively
participate in economic progress and development of their country, and to be involved in
67
On the importance of having in place the standards to ensure the rights of minorities and the rights
of indigenous peoples within the right to development, see M. Salomon with A. Senguta, The Right to
Development: Obligations of States and the Rights of Minorities and Indigenous Peoples, London, MRG, 2003.
68
The New Partnership for Africa’s Development (NEPAD), para. 58.
decision-making processes regarding projects and programmes that affect them.69 Setting
out obligations of States, the United Nations Declaration on the Rights of Persons Belonging
to National of Ethnic, Religious and Linguistic Minorities, sets out various rights of minorities.
Article 2(3) says that:
Persons belonging to minorities have the right to participate effectively in decisions

on the national, and where appropriate, regional level concerning the minority to
which they belong or the regions in which they live, in a manner not incompatible
with national legislation.
V. Concluding Remarks
Undoubtedly, minority issues are, by their nature, politically sensitive. Analysis of the effort
of law to deal with the identity, existence and recognition of ethnic, religious, and linguistic
groups, provided in this discussion, implies reflection on legal and constitutional recognition
of minorities in Africa. The failure of multi-ethnic and multi-cultural states to recognize
marginalized ethnic groups leads to tensions and sometimes violence. Legal recognition,
however, is the first step to acknowledging that minority rights are essential to peaceful
co-existence and constructive nation building in Africa. As Dr. Fernand de Varennes pointed
out:
Only on the basis of respect of one group for another can what binds us be sought,
a kind of common world-wide minimum whose binding nature makes it possible for
mankind to co-exist on a single planet. It could only work if the commitment grew
out of a climate of equality and a common quest. It is no longer possible for one
group to force it upon other.70
African States have often argued that ethnicity, often exploited, politicized and manipulated,
is a root cause of tension and conflict in Africa. However, African States will fail to achieve
the objective of preventing conflict, ensuring stability and lasting peace in Africa if they do
not integrate minority rights into their political, social, cultural and development agenda,
with the aims of ensuring the preservation of what makes the group distinct and balancing
the interest of the different ethnic groups. Of course, much depends on the political wisdom
and good faith of Africa governments. It is important to emphasize that the existence of a
minority is to be established on the basis of objective criteria and does not depend on state
recognition of that minority.
Unfortunately, when it comes to issues of human rights – and in particular minority rights
– the African Commission has not been as effective as it could be. However, one cannot
deny the fact that, despite the attention given to the terrible inter-ethnic conflicts that have
marred African history since independence, there has been little international note taken
of African traditions and values that successfully mediate between ethnic groups, resolve
problems, and ensure good relations and mutual respect. Nevertheless, as efforts are made
69
See Article 4(5) of the UNDM which states: “States should consider appropriate measures so that persons
belonging to minorities may participate fully in the economic progress and development in their country.”
70
See the Working Paper Prepared by Dr. Fernand de Varennes, “Towards Effective Political Participation
and Representative of Minorities”, in Commission on Human Rights, Sub-Commission on Prevention of
Discrimination and Protection of Minorities Working Group on Minorities, Fourth Session 25-29 May 1998, E/
CN.4/Sub.2/AC5/1998/WP4.
to ensure protection of minorities in Africa in accordance with international law, it may also
be useful to draw upon some of these traditions to build truly multi-cultural societies in
Africa.
89 Is Traditional Knowledge Intellectual Property Alex Ansong
IS TRADITIONAL KNOWLEDGE INTELLECTUAL PROPERTY?
Alex Ansong*
Abstract
Traditional knowledge has become one of the areas of increasing interest in national and
international fora, and in academia in recent years. Issues of protection of traditional knowledge
from extinction and piracy and the possible extension of intellectual property rights (IPRs) to
protect it are some of the pivotal issues in current international and domestic discourses. This article
presents an exploration of the topic: ‘is traditional knowledge intellectual property? It begins with
a very brief analysis of the concept of property. This sets out the general conceptual framework
of the idea of property. It establishes the principles of ‘use’ and ‘exclusion’ as foundational in
the general concept of property. The discussion builds upon this and undertakes a panoramic
historical overview of intellectual property, its scope and some of the justifications that have
been adduced in the defence of IPRs. The principles of ‘use’ and ‘exclusion’, are reemphasised in
the discourse on Intellectual property to show that it is a subset of the general concept of property.
After setting out the foundational arguments on property and intellectual property, the article
considers the conceptual framework of traditional knowledge and undertakes a comparative
study of traditional knowledge and intellectual property. The import of this comparative study
is to ascertain whether there are any common grounds between the two systems that can allow
the extension of intellectual property protection to traditional knowledge. The principle of ‘use’
and ‘exclusion’ reverberates again in this segment of the discussion and analysis. Foundational
arguments are also presented on the issue of whether proprietary rights can be instituted in
traditional knowledge and whether existing intellectual property regimes can be extended to
traditional knowledge. These arguments are used in the concluding part of the article to support
the position that traditional knowledge is intellectual property.
I. The Concept of Property
The idea of property has engaged the minds of political, legal, economic and social theorists
for centuries and different schools of thought have presented different arguments on this
subject matter. Ontological questions of whether the nature of property is inherently
similar, whether it is conceptually or culturally construed, or whether its conceptual or
cultural meaning varies in time and space are but a few of the many questions that assail
the concept of property.1
There are also explanatory and normative issues of social justice, claims of natural rights,
legal constructions of certain policy options, and the form, boundaries and allocation
of property.2 These issues of property were pivotal concerns that polarized the political,
economic and socio-legal organization of states in the 20th century. Needless to say, these
pertinent issues are still pivotal concerns for the ideological foundations and practice of the
institutions that organize our lives at the communal, national and international levels.
Thompson sees the idea of property as our relationship with items more than an expression
of our ownership of the items.3 Expressions of ownership summarize the rights we possess
in relation to the item owned.4
* Dr. Alex Ansong, Lecturer, Faculty of Law, Ghana Institute of Management and Public Administration.
1
George, A ‘The Difficulty of Defining ‘Property’’, Oxford Journal of Legal Studies, Vol.25, No.4, 2005 at 793
2
Thompson, M. P., Modern Land Law, (3rd edn.), Oxford: Oxford University Press, 2006, at 1
3
Thompson, op cit, footnote 2.
4
Ibid.
Harris on the other hand defines property as “… a legal and social institution governing
the use of most things and the allocation of some items of social wealth.”5 It is “a complex
organising idea”,6 constituting a spectrum spanning exclusive use or ownership to rules or
rights of common access and use.
Property as an institution has a dual function in that it governs both usage and allocative
rights and privileges.7 The right to use a resource like everybody else in society is markedly
different from the right to be allocated use of a resource to the exclusion of all others in
society. Penner thus contends that the concepts of exclusion and use are all-encompassing
enough to be employed in explaining property rights.8 He further argues that:
“The right to property is grounded by the interest we have in using things in the
broader sense. No one has any interest in merely excluding others from things, for
any reason or no reason at all. The interest that underpins the right to property is the
interest we have in purposefully dealing with things.”9
Penner identifies three broad levels of exclusion and use that underlie interests in property
rights – non-exclusive right of use, exclusive right of use based on the principle of first come,
first served, and unrestricted exclusive use.10
With the non-exclusive right of use, everyone has a right to use the resource. Hence my
use of a resource does not exclude others from using the same resource. There can thus
be multiple, non-exclusive and simultaneous use of a resource without one right of usage
encroaching on the rights of others. For example, my right to fish in a river may not exclude
the rights of others to fish in the same river. The river is thus commonly accessible to all and
as such no one would be excluded from fishing if they wanted to.
John Locke, in his Second Treatise of Government vividly expressed this level of non-exclusive
right of use. He argued that:
“God, who has given the world to men in common, has also given them reason to
make use of it to the best advantage of life, and convenience. The earth, and all that
is therein, is given to men for the support and comfort of their being. And though all
the fruits it naturally produces, and beasts it feeds, belong to mankind in common,
as they are produced by the spontaneous hand of nature; and nobody has originally
a private dominion, exclusive of the rest of mankind, in any of them, as they are thus
in their natural state: yet being given for the use of men, there must of necessity be
a means to appropriate them some way or other, before they can be of any use, or at
all beneficial to any particular man.”11
There is undeniably a problem of scarcity of resource that is not fully addressed in the
‘non-exclusive use’ argument. This problem is partially solved in a right of use based on
5
Harris, J. W., Property and Justice, (Oxford: Oxford University Press), 1996, at 1.
6
Ibid.
7
Ibid.
8
Penner, J. E., The Idea of Property in Law, (Oxford: Oxford University Press), 1997, at 68.
9
ibid at 70-71.
10
Ibid. at 69.
11
John Locke Second Treatise of Government, Sect. 26., http://www.gutenberg.org/etext/7370, viewed on
30/08/2006
the principle of first come, first served. Here, the right of use is exclusionary but there are
limitations based on the nature of use.12 The one who is the first to start using a scarce
resource has a right of use until he/she finishes using it.
Applicants for a public housing scheme, for example, may be considered on a first come,
first served basis. When the house is allocated to the first applicant, other applicants are
excluded from using the same house till such a time that the occupant vacates the house,
either on his own accord or as per the agreement for occupancy. The current occupant of
the house may refer to it as ‘my house’, and this, on the face value denotes ownership. This
expression of ownership however refers to the right of the current occupant to exclude all
others from encroaching on his right of use though the actual owner of the house is the
state authority that allocated this resource.
The exclusionary implications of the ‘first come, first served’ argument may have varying
ramifications ranging from temporary exclusion of use to permanent exclusion. Some
resources are not only scarce, but they are also transient, non-renewable or destructible.
For example, if a government grants gold mining concessions on a first come first served
basis, the gold that is mined cannot be ‘re-mined’ by any other person because gold is not
a renewable resource. Thus once owned, that ownership permanently excludes all others.
However, the scenario of the government housing scheme given above may not have the
same effect of permanent exclusion. This is because, when one tenant vacates the premises,
the same house can be allocated to another tenant. The exclusion here is thus temporary.
The third right of use identified by Penner is the unrestricted exclusive right. This is the right
to use a thing or a resource whenever one wants and to the exclusion of all others. A freehold
ownership of land for example excludes others from unauthorised use of that land. Whether
movable or immovable, property privately owned to the exclusion of all others vests in the
owner ‘absolute’ rights that are not feasible under the two previous rights discussed above.
II. Locke’s Labour Theory and the Tragedy of the Commons

One of the most popular justifications of private property rights is the ‘labour theory’
expounded by John Locke in his Second Treatise of Government. In the labour theory,
resources freely provided by nature are not privately owned by any individual or collective
of people.13 Nature provides resources for non-exclusive common use. Locke however
argued that every individual ‘has a property in his own person’14 and as such when the
individual applies, through labour, the abilities owned in his/her person to the resources
commonly provided by nature, the individual appropriates for his/her exclusive use, that
which was commonly available to all in nature.15 My labour thus appropriates resources
from the commons and transforms it into my private property.16 Fish in the sea is not owned
by any individual.
However, if I apply my labour to catch the fish, it becomes my property because the ‘caught
fish’ is the result of my labour.
12
Penner, op cit, footnote 8, at 69.
13
Locke, op cit, footnote 11.
14
Ibid, at section 27.
15
Ibid.
16
The major problems with the labour theory are scarcity, over appropriation, and depletion
of natural resources. Locke proposes the use of the rule of reason to deal with the problem
of over appropriation of resources in the commons.17 But without a normative benchmark of
what is reasonable, the rule of reason becomes an individualised subjective rule. Common
use of common resources thus has the tendency of resulting in overuse – i.e. the tragedy
of the commons.18
Sympathetic feelings for one another in the commons are also not an antidote to the
tragedy of the commons. Demsetz thus argues that:
“Economic systems organized to rely on sympathetic feelings cannot succeed in

coping with day-to-day resource allocation tasks. This is not to say that these types
of economic systems cannot exist, that they cannot persist, or that they cannot
alter the distribution of wealth. It is to say that they cannot resolve resource usage
problems as efficiently as can systems that rely to a greater extent on prices that
reflect facts known to and actions taken by dispersed private owners. It is delusion
to think that a socialist organization dealing with modern economies will make
allocation decisions on the basis of kinship emotions, although in times of national
emergency, such emotions do exhibit strength for relatively short periods.”19
To Demsetz, one way of solving problems of externalities (i.e. the tragedy of the commons)
in the common use of resources is through the medium of private property rights.20
It would however be stretching the argument too far to hold that an actual or perceived
tragedy of the commons always results in or justifies the individualization of resource
allocation. Collective regulatory interventions can sometimes serve a better management
paradigm of resource allocation than individualization of rights to resources. It can also, in
some circumstances, serve a better practical role of allocative justice by ensuring equity in
the distribution of the resource.
In the customary law of the Akans of Ghana for instance, land is conceived of as an ‘ancestral
trust’ administered by political and social authorities for the benefit of the living (including
the authorities themselves) and the yet-to-be-born generations.21 Individualization is thus
precluded in this traditional concept of ownership as land is supposed to be administered
in the communal interest and the authorities who administer them are mere fiduciaries,
albeit with their own legitimate interests in the properties they are administering.22Thus in
small, closely knit communities, collective use of some resources may serve a better role
of resource allocation than individualization. On the other hand, as Demsetz has posited,
in large highly sophisticated economies, individualization of resources may perhaps be a
17
18
Heller, M. A., ‘The Tragedy of the Anticommons: Property in the Transition from Marx to Markets’, Harvard
Law Review, January 1998, at 622
19
Demsetz H., ‘Toward a Theory of Property Rights II: The Competition Between Private and Collective
Ownership’, Journal of Legal Studies, June, 2002, at 662.
20
Ibid.
21
Asante, S. K. B., ‘Fiduciary Principles in Anglo-American Law and the Customary Law of Ghana - A
Comparative Study’, International & Comparative Law Quarterly’, October 1965, at 1144-1145.
22
Ibid.
more feasible way to go.23
III. Intellectual Property

As established in the discussion above, property embodies rights of use and these rights
range on a broad spectrum with exclusionary and non-exclusionary rights at the opposite
ends of the spectrum. According property rights to the creative endeavours of the human
intellect falls within the broader set of rights of use and exclusion discussed above. Thus,
building on the earlier discussion on what constitutes property, intellectual property
(IP) may simply be said to be property rights granted over the use of the products of the
intellect. These rights are protected and enforced by law – i.e. “… the legal protections given
to persons over their creative endeavours and usually give the creator an exclusive right
over the use of his/her creation or discovery for a certain period of time.”24
a. Intellectual Property: A Historical Analysis

The concept that an idea or knowledge can be owned as property is said to have been
birthed by the European Enlightenment.25 The European Enlightenment saw a significant
shift from the view of divine revelation and reliance on ancient classical texts as the sources
of knowledge, to a focus on the human being as a creator of knowledge.26 Prior to the
Enlightenment, it was thought that humans were mere transmitters of knowledge and not
creators of knowledge. In Europe, the influence of Christianity was the basis of the notion
of divine origin of knowledge. The medieval canon law doctrine “Scientia Donum Dei Est,
Unde Vendi Non Potest” (knowledge is a gift from God, consequently it cannot be sold) -
sums up this conception.27
The conception that the individual cannot only create knowledge but also own the
knowledge created and the advent of printing in Europe projected the author to a high
level of importance. The development of intellectual property rights (IPRs), especially
copyright, is thus intimately linked to the European Enlightenment and the development of
the printing industry which created the ability for the mass production of books. Prior to the
invention of printing, reproduction of books in Europe was tediously done through hand
copying mostly by monks for their religious orders, the royalty and the aristocracy.28 The
printing industry precipitated a move from intensive reading to extensive reading, created
commerce in books and in the process helped to create a new middle-class reading public.29
The commercialisation of books brought with it the attendant threats of piracy. The need
to protect the interests of stakeholders in the book industry (i.e. authors and publishers)
thus saw the emergence of the rudiments of copyright regimes in England30 and its other
variations in other European countries (for example the droit d’auteur in France). Geller thus
23
Demsetz, H., op cit., footnote 19, at 662
24
UNCTAD-ICTSD Capacity Project on IPRs, Resource Book on TRIPS and Development, November 27 2006,
at 92
25
Hesse, C. ‘The Rise of Intellectual Property, 700 B.C.-A.D. 2000: An Idea in the Balance’, Daedalus, Spring
2002, at 26
26
Ibid.
27
Ibid.
28
Elizabeth L. Eisenstein, ‘On Revolution and the Printed Word’, in Roy Porter and MikulasTeich, (eds)
Revolution in History, New York: Cambridge University Press, 1986, pp.186-205
29
Hesse, C., op cit. footnote 25, at 31
30
http://www.intellectual-property.gov.uk/resources/copyright/history.htm (viewed on 25/10/06)
proposes the hypothesis that: ‘Only when media technology and market conditions made
piracy profitable could copyright arise’.31
The invention of the paper and mass printing in Imperial China for instance, saw a semblance
of proto-copyright regime being instituted by imperial authorities to control publishing of
some works for the purpose of censorship, and private entities registering their works with
imperial authorities and as such laying claims to the registered works.32 The commercial
viability of authored works can thus be linked to the emergence of regimes that instituted
forms of proprietary rights in those works.
b. Development of IP: The Western Experience

England offers the point of departure in the western experience of the development of IP. A
lot of debate took place in England in the 18th century about proprietary rights in literary
works and whether perpetual literary property existed under common law.33 The long title
of the Statute of Anne, passed in 1710, reads:
“An Act for the encouragement of learning, by vesting the copies of printed books in
the authors or purchasers of such copies, during the time therein mentioned.”
The Act gave authors (and/or their assignees) the sole right to print and reprint their works
for a limited period of 14 years, extendable to a further 14 years if the author was still alive.
At the expiry of the rights granted by the Statute of Anne in 1738, stakeholders in the book
industry who profited from the copyright protection of the Statute began to argue that the
expiry of the rights did not negate their perpetual rights under common law.34 Two notable
cases decided in the English courts over the issue of perpetual literary property rights are
worth mentioning.
In 1769, the Court of the King’s Bench decided in Millar v Taylor35 in favour of perpetual
literary property rights. The Court held that the Statute of Anne did not take away the
perpetual right of an author over his creation and that common law accords an author this
right by the author’s very act of creation. This decision was however overruled by the House
of Lords in Donaldson v Beckett36 in 1774. The House held that copyright was a statutory
creation by the Statute of Anne and thus authors did not have perpetual rights. Perpetual
common law literary property rights were only confined to unpublished works.
In France and Germany the debate on the right of the author over his creation focused
more on personality theories. Literary and artistic creations were viewed as an inalienable
extension of the personality of the author. The concept of author’s rights (droit d’auteur) in
France focused on the natural rights of the author over his creation and not the rights of
the copyright owner as pertained in England.37 The author thus “…. has a property right in
his work which does not depend on any collective interest in dissemination but solely on
31
Geller, P. E., ‘Copyright History And The Future: What’s Culture Got To Do With It’, Journal, Copyright
Society of the USA, 2000, at 210
32
Ibid at 214.
33
Sherman, B., and Bently, L., Making of Modern Intellectual Property Law: The British Experience, 1760-
1911, at 11
34
Davies, G., Copyright and the Public Interest, Sweet & Maxwell, 2nd ed., 2002, at 29
35
Millar v Taylor, 4 BURR. 2301.
36
Donaldson v. Beckett, 4 BURR. 2407
37
Sherman, B, and Bently, L., op cit, footnote 33, at 159
the relationship between an individual author and his creation.”38 The author’s right was
captured in the general elevation of the idea of property after the French Revolution.39
The sanctity accorded to the droit d’auteur is captured in the words of Le Chapelier’s, the
18th century French Revolutionary leader who stated that “[T]he most sacred, the most
legitimate, the most unassailable ... the most personal of all properties, is the work, the fruit
of a writer’s thoughts.”40
Gotthold Lessing, writing in 1772 from the German experience of the literary property
debate also argued thus:
“What? The writer is to be blamed for trying to make the offspring of his imagination
as profitable as he can? Just because he works with his noblest faculties he isn’t
supposed to enjoy the satisfaction that the roughest handyman is able to procure?....
Freely hast thou received, freely thou must give! Thus thought the noble Luther .....
Luther, I answer is an exception in many things.”41
The literary property debate in the 18th century was not confined to Europe. The newly
created United States of America (US) had its fair share of this debate. In the US however,
the general emphasis of this debate focused on utilitarian principles.42 Thus Article 1 s.8 cl.8
of the 1787 US Federal Constitution stated that:
“Congress shall have the power … to promote the progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.”
From the very outset, the balance between authorial rights and the public interest was
created in the US. The emphasis on utilitarian principles of IP protection however, held
sway in the US during the periods when it was a net importer of literary works.43 Publishing
houses in 19th century US reprinted works of British writers without any authorisation from
the copyright owners.44 In a response to Congress in 1842, following petitions from both US
and British authors over the issue of unauthorised publishing of their works, the Sherman
and Johnson publishing house in Philadelphia for instance argued that:
“All the riches of English literature are ours. English authorship comes to us free as the
vital air, untaxed, unhindered, even by the necessity of translation, into the country;
and the question is, shall we tax it, and thus impose a barrier to the circulation of
intellectual and moral light? Shall we build up a dam to obstruct the flow of the
rivers of knowledge?”45
US publishers thus made use of utilitarian justifications to pirate British literary works. As
Hesse puts it: “[K]nowledge was there for the taking if the grab could be justified by the
38
Burkitt, D., ‘Copyrighting Culture - The History and Cultural Specificity of the Western Model of Copyright’,
I.P. Quarterly, 2001, 2, at 160
39
Ibid.
40
Cited in Richard A. Spinello and Maria Bottis, A Defense of Intellectual Property Rights, (Cheltenham:
Edward Elgar Publishing Ltd., 2009) p.28.
41
Cited in Hesse, C., op cit footnote 25, at 34.
42
Burkitt, D., op cit, footnote 38, at 153.
43
Ibid, at 156-157
44
Ibid.
45
Cited in Hesse, C., op cit footnote 25
public good.”46
By the 20th Century as the US increasingly became a net exporter of IP products, the
emphasis on utilitarian justifications for IP protection gradually shifted to a more author-
centric/personality justification. Justice Holmes, delivering the opinion of the US Supreme
Court in Bleistein v. Donaldson, a case of unauthorized reproduction of images, for instance
stated that:
“The copy is the personal reaction of an individual upon nature. Personality always
contains something unique. It expresses its singularity even in handwriting, and a
very modest grade of art has in it something irreducible, which is one man’s alone.
That something he may copyright unless there is a restriction in the words of the
act.”47
From Bleistein v. Donaldson, through its ratification of the Berne Convention, to the Digital
Millennium Copyright Act of 1995, the US has steadily shifted from utilitarian justifications
to a more natural rights persuasion of IP protection.
The debate over literary property rights in Europe brought to the fore the issue of property
rights in products from the labour of the mind.48 A distinction was created between manual
labour and mental labour. Locke’s labour theory was employed to argue for the justification
of natural proprietary rights in literary works.49 If property resides in the very person of
the individual, and the labour of the individual is his property, then the product of the
individual’s mental labour is his intellectual property.
The recognition of mental labour and its products as distinct from those of manual labour
provided the link through which previously separate areas of law like patent law and
trademark law were later categorized under the umbrella of intellectual property law. It
must be stated though, that legal regimes in patents, for instance, preceded copyright in
England and author’s rights in other parts of Europe. Between 1561 and 1590 for example,
Elizabeth I granted about 50 patents.50 The Statute of Monopolies of 1624 also preceded the
rudimentary stages of copyright law – i.e. the Licensing Act of 1662. The 14 year duration
granted to copyrights by the Statute of Anne in 1710 evidently took a cue from the Statute
of Monopolies of 1624 which first granted “for the term of 14 years or under hereafter to be
made of the sole working or making of any manner of new manufactures within this Realm
to the true and first inventor”.51
The literary property debate in Europe in the 18th century produced two schools of
thought with regards to the justification for granting IPRs – the objectivist position and
the subjectivist position. Some of the pivotal issues that formed the basis of debate were –
whether ideas were discovered or invented and whether ideas emanated from the society
or from the individual.52 These polarities reflected the objectivist and subjectivist positions.
46
Ibid.
47
Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903)
48
Sherman, B., and Bently, L., op cit. footnote 33, at 15.
49
John Locke, op cit., footnote 11.
50
See Barry Barclay, ManaTuturu: Maori Treasures and Intellectual Property Rights, (Honolulu: University of
Hawai’i Press, 2005), at 69.
51
Ibid.
52
Hesse, C., op cit., footnote 25 at 36
The objectivist position was championed by people like Condorcet, the 18th century French
mathematician and philosopher.53 He asserted that literary property “.... is a property founded
in society itself. It is not a true right; it is a privilege.”54 Legal systems protecting IP must do so
to the extent that the public interest is protected. The utilitarian approach of IP protection
tows the line of the objectivist school of thought. The public interest is at the heart of the
utilitarian approach. It argues for creating a balance between the private rights of the IP
right holder and the public interest in benefiting from the creative work of the right holder.55
The subjectivist school of thought championed by other 18th century European scholars
like Edward Young, Denis Diderot, Gotthold Lessing and Johann Gottlieb Fichte argued that
ideas originated from the author and as such he/she had a natural law right of protection.56
Statutes thus only recognised their universal natural law right. It did not bestow the literary
property right on the author.
The natural law argument for the protection of IP thus justifies proprietary rights in
intellectual products based on the premise that intellectual creations are expressions of the
personality of the creator. The creator has a property in himself/herself under natural law as
Locke proposed. The labour of the individual is thus a natural property of the individual. The
use of the mental faculty to create a work should thus be protected as the property of the
creator.57
The need to strike a good balance between the objectivist and subjectivist positions was
ably summed up by Lord Mansfield in Sayre v. Moore:
“We must take care to guard against two extremes equally prejudicial; the one, that
men of ability, who have employed their time for the service of the community, may
not be deprived of their just merits, and the reward of their ingenuity and labour; the
other, that the world may not be deprived of improvements, nor the progress of the
arts be retarded.”58
c. The Scope of Intellectual Property

Article 2(viii) of the World Intellectual Property Organisation (WIPO) Convention 1967 states
that intellectual property:
“shall include the rights relating to: - literary, artistic and scientific works, -
performances of performing artists, phonograms, and broadcasts, -inventions in all
fields of human endeavor, - scientific discoveries, - industrial designs, - trademarks,
service marks, and commercial names and designations, -protection against unfair
competition, and all other rights resulting from intellectual activity in the industrial,
scientific, literary or artistic fields.”
There are significant differences in the various forms of IP. For example requirements for
gaining copyright protection for a work are different from that of trade marks. Despite the
53
Ibid.
54
Ibid.
55
Zemer, L., ‘On The Value Of Copyright Theory’, I.P.Q. 2006, 1, at 57-58
56
David Suisman, Selling Sounds: The Commercial Revolution in American Music, (Cambridge MA: Harvard
University Press, 2012)
57
Davies, G., op cit at 14
58
Sayre v. Moore (1785) 1 East.361n., 102 E.R. 139n.
differences in the various forms of IP, the unifying factor is the element of intangibility.59 IP
protection establishes property rights over intangible things like ideas, inventions, signs
and information.60 Koumantos thus argues that the element of intangibility:
“… allows for the subsequent enlargement of intellectual property. This enlargement

extends the concept to (a) rights which already existed but were not systematically
categorized and (b) rights newly recognized as a result of technological development
- where the object of a right transcends tangible support, that right is (or should be)
included in the concept of intellectual property.”61
The recognition in law of intangible property comes with it the question of delimitation
of the boundaries or parameters of the intangible property.62 The boundaries of a physical
property like land can be easily defined by setting boundary posts. Being intangible, IP
lacks the advantage of reference points like boundary posts. Thus to meet the necessity
of a definable boundary, IP employs certain parameters within which claims of intellectual
property rights should fall.63
In copyright for example, originality is a requirement for gaining protection for a work. In
patent law as well, there are requirements of novelty, inventive step, capability of industrial
application64and disclosure requirements.65 Trademarks on the other hand have the
requirement of distinctiveness – i.e. the capability of a trademark to distinguish the goods
or services of one undertaking from those of other undertakings.66 These requirements
thus serve as boundaries within which various forms of intangible property (i.e. intellectual
property) can be conceived and the attendant rights bestowed.
d. Concluding Remarks on IP
This segment of the discussion has built upon the general idea of property and developed
further to explore the definition, historical analysis, justification, and scope for granting
property rights in intellectual products. As can be realized, the same concepts of use and
exclusion and arguments like the labour theory of Locke, espoused in the discourse on
‘the concept of property’ still reverberates loudly in the discourse on IPRs. Thus property,
whether tangible, intangible, manually or intellectually produced or appropriated, the
underlying principles of explication are linked by their rudimentary conceptual makeup of
‘use and exclusion’. The crux of the literary property debate presented above, for instance,
was all about a person’s right to exclude others from unauthorized use of their intellectual
creativity. Thus, the concept of intellectual property, though it has its own peculiar
conceptual trappings which are quite distinct from other forms of property rights, it has
been presented in a way that makes it a subset of the universal property set.
In the next segment, the discussion centres on traditional knowledge and whether it can be
59
Koumantos, G., ‘Reflections on the Concept of Intellectual Property’, Intellectual Property and Information
Law: Essays in Honour of Herman Cohen Jehoram, in Dinwoodie, G. B., et al, International Intellectual
Property Law and Policy, LexisNexis, 2001
60
Ibid.
61
Ibid, at 3
62
Sherman, B., and Bently, L., op cit. footnote 33
63
Ibid.
64
Article 27(1) of the Agreement on Trade Related Aspects of Intellectual Property Rights
65
66
brought under the conceptual and legal framework of intellectual property.
IV. Traditional Knowledge

WIPO defines traditional knowledge as “… tradition-based literary, artistic or scientific
works; performances; inventions; scientific discoveries; designs; marks, names and symbols;
undisclosed information; and all other tradition-based innovations and creations resulting
from intellectual activity in the industrial, scientific, literary or artistic fields.”67
Other terms like “indigenous cultural and intellectual property”, “indigenous heritage” and
“customary heritage rights” are used to denote the same notion of traditional knowledge.75
The term ‘traditional knowledge’ is however the preferred choice of use in this article. Posey
and Dutfield have identified and summarised 13 categories and embodiments of traditional
knowledge.68 These include the following: knowledge of use of plant and animal species
including planting and breeding techniques; forms of preparation, processing and storage
of these species; knowledge of traditional classifications of useful plant and animal species;
handicrafts, works of art and performances; ecosystem conservation and traditional
landscaping including sacred sites; and important material culture deemed sacred and/
or non-commodifiable.69 It can thus be argued that traditional knowledge embodies the
stock of tradition-based information systems held and used by communities to ensure their
sustenance and livelihood in a given environment.
a. Synopsis of Concepts
Some concepts arise in the use of the term ‘traditional knowledge’ and synopses of these
concepts are given below.
1. ‘Traditional’
‘Traditional’, as used in the term ‘traditional knowledge’ does not denote antiquity or the
lack of technical basis.70 It is used to reflect the custom-based nature of knowledge creation,
preservation and dissemination that is peculiar to the culture of a given community or
communities.71
2. Traditional Societies/Communities
Some see traditional societies/communities as “tribal populations that are outside the
cultural mainstream of the country in which these people live and whose material cultures
are assumed to have changed relatively little over centuries or even millennia.”72This view is
narrower than the more inclusive view that also sees societies whose traditional knowledge
has not been eradicated by the process of urbanisation and westernisation as traditional
67
‘Intellectual Property Needs and Expectations of Traditional Knowledge Holders’ WIPO Report on Fact-
Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), at 25 http://www.wipo.int/
edocs/pubdocs/en/tk/768/wipo_pub_768.pdf (accessed on 24/11/14)
68
Posey, D.A., and Dutfield, G., Beyond Intellectual Property: Toward Traditional Resource Rights for
Indigenous Peoples and Local Communities, Ottawa: International Development Research Centre, (1996), at
12-13
69
Ibid.
70
Hansen, S. A. and Van Fleet, J. W., A Handbook on Issues and Options for Traditional Knowledge Holders in
Protecting their Intellectual Property and Maintaining Biological Diversity, www.icimod.org/resource/2231, at
13 (accessed on 24/11/14).
71
Ibid.
72
Dutfield, G., Protecting Traditional Knowledge and Folklore, ICTSD, June 2003, http://www.ictsd.org/
downloads/2008/06/cs_dutfield.pdf, at 21, (viewed on 25/11/14)
societies/communities.73
3. Traditional Knowledge and Folklore

Prior to the use of the term ‘traditional knowledge’, ‘folklore’ was the term used to represent
the creations of traditional societies. In 1985, WIPO and UNESCO convened a meeting of a
Group of Experts on the Protection of Expressions of Folklore by Intellectual Property. They
defined folklore as:
“... a group-oriented and tradition-based creation of groups or individuals reflecting

the expectations of the community as an adequate expression of its cultural and
social identity; its standards are transmitted orally, by imitation or by other means. Its
forms include, among others, language, literature, music, dance, games, mythology,
rituals, customs, handicrafts, architecture, and other arts.”74
The use of the term ‘folklore’ however generated a lot of debate bordering on its
appropriateness. Some objections to the use of the term focused on its narrowness in
defining the creations of traditional societies.75 The focus on artistic, literary and performing
works in the definition of folklore, did not reflect the conception of folklore as an all-
encompassing cultural heritage in places like Africa.76 There was also the view that ‘folklore’
was used to refer to the intellectual creations of indigenous peoples perceived (especially
in the western world) as culturally inferior and as such the term was not an appropriate one
to represent their intellectual creativity. The term ‘traditional knowledge’ which has gained
wide currency of usage and acceptance addresses, inter alia, the concerns of narrowness in
the definition of folklore. While embracing artistic, literary and performing works, traditional
knowledge goes further to embrace the knowledge of traditional societies in other areas
like medicine, agriculture and ecology.77 This makes it a more ‘holistic’ term.
4. Traditional Knowledge and Indigenous Knowledge

Indigenous knowledge is a descriptive term for knowledge held and used by indigenous
communities, people and nations.78 Indigenous peoples are at present non-dominant
members of the society, who have a historical continuity that predates later habitation
by ‘pre-invasion’ and pre-colonial societies and who identify themselves as distinct from
the other more recent habitants.79 As people whose presence in a territory predates more
recently arrived populations with their own distinct dominant cultures, the knowledge held
by indigenous people is also distinct from that of the more recent populations.80 Knowledge
held by indigenous peoples is indigenous knowledge. However, knowledge held by
indigenous people and other recent populations can together be termed as traditional
knowledge. Thus indigenous knowledge may be traditional knowledge depending on
73
Ibid.
74
WIPO Round table on Intellectual Property and Traditional Knowledge, Geneva, November 1 and 2, 1999,
http://www.wipo.int/meetings/en/details.jsp?meeting_id=3898 (accessed on 24/11/14)
75
Ibid.
76
Ibid.
77
Ibid.
78
WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge op cit. footnote
67.
79
Ibid.
80
Mugabe, J., ‘Intellectual Property Protection and Traditional Knowledge: An Exploration in International
Policy Discourse’, http://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_4.
pdf (accessed on 24/11/14)
the configuration of the knowledge holders but traditional knowledge is not necessarily
indigenous knowledge.81
5. Traditional Knowledge Holder

Traditional knowledge holders are those who hold and/or use traditional knowledge and
the community that has a stake in the knowledge.82 The knowledge may be held by an
individual or group of individuals who are creators and/or custodians of such knowledge.
Access to the knowledge may also be either restricted to an individual or groups of
individuals or it may be accessible to the entire community. Traditional knowledge holders
are originators, creators and practitioners of the knowledge they hold.83 Examples of some
traditional knowledge holders are medicine men and women, healers, priests or priestesses,
chiefs, family heads, secret societies and breeders.
Secret societies for trades like farming and hunting in Nigeria for instance, were bound by
oaths of secrecy and thus, access to information was restricted to only members of such
guilds.84 The very influential Obgoni secret society of Nigeria operated in similar fashion
and apart from its political, economic and social authority, it also possessed medicinal
knowledge that was restricted to only members of the society.85
In instances where the traditional knowledge is in the community’s public domain, the
knowledge holder is the community in general. It is important to establish the various
forms of custody of traditional knowledge, as they are crucial in establishing claims of
knowledge creation, ownership and protection. The fact that knowledge is in a community’s
public domain does not necessarily denote a general public domain as perceived in
western conceptions of IP.86 Other outside communities may be restricted from access to a
community’s traditional knowledge that is in its public domain.87
b. Nature of Traditional Knowledge

Traditional knowledge has its own forms of peculiarities that are innate to it because it
reflects the specific traditions that create it. In exploring the nature of traditional knowledge
one does so advisedly and with caution so as not to present generalizations that may not be
consistent with different traditional creations of knowledge by different traditional societies.
Thus, it may not be unequivocally said that the innate constituents of traditional knowledge
are the same in every traditional society. However, some common innate threads can be
woven through traditional knowledge no matter how diverse the societies that create it.
1. Collective and Individual Authorship/Creation

As established earlier, individuals, groups or the community as a whole may have custody
of traditional knowledge. There is a lot of emphasis on collective authorship, creation,
custodianship and dissemination of traditional knowledge. This collective nature of
traditional knowledge does not however preclude any notions of individualized authorship,
81
Ibid.
82
Hansen, S. A. and Van Fleet, J. W., op cit, footnote 70, at 44.
83
WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge, op cit, footnote
67, at 26
84
Dennett, R. E., ‘The Ogboni and Other Secret Societies in Nigeria’, Journal of the Royal African Society, Vol.
16, No. 61 (Oct., 1916), at 16-17
85
Ibid.
86
Dutfield, G., op cit., footnote 72, at 24
87
Ibid.
creation or custodianship of knowledge. Notions of individualization of knowledge in

traditional
societies are however different from the western commercially motivated individualization
of knowledge.88 Barsh thus argues that:
“Indigenous peoples generally think in terms of the freedom of individuals to be what

they were created to be…. Along with this highly individualized notion of ‘rights’ is
a sense of unique personal responsibilities to kin, clan and nation. Each individual’s
‘rights’, then, consists of freedom to exercise responsibilities towards others, as she
or he understands them, without interference.”89
A very practical example that illustrates the individual’s obligation to the community in
their intellectual creativity is the Australian case - Yumbulul v. Reserve Bank of Australia.90 In
this case, representatives of the Galpu clan argued in the Australian Federal Court, though
unsuccessfully, against the reproduction of the design of a clan’s man on a commemorative
banknote. The design depicted a Morning Star pole, which according to the clan
representatives, the artist obtained authority and knowledge to create through initiation
and revelatory ceremonies. The artist thus had an obligation to the clan not to use the
design in a culturally offensive way or to allow others to do the same. In this particular case,
though the artist created the design, and under Australian copyright law, he could dispose
of it any way he saw fit as his intellectual property, in the customary law of the clan, he was
bound by an obligation to the clan as to how to use and dispose of his artistic designs.
In a lot traditional societies whether authorship or creativity is collective or individual, the

obligatory focus of that authorship or creativity remains communal in nature. There is a
strong emphasis on fiduciary principles that make alienation and commodification relatively
proscribed.
2. Development and Transmission of Traditional Knowledge

Traditional knowledge is developed and transmitted from generation to generation in
traditional societies. A lot of traditional societies do not have an indigenous literate culture
and as such the knowledge created in such societies is developed and transmitted in an
oral form. This however does not mean that traditional knowledge is necessarily unwritten
as some societies that create it developed a literate culture and as such their traditional
knowledge may have been codified. Traditional Chinese society for example developed a
strong literate culture and it would be inconceivable to think that its very strong traditional
medicinal knowledge was never codified. Also, oral forms of traditional knowledge can be
codified. Traditional knowledge of plants and their uses for example, can be codified in
ethno-botanical databanks.91
Having established the fact that traditional knowledge may be in written or unwritten form,
it is important to stress that it cannot be reduced to mere possession of information by the
traditional knowledge holder. As Mugabe argues:
“… one who possesses knowledge usually has skill and experience in the particular
88
Ibid.
89
Cited by Dutfield, G., op cit., footnote 72, at 24
90
Yumbulul v. Reserve Bank of Australia (1991) 2 I.P.R. 481
91
Mugabe, J., op cit. footnote 80
problem domain but one may possess information without experience and skill.
Knowledge (whether indigenous or non-indigenous) is associated with practical
experience and skill in solving a particular problem while holding information (for
example, about indigenous activities) does not necessarily endow one with skill and
experience in solving a problem.”92
Though traditional knowledge is normally knowledge handed down from one generation to
the other, it is however not static. It undergoes change and modification as each successive
generation of traditional knowledge holders have to use the knowledge received to meet
their needs in their given time and space. Knowledge is thus received, modified and
recreated and all these processes together form the corpus of traditional knowledge.
3. Traditional Knowledge - Just One Segment of a Holistic Worldview in Traditional Societies

In a lot of traditional societies, traditional knowledge is inseparable from religious practices.
Some traditional healers for instance perform religious practices as part of the healing
process while administering herbs that possess curative properties. For the western
observer who may view medicinal knowledge as secular, religious practices bound up in
the administering of curative herbs by traditional healers may seem a meaningless hocus-
pocus. Some may even see these religious protocols as just a way of instilling a placebo
effect. William T. Jarvis, a former president of the National Council Against Health Fraud
based in the US observes that:
“A culturally significant setting can also produce a potent effect, as folk healers know
well. Effective settings can be as divergent as the trappings of an oriental herb shop
to Asians, a circle of witchcraft paraphernalia to a primitive tribesman….”93
To Jarvis, the religious protocols practiced by a traditional healer constitute ‘witchcraft

paraphernalia’ and the traditional healer (‘folk healer’) is characterised as ‘a primitive
tribesman’. Much as consumers must be made aware of quacks claiming to possess cure-
all medicines, the very depiction of ‘folk healers’ by Jarvis is just one example of how some
western observers view the medicinal practices of traditional communities. Such views
however fail to recognise the fact that in a lot of traditional societies, their worldview is not
compartmentalised into the secular world on one hand and the spiritual on the other.94 The
physical world and the spiritual world form a whole. Thus what might seem a mere mundane
undertaking like farming or medicine is bound up in observance of religious practices.95
Ecosystem conservation practices in traditional societies for instance also reflect the holistic
nature of traditional knowledge. Conservation of certain plants and animals were ensured
through limitation of access to sacred grooves and forests.96The use of ‘taboo days’ for fishing
and hunting in traditional Ghanaian communities is an example of how traditional societies
promoted ecosystem conservation by guarding against over-exploitation of resources.97 The
‘taboo day’ practice fits perfectly within a regulatory paradigm of resource use to prevent
92
Ibid.
93
Jarvis, W. T., ‘Arthritis: Folk remedies and quackery’ Nutrition Forum 7:1-3, 1990
94
Duut, N. N., ‘Traditional Ecological Knowledge in Addressing Global Warming - The Ghana Situation’,
International Conference of the Society for Ecological Restoration, Zaragoza- Spain, September, 2005
95
Ibid.
96
Ibid.
97
Ibid.
the tragedy of the commons scenario. Notions of rights based on the principles of use and
exclusion thus persisted in traditional societies albeit in their own culturally specific forms.
V. Exploring Similarities and Divergences between Traditional Knowledge and

Intellectual Property
Dutfield posits that traditional societies have their own ‘intellectual property’ systems and
their customary rules that govern access to, and use of knowledge have a lot of similarities
with western-based intellectual property systems though there are major differences as
well.98 The main thrust of this segment of the article is to explore these similarities and
differences between traditional knowledge and intellectual property.
a. Authorship/Inventive Step - Individual Creativity vs. Communal Cumulative

Creation
Western conceptions of intellectual property place a lot of emphasis on individual authorship
and creativity as against communal authorship and creativity in traditional societies. As
such, there is a great deal of emphasis on the individual’s rights over his/her works and not
that of the community’s. In traditional societies however, knowledge creation is communal
and cumulative in nature because knowledge is developed and handed down from one
generation to the other. Each generation contributes to the corpus of knowledge by addition
or reformation. A difference between traditional knowledge and western conceptions of
intellectual property is thus noticeable from the outset. A closer look however reveals that
this seeming difference may just be superficial.
Boyle for instance argues that:
“The romantic vision of authorship emphasizes creativity and originality and de-
emphasizes the importance of sources, genre, and conventions of language and
plot. Thus when economists and legal scholars come to do their analysis, most of
them see the issue as the extent of property necessary to motivate and reward the
creative spirit, rather than the extent of the public domain necessary to give the
magpie genius raw material she needs.99
The emphasis on individual creativity and originality in the western conception of intellectual
property thus overlooks the cumulative communal knowledge that the individual draws
from. Individual creativity is thus a product of communal creativity. Zemer thus argues for
“the need to evaluate authorship in a social context”.100
As presented earlier, the emphasis on the social context of knowledge was one of the
foundational persuasions of the objectivist/utilitarian school of thought, hence Condorcet’s
assertion that literary property “.... is a property founded in society itself. It is not a true right;
it is a privilege.”101
The arguments in favour of individual authorship and creativity draw their philosophical
underpinnings from Locke’s labour theory which places emphasis on private ownership of
98
99
Boyle, J., Shamans, Software and Spleens: Law and the Construction of the Information Society, Cambridge
MA: Harvard University Press, 1996, at 244
100
Zemer, L., op cit, footnote 55, at 69
101
Cited by Hesse, C., op cit, footnote 25 at 36
property through labour instead of communal ownership. Thus, communal knowledge or

creativity is akin to Locke’s ‘commons’ and alienation of that knowledge through individual
labour then legitimizes the western intellectual property conception of individual authorship
or creativity.
It must be noted however that individual authorship is not alien to traditional societies.
There is however a strong emphasis on communal responsibility even in individual
creativity as depicted in the Yumbulul case cited above. Thus, western intellectual property
conceptions and traditional knowledge in traditional societies both have individualist and
communalist components. It appears that the differences have more to do with the choice
of emphasis – i.e. individual or communal – which may be a reflection of culture, policy
choices of knowledge resource allocation or historical contingencies of economics, politics
and technological development.
Perhaps one of the marked differences between western intellectual property forms and
traditional knowledge has to do with the secularization of knowledge. Some forms of
traditional knowledge ascribe authorship or creativity to spirit beings and not humans.
This presents a sharp distinction between the two, in that, intellectual property owes its
very existence to a departure from the notion of divine source of knowledge, to the notion
that humans are creators of knowledge.102 The Kimberly Aboriginal people of Australia for
instance could not prevent the use of the Wandjina spirit logo by a surf company under
Australian copyright law, because the art work used in the logo is believed by the Kimberly
people to have been created by their creator ancestors.103Since human authorship could
not be established, protection from culturally offensive use could also not be prevented
since no law in Australia prevents the commercial use of the art work of a spirit being.
b. Ownership - Individual vs. Communal

Closely related to the concept of authorship, is the concept of ownership. In section one
of this article, it was established that expressions of ownership denote rights of use and
exclusion. Individual/private proprietary rights in western IP norms thus denote rights of
the individual to exclude all others in society from unauthorized use of his/her intellectual
property. Conversely, the emphasis on communal ownership of knowledge in traditional
societies, denotes rights of the community to prevent the access to and use of knowledge
resource by the individual to the exclusion of the rest of society.
Consequently, in traditional societies, the “… individualized notion of ‘rights’ is a sense of

unique personal responsibilities to kin, clan and nation”104 instead of the right to exclude
society from access to and use of knowledge. Communal ownership does not however
denote common access and use, as traditional societies maintain rules that govern access
to and use of knowledge.105
Communal/collective ownership is nonetheless, not alien to western intellectual property

formulations. Collective marks and geographical indications of origin are examples of
collective forms of ownership. Any producer of sparkling wine in the Champagne region
of France for instance, has the right to use the name ‘Champagne’ in the marketing of their
102
Hesse, C., op cit, footnote 25 at 26
103
Blakeney, M., ‘The Protection Of Traditional Knowledge Under Intellectual Property Law’, European
Intellectual Property Review, 22(6), 2000, at 254-255
104
Cited by Dutfield, G., op cit., footnote 72, at 24
105
Ibid.
product. The trade name ‘Champagne’ could thus be said to be collectively owned by the
wine producers of that region because of the specific geographical quality of their sparkling
wine.
c. Traditional Knowledge and Intellectual Property as Knowledge Goods

Cottier and Panizzon have argued that intellectual property law in general “… assigns
exclusive rights to the use of information for economic gain in order to solve problems of
appropriability and to avoid market failure.”106 Knowledge goods thus have commercial and
social importance and ensure that both the society and the knowledge creators obtain
mutual benefits. This justifies the passing of laws to protect knowledge goods from piracy.
Traditional knowledge is of great commercial and societal importance. Various forms of
traditional knowledge have been pirated for commercial purposes because of their value
as knowledge goods.
In the area of copyrights, as presented earlier, Geller proposed the hypothesis that: ‘Only
when media technology and market conditions made piracy profitable could copyright
arise’.107Thus piracy is intimately linked to the commercial viability of the pirated good. There
is no benefit to the pirate if what he/she pirates is of no commercial value. The commercial
viability of the pirated product also signifies that it is of societal value. Thus the piracy of
traditional knowledge is enough proof that it is knowledge good and as such not very
different from other forms of knowledge goods protected under intellectual property law.
There could be the counter argument that traditional knowledge is knowledge in the
public domain and as such its appropriation is not piracy. However, the WIPO Fact Finding
Mission on Intellectual Property and Traditional Knowledge observed that, “….numerous
indigenous and local communities have protocols for protection of TK108 and TK-based
innovations under customary law”.109Thus in traditional societies, if knowledge is not in the
public domain then its unauthorised appropriation is tantamount to piracy.
VI. Conclusion: Is Traditional Knowledge Intellectual Property?

The main thrust of all claims to property, whether tangible or intangible, has to do with
rights of use and exclusion. Expressions of ownership are proxies that denote our rights to
use a resource and our rights to exclude others from using a resource. These same principles
are foundational in the conception of IP and are extendable to the arguments for the
protection of traditional knowledge. Traditional knowledge is a knowledge good owned by
traditional societies. Customary laws and taboos as stated earlier, are used to either include
or exclude others from using this knowledge resource. Thus the same principles of ‘use and
exclusion’ employed in the explanation of property rights and more importantly IPRs, are
also applicable to traditional knowledge.
The concept and the fact that knowledge can be owned as property, is perhaps the most
important issue, and such concepts are not lacking in traditional societies. Dutfield for
instance argues that:
“... concepts as ‘ownership’ and ‘property’ - or at least close equivalents to them –

106
Cottier, T., and Panizzon, M., ‘Legal Perspectives on Traditional Knowledge: The Case for Intellectual
Property Protection’, Journal of International Economic Law, 2004, 7 (2), at 382
107
Geller, P. E., op cit., footnote 31, at 210
108
i.e. traditional knowledge
109
WIPO Roundtable on Intellectual Property and Traditional Knowledge, op cit., footnote 74, at para. 8
also exist in most, if not all, traditional societies. In fact, many traditional societies
have their own custom-based ‘intellectual property systems, which are sometimes
very complex. Customary rules governing access to and use of knowledge do not
necessarily differ all that widely from western intellectual property formulations, but
in the vast majority of cases they almost certainly do.”110
The variations that exist between western IP systems and traditional society IP systems (i.e.
traditional knowledge) have their roots in the different cultures that have created these
IP systems. Fundamental issues like “who owns or creates knowledge”, are policy choices
that individual societies will have to make (or have made) based on the needs and world
views of their societies. Individual/private ownership in western conceptions of IP as against
collective ownership in traditional societies for example, is a matter of policy option of
allocative rights that serve the particular needs and persuasions of each society. They are
also a result of historical developments that have taken place in different times, cultures and
spaces. The historical contingencies that impacted upon the development of IP in western
societies are not the same as those that have impacted on that of other societies. As such, the
policy options as regards information management and rights of use, access and exclusion
would be significantly different.
For instance, in Demsetz’s defence of private ownership of property as a way of solving

problems of externalities (presented above), he argues that sympathetic feelings and
attachments to kinship cannot effectively and efficiently deal with resource allocation in
modern sophisticated economies.111 He however attests to the fact that resource allocation
based on sympathetic feelings and kinship can, and do exist.112 Resource allocation in
traditional societies is more organised along the lines of sympathetic feelings and attachment
to kinship, clan and community. This system of knowledge resource allocation served the
peculiar needs of traditional societies. However, if the knowledge of traditional societies has
become commercially viable goods in a sophisticated, westernised global economy, then
there should be commensurate regimes (be they IP law or sui generis) at the national and
international levels, to ensure that differences in information resource management do not
result in the piracy of the intellectual property of traditional societies.
Also, the boundaries of IP have not been static and its extension to traditional knowledge
will not be a conceptual anathema. As Koumantos argued, the element of intangibility
in the conception of IP, enlarges it to embrace “… rights which already existed but were
not systematically categorized”.113 Within traditional societies, rights of ownership exist
in traditional knowledge. These rights have not been systematically categorized under IP
regimes, and being intangible, their categorization under IP regimes cannot be conceptually
or practically proscribed.
Ironically, while the debate rages on the issue of whether traditional knowledge is intellectual
property, knowledge pirated wholesale from traditional societies are being patented in
some western countries under IP regimes.114 The question then is: if traditional knowledge
110
111
Demsetz, H., op cit., footnote 19
112
Ibid.
113
Koumantos, G., op cit, footnote 59, at 3
114
See Teitel, M., ‘Selling Cells: The Thriving Business of Patenting Life’, Dollars and Sense, Sept.-Oct. 1994,
at 24; Bryant, E., ‘Corporate Patents or Global Piracy? Africans Oppose Privatization of Genetic Innovations’,
African Farmer, Apr. 1994, at 37; Gurdial Singh Nijar, A Conceptual Framework and Essential Elements of
does not fit within the concept of intellectual property, how come when it is pirated it can
be protected under intellectual property law?
The issue of piracy was at the heart of the literary property debate that precipitated the
recognition and development of proprietary rights in intellectual products in 18th century
Europe. Piracy of traditional knowledge, inter alia, is now at the heart of the debate on its
protection. What was good for the European goose must surely be good for the traditional
society gander. As Naomi Roht-Arriaza has observed:
“[T]he appropriation of the scientific and technical knowledge of indigenous and local
peoples, of the products of that knowledge, and even of the genetic characteristics
of the people themselves has become both notorious and contested. It forms the
heart of current debates about conservation of biological diversity, indigenous
rights, and genetic resources in agriculture.”115
It must be noted however that, there are some aspects of traditional knowledge whose
protection may not fit into the conceptual boundaries of IP no matter how far these
boundaries are pushed. Claims of divine or spiritual source of knowledge or creativity in
some traditional societies may make such knowledge or creative forms quite difficult to fit
into IP conceptions. IP laws protect against unauthorized use of the intellectual creativity
of humans and not that of ‘other worldly’ beings or the divine. As presented in the historical
analysis of IP, it owes its very genesis to a departure from the conception that humans are
mere transmitters of divine knowledge. Thus, to fit some of these conceptions of other
worldly sources of knowledge and creativity into IP would be tantamount to rewinding IP
into its primordial existence. This however does not detract from the fact that other sue
generis proprietary systems can be created to protect forms of traditional knowledge that
may not fit well within the boundaries of IP. As argued earlier, IP can be viewed as a subset
of in the universal property set. Consequently, sue generis systems can still draw from the
universal property principles of ‘use and exclusion’, and can thus become ‘co-subsets’ with IP
in a universal property set.
From the various discussions and arguments posited above, the opinion is taken in the
conclusion of this article that traditional knowledge is intellectual property. Traditional
knowledge may not be definable in all its forms under western conceptions of IP, but this
does not diminish the fact that it is the intellectual property of traditional societies.
a Rights Regime for the Protection of Indigenous Rights and Biodiversity, Biodiversity Convention Briefings
(Third World Network, Penang, Malaysia), 1994
115
Roht-Arriaza, N., ‘Of Seeds and Shamans: The Appropriation of the Scientific and Technical Knowledge of
Indigenous and Local Communities’, Michigan Journal of International Law, Summer 1996, at 920
109 Towards The Effective Implementation of The Economic and Organized Crime Act of Ghana: Kwaku Agyeman-Budu
Lessons from The United States
TOWARDS THE EFFECTIVE IMPLEMENTATION OF THE ECONOMIC AND ORGANIZED

CRIME ACT OF GHANA: LESSONS FROM THE UNITED STATES
Kwaku Agyeman-Budu*
Abstract
The alarming rate of organized criminal behavior that has bedeviled Ghana in the past few years
has called into question the capacity of our law enforcement agents in dealing with crime in
general. The illicit transnational trade in narcotics seems to be at the center of organized criminal
activity in Ghana; and it is for this reason that in 2010, the Economic and Organized Crime Act was
enacted. However, for this Act to be effectively implemented to achieve the purposes for which it
was enacted in the first place, there is the urgent need for an implementation mechanism model,
along the lines of that which exists in developed countries such as the United States of America.
The paper therefore seeks to explore and analyze the legal, regulatory and practical framework
of dealing with organized crime in the United States as a blueprint for Ghana, since it has been
dealing with this canker from the beginning of the 20th Century with great success. By so doing,
it is hoped that the US model will serve as an implementation guide to our law enforcement and
other ancillary agencies, whose duty it is to investigate, prosecute and/or otherwise deal with
organized criminal conduct and activities in Ghana.
I. Introduction
The concept of organized criminal activity is extremely hard to define, since theoretically
any form of proscribed offence when carried out as part of a systemic and organized
manner qualifies per se. However, for purposes of law enforcement, only those crimes that
are considered ‘serious’1 are singled out in this respect. The United Nations therefore defines
an organized criminal group to mean “a structured group of three or more persons, existing for
a period of time and acting in concert with the aim of committing one or more serious crimes or
offences ... in order to obtain, directly or indirectly, a financial or other material benefit”.2
The trend of organized criminal activity has over the years been a source of increasing worry
for the West-African sub-region, where Ghana is located.3 Organized criminal activity does
not only have the tendency to cripple emerging economies, but is also a fundamental threat
to human security and impedes societal development. Its purpose is to generate illegal
wealth for its participants; and this is manifested in a wide range of activities, including but
not limited to, drug trafficking; human trafficking; money laundering etc.
According to the United Nations, organized criminal activity in the sub-region has its
antecedents as far back as the 1970’s.4 It is thus suggested by the United Nations Office on
Drugs and Crime (UNODC) that persons who engage in these activities within the subregion
more often than not influence security personnel as well as politicians in some form or
*BA, LL.B (Ghana); LL.M (Fordham); Lecturer, Faculty of Law, Ghana Institute of Management and Public
Administration.
1
In Ghana for example, section 3 of the Organized Crime law provides for the investigation and prosecution
of “serious offences” including “money laundering, human trafficking, prohibited cyber activity, tax fraud and
other serious offences”.
2
Article 2(a) of the United Nations Convention against Transnational Organized Crime, General Assembly
Resolution 55/25 of 15th November 2000.
3
See generally, Organized Crime in West Africa: Options for EU Engagement, KwesiAnning, 2009.
4
See, Transnational Organized Crime in the West African Region, United Nations Office on Drugs and Crime
(UNODC), 2005, p. 4.
manner so as to maintain a grip-hold on their activities.5
In contemporary times, the main type of organized criminal activity that has particularly
been of major concern in Ghana is without a doubt - drug trafficking. The alarming rate
at which this transnational trade in illicit narcotics has been on the increase, especially in
Ghana, seems to be the main trigger for the enactment of the organized crime Act.6
However, Ghana was not a signatory to the UN Convention against Transnational Organized
Crime and did not ratify it until 21st August 2012 when it acceded to the treaty – some nine
(9) years after it had entered into force.7 This seems odd considering the rhetoric with regard
to Ghana’s resolve to eliminate organized crime in its entirety for the past decade or so.
The purpose of this paper is therefore to outline an implementation mechanism model,

which if adopted, will immensely help in the fight against organized criminal activity in
general, and drug trafficking in particular, in Ghana; since organized crime in Ghana,
although not particularly prevalent, is almost synonymous with the illicit trafficking and
trade in narcotic drugs.
This will be achieved by critically analyzing the United States’ system for dealing with
organized crime syndicates, specifically, the respective roles played by law enforcement
agencies and the courts. I shall also examine the role that can be played by the United
Nations Office on Drugs and Crime (UNODC), specifically how it can assist with the effective
implementation of the Economic and Organized Crime Act of Ghana.
II. Organized Crime in the United States and Ghana

a. Brief overview/historical context (U.S.)
It is a widely held notion that the proliferation of organized crime syndicates in the
United States became established during the 1920’s, arguably as a direct consequence
of the prohibition era.8 In this regard, Thornton points out that “the most telling sign of the
relationship between serious crime and Prohibition was the dramatic reversal in the rates for
robbery, burglary, murder and assault when Prohibition was repealed in 1933.”9
Notable figures like Lucky Luciano10 are credited with exploiting the era of Prohibition and
‘organizing’ organized crime, modernizing the mafia, and “shaping it into a smoothly run
national crime syndicate on the bottom line. The syndicate was operated by two dozen family
bosses who controlled bootlegging, numbers, narcotics, prostitution, the waterfront, the unions,
food marts, bakeries and the garment trade, their influence and tentacles ever expanding,
5
id.
6
Section 22 of the Economic and Organized Crime Act, 2010 (Act 804) provides that: “This part applies to the
Narcotic Drugs (Control Enforcement and Sanctions) Act, 1990 (PNDCL 236) in relation to the proceeds from
the sale, profit or income earned and property acquired or likely to have been earned or acquired through trading
in narcotic drug”.
7
See http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12&chapter=18&lang=en
- last accessed 31st December 2014.
8
The Eighteenth Amendment to the United States Constitution provided in part that “After one year from the
ratification of this article, the manufacture, sale, or transportation of intoxicating liquors within, the importation
thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction
thereof for beverage purposes is hereby prohibited.”; See also Brenton Priestley, Prohibition: A Foundation of
Organized Crime, 2004.
9
See Mark Thornton, Alcohol Prohibition was a failure (1991), Cato Policy Analysis 157.
10
An Italian mobster/gangster, born in Sicily and considered as the father of modern day Organized Crime.
infiltrating and corrupting legitimate business, politics and law enforcement.”11
The repeal of Prohibition in 193312 as has been already noted, led to the steady decline of
organized criminal activity within the United States. This was simply due to the fact that
there were now legitimate avenues of gaining access to those goods and services, which
had hitherto been prohibited. However, by this time, this loosely connected organized
crime syndicate had been firmly established so as to diversify their activities and exploit
other prohibited enterprises: for example prostitution, racketeering, narcotic drugs etc.
The enactment in 1970 of the Organized Crime Control Act13 by Congress finally signified
the resolve of the Federal government to effectively nip organized criminal activity in the
bud. Thus, the Racketeer Influenced and Corrupt Organizations Act popularly referred to as
RICO14 was enacted by virtue of section 901(a) of the 1970 Act. Among the aims of RICO was
to provide for criminal penalties as well as civil causes of action for acts engaged in as part
of ongoing criminal enterprises.
b. Brief overview/historical context (Ghana)

Organized criminal activity as pertains in the United States has until quite recently not been
prevalent in Ghana’s social ethos.15 However, there was a time in the recent history of the
country when ‘small scale’16 schemes, popularly referred to as ‘Kalabule’17 were the order of
the day. As a result of the unstable economy and breakdown in the regular functioning
of government, ‘kalabuleism’ in all its forms and manifestations prospered, although there
were laws in place dealing with such practices.18
Kalabule in its classical form was the practice where certain group of traders purchased
or through some illegal means obtained substantial amounts of essential goods from
wholesalers, and refused to sell it to retailers and consumers generally. This led to a shortage
of the products on the market, which meant that demand was high; thereby allowing these
unscrupulous persons to sell the goods at exorbitant prices in order to make extraordinary
profits.
11
Edna Buchanan, Lucky Luciano: Criminal Mastermind, Time Magazine U.S. 7th December 1998.
12
The Twenty-First Amendment to the United States Constitution expressly repealed the Eighteenth amendment
which had hitherto prohibited the manufacture, sale, importation or transportation of intoxicating liquors; in its
place, the foregoing were only prohibited so long as they infringed on any laws specifically enacted.
13
Pub. L. 91-452, 84 Stat. 922 October 15, 1970.
14
18 U.S.C. s 1961 - 1968.
15
Even now, there is no systematic pattern of organized criminal activity in any sector of the economy like
existed in the United States, with regard the organized crime families; even with regard to the illicit trade in
narcotics which is a growing source of concern in Ghana, here too there is arguably no ‘organized’ pattern
therein established, although a number of people (both foreigners and Ghanaians) have been tried and convicted
for conspiring to and actually engaging in the trade.
16
The term is used here in the sense that there was no organized concerted approach used by the perpetrators,
who comprised both Ghanaians and foreigners.
17
The term was used to refer to some unscrupulous individuals who took advantage of periods of governmental
instability (military regimes) to engage in all sort of black market activities which included racketeering,
smuggling of goods across the borders, market manipulation etc.
18
It has however been suggested by the UN Office on Drugs and Crime that, ‘organized crime’ in Ghana has its
antecedents in the 1980’s when many Ghanaian migrants were expelled from Nigeria, and thus engaged in illicit
means to enrich themselves upon their return – See Transnational Organized Crime in the West African Region,
United Nations Office on Drugs and Crime (UNODC), 2005, p. 6.
In the case of Addy v. Irani,19 for example, the plaintiff was a Ghanaian sales manager for the
defendant, a foreign national who owned and controlled a flour manufacturing company.
The plaintiff sued the defendant for breach of contract. The action arose out of a purported
agreement reached by the two parties to have the defendant smuggle substantial amounts
of foreign currency, which the plaintiff had acquired from the black market, out of the
country.20 The court in dismissing the case held that, the plaintiff could not profit from his
illegality, since he had violated several laws, and rather ought to face the consequences of
his actions.
In the 1990’s and the early 2000’s, it seems as though there begun the proliferation of illicit
trade in narcotic drugs, and Ghana as well as the entire West African coast was seen as a major
entry and transit point for narcotic drugs. The famous MV Benjamin scandal in 2007, where
seventy-seven (77) parcels of cocaine aboard a ship which had entered Ghana, mysteriously
disappeared soon thereafter, was the clearest indication of transnational organized criminal
activity.21
c. Nature and Scope of RICO

In the United States, RICO specifically prohibits racketeering activities, which are defined
to include “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery,
extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical,
which is chargeable under State law and punishable by imprisonment for more than one year”22
as well as, other acts indictable under various provisions of title 18 of the United States
Code;23 title 29 of the United States Code; offenses involving fraud connected with a case
19
[1991] 2 GLR 30.
20
The plaintiff claimed in his writ that as sales manager for the company, he had been allocated some flour to
sell at prices well above the controlled price; and the immense profits that accrued were split equally between
them.
21
See http://edition.myjoyonline.com/pages/news/200807/18695.php - last accessed 22nd April 2013
22
18 U.S.C. s 1961
23
Those relating to bribery (section 201); sports bribery (section 224); counterfeiting (sections 471, 472 and
473); theft from interstate shipment (section 659); embezzlement from pension and welfare funds (section 664);
extortionate credit transactions (sections 891 - 894); fraud and related activity in connection with identification
documents (section 1028); fraud and related activity in connection with access devices (section 1029);
transmission of gambling information (section 1084); mail fraud (section 1341); wire fraud (section 1343);
financial institution fraud (section 1344); procurement of citizenship or nationalization unlawfully (section
1425); the reproduction of naturalization or citizenship papers (section 1426); the sale of naturalization or
citizenship papers (section 1427); obscene matter (sections 1461 - 1465); obstruction of justice (section 1503);
obstruction of criminal investigations (section 1510); obstruction of State or local law enforcement (section
1511); tampering with a witness, victim or an informant (section 1512); retaliating against a witness, victim or
an informant (section 1513); false statement in application and use of passport (section 1542); forgery or false
use of passport (section 1543); misuse of passport (section 1544); fraud and misuse of visas, permits and other
documents (section 1546); peonage, slavery and trafficking in persons (sections 1581 - 1592); interference
with commerce, robbery or extortion (section 1951); racketeering (section 1952); interstate transportation of
wagering paraphernalia (section 1953); unlawful welfare fund payments (section 1954); the prohibition of
illegal gambling businesses (section 1955); the laundering of monetary instruments (section 1956); engaging
in monetary transactions in property derived from specified unlawful activity (section 1957); use of interstate
commerce facilities in the commission of murder-for-hire (section 1958); illegal money transmitters (section
1960); sexual exploitation of children (sections 2251, 2251A, 2252 and 2260); interstate transportation of stolen
motor vehicles (sections 2312 and 2313); interstate transportation of stolen property (sections 2314 and 2315);
trafficking in counterfeit labels for phone records, computer programs or computer program documentation
or packaging and copies of motion pictures or other audiovisual work (section 2318); criminal infringement
of a copyright (section 2319); unauthorized fixation of an trafficking in sound recordings and music videos of
live musical performances (section 2319A); trafficking in goods or services bearing counterfeit marks (section
under title 11 of the United States Code; acts indictable under the Currency and Foreign
Transactions Reporting Act; and those indictable under the Immigration and Nationality
Act.
As a result, a key ingredient that ought to be established for there to be a successful RICO
prosecution is proving ‘a pattern of racketeering activity’. According to the Act, this requires
not less than “two acts of racketeering activity, one of which occurred after the effective
date of this chapter and the last of which occurred within ten years (excluding any period of
imprisonment) after the commission of a prior act of racketeering activity.” What this means
is that, it needs to be established that the person believed to have engaged in a pattern
of racketeering activity, committed at least two acts (prohibited as being racketeering
activities), within a ten (10) year period after the coming into force of the Act.
However, it must be noted that from the wording of the Act, this ten (10) year period excludes
any period of time during which the accused person served a term of imprisonment.
Therefore, if the person in question is alleged to have committed a predicate offense, and
the second offense is alleged to have occurred during a period of time when he served a
term of imprisonment, it seems as though this will not count towards establishing ‘a pattern
of racketeering activity’.
The Act therefore provides that, it is “unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a
pattern of racketeering activity or collection of unlawful debt”.24 An ‘enterprise’ for this purpose
means “any individual, partnership, corporation, association, or other legal entity, and any
union or group of individuals associated in fact although not a legal entity”.25
In U.S. v. Turkette,26 the United States Supreme Court held that an ‘enterprise’ for purposes
of a RICO conviction necessarily included both legitimate and illegitimate enterprises; and
that if Congress intended to narrow this construction of enterprise, it could have easily
inserted the word ‘legitimate’. From the foregoing, it is clear that for there to be a violation
of RICO, the existence of a pattern of racketeering activity has to be established as part of/or
connected to an enterprise; which may include a crime family, drug cartel etc.
d. Modus operandi of law enforcement

There are several methods and mechanisms by which federal law enforcement agents
enforce/prosecute RICO offenses. In this section, I shall briefly give a general overview and
discuss some of these means through which RICO is enforced.
i. Proof of Enterprise
As has already been noted, the pattern of racketeering activity which will suffice for
a successful RICO prosecution ought to have been undertaken as part of an ongoing
enterprise. There are therefore various means by which an enterprise for purposes of RICO
2320); trafficking in certain motor vehicles or motor vehicle parts (section 2321); trafficking in contraband
cigarettes (sections 2341 - 2346); white slave traffic (sections 2421 - 2424); biological weapons (sections 175 -
178); chemical weapons (sections 229 - 229F); nuclear materials (section 831).
24
18 U.S.C. s 1962 (c).
25
18 U.S.C. S 1961 (4).
26
452 U.S. 576.
may be proved to be in existence. The case of U.S. v. Bellomo27 is instructive on this point.
Here, two members of the Genovese Crime family were convicted on multiple counts of
RICO violations. On appeal, one of the tricky issues was whether the testimony of a member
of another crime family was sufficient and admissible to prove the structure of another
crime family, and hence establish the existence of an enterprise.
The United States Court of Appeals for the second circuit held inter alia that, “testimony
about a number of murders and other acts of violence by two organized crime families other
than the one to which the defendants belonged was relevant”.28 Therefore, such testimony
was of probative value and thus relevant in determining the existence and structure of
an enterprise for RICO purposes, even though the rules of the various ‘crime families’ may
slightly vary and not strictly or often observed across board.
Another way by which the structure of a crime family may be proved as being an enterprise
seems to be through the testimony of federal agents i.e. F.B.I. In U.S. v. Locasio,29 for example,
the defendants were convicted for violating RICO as a result of their membership of,
and participation in the crimes committed by the Gambino crime family. On appeal, the
defendants argued, inter alia, that the agent did not actually testify as an expert, but rather
he served as “a conduit allowing inadmissible evidence and arguments to flow into the court”30
and that, the admission of the so-called expert testimony regarding the inner workings of
the Gambino crime family was outside the scope of expert testimony.
The court held that, the subject matter of the agent’s testimony, specifically those parts
relating to the structure and operations of organized crime families was properly admitted,
since jurors are generally not well versed in such stuff and ought to be educated in light of
that fact. Also, as a result of the agent’s ‘specialized knowledge’31 his testimony was that of
an expert on organized crime. He could therefore validly testify as to the interpretation of
what was being said, and the identity of the voices on the FBI surveillance tapes that were
introduced into evidence.
ii. Cooperating Witnesses and Informants and Undercover Agents

Cooperating witnesses are those who being part of or associated with organized crime
groups, agree to cooperate with law enforcement agencies in the prosecution of organized
crime figures in exchange for lighter charges and/or some favors and courtesy generally
associated with witnesses. The testimonies of cooperating witnesses have been extensively
relied on by the United States in organized crime cases.
For example in U.S. v. Boyd,32 the Federal government’s case against some gang leaders who
were facing multiple charges of RICO violations, essentially relied on the testimony of six (6)
former gang leaders. Although a new trial was eventually granted because of the fact that
the government had knowingly allowed the witnesses to perjure themselves at the trial, the
case exemplifies how critical the use of such witnesses is in prosecuting organized crime
cases.
27
176 F.3d 580.
28
ibid.
29
6 F.3d 924.
30
ibid.
31
Agent Schiliro had been an FBI agent for seventeen (17) years, and had actually spent five (5) years on the
FBI’s Organized Crime Program; two (2) of which he served as supervisor of the program.
32
55 F.3d 239.
Similarly, confidential informants are persons who have substantial links to organized crime
syndicates, but who have been essentially ‘flipped’ and are more or less double agents. They
provide a bird’s eye view for law enforcement agencies, with regard the inner workings and
criminal activities of organized crime groups. This method of gathering information, albeit
useful in prosecuting organized crime cases, has some deficiencies as will be noted soon.
In U.S. v. Flemmi,33 the defendant, who had been an FBI informant for several years and
also a notorious organized crime figure, was charged with racketeering and other ancillary
offences. He however, albeit unsuccessfully, tried to use his status as a confidential informant
to his advantage by arguing that, evidence obtained against him as a result of electronic
surveillance of several locations were not admissible because he had been promised
‘use immunity’34 by FBI agents. At first instance, the District Court upheld the defendant’s
argument and ruled that the government was barred from using the evidence so obtained
against him. On appeal however, the Court of Appeals for the First Circuit reversed, and
held that FBI agents lacked the appropriate authority to grant use immunity to confidential
informants.
Finally, undercover agents are sometimes also used in the investigation process, and they
usually gather valuable information that can then be used to prosecute organized crime
cases. It must however be noted from the onset that this is a very risky and dangerous
practice, which has resulted in some unfortunate consequences for the agents involved on
numerous occasions. That notwithstanding, the practice still remains a useful tool in dealing
with organized crime groups. Thus in U.S. v. Ruggiero,35 an undercover FBI agent infiltrated
the ranks of the Bonanno crime family, and made certain recordings which implicated the
defendants in organized criminal activity. At the trial, it was held that the recordings could
be legally admitted into evidence and thus used in the prosecution of the defendants. This
is therefore a useful weapon in fighting organized crime.
Law enforcement agencies in the United States also engage other methods that are essential
in the fight against organized crime. These include: the witness protection program;36
electronic surveillance;37 as well as witness immunity.38 All in all, it is quite clear that law
enforcement agencies in the United States use a multi-faceted approach in dealing with
organized criminal activity; and this has been extremely helpful in significantly crippling
organized crime over the years.
III. Organized Crime in Ghana in Context

a. Applicable law before the enactment of the E.O.C. Act
Prior to the enactment of the E.O.C. Act, there was no provision in the Ghanaian Criminal
Code of 1960 (Act 29) dealing expressly with organized crime. However section 23 which
dealt with conspiracy to commit a crime, more or less encompassed the concept of
33
225 F3d 78.
34
This immunity arises where in a criminal case, a witnesses compelled testimony cannot be used against him.
35
726 F.2d 913.
36
It is administered by the US Department of Justice and aims at protecting valuable and threatened witnesses
throughout the course of a trial and usually afterwards as well.
37
This includes wiretapping and other mediums aimed at electronically gathering evidence in criminal cases;
usually warrants are required for such purposes.
38
This occurs where Prosecutors grant immunity from prosecution to witnesses who agree to cooperate.
organized crime. According to the section39if two or more persons agree or act together
with a common purpose for or in committing or abetting a crime, whether with or without
any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet
that crime, as the case may be.
A person within the jurisdiction of the Courts can also be guilty of conspiracy by agreeing
with another person who is beyond the jurisdiction, for the commission or abetment
of any crime to be committed by them or either of them; or by any other person, either
within or beyond the jurisdiction. According to this section, mere agreement without even
participating in the substantive crime was punishable as if the person had engaged in the
commission of the crime40
b. Overview of E.O.C. Act

The Economic and Organized Crime Act of Ghana41 was enacted in 2010 to first and foremost
“establish an Economic and Organized Crime Office as a specialized agency to monitor and
investigate economic and organized crime and on the authority of the Attorney-General
prosecute these offences to recover the proceeds of crime and provide for related matters”.42 As a
result of this mandate, the Office’s main objectives are to prevent and detect crimes, as well
as ensuring the smooth facilitation of the confiscation of proceeds of crime if need be.43
Hence, the Office may investigate and on the authority of the Attorney-General prosecute
certain serious offences.44 It is also mandated to recover the proceeds of crime and take
steps to monitor and prevent the commission of crimes, as well as co-operate with other
law enforcement agencies, both domestic and external. Therefore, the Office has a wide
mandate that, prima facie, should help in the fight against organized crime in Ghana.
c. Key terms and concepts

Section 74 of the Act provides for the interpretation of certain key terms and concepts that
are used in the Act, the most important of which will be briefly discussed in this section.
Firstly, we ought to know what ‘organized crime’ means for purposes of the Act. Organized
crime in Ghana is defined to mean “a recurring serious offence committed by two or more
persons working in concert”.45
This definition however raises a pertinent question as well: i.e. what are recurring serious
offences? It seems there are three (3) separate categories of offences, which the act
designates as serious, for purposes of the effective execution of the mandate of the organized
crime office. First and foremost, the Act defines ‘serious offences’ to include “participation
in an organized criminal group, terrorism and terrorist financing, money laundering, human
trafficking, people smuggling, sexual exploitation, illicit trafficking in narcotic drugs, illicit
arms trafficking, trafficking in stolen and other goods, corruption and bribery, serious fraud,
counterfeiting and piracy of products, smuggling, extortion, forgery, insider trading and market
39
Section 23 (1) (2) of Act 29
40
Section 24, of Act 29
41
Act 804 (2010).
42
This is the Long Title of the Act.
43
See section 2 of Act 804.
44
See section 3(a) - financial or economic loss to the Republic or any State entity or institution in which the
State has financial interest; money laundering; human trafficking; prohibited cyber activity; tax fraud.
45
manipulation”.46
The aforementioned comprise the first category of serious offences which if undertaken
are recognized as constituting organized criminal activity in Ghana. The second category of
serious offences includes “murder, grievous body harm, armed robbery or theft where these are
predicate offences for a serious offence”. Finally, serious offences also include “any other similar
offence or related prohibited activity punishable with imprisonment for a period of not less than
twelve months”.47
The law also defines predicate offences to mean one that results in property or benefits
of some sort being derived therefrom. Any property therefore derived from or obtained
through the commission of a serious offence are the proceeds of the crime. These are
the essential terms and concepts that the Act specifically defines, so as to avoid doubt or
confusion.
From the foregoing, it is quite obvious that, there is no cap on the number of offences that
may be designated as serious offences for purposes of the Act, and thus may constitute
organized criminal activity once there is more than one person involved and it is a recurring
one i.e. it has been committed more than once. So, for example, if murder is alleged to
have been committed in pursuant of ‘illicit arms trafficking’, the office may very well have
standing to not only prosecute the accused person(s) for the latter offence, but for the
predicate offence of murder as well, as long as a systematic pattern of the aforementioned
crimes are proved to exist.
Similarly, any other criminal offence on the statute books of Ghana qualifies to be considered
as serious offences in terms of organized criminal activity, provided that the offence in
question is similar or related to those serious offences already mentioned, and is punishable
for a period of imprisonment of more than one (1) year, and is committed in a systematic
fashion. Here, inchoate offences such as conspiracy, abetment, attempt, and preparation to
commit any of the ‘serious offences’ will suffice.
d. Narcotic Offences in context (P.N.D.C.L. 236)

It is interesting to note that although the Narcotic Drugs (Control Enforcement and
Sanctions) Act48 deals with the substantive offences and punishment for narcotic offences
and ancillary matters, the Organized Crime Act also dedicates a whole part49 to income or
proceeds earned through the trade in narcotics. As a matter of fact, it may be reasonably
concluded that, irrespective of the fact that other ‘serious offences’ have been mentioned
and outlined as potentially constituting organized criminal activity, the illicit trade in
narcotic drugs remains the main purpose for the enactment of the Act.
Even though the Act is more geared towards illicit drug trafficking as has already been stated,
it engages actively in other areas such as corruption and perceived fraudulent actions. For
instance, the President of the Republic of Ghana recently commissioned the Economic and
Organized Crime Office to investigate and present a report into how judgment debts were
46
id.
47
id.
48
1990, (PNDCL 236)
49
Part II - Proceeds of Crime.
paid by the Government to persons; both legal and natural.50 The E.O.C.O was given the
mandate because from all indications, there were people, including some government
employees, who had ‘conspired’ to fraudulently deceive public officers by making false
representations as to the status of certain contracts, and receiving monetary compensation
as a result.51
That notwithstanding, the Organized Crime Act of Ghana specifically applies to narcotic
offences in the sense that it targets properties and income arising out of the illicit trade in
narcotics. Section 22 of the Act therefore provides that Part Two of the Act, which deals with
the Proceeds of Crime, applies to PNDCL 236 “in relation to the proceeds from the sale, profit or
income earned and property acquired or likely to have been earned or acquired through trading
in narcotic drugs”. As a result, the Organized crime office is mandated to, inter alia, seize as
well as search for tainted property;52 and track property.53 These powers are essential for
the proper functioning of the office with respect to its mandate. However, in executing its
mandate, it seems as though there is a duplication of functions, since the Narcotics Control
Board (NACOB) as well as the police more or less perform similar functions.
e. Implementation of the E.O.C. Act

Since the enactment of the Organized Crime Act in Ghana, the Economic and Organized
Crime Office (EOCO) has had little opportunity to carry out its mandate. This fact cannot
however be taken to mean that there are no crime syndicates, or organized criminal activity
taking place. Rather, this is a consequence of the ‘un-organized’ manner in which those
serious offences, which constitute organized crime, are carried out in Ghana.54As a result of
the lack of any meaningful case law on point, especially regarding how the office goes about
implementing its mandate, I shall attempt in this section to propose an implementation
framework, comprising of the respective roles that can be played by the Executive, the
Legislature, the Judiciary as well as other law enforcement agencies, including the Economic
and Organized Crime Office, as well as the police.
i. The Executive
Since it is essentially the duty of the Executive to ensure law and order in any society,
Ghana’s Executive can play a crucial role in ensuring that its declared ‘war’ on the trade in
and proliferation of narcotic drugs moves from being mere rhetoric to concrete realities. The
first step in so doing, in my estimation, is by taking steps to implement the provisions of the
United Nations Convention against Transnational Organized Crime, which it has acceded
to. It is unpleasant, to say the least, that a nation that craves to eradicate organized crime
in all its forms and manifestations took about twelve (12) years to accede to a treaty which
opened for signature in 2000 and which the majority of States in the world have signed and
ratified ever since.55
50
See The Interim Report on Payments of Judgment Debts since January 7, 2009 - http://media.myjoyonline.
com/docs/201201/EOCO%20WOYOME.pdf - last accessed 22nd April 2013
51
See http://edition.myjoyonline.com/pages/news/201202/81084.php - last accessed 22nd April 2013
52
Property used in or in connection with the commission of a serious offence; derived, obtained or realized as a
result of the commission of a serious offence.
53
54
It must be noted here that the office has in the recent past investigated and been involved with cases
concerning fraud within the Ghana Football Association; as well as other narcotic related offences.
55
It is interesting to note that the United States has signed and ratified this treaty, although it took out
reservations.
ii. The Legislature

Upon accession to the United Nations Convention, the Parliament of Ghana now has to
take steps to implement the treaty. It may do so by enacting the treaty in whole as an Act
of Parliament, or by amending the current Organized Crime Act to reflect the entire content
and components of the treaty if it so wishes.56Some of the benefits that Ghana stands to
gain from its recent accession to this treaty include increased international cooperation in
combating transnational organized crime in its entirety.57 This will help towards the fight
against narcotic drugs, since such activity is usually transnational in nature. Therefore,
through mutual cooperation and the assistance of other countries, the nation stands to
benefit immensely.
The Legislature can also look to the practices of other countries when formulating legislation
that directly deals with organized criminal activities. Thus, the United States model should
serve as a useful starting point for any deliberation. Take for instance the use of electronic
surveillance. The Constitution prohibits interference with one’s communications except
warranted for law enforcement purposes.58 Thus, Parliament ought to come out with
specific standards of practice that will suffice for such interference in communication with
specific regard to organized crime syndicates. This is because, although the common law
rules (applicable in Ghana) invariably provide for such interferences, it is essential that,
the case of organized crime be given special focus because of the many peculiarities
associated therewith. Usually, organized crime groups comprise of an extensive network
of individuals, sometimes loosely connected through a chain of command that transcend
national boundaries. Thus, the law must be expressly and specifically couched to reflect
such practical realities on the ground.
Similarly, express provision must be made for cooperating witnesses as well as confidential
informants. As it stands now, the Organized Crime Act is silent on these, and to the best of
my knowledge no other statute specifically provides for these purposes.59 This is however
essential in the sense that, Ghana is a relatively small country, where the society is seemingly
closely knitted. It is thus sometimes difficult to have people to willingly testify in regular civil
and criminal court cases for fear of being maligned one way or the other by other members
of society. Looking at the dangers that are inherently associated with giving evidence
against organized crime figures, it is essential that mechanisms like Witness Protection
programs etc. are put in place.60
In organized crime cases, it is also highly likely that the stakes will be enormously high, and
the players may involve or be closely associated with some power brokers within the society.
Therefore, without a clearly spelled out standard of practice, as is the case in the United
States, it is highly unlikely that people with information on organized crime syndicates
56
It suffices to note that there are some parallels between the UN Convention and Act 804.
57
Article 1 of the UN Convention states that “The purpose of this Convention is to promote cooperation to
prevent and combat transnational organized crime more effectively”.
58
See Article 18 of the 1992 Constitution of Ghana.
59
It must however be noted that the Criminal Procedure Act as well as the Courts Act of Ghana provides for
the use of witnesses in all manner of cases; but there is no special reference to witnesses in light of organized
criminal activity.
60
It must however be noted that, in order for this to be done, the government must be willing to allocate
substantial sums of money, since such programs are expensive to create and maintain; and admittedly, this may
not happen in Ghana any time soon for obvious reasons.
will be forthcoming, or even if they do, the necessary protections will not be in place to
guarantee their safety and security.
iii. Law Enforcement Agencies (Generally)

Once the Executive and Legislature create a solid platform for dealing with organized
crime, law enforcement agencies such as the police, NACOB as well as the Economic and
Organized Crime Office may then attempt implementation. These agencies will thus
through a concerted approach deal with organized crime syndicates in an appropriate and
professional manner.
Also, with the accession to the UN Convention and if concrete measures are put in place for
purposes of implementation as already intimated, local law enforcement agencies will be
ever more strengthened as a result of the inevitable cooperation that will be forthcoming
from transnational bodies all across the world. This is another effective tool in dealing with
organized crime syndicates in contemporary times, especially with regard narcotic drugs,
which as has already been suggested transcends national boundaries.
The United Nations Office on Drugs and Crime will also be a useful ally in this respect. That
office has since its establishment, provided technical assistance in the form of pilot projects
and other forms of training which helps equip local law enforcement agents to actively
and effectively combat organized crime within national borders. It is therefore not in doubt
that, Ghana’s local law enforcement agencies will immensely benefit from this cooperation,
which may help in the fight against the illicit trade in narcotics.
iv. The Office of E.O.C.

Every institution that deals with the investigation of crimes must act professionally and
within the boundaries of the law if it’s investigative findings are to be used as evidence to
prosecute accused persons. Unprofessionalism, incompetence and inefficiency on the part
of such investigative bodies lead to most cases being still born due to tainted or inadmissible
evidence. In late 2010, the E.O.C.O entered the offices of Ghana’s Football Association and
seized a number of office computers on the basis that they were conducting investigations
and needed certain information from those computers. It is interesting to note that the
warrant upon which the search was conducted extended only to ‘documents’ and not
computers and/or mobile devices.
Upon an application to the courts by the affected party, it was held that the E.O.C.O had
no power in the first place to investigate the G.F.A – which was a private entity; and that
the seizure of the computers constituted an abuse of power and a violation of the rights
of the applicants.61 The point is that, whatever evidence the E.O.C.O obtained from those
computers would under the Evidence Act, 1975 of Ghana (Act 323) be inadmissible since it
was obtained illegally. Compliance with legal processes and procedures makes the ultimate
work of prosecuting crimes easier and efficient and thus effective.
Also, due to the notorious fact that persons engaged in organized crime more often than
not pay off law enforcement agents to either turn a blind eye to their activities or even
assist them in committing crimes, it is essential that personnel of the E.O.C. office and other
ancillary agencies who assist them in combating organized crime be properly paid and
motivated. The probability of an agent who is well paid and motivated to receive bribes in
61
http://edition.myjoyonline.com/pages/news/201105/65730.php - last accessed 22nd April 2013.
Ghana would be greatly reduced if not eradicated entirely.
v. The Judiciary
The Judiciary’s role here will be solely dependent on the applicable laws dealing with
organized crime. Therefore, assuming that the Executive and Legislature manage to enact
the UN Convention as part of the laws of Ghana, or amend the current organized crime
Act to reflect same, the Courts will then have the onerous responsibility of ensuring that
organized criminal activity is curtailed; but this ought to be done, not at the expense of
lowering ordinarily recognized legal standards.
Thus the Courts should critically apply the law fairly. In so doing, they may resort to foreign/
international law. This is because, since organized crime is usually transnational in nature, it
will be useful for the court’s own discourse and jurisprudence to evaluate how other courts
in other countries have disposed of similar cases, never losing sight of domestic peculiarities.
The Courts will therefore through its case law, fashion out a comprehensive and cogent
set of standards, with respect to the substantive laws, that ought to be adhered to when
dealing with organized crime cases. This will ensure that, the fight against organized criminal
activity will be conducted fairly, in light of all the requisite procedural niceties that pertain.
IV. Conclusion
The law on organized crime in the United States unlike in Ghana has been developed over
several years. Thus, there are laws that specify exactly what organized crime comprises, and
institutions that have a clear mandate to investigate and prosecute such crimes. The means
of gathering evidence and its admissibility or otherwise in the courts are clear cut since
there is an extensive body of case law regarding how such evidence is treated by the courts.
Similarly, a wide range of mechanisms for enforcing these laws have been put in place and
thus such criminals when arrested are prosecuted within a reasonable time, and where the
prosecution is successful, convicted and sentenced appropriately, with regard the frequency
of the offence(s) in question. Again, the existence of a clear standard of practice has been
one of the essential backbones to fighting organized crime in the United States.
The same cannot however be said of Ghana. Although prior to the enactment of the E.O.C.
Act, there were provisions that succinctly dealt with organized crime, these were not clear-
cut. It can only be surmised that that was part of the reason why the Economic and Organized
Crime Act was enactment in 2010. Due to the fact that the Act only came into force a few
years ago, the Office created under it faces a number of challenges and there is a scarcity of
case law and/or standards of practice to guide it in its operation.
That notwithstanding, the Economic and Organized Crime Office created under this Act can
benefit from the experience of other jurisdictions such as the U.S.A. which as has already
been analyzed, has a well-developed and well tested mechanism as well as standards of
practice with regard organized crime. The United Nations Office on Drugs and Crime can
also play a critical role in this regard through technical and other support. However this
can only be achieved if the Executive Arm of Ghana’s Government takes practical steps to
implement the U.N. Convention against Transnational Organized Crime. The Legislature
can go further by amending the E.O.C. Act to deal with ancillary matters such as the
protection of witnesses, in order to assure critical witnesses and informants of their safety.
Finally, in addition to laws which would strengthen the powers of law enforcement
agencies, personnel of these agencies must be properly trained and motivated if they are
to do their work competently without any fear or favor. This will require commitment from
Government in the form of substantial resource allocation, which will go a long way in
aiding the fight against organized crime syndicates in general, and transnational organized
crime in particular.
FAIRNESS AND INTEGRITY OF THE ARBITRATOR UNDER THE ALTERNATIVE DISPUTE

RESOLUTION ACT OF GHANA, 2010, ACT 798
Diana Asonaba Dapaah*
Great progress was made when arbitration treaties were concluded in which the contracting
powers pledge in advance to submit all conflicts to an arbitration court, treaties which not only
specify the composition of the court, but also its procedure -
Ludwig Quidde
Abstract
One distinguishing feature of Alternative Dispute Resolution (ADR) is that it enables disputants to
own the process of resolution of their disputes. Parties choose their own “judge”, usually a person
who may not be a judge properly-so-called and appointed under the Constitution and other laws
of Ghana. Such neutral person who serves as either a mediator or arbitrator helps parties to reach
a mutually beneficial agreement. In the case of arbitrators, the arbitrator is normally chosen or
appointed in some cases based on her expertise in the area or subject matter of dispute. Most of
these arbitrators belong to professional groups who are regulated by some code of ethics. While
these codes of ethics are not specific to their conduct as arbitrators, they usually regulate them
to the extent that they do not bring their person and their profession into disrepute. The new
ADR Act of Ghana provides for a Centre to be set up under the Act to among others examine the
rules on mediation and arbitration and make amendments as and when necessary. The Center
does not provide rules of ethics to regulate these neutrals including arbitrators who may not
have gone through rudimentary ethical training like judges. The question that arises is whether
the lack of code of conduct or rules of ethics on its own for arbitrators is problematic. Should it
be sufficient for arbitrators to be regulated, where they belong to a professional group, by their
profession’s code of ethics? For those arbitrators who do not belong to any professional group, is
the Act sufficient on how these arbitrators should conduct themselves ethically?
I. Introduction
A report in the early part of 2010 that a new Act on Alternative Dispute Resolution was
to be passed later in the year, undoubtedly, was welcome news to most people in the
Ghanaian legal community. Such an Act was long overdue looking at the inadequacies of
laws regulating ADR in Ghana1. With the fast pace of development, boom in the commercial
sector of the country, culminated especially by the oil find in Ghana, it is without doubt
that laws must be passed establishing, recognizing and enforcing alternative modes of
dispute resolution and this is what the proposed new Act on ADR sought to do. The strong
advocacy for ADR is evident when one examines the difficulties associated with litigation
procedure in the courts generally, and the Ghanaian courts are no exception. Lost dockets,
delay in court, high expense, severance of relationships, just to mention a few, characterize
the present court system in Ghana. In his keynote remarks delivered at the American Re-
Insurance Arbitration Association Annual meeting on the topic, “The Role of Mediation in
*Lecturer, Faculty of Law, Ghana Institute of Management and Public Administration, Solicitor/Barrister,
Ghana; New York Attorney and Counselor-at-Law.
1
Prior to Act 798 was the Arbitration Act 1961, Act 38 which by its name only regulated arbitration in Ghana
excluding the other forms of ADR. Case law existed to regulate other forms of ADR like customary arbitration.
124 Fairness and Integrity of The Arbitrator Under The Alternative Diana AsonabaDapaah
Dispute Resolution Act of Ghana, 2010, Act 798iako
Dispute Resolution,”2Professor John D Feerick3 underscored the problems plaguing the civil
justice system in the United States of America. In his remarks, Professor Feerick referred to an
interim report of a Task Force of the American College of Trial Lawyers and the Institute for the
Advancement of the American Legal System at the University of Denver which raised alarms
about the nation’s civil justice system.4 Ghana is no stranger to the problems characterizing
the civil justice system generally in the world as identified by Professor Feerick.
Alternative dispute resolution, according to Section 135 of the Alternative Dispute

Resolution Act of Ghana, 2010, Act 798 (hereinafter referred to as Act 798) means the
collective description of methods of resolving disputes otherwise than through the normal
trial process.
The objective of this paper is to analyse how Act 798 provides structures or mechanisms to
ensure the fairness and integrity of the arbitrator under the ADR Act of Ghana, 2010, Act 798.
The objective of the paper will be achieved by a focus on ethical issues of fairness, conflict
of interest and fees. The paper will thus evaluate the adequacy or otherwise of Act 798 in
ensuring a high sense of integrity and fairness of any arbitrator regulated by the Act. The
paper will then do a comparative analysis of ethical issues as they exist in other countries
and make positive recommendations, if necessary, on how these ethical issues raised in the
paper can be addressed within the ADR spectrum of Ghana. It is hoped that this paper will
influence arbitrators when they so serve under Act 798 to ensure the integrity and fairness
of their persons and the process of arbitration as a means of ADR is to be positively used
in the civil justice system of Ghana. It is also hoped that this paper will influence the ADR
Center set up under the Act 798 in coming up with rules to regulate not just arbitration, but
the other ADR processes under Act 7985.
Flowing from the plethora of problems identified with the court system, the business world
has become particularly patronizing of arbitration as a means of resolving commercial
disputes. The attraction enjoyed by arbitration flows from the fact that in arbitration,
disputing parties choose their own “judge” who is expected to be fair, exhibit a high
sense of integrity and delivers an award which is enforceable and highly confidential.
The Dictionary of Conflict Resolution6 defines fairness as being just to all parties, or even-
handedness. It goes further to explain that the concept of fairness permeates the dispute
resolution literature and is fundamental to neutral third-party intervention. The Dictionary
distinguishes between procedural and substantive fairness. While procedural fairness
involves the relative fairness of the process used, substantive fairness involves the content of
the agreement or the outcome. According to the Dictionary of Conflict Resolution, although
2
Thursday, November 6, 2008,
3
Professor Feerick is a professor at the Fordham School of Law. He was the Dean of the Law School from
1982-2002. Professor Feerick served in various distinguished positions spearheading Alternative Dispute
Resolution including serving as the Chair of the Board of Directors of the American Arbitration Association
from 1997-2000.
4
According to Professor Feerick, the report suggests that the system has become ‘disabled’ by disproportionate
cost and delay and this dysfunction is impacting justice. 1500 members of the College responded to a Task Force
survey, nearly half of whom expressed their belief that discovery is abused in every civil case. The survey also
indicated that because of costs and delay, cases with merit are not being brought at all and that cases without
merit are being settled out of court because ‘the cost of pursuing or defending those claims fails a rational cost-
benefit test”
5
This is discussed further in the paper.
6
Douglas H Yarn, Dictionary of Conflict Resolution, Jossey-Bass Publishers 1999, p.119
justice is often used synonymously with fairness, some commentators distinguish between
the two concepts; fairness is a more idiosyncratic concept, based in individual perceptions
in the context of a particular conflict, process, and outcome. This paper will discuss fairness
generally, encompassing both procedural and substantive fairness.
The predecessor to Act 798 was the Arbitration Act, 1961, Act 38 which was passed to
regulate the settlement of differences by arbitration and to provide for the enforcement
of awards. Act 38 clearly regulated only arbitration excluding other methods of ADR like
mediation and customary arbitration which Act 798 now provides for. It is laudable that
Act 38 was passed soon after Ghana attained independence from the British in 1957. Act
38 was however inadequate and outlived its usefulness necessitating, it is presumed, the
present ADR Act. Act 38 provided for party7 and court8 reference to arbitration. Under Act
38, the High Court of Ghana was given powers to ensure the enforceability and effectiveness
of arbitration agreements, process and awards. The court could order the attendance
of a witness before any arbitrator or umpire, the court could make orders in respect of
security for costs, discovery, the giving of evidence by affidavit, examination on oath of
any witness before an officer of the court or any other person, the preservation, interim
custody or sale of any goods, securing the amount in dispute, interim injunctions, among
others. Conspicuously missing in Act 38 was a provision stipulating how arbitrators should
conduct themselves before, during and after the process. Such conduct is without doubt
very important in ensuring the integrity and fairness of the arbitrator and the process, in
the light of the fact that, Section 26 of Act 38 provided for the removal of the arbitrator and
setting aside the award. The relevant question to be posed was: in what circumstances will
the arbitrator be seen as having misconducted9himself and put the whole process in doubt
to trigger the court’s application of Section 26? Section 26 provided as follows:
(1) Where an arbitrator or umpire has misconducted himself or the proceedings, the
Court may remove him, or set aside an award, or both.
(2) Where an award has been improperly procured, the court may set it aside.
(3) Where an application is made to set aside an award, the Court may order that any
money made payable by the award shall be brought into Court or otherwise secured
pending the determination of the application.
On the whole, Act 38 gave a lot of discretion to an arbitrator on how to conduct himself
before, during and after the process. However, Act 38 was not very helpful in putting
arbitrators on alert on how best they can conduct themselves and the process fairly and
in integrity to avoid the Court’s application of Section 26. This was not a problem to just
arbitrators. Parties who took part or thought of taking part in arbitration in resolving their
disputes
7
Section 5 provided:
(1) An arbitration is a contract in writing to refer present or future differences to arbitration, whether an
arbitrator is named in the contract or not.
(2)
An arbitration agreement may relate to any issue arising between the parties to it which is capable of being
the subject of a civil action, but an arbitrator is not entitled to make an award in the nature of a judgment in
rem, that is, a decision affecting the status of a person or thing or determining any interest in property except as
between the parties themselves.
8
Section 14 of Act 38. This Section, among other things gave the Court the power to appoint an arbitrator where
parties cannot agree on the arbitrator.
9
The Act used the term ‘misconduct’
were not given clear guidance as to what will trigger the Court’s application of Section 26
of Act 38. This omission may have also shaken the confidence parties may have had in the
process under Act 38. Needless to say, when the process and the arbitrator’s integrity are
put into doubt, the attributes of arbitration as an effective, fast and cheap means of dispute
resolution become a fallacy. One could argue on the other hand that Act 38 itself need not
necessarily contain rules of conduct for arbitrators as these could be contained in other
binding rules and regulations. Such an argument would point to some rules of conduct
existent at the time Act 38 was in force, like the Legal Profession (Professional Conduct and
Etiquette) Rules, 1969 (LI 613) , the Code of Conduct for Judges and Magistrates, and the
Code of Ethics of the Ghana Bar Association.10
It is presumed, and rightly so that Act 798, which was passed in 2010, was passed to make up
for the inadequacies of Act 38. It is this Act which informs this paper. The Alternative Dispute
Resolution Act of Ghana, 2010, Act 798, is an Act passed by the Parliament of Ghana, to
provide for the settlement of disputes by arbitration, mediation and customary arbitration,
to establish an Alternative Dispute Resolution Centre and to provide for related matters.11
Some notable provisions of Act 798 distinguish it from Act 38. Unlike Act 38, Act 798
regulates other forms of dispute resolution namely mediation and customary arbitration.12
This paper will cover both the arbitrator and the arbitration process under arbitration
properly so called and under customary arbitration as provided for by Act 798. Another
distinguishing feature of the Act is that it provides for the establishment of an Alternative
Dispute Resolution Centre.13
II. Ethical Provisions Under Act 798

The writer concedes and rightly so, that under Act 798,14 not only lawyers in Ghana may
serve as arbitrators. A person appointed as an arbitrator by parties or the court may be a
lawyer or a person specialized in the particular area of dispute.
As earlier intimated, although Act 38 provided for the setting aside of an arbitral award
where an arbitrator or umpire has misconducted himself or the proceedings15, it failed to
provide for conduct which will influence the court to set aside an arbitral award given under
Act 38. Act 798 which repealed Act 38 faintly cautions arbitrators on how best to conduct
themselves to avoid the setting aside of arbitral awards. Section 15 of the Act which provides
for the impartiality and challenge of the arbitrator reads:
(1) Where a person is requested to be an arbitrator, that person shall disclose

in writing any circumstances likely to give reasonable cause to doubt as
to the independence or impartiality of that person.
(2) An arbitrator, from the time of appointment and throughout the arbitral
proceedings shall without delay, disclose to the parties in writing any
circumstances referred to in subsection (1)
(3) An arbitrator’s appointment may be challenged only if
(a) Circumstances exist that give rise to reasonable cause to doubt as to
the arbitrator’s independence or impartiality; or
(b) The arbitrator does not possess the qualification agreed on by the
parties.
10
These rules of conduct are further discussed later in the paper.
11
Long Title of Act 798
12
This is a peculiar feature of Act which is absent in many if not all foreign Acts regulating ADR.
13
The Centre informs a significant part of this paper.
14
The same can be said of Act 38
15
Section 26 of Act 38
(4) A party may not challenge an arbitrator appointed by the party or in

whose appointment that party participated, except for reasons of which
the party becomes aware subsequent to the appointment.
Specifically, section 58, subsections (1) and (2)(e) and (f ) of Act 798 also regulates the
procedure for challenging the arbitral award. The Section implies certain issues of ethics
covered by the scope of this paper, violation of which can lead to a challenge of the arbitral
award. The Section provides:
(1) An arbitral award may subject to this Act be set aside on an application by
a party to the arbitration.
(2) The application shall be made to the High Court and the award may be
set aside by the Court only where the applicant satisfies the Court that
(e) there has been failure to conform to the agreed procedure by the
parties;
(f ) the arbitrator has an interest in the subject matter of arbitration which
the arbitrator failed to disclose.
Part three of the Act which regulates customary arbitration16 also provides some inkling of
ethical issues within the scope of this paper. Part three is of particular interest to the writer
for two good reasons. First of all, Part three makes reference to arbitration in conformity
to known customs17 of a particular area and secondly, a lot of discretion is given to the
customary arbitrator on how he conducts himself and the proceeding.
As regards customary arbitration, the relevant Sections for this paper border on the payment
of the fee or token to signify consent to arbitration18, application of rules of natural justice
and fairness19, disclosure of any circumstance of bias or impartiality20 and challenge of an
impartial arbitrator21.
One may argue on behalf of lawyers and judges who serve as arbitrators (whether as
arbitrators properly so called or customary arbitrators) that they are not excused from
their ethical obligations enshrined in the Legal Profession LI 613, the Code of Conduct for
Judges and Magistrates, and the Ghana Bar Code of Ethics, and so this could make up for
any insufficient ethical provisions under Act 798 with regard to lawyers and judges when
they serve as arbitrators. This argument thus necessitates a discussion of these sets of rules
of conduct to determine how best they complement Act 798 on the proper conduct of
lawyers and judges within the scope of this paper.
III.Rules of Conduct for Lawyers and Judges in Ghana

Three sets of rules regulate the conduct of lawyers and judges in Ghana namely the Legal
Profession (Professional Conduct and Etiquette Rules) 1969 (LI 613), the Code of Conduct for
Judges and Magistrates, and the Ghana Bar Association Code of Ethics.
16
Customary arbitration as defined in Section 135 of the Act means the voluntary submission of a dispute,
whether or not relating to a written agreement for a final binding determination under Part Three of this Act.
17
This is implied from Section 112 of the Act which provides that a customary arbitral award may be set aside
for reasons including that the award is in contradiction with the known customs of the area concerned
18
19
20
21
Section 99-100 of Act 798
a. LI 613
The Legal Profession (Professional Conduct and Etiquette) Rules 1969 (LI 613) were made by
the General Legal Council22 in exercise of the powers conferred on it by Sections 2323 and
53(1)24 of the Legal Profession Act, 1960 (Act 32). LI 613 basically regulates the conduct of
lawyers in their practice. However, some of the rules regulate the conduct of lawyers at all
times. These rules are Rules 2(2), 5(10), 9(1)(8)(11). They provide as follows:
Rule 2(2): It is the duty of every lawyer at all times to uphold the dignity and high
standing of his profession and of his own dignity and high standing as a member of
it.
Rule 5(10): A lawyer shall avoid representing conflicting interests
Rule 9(1): The conviction of a lawyer for a criminal offence involving dishonesty
or moral turpitude makes him prima facie unfit to continue on the Roll of
Lawyers.
Rule 9(8): Any conduct towards a member of the public which is fraudulent
or contains an element of fraud is a professional offence. It is immaterial for
purposes of this rule that the lawyer concerned may not have been convicted
of that fraud by a court of criminal jurisdiction.
Rule 9(11): It is the duty of a lawyer to maintain the honour and integrity of
his profession, and to expose without fear or favor before the proper Tribunal
unprofessional or dishonest conduct by any member of the profession, and to accept
without hesitation a retainer against any member of the profession who is alleged to
have wronged his client.
b. GBA Code of Ethics

The Code of Ethics of the Ghana Bar Association (GBA) regulates the conduct of lawyers
who are members of the Association. The Code is divided into four parts. Part I deals with
the lawyer’s duty to the profession, while Part II deals with the lawyer’s duty to the public.
Part III and IV deal with the lawyer’s duty to the client and the court respectively. Part I which
enumerates a lawyer’s duty to the profession expects some level of conduct on the part
of the lawyer so as not to bring the profession into disrepute. Rule 1 of the Code of Ethics
provides:
1. It is the duty of a lawyer –

(a) To preserve the dignity and honor of his profession;
(b) To discharge his duties to fellow members of the profession with
fairness, courtesy and good faith;
(c) To maintain his own dignity, honor and integrity;
(d) To uphold the laws of Ghana
2. (c) A lawyer commits misconduct if he does any other act likely to bring
the profession into disrepute.
22
Section 1 of the Legal Profession Act of Ghana, 1960 (Act 32) provides for the General Legal Council which
is concerned with the legal profession and in particular with upholding standards of professional conduct.
23
Section 23 of Act 32 provides: The General Legal Council may prescribe standards of professional etiquette
and professional conduct for lawyers, and may by rules made for this purpose direct that any specified breach of
the rules shall for the purposes of this Part constitute grave misconduct in a professional respect.
24
Section 53(1) provides: Subject to subsection (2), the General Legal Council may, by legislative instrument,
make rules in relation to any matter referred to in this Act as prescribed.
These two rules oblige lawyers to uphold the dignity of their persons and the profession at
all times. This conclusion is reached from a comparison of Rule 3 of the Code of Ethics with
the Rules mentioned above. Rule 325, makes mention of a ‘practising lawyer’ while omitting
the same term in Rules 1 and 2, meaning that under Rules 1 and 2, the lawyer need not be
practicing as a lawyer only, but shall endeavor at all times (emphasis mine) to preserve the
dignity, honor and integrity of his person and the profession.
These two sets of rules are the rules that regulate the conduct of lawyers and so can be
said to operate on the minds of lawyers in any capacity that they serve in order not to put
themselves and their profession into disrepute. One of these capacities may be an arbitrator
(properly so called or as a customary arbitrator) if the rules are constructed to mean that
lawyers have a round the clock duty to maintain a high standard of professional conduct in
their daily lives. Since some lawyers also serve as customary heads in their customary areas
and are likely to be chosen by parties as a customary arbitrator, the rules of professional
conduct may be said to follow them in that regard.
c. Code of Conduct for Judges and Magistrates

The Code of Conduct for Judges and Magistrates represents, according to the preview,
a concise yet comprehensive set of principles addressing the many ethical issues that
confront judges as they work and live in their communities. The preview again notes
that, the Code defines not only the general principles of judicial ethics, but also rules and
standards of judicial conduct that a judge must follow while fulfilling his official duties,
as well as while engaged on other activities and even in private life (emphasis added). The
purpose of the Code, according to the preview is to assist judges “in carrying out their
onerous responsibilities; support the independence, impartiality and unity of the judiciary,
and establish and promote public trust and confidence towards the judiciary. It aims at
protecting the prestige and authority of the judiciary and the position of a judge.”
Although Rule 5(F) prohibits judges from acting as arbitrators and mediators or otherwise
performing judicial functions in a private capacity, the rule does not prohibit judges from
serving in those capacities when expressly authorized by law26. Rule 1 mandates all judges
to uphold the integrity and independence of the judiciary. Rule 2 continues to admonish
judges to respect and comply with the law and at all times act in a manner that promotes
public confidence in the integrity and impartiality of the judiciary. Even relevant is the
commentary to Rule 2 which states as follows:
“Public confidence in the judiciary is eroded by irresponsible or improper conduct by

judges. A judge must avoid all impropriety and appearance of impropriety. A judge
must expect to be the subject of constant public scrutiny. A judge must therefore
accept restrictions on the judge’s conduct that might be viewed as burdensome
by the ordinary citizen. The prohibition against behaving with impropriety or the
appearance of impropriety applies to both the professional and personal conduct
of a judge. Because it is not practicable to list all prohibited acts, the proscription is
necessarily cast in general terms that extend to conduct by judges that is harmful
25
Under Rule 3 (1) A practicing lawyer commits misconduct if-
(a)
He becomes an active participant in any business or profession which conflicts or involves a serious risk of
conflict with his duties as a practicing lawyer; …
26
Commentary to Rule 5(F)
although not specifically mentioned in the Code. The test for impropriety is whether
the conduct would create in reasonable minds a perception that the judge’s ability
to carry out judicial responsibilities with integrity, impartiality and competence is
impaired.”
It is reasonable to presume that other professional bodies may have similar rules like the GBA
Code of Ethics, and the Code of Conduct for Judges and Magistrates, which regulate those
professionals in their professional and private conduct, all in a bid to maintain the integrity
and honor of those various professions and the persons belonging to those professions.
It is also reasonable to presume that the same rules of those other professionals inform
their conduct in other areas that they serve, other than in their respective professions,
such as, as arbitrators properly so called or customary arbitrators. These rules of conduct
of lawyers, judges and other professionals whichever may be, to conduct themselves as
fairly as possible and to maintain the fairness and integrity of the arbitration process and
their position as arbitrators may be implied from their respective rules of conduct. For other
arbitrators who are not lawyers, judges, or professionals with code of ethics regulating their
conduct, Act 798 is not comprehensive enough to regulate their conduct when they serve
as arbitrators (properly so called or customary arbitrators).
It is in the light of these insufficiencies that this paper seeks to do a comparative study
of ADR ethics elsewhere, specifically as it pertains to arbitrators. The paper seeks to draw
inspiration from other jurisdictions and propose to the ADR Centre in Ghana to come up
with rules which will comprehensively regulate the conduct of arbitrators pursuant to its
powers under Section 11527 of Act 798. It is hoped that these rules of conduct which the
ADR Center will come up with will regulate all arbitrators under the Act filling in especially
the lacuna that is created by those who serve as arbitrators, and yet have no professional
codes regulating their conduct.
IV. Code of Ethics for Arbitrators in the US

For the purpose this paper, I shall consider fairness and integrity as it relates to issues of
conflict of interests, impartiality of proceedings and fees. In doing a comparative study of
other rules of professional conduct of arbitrators, I shall limit my study to the American
Arbitration Association (AAA) Code of Ethics for Arbitrators in Commercial Disputes (2003).
I shall occasionally also refer to the distinguished CPR Georgetown Commission on Ethics
and Standards in ADR Model Rule for the Lawyer as Third-Party Neutral (November 2002
and the Revised Uniform Arbitration Act (RUAA) (2000).
In the US, the American Arbitration Association (AAA), in my opinion, has come out with
very laudable set of rules, known as the AAA Code of Ethics of Arbitrators in Commercial
Disputes.28 Though these rules regulate arbitrators in commercial disputes, they (together
with their commentary) are helpful as guidance to the ADR Centre established under Act
798 or any other provider organizations in coming up with exhaustive rules to regulate
arbitrators. The preamble to the AAA rules spell out exactly my thoughts and reasons why
arbitrators need to be well regulated. The Preamble to the AAA Code of Ethics provides as
27
Section 115(2) of Act 798 provides for the object and functions of the ADR Centre which includes examining
form time to time the rules of arbitration and mediation under the Act and recommending changes in the rules.
28
This was originally prepared in 1977 by a joint committee consisting of a special committee of the AAA and a
special committee of the ABA. The Code was revised in 2003 by an ABA Task Force and Special Committee of
the AAA
follows:
“The use of arbitration to resolve a wide variety of disputes has grown extensively
and forms a significant part of the system of justice on which our society relies
for a fair determination of legal rights. Persons who act as arbitrators therefore
undertake serious responsibilities to the public29, as well as to the parties. Those
responsibilities include important ethical obligations. Few cases of unethical
behavior by commercial arbitrators have arisen. Nevertheless, this Code sets forth
generally accepted standards of ethical conduct for the guidance of arbitrators and
parties in commercial disputes, in the hope of contributing to the maintenance of
high standards and continued confidence in the process of arbitration…”
Canon I of the Code sums up the topic of this paper. Canon I states that an arbitrator should
uphold the integrity and fairness of the arbitration process. Specifically Canon I(A) provides:
“An arbitrator has a responsibility not only to the parties but also to the process of
arbitration itself, and must observe high standards of conduct so that the integrity
and fairness of the process will be preserved. Accordingly, an arbitrator should
recognize a responsibility to the public, to the parties whose rights will be decided,
and to all other participants in the proceedings. This responsibility may include pro
bono service as an arbitrator where appropriate.”
Of equal significance is the Comment to Canon 1 which recognizes that arbitrators may have
some expertise in for instance business, technology, or commerce and such subject matters
may feature in the arbitration. Thus a prospective arbitrator is not necessarily prejudiced by
the acquisition of knowledge of the parties, nor the applicable laws, customs and practices
involved in the dispute. However, an arbitrator should not prejudge any of the specific facts
or legal issues to be determined in the arbitration. Canon I also basically obliges arbitrators
to serve independently and without partiality, to follow all lawful procedures agreed upon
by parties, to prevent all delaying tactics, harassment of parties and disruption of the
arbitration process.
a. Conflict of Interest
If an arbitrator30 seeks to ensure fairness and integrity of his person and invariably fairness
and integrity of the process, she must aver her mind to all issues of conflicts of interest
and address them properly. Act 798 does not address comprehensively issues of conflicts of
interests neither does the GBA codes nor LI 613
Canon II of the AAA Code of Ethics specifically addresses conflict of interest. The Dictionary
of Conflict Resolution31 defines conflict of interest as a situation in which duties are
irreconcilable or in which private interest or self-interest conflicts with official or fiduciary
duties. Canon II provides:
“An arbitrator should disclose any interest or relationship likely to affect impartiality
29
In an online interview with Professor Florence Peterson, former general counsel of the AAA, she reiterates
that arbitrator ethics protect not just the parties to a particular dispute, but the process of arbitration and justice
in general
30
Arbitrator from hence refers to an arbitrator properly so called and a customary arbitrator as provided for by
Act 798
31
Douglas H Yarn, Dictionary of Conflict Resolution, Jossey-Bass Publishers 1999
or which might create an appearance of partiality or bias.”
Under Canon II, before accepting to serve as an arbitrator, the arbitrator must make a
reasonable effort to inform herself of all pertinent interests and relationships she may have
with any party, co-arbitrator, lawyer of the parties, or witness, and disclose such interest
or relationship. Specifically, the arbitrator must disclose any direct or indirect financial
or personal interest she may have in the outcome of the arbitration. All existing or past
financial business, professional, family or social relationships likely to affect impartiality or
create the appearance of bias must be disclosed by the arbitrator. The obligation to disclose
is a continuing duty which requires the arbitrator to disclose any such interest at any time
during the arbitration when she recalls that there is a conflict of interest.
Ethically, avoiding any appearance of bias or partiality should subsist even, within a
reasonable time, after the arbitrator renders his award and completes his job. Whenever
there is a doubt as to whether there is a conflict of interest, the doubt must be resolved in
favor of disclosure. It is only after parties’ knowledge of the prospective arbitrator’s interest,
and with parties’ consent, that the arbitrator may properly serve. Even, a party-appointed
arbitrator has a duty to disclose to all parties and arbitrators any interest and relationships
as required by the Canon, except that the party-appointed arbitrator need not include as
detailed information regarding such interest or relationship as is expected of the neutral
arbitrator. The AAA requires a proposed arbitrator to fill and submit a conflict of interest
form32.
On the issue of conflict of interest and disclosure, the Revised Uniform Arbitration Act
(RUAA), 2000 is also worth noting. Unlike Act 798, the RUAA identifies non-disclosure as
a reason by which the court may vacate an award. Section 12 regulates disclosure by an
arbitrator and requires arbitrators to, before accepting appointment and after making
reasonable inquiry, disclose to parties anything including financial or personal interest,
existing or past relationship with any of the parties which may affect their impartiality. This
obligation to disclose is a continuing one, disregard of which may be a ground for vacating
an award made by the arbitrator.
b. Fair Proceedings
A fair and diligent conduct of arbitration proceedings will result in the arbitrator being
known as a fair arbitrator and one of integrity. A comprehensive rule on the conduct of
arbitration proceedings is desirable if the arbitrator under Act 798 is to be seen as fair and
one of integrity. Fairness implies impartiality. Impartiality has been defined by the CPR
Georgetown Model rules33 as “freedom from favoritism or bias, either by word or action, and
a commitment to serve the process and all parties equally.”
Canons I, III, IV and V of the AAA Code of Ethics regulate arbitrators’ conduct of fair
proceedings. These Canons require arbitrators to treat parties even-handedly and equally,
diligently and without prejudice. Arbitrators are further required to be polite and courteous
to parties, their lawyers and witnesses, while encouraging similar conduct by all participants
in the proceedings. These Canons undoubtedly reflect the Preamble to the AAA Code of
Ethics. Arbitrators play a major role in the civil justice system by their determination of legal
rights. If the public will have and continue to have confidence in arbitration, it behooves on
32
In interview with Professor Peterson, she confirmed this form and submitted that the form demonstrates how
an arbitrator reviews her professional and social relationships to see if there is any conflict of interest. According
to her, parties can always waive conflict of interest. The relevant factor is disclosure by the parties to enable
them determine whether they will waive the conflict of interest or not.
33
Comment to Rule 4.5.3
all arbitrators to conduct themselves and the process fairly. Fairness means avoiding any
form of impropriety or the appearance of impropriety.
The arbitrator must allow the parties to be heard and give all parties due notice of the days
and times of hearing. The arbitrator must give each party a fair opportunity to present their
evidence and arguments. The arbitrator must avoid exerting pressure on any party to use
other dispute resolution processes. The arbitrator should not partake in any settlement
discussion and must not serve as a mediator unless the parties desire that she may so
serve. The arbitrator should decide all matters justly, exercising independent judgment,
and should not permit outside pressure or prejudice to affect his decision. Lord Hewart CJ’s
dictum in The King v. Sussex Justices, ex parte McCarthy34, comes in handy here to sum up
how an arbitrator should conduct herself to ensure a fair arbitration proceedings: “justice
should not only be done but should manifestly and undoubtedly be seen to be done.”
Rule 4.5.3 of the CPR Georgetown Model Rules also provides that a lawyer serving as a third-
party neutral must withdraw when at any time in the proceeding, she is unable to conduct
the process in an impartial manner. Again, Rule 4.5.3. extends disclosure of all conflicts
of interest to members of a third party neutral’s immediate family, her current employer,
partners or business associates.
c. Fees and other financial arrangements

The issue of fees and other financial arrangements of the arbitrator is one that needs to be
seriously considered if corruption in arbitration is to be avoided and the process upheld.
Section 2235 of Act 798 makes some provision for fees of the arbitrator. One of the functions
of the Centre is to provide guidelines on fees for arbitrators. As the Centre is non-existent,
the basis for determination of fees of arbitrators is left open to the arbitrator. In practice,
fees are usually assessed by arbitrators based on the amount involved, the complexity of
the issues, as well as the rich experience an arbitrator brings to bear in the dispute. This
is one area which needs to be critically examined in two ways. Firstly, while appreciating
that arbitration may not necessarily be cheap, determination of fees should not be overly
expensive to dispel most people from patronizing arbitration. Again, determination of fees
should be transparent and as much as possible close all gaps which may lead to corruption
of the arbitrator and the process. Subsection 2 of Section 22 provides some help in the
valuation of the fees of the arbitrator. An arbitrator is paid based on the value of the subject
matter of the arbitration, the complexity of the case and the agreed hourly rate of fee.
Of particular interest is the provision on customary arbitration36 where payment by the

parties of the arbitration fee or token is demanded by the arbitrator. The interest in that
provision lies in the fact that most often than not, traditional leaders like the chiefs or
village heads are the ones who serve as customary arbitrators37 or any other person who
34
1924 1K.B. 256 at 259
35
Section 22(1) provides that: “ The parties and the arbitrators shall agree on the fees payable by the parties in
respect of the arbitration and the parties are jointly and severally liable for the payment of the agreed fees and
if a dispute arises about the fees a party may refer the issue to the appointing authority or the High Court for
resolution.
36
37
This is implied from Section 112 that a party aggrieved by an award may apply to the nearest District, Circuit
or High Court to set aside the award on the grounds that the award was, among others, in contradiction with
the known customs of the area concerned. Most often than not, chiefs, village heads and other elders of the
community, who wield authority, are deemed to know the customs of the area concerned.
wields authority, influence and power within the area concerned. To avoid any coercion or
appearance of coercion and corruption related to the issue of fees, it is desirable that the
ADR Centre regulates this issue appropriately.
Regarding fees, Canon VII of the AAA Code provides that an arbitrator should adhere to
standards of integrity and fairness when making arrangement for compensation and
reimbursement of expenses. Specifically Canon VII (B) provides:
“Certain practices relating to payments are generally recognized as tending to

preserve the integrity and fairness of the arbitration process. These practices include:
(1) Before the arbitrator finally accepts appointment, the basis of payment,
including any cancellation fee, compensation in the event of withdrawal and
compensation for study and preparation time, and all other charges, should
be established. Except for arrangements for the compensation of party-
appointed arbitrators, all parties should be informed in writing of the terms
established:
(2) In proceedings conducted under the rules or administration of an
institution that is available to assist in making arrangements for payments,
communication related to compensation should be made through the
institution. In proceedings where no institution has been engaged by the
parties to administer the arbitration, any communication with arbitrators
(other than party appointed arbitrators) concerning payments should be in
the presence of all parties; and
(3) Arbitrators should not, absent extraordinary circumstances, request
increases in the basis of their compensation during the course of a proceeding.”
In an online interview with Professor Peterson,38 she informed the writer that before a person
serves as an arbitrator for the AAA, the parties receive the proposed arbitrator’s resume
with her fees listed. The arbitrator is prohibited from charging more than is on her resume.
Professor Peterson also reported that the AAA handles the collection of money from the
parties and the distribution of fees to the arbitrator.
V.LCIA-MIAC Arbitration Rules

An African example that one may readily make reference to is the LCIA-MIAC Arbitration
Centre, a product of an agreement between the Government of Mauritius, Mauritius
International Arbitration Centre Limited (MIAC) and the London Court of International
Arbitration (LCIA). The Centre is an independent39 institution which draws on the experience
and expertise of LCIA to offer expeditious, cost effective and neutral arbitration and other
ADR services. The Centre provides relatively comprehensive rules40 from the time of request
for arbitration, through to hearings, delivery of the award to confidentiality of the award.
Attached to the rules is a Schedule of arbitration costs which determines how arbitration
fees and expenses are determine, charged and paid.
VI. Recommendations and Conclusion
38
Former general counsel of the AAA, and former professor of arbitration at the Fordham School of Law
39
While the Centre drew on government support to establish it and the government also has representation on
the Board of the Centre, the Centre highly asserts its independence unlike Act 798 where the President controls
by determining who is appointed onto the Board.
40
The LCIA-MIAC arbitration rules, effective 1st October 2012.
It may be argued that the fact that Act 798 does not provide significant guidance by way of
general arbitration rules or ethical rules related to the arbitration process is not fatal so long
as the courts develop from the language that exist, appropriate standards for arbitrators’
ethics and disclosure. The only reservation to this argument is that parties would ordinarily
want to stay out of court if possible. It becomes problematic if arbitration cases have to be
taken back to court for the court to develop, through case law, rules on ethics for arbitrators.
On the other hand, the fact that Act 798 is not specific enough on arbitrator ethics or does not
provide “special” rules or ethical rules as the case may be, does not discount the importance
of Codes of Ethics for arbitrators. It is in this regard that the ADR Center established under
Act 798 should come up with exhaustive Rules or Codes of Ethics which will regulate the
conduct of arbitrators properly-so-called and customary arbitrators.
The ADR Center may seek guidance from other national and international institutions to
help it regulate conduct of arbitrators on ethical issues raised in the paper and other issues
like confidentiality, immunity, jurisdiction, diligence and competence which fall outside the
scope of this paper. Without doubt, with regard to the ethical issues raised in this paper,
the discussion of this paper has highlighted the areas where Act 798 falls short, and these
areas should inform the ADR Center in coming up with exhaustive rules under the Act
which will cover all manner of arbitrators, wherever and whenever they operate, be it under
private institutions like the Ghana Arbitration Center or as arbitrators of the ADR Center. The
discussion and comparative study made in the paper, which highlight the insufficiencies
of Act 798, form the basic recommendations of the writer to the ADR Center and other
provider organizations which may spring up in Ghana. The ADR Center may particularly
want to draw inspiration from the AAA Code of Ethics, CPR Georgetown rules, the RUAA, and
the LCIA-MIAC as discussed in the paper. It is laudable how these provider organizations try
to give general but exhaustive rules of conduct. For instance, on issues of conflict of interest
under the RUAA, the arbitrator is admonished to advise himself of not only past and present
financial relationships, he may have with one of the parties, but future relationships too.
Also, the AAA Code of Ethics makes it clear that having knowledge about the parties, and
the customs in the area of the dispute does not necessarily make a proposed arbitrator
prejudiced, where he does not draw conclusions of the fact and law prior to hearing the
parties. The Rules of the Ghana Arbitration Center, other than the ones on ethical issues
(which is almost like the current Act 798) however does a good job on other procedural
issues like interpreter, evidence taking, closing and hearing of hearings, waiver of hearings
among others (which again do not form the scope of this paper).
Notwithstanding the discussion which highlights some laudable rules by the AAA and other
institutions, which to the writer are recommendable to the ADR Center, the writer would like
to reiterate that the ADR Center needs to come up with rules covering conflict of interest,
where arbitrators inform themselves of any likelihood of conflict of interest that may arise
when they serve as arbitrators. The likelihood of conflict should cover past, previous, and
present relationships. The rules should further admonish arbitrators to treat parties with
even-handedness, respect and courtesy. Rules should admonish arbitrators, especially
customary arbitrators who may wield some form of power or authority over parties, from
using coercion or threat to bring parties to arbitration. Parties should also be made aware
that such coercion may form the basis for the setting aside of an award given thereafter.
On the issue of fees, the ADR Center should not leave open fees regulation as currently
exists under customary arbitration. A standard Fee Schedule is appropriate to regulate how
much shall be charged as arbitrator’s fees. The writer acknowledges that some customary
arbitrators may want to receive compensation in kind, for instance in the form of cow, sheep,
chicken, drinks and even cola. Still, a standard needs to be set, taking into consideration
the complexity of particular cases, and the expertise of the customary arbitrator. This will
prevent the likelihood of abuse in arbitrator’s fees.
The writer also recognizes some trends where exhaustive rules are made on a specific matter
and yet no improvements are realized. As Act 798 is a new Act, the writer recommends that
the ADR Center may want to embark on public education to raise awareness on these ethical
issues especially among the rural folks most of whom will resort to customary arbitration.
The ADR Center may also make readily available these ethical rules and guidelines to the
business community, provider institutions, the schools, communities, on the internet, and
other public forums. Such rules and their publication will make arbitrators certain of their
roles and ethical obligations to ensure fairness and integrity of their persons and the process.
The public with knowledge of these ethical rules will also be confident of the process of
arbitration.
Notwithstanding these proposals, it is conceivable that there may be a novel issue that may
arise in a particular arbitration which may not be covered by the rules. This is why the ADR
Center may want to embark on necessary revisions of the rules with the exigencies of time
and modernity. It is also hoped that the courts will also help in this regard by developing from
the proposed rules language which will inform arbitrators on how to conduct themselves
fairly and with integrity. This will help boost the confidence of the public in the arbitration
process.
In conclusion, arbitrators have a high duty to conduct themselves fairly and appropriately
if the public confidence in arbitration under Act 798 is to be established and maintained.
This is why it is relevant to have exhaustive rules to guide arbitrators. If arbitration and other
forms of ADR are to debunk the skepticism of sections of the public as being a process
prone to corruption and other irregularities due to the laxity in most of its procedures, such
rules on ethics are more than needed. All in all, arbitrators should also be guided by their
conscience which is an embodiment of fairness, impartiality and integrity. The rules may not
spell out for every specific instant how an arbitrator should conduct herself, but at the end
of the day, one always has to be guided by her conscience to do what is right and fair, and
to conduct herself in integrity.
LOCATING THE MEANING OF SECTION 74 (1) (A) OF THE MARRIAGES ACT: A TASK FOR
INSPECTOR BEDIAKO**
MaameAbena S. Mensa-Bonsu*
Abstract
The recent consolidation of all the legislation regulating marriage has made for easier locating
of the legislative provisions governing marriage in Ghana. However, the inattention paid to the
actual content of the law by Parliament in enacting the consolidated Act has resulted in an Act
of diminished comprehensiveness and comprehensibility. A particular offender in this vein is
Section 74(1)(a). It is argued in this article that Section 74 (1) (a) of the Marriages Act of Ghana
is phrased in such an obscure manner that its meaning is effectively unattainable and as such
it fails to reach the objective of all written law; which is to inform the choices of the citizenry.
Beyond that, the section is nothing short of an abdication of legislative power by Parliament
and therefore cannot but be unconstitutional. It is therefore, this article argues, in urgent need
of amendment.
I. Introduction
Ghana’s legal framework is, in a substantial number of spheres, unusually pluralistic. This
is a direct consequence of the forcible mashing together of the legal systems of different
ethnic groups over which Britain, Ghana’s former colonial master, superimposed her own
legal rules in a bid to hold it together. The precarious union has over the fifty-eight years
of Ghana’s statehood acquired some internal cohesion and resulted in a complex legal
system in which different routes to the same legal state exist side by side- and, by and
large, harmoniously. One area in which this plurality is most vivid is the legal regulation of
the institution of marriage. A person may be married by any of three means: under their
traditional matrimonial rules or under Islamic marital rules as amended by law or she may
contract a monogamous marriage of the Western form. Though the three modes differ in
respect of the incidents that flow from them, they are, in terms of validity and legal status,
pari passu. Until the law on marriage was consolidated into the present Marriages Act, 1884-
1985 (Cap 127) [hereafter the Marriages Act], the legality of a marriage contracted under the
rules of Islam was governed by the Marriage of Mohammedans Ordinance 1951 (Cap 151).
Western-style monogamous marriages were regulated by the Marriage Ordinance 1951
(Cap 127) and traditional marriages were regulated by the relevant Customary Law.
The ‘Christian/Civil marriage’, as it is designated by the Act, is perceived to be (and is, in fact,
though not to the extent generally assumed) kinder to wives than the customary law of
most Ghanaian ethnic groups1.
**
The hero of a highly successful TV series from the 1990s designed to restore public confidence in a then
much-vilified Ghana Police Service.
*
MaameAbena S Mensa-Bonsu, BA, LLB (Ghana), BCL (Dist) (Oxon). Barrister-at-law, Lecturer of Law,
University of Lancaster, Ghana. m.mensa-bonsu@lancaster.edu.gh. I am grateful to Selasie Woanyah and
MaameYaa Barnes for helpful comments on earlier drafts.
1
Particularly in matters of succession. While most ethniccustomary laws make provision for widows, it is
rarely ever in the by vesting them with title to any property. The most common forms of customary provision
for widows are marriage to the successor and thereby the right to wifely maintenance, or in the form of user
rights but not actual interest in the deceased’s propertye.g. occupation of deceased’s self-acquired house. This
latter form often carries with it the extra and somewhat arbitrary burden of being subject to good behaviour.
This is common among the Akan. For a discussion on the customary law in relation to widows/widowers,see J
Ofori-Boateng,Courts And Widows In Distress [1973] Vol. V No. 2 RGL 106. Until PNDCL 111 amended it,
the monogamous marriage made the spouse and children the only beneficiaries of a deceased’s estate, hence the
138 Locating The Meaning of Section 74 (1) (A) of The Marriages Act: MaameAbena S. Mensa-Bonsu
A Task for Inspector Bediako
As a natural consequence, it is the most coveted form of marriage. A significant portion

of customary law marriages is later converted into a Christian/Civil marriage usually upon
the insistence of the wife and her family. The action of breach of promise to marry, long
abolished elsewhere in the Common Law world, thrives in Ghana, but is limited to breach of
a promise to convert a customary law marriage into a Christian/Civil one2.
The recent consolidation puts all the relevant rules on marriage (including the rules on the
documentation of a customary marriage or its dissolution) in one document presumably for
easy consultation and use. The Consolidated Act raises a number of concerns including, the
fact that the new Cap 127 has no date of entry into force. This article however concentrates
on the problems and implications of Section 74 of the Marriages Act. Cap 127 is the go-
to legislation for ascertaining the validity of any Christian/Civil marriage contracted in
Ghana. In fact, Subsection (3), states, that with the exception of violations of that section,
no irregularity in the manner in which such a marriage is celebrated is fatal to its legality. It
is thus a Section of utmost importance. Considering how frequently ordinary citizens will
have need of it, it would not be out of place for one to assume that Section 74 would be
extremely layman-friendly in how it is crafted. Unfortunately, this otherwise reasonable
assumption can only lead to disappointment and frustration for the poor layman or indeed
for his legal counsel. Paragraph (a) of subsection (1) of the Section is worded in a most
unnecessarily obscure manner. This article contends that by its vagueness, it fails to achieve
the ends of written law. More importantly, it argues that the paragraph undermines the
legislative sovereignty of Ghana, the exercise of which has been entrusted to Parliament. As
such, it must be amended.
II. Section 74(1)(A) - An Example of a Failed Law

Short and seemingly innocuous, the offending paragraph reads:
Invalid Marriages
74. Marriage with deceased wife’s sister or niece lawful
(1) A marriage may be lawfully celebrated under this Part between a man and
the sister or niece of the deceased wife, but a marriage is not valid,
(a) which, if celebrated in England, would be void on the ground of kindred
or affinity,
Before the Constitutionality of the provision is examined, it really must be asked why
Ghanaian Legislators, elected by the Ghanaian public, should approve a provision that
requires ordinary Ghanaians to have working knowledge of English law. For the average
Ghanaian, this is not knowledge easily acquired. According to our last census figures,
4,334,846 out of a total 15, 208,425 residents of Ghana above 15 years old are illiterate.3 This
demographic is pertinent to this article because it covers that part of our populace, which
inter alia, has legal capacity to marry. The literate population, per the census report, numbers
10,873,579.4Considering that the definition of literacy used by the Ghana Statistical Service
clamour by wives to be married in that manner.

2
See HJAN Mensa-Bonsu, ‘The Action For Breach Of Promise To Marry In Ghana: New Life To An Old Rule’
[1993-95] RGLVol Xix 41—68
3
Ghana Statistical Service (2010). 2010 Population and Housing Census, Summary Report of Final Results
Table 18
4
Ibid.
for the census is ‘able to read and write a simple statement with understanding’, this
figure may be somewhat generous. Even granting that number its best light, the picture
is no different. Less than 5% of the population of Ghana aged three years or older possess
educational qualifications higher than secondary school5. It should be thus evident that
to consult the Act is in itself a feat requiring some manoeuvring for the greater part of the
country’s populace. It is manifestly unreasonable, under these circumstances, to lay the
extra burden of searching out English matrimonial law on Ghanaians.
F. A. Hayek, supplies in succinct form, the purpose for which law is made in his formulation
of the paradigm of the Rule of Law. He notes that law makes it ‘possible to foresee with fair
certainty how the authority will use its coercive powers in given circumstances and to plan
one’s individual affairs on the basis of this knowledge.’6 In his seminal writings illustrating
how law should work, Lon Fuller writes about the fictional, well-meaning legislator, Rex.7
The content of Rex’s laws may be wonderful, but they fail to achieve the mission of a happy
and prosperous people. One of the reasons why this is so is that Rex’s laws are inaccessible
to the people. He writes them down in a code, which he then pronounces a State secret,
known only to him and his scrivener. The people learn what the law contains only after they
have acted in contravention thereof. When eventually persuaded to share the contents of
his Code, his people find themselves no better off. No one can understand the rules -neither
layman nor lawyer. They are frustrated and mutinous because they cannot use their law to
the end that Hayek enunciates. As Raz so simply but powerfully puts it:
If it [law] is to guide the people, they must be able to find out what it is. For the same
reason, its meaning must be clear. An ambiguous, vague, obscure or imprecise law
is likely to mislead or confuse at least some of those who desire to be guided by it. 8
The provision in Section 74 (1) (a) of Ghana’s Marriages Act is strikingly similar to the laws
made by Fuller’s Rex, which he hides in his bosom. It prohibits certain types of marriages.
But rather than articulate which ones it proscribes, it leaves a clue for hunters who seek the
treasure of that knowledge. To make the game even more interesting, the treasure has been
located outside our jurisdiction and in such a manner that its content may well be different
this year from last year. By what means, will a person getting married in the Nukpesekope
Branch of the Methodist Church, in the heart of the Volta Region or the Nkawie Catholic
Church, Ghana, situated in the less urban parts of the Ashanti Region, secure access to the
particular provision in English law that validates or voids her intended marriage? How are
the people to be guided by the law if they have no access to it? And if they cannot be guided
by it, then wherein lies its usefulness or legitimacy? The criminal law maxim Nullum crimen,
nulla poena sine praevia lege poenali9, which principle is encapsulated in the Ghanaian
Constitution, exists precisely to guard against this in the realm of criminalisation.10 It ensures
5
Ghana Statistical Service (2010).op. cit. (ftnt4) above, table 20a, p 49
6
The Road to Serfdom (London, 1944), p. 54. Quoted in J. Waldron, Thoughtfulness and the Rule of Law, (2011)
NYU Public Law and Legal Theory Research Series Working Paper no 11-13 at p 4.
7
L.L. Fuller, The Morality of law, (1964) Yale University Press.
8
J. Raz, ‘The Rule of Law and its Virtue’, The Authority of Law (Oxford 1979), pp. 210-29 seen at www.
oxfordscholarship.com
9
An important, and for the purpose of this paper, pertinent corollary of this principle is the requirement of
specificity and avoidance of ambiguity in criminal legislation. See Mokhtar, nullumcrimen, nulla poena sine
lege: Aspects And Prospects. SLR 26(1),41-55.OUP 2005. Seen at http://slr.oxfordjournals.org/content/26/1/41.
full.pdf%3Fpagewanted%3Dall. Last visited 25/04/2014
10
Article 19(5), constitution of Ghana, 1992.
that conduct can be informed by a foreknowledge of consequence. So that punishment,

when it is meted out, is in response to the conscious choices of a moral agent.11 Thus, in
Ghana, we can boast along with all other democracies that, in our society, a person is free
from criminal punishment for acts not expressly prohibited in law. Our civil life cannot and
should not be any different. Section 74(1) (a) does not measure up to the philosophical
parameters that justify the existence of any rule of law.
Article 106 of Ghana’s Constitution provides further substantiation of the claim that our
legal order demands ease of access of our laws, both in terms of comprehensibility and
location. That article requires all bills to be gazetted not less than 14 days before being laid in
Parliament12 and all new laws to come into force on condition of having first been gazetted.13
The objective of this provision is not hard to deduce; that the good people of Ghana may
be aware not only of what laws they are subject to, but also of what laws their legislators
intend to make them subject to. A provision like paragraph (a) of section 74 (1) defeats this
important objective. Ghanaians seeking to know the legality of a marriage they wish to
contract should be able to consult section 74 of the Marriages Act and find answers there;
not pointers to the location for answers. This is not to endorse Lord Bingham’s position that
all vagueness in the law is a source of arbitrariness.14 The law’s ability to accurately predict
all possible turns of events in perpetuity is no greater than any man’s. It must therefore
necessarily leave, in some circumstances, some degree of imprecision. It is this imprecision
that gives law the elasticity it needs to be adaptable to novel situations. This is not disputed
here. Raz is completely accurate when he writes that “it is inconceivable that the law consist
entirely of general rules and undesirable that it should”. But, the argument submitted here
is that the matters governed by section 74 (1) (a) are not among those vagueness-requiring
situations. To the contrary, they represent one of those occasions where the law has most
need of fine-detailed specificity.
In 1874, The Gold Coast Supreme Court Ordinance ended the period where English law
automatically passed into Ghanaian law15, (though our law continued, for a time thereafter,
to be made by a legislative assembly composed largely of foreigners). The Ordinance was
made in obvious recognition of the fact that a parliament sitting oceans away is unlikely
to know, spare much thought to, or care the effect that the laws they make for themselves
will have on the quotidian lives of residents of a far-flung nation with whom they share no
common ancestry or heritage. Why this would not be apparent to an independent Ghanaian
legislature is impossible to comprehend.
Moreover, assuming, arguendo, that the content of English law on the validity of marriages
was apposite and exactly what the doctor ordered for Ghanaian society, what prevents
Parliament from copying it out verbatim and setting it down in our law so that we, the users
of the law, can make a one-stop search for it? Plagiarism does not exist in legislating. To
the contrary, per Waldron, it is quite the norm16. There is no rule of constitutionalism or of
11
Ashworth &Horder, Principles of Criminal Law,
12
106(2) (b)
13
106 (11)
14
Bingham, The Rule Of Law (2010), Allen Lane, Cited in Waldron op cit (ftnt 8 above)
15
Thereafter only the Statutes of General Application already in existence continued to be binding. Any
amendments made to those statutes in the United Kingdom thereafter did not apply.
16
Waldron, 2012 Constitutionalism- a skeptical view. NYU Public Law and Legal Theory Research Papers series
no. 10-87 p 40
democracy or indeed of any form of government that requires that the framing or content of
a rule of law be the original work of its enactors. Waldron notes the similarities between the
wording of the American Eighth Amendment prohibiting cruel and unusual punishment
and the similar prohibition of the 1689 British Bill of rights.17 And, as has been noted by
other scholars, many municipal legislative pieces effecting the terms of international treaties
generally reproduce verbatim the language of the relevant treaty.18But whatever its initial
source, the actual content of a rule of law must be incorporated into the domestic law. It
does not suffice that the local law acknowledge the source of its content without specifying
that content. Nor would it be the first instance of legislative copying in our history. Most of
the provisions of the Rent Act 1960 were copied verbatim from the UK’s Rent Act of 1939
as amended in 1957..19 Copying without adaptation has its own deficiencies, undoubtedly.
Nevertheless, it, at least, makes the piece of legislation, to use Waldron’s words, ‘the work of
the people whose society is to be governed.’20Though Waldron was speaking of reflections
and interpretations of Constitutional arrangements, his words hold equally true for the
creation of statutory provisions in Ghana.
Concession must be made to the fact that the offending provision was not, at its birth, the
creation of a Ghanaian Parliament. It dates back to the original Cap 127, which was issued
by the Colony’s Governor in 1884 and re-issued in 1951. Its continued existence, however,
must be blamed squarely on the Ghanaian Parliament. This is not an arcane law governing
some abstruse matter of little practical relevance to the lives of ordinary Ghanaians, such
as the Visiting Forces Act 1962 (Act170) of the First Republic or The Scouts and Guides
Decree 1969(NLCD 399) of the first military Government. This concerns marriage, which is
an integral part of every society’s life. In Ghana, marriage, along with funerals and naming
ceremonies, constitute the bulk of communal social life in Ghana. Marriage is, at custom,
not merely a union between two parties. More crucial than uniting the couple, it is seen
as creating a blood bond between their families through the prospective children of the
union. It is thus a vitally important event in the life of a Ghanaian family and so is generally
a very elaborate affair. Rules of law capable of invalidating the legality of a Ghanaian
marriage are rules of substantial impact. The appeal by Justice VRAC Crabbe, the Statute
Law Revision Commissioner,that our Laws be presented in form easily digestible by the
ordinary Ghanaian21 is especially applicable to a provision like section 74 (1) (a). There is
little excuse for our Parliament not to frequently examine the legal framework within which
this central institution operates. It is especially untenable in the case of the third Parliament
of the Fourth Republic which re-enacted it. If the Statute Law Revision Commissioner,
appointed by Parliament under Act 56222 to consolidate our legal rules on marriage did
nothing about this provision, that was because it was not for him to amend those rules. That
was a job for Parliament to do. A mandate to consolidate is only a licence to aggregate, not
to make value judgments about content. Had Parliament subjected the Act to the scrutiny
17
Waldron, ibid.
18
eg G Neuman, Human right and Constituional rights: harmony and dissonance, 55 Stan L. Rev 1863 (2002-
2003)
19
Rent Act 1960, (Act 220) were copied from the UK post World War II Rent Act. Much of the difficulty in its
application stems from the fact that the exigencies that spawned the UK Act were entirely dissimilar from those
that Ghana’s Parliament sought to address.
20
Waldron, ibid at p 11.
21
In Friedrich-Ebert-Stiftung Ghana & Human Rights Advocacy Centre, `Lawmaking Process in Ghana:
structures and Procedures, at p19 Seen at http://library.fes.de/pdf-files/bueros/ghana/10506.pdf
22
Laws of Ghana (Revised Edition) Act 1998.
a completely new bill receives(or should receive), it would most likely have noticed this relic
from the Gold Coast keeping company with authentically Ghanaian Rules and should have
done away with it.
The suffering that surely follows from the State denying the validity of one’s subsisting (or
intended) marriage, with all the physical, emotional and financial investment that one would
have made in that marriage is not to be underestimated. Additionally, the implications in
matters of succession are significant. The portion of a deceased’s estate that falls to the
surviving spouse under Ghana’s Intestate Succession Law23 is, in the case of a Christian/
Civil marriage, enjoyed only by the surviving spouse so married.24 In all other cases, it is
the joint inheritance of all surviving spouses. The customary law rules on who counts as
a spouse, having been complicated by case law amendments over the course of time,
leave open the possibility that even a concubine could end up entitled to a half share of
the surviving spouse’s portion in the estate.25 If unofficial polygamy were an uncommon
occurrence, (and marriage between blood relatives a cultural taboo in all instances) the
succession implications of Section 74(1)(a) would be a mere hypothetical situation not
worthy of serious agitation. This, however, is not the reality in Ghana. The customary laws
of many ethnic groups in Ghana allow marriage between certain kinds of blood relations
but not others.26 Unofficial (but often publicly known) polygamous relationships are as a
phenomenon, banal. In view of these facts, the need to remedy the legislative shortcomings
of Section 74 (1) (a) takes on some urgency.
III. The Claim of Unconstitutionality

An even more fundamental objection to the paragraph is that it is unconstitutional in nature
and amounts to a shirking of legislative responsibility by Parliament. True, the provision
belongs in a statute properly enacted by Ghana’s Legislature. However, it does no more than
authorise the Parliament of another country to make laws for Ghana. Thus, if the English
Parliament should tomorrow pass a law making it legal for an Englishman to marry his own
sister or brother, it becomes thereby legal for a Ghanaian man to marry his sister or brother
too - an occurrence unknown to all Ghanaian traditional cultures.
Although no provision of our Constitution expressly forbids Parliament from doing

this, history suggests strongly, that it cannot have been intended by the Framers of the
Constitution, nor indeed, by its subjects, to create a legislative institution in order that that
institution might authorise another foreign legislative institution to make our laws. It was
for the power to self-govern that Ghanaians sought independence. Nationalist movements
in Ghana did not spring up to resist abuse of legislative power by Britain, but to reject the
arrangement in which another country legislated for us. The great change that the Fourth
Republic brought into our lives, for which reason it was endorsed so overwhelmingly, was
the power to decide for ourselves once again, the rules by which we would live. Indeed, it
was, inter alia, for freedom from the fear of arbitrary law making and incomprehensible,
23
Sections 3-6, Intestate succession Law 1985, PNDCL 111
24
Section 74(1) (b), Marriages Act (above) and section 265 Criminal Offences Act 1960 (Act 29)
25
For the effect of long term relationships on the spouse’s interest in the estate see Essilfie v Quarcoo [1992]2
GLR 180-194 and In Re Asante: Owusu v Asante, [1993-1994] 2 GLR 271
26
For example Akan law allows marriage between paternal first cousins but not between maternal third cousins
see B Palumbo, Marriage, Land and Kinship In An Nzema Village, Ethnology
Vol. 31, No. 3 (Jul., 1992), pp. 233-257 at 233
undesirable laws that each of the four Republics we have had was hailed.
‘To be a free people consists in the power to legislate for oneself’27. The International Law
principle of self-determination is in essence the global acceptance of the idea that a free
people have ‘an original right to determine, for their future government, such principles as
in their opinion shall most conduce to their happiness.’28 The choice of a democracy as that
form of government brings with it rights for the people and their agents. But it also carries
duties for both parties. Writing on what he considers the basics of a democratic constitution,
Green states:
Once constituted and empowered [by a democratic Constitution], the people lack the
power to abdicate to someone else. It is plausible to hold that certain fundamental
powers of legislation may not even be delegated: one may not sell or loan one’s vote;
the cabinet may not subcontract the powers of legislation to a private firm or foreign
country. Of course, people may try to shed the burdens of self-government, and
while no Constitution can stop them, it can stop them from doing it constitutionally,
and a democratic constitution should do so.29
It cannot with any measure of sincerity be argued that the omission of an express prohibition
in the Constitution from legislative delegation by Parliament to anybody,much less a
foreign one, makes such grievous neglect permissible. Self-governing inheres in being a
democratically governed people. Thus, it is plausible to assert that the notion of a people
craving the power to self-legislate so as to be able to legislate that another people legislate
on their behalf was inconceivable to the Framers of our Constitution.30 This is most likely
the reason a prohibition on Parliament from delegating is legislative powers and duties
to a foreign body was not expressly enacted. When the Constitution of Ghana, 1992, was
put to referendum, the people were so heartily sick of living under a dictatorship that they
endorsed it overwhelmingly.31 If Ghana is to shed her hard-won Constitutional garb, it must
be by the hands of the people. Our representatives do not have the power to do it for us.
The Sources of Law in Ghana are listed in Article 11 of the Constitution. Paragraph (b) of that
article makes legislation enacted by Parliament the second most important source of law.
In other words, a rule is a one of law as long as it is enacted by Parliament. This Positivist
provision, on its face, relieves Parliament of any cumbersome concerns about the content
of the laws it enacts and requires only that it abides by the procedures set out in Chapter
9 of the Constitution. Yet this cannot be the sum of it. The Preamble of the Constitution
affirms the commitment of the people of Ghana to the belief that “all powers of government
spring from the sovereign will of the people”. According to Article 1(1), this sovereignty
27
G. K. Chesterton, Heretics (1905), ch. 4, “Mr. Bernard Shaw,” in The Collected Works of G. K.
Chesterton, vol. 1, ed. David Dooley (San Francisco: Ignatius Press, 1986): 67. Cited in Ekins, How to be a free
people.
28
Per Marshall CJ, Marbury v Madison, 5 U.S. 137 (1803)
29
Green, 2011. A Democratic Constitution: The Basics. Lecture presented at The University of Sidney,
Australia.
30
W Wade, writes ‘all writers on sovereignty are likely to deal with improbable examples.’ His first such
example is ‘One has to ask what would happen if Parliament tried to abdicate, or to alienate its powers.’ H. W.
R. Wade (1955). The Basis of Legal Sovereignty. The Cambridge Law Journal, 13, pp 172-197 at p 173. This
‘improbable example’ unfortunately continues to be our reality.
31
R Jeffries &C Thomas, The Ghanaian Elections of 1992,African Affairs Vol. 92, No. 368 (Jul., 1993), pp. 331-366
at p 337 ftnt25
‘resides in the people of Ghana’ and it is in their name and for their welfare that these
powers of government are to be exercised. It does not seem perverse then to assert that the
sovereignty of the Ghanaian people is incompatible with the exercise of legislative power
for them by foreign bodies under no oath of allegiance to Ghana. When the circumstance
of her having a dualist, rather than monist Constitution is factored in, this view becomes
ever more persuasive; that the sovereignty of the people of Ghana, as manifested in the
exercise of legislative power, is reconcilable only with a situation where all our legislation is
made expressly by us, for us and comprehensible to us.
IV. Minor Provision, Major Consequence

Section 74 (1) (a) is only a paragraph of a subsection of a section of an Act. Can the error in
it be so egregious as to support the weight of these philosophical accusations? Without a
doubt it can and it is. As lawyers well know, the devil is always in the detail. Following the
precedent of section 74 (1) (a), there is nothing to prevent Parliament from enacting a law
to the effect, for instance, that a company labelled small/medium enterprise (SME) shall pay
any tax that in Sweden would be due. Or that a person shall not be eligible to be a director
of a company unless that person would be eligible to be a director of a company in Armenia.
The objection here is not to the frequency with which such provisions have or are likely to
occur, or the subject matter they cover, or the practical consequence they hold for us. The
objection is that they should occur at all in an independent jurisdiction, for they make the
content of our law mutable without notice to or input from us.
Additionally, they carry the danger of not being responsive to our needs. If law does not
meet the needs of the community it is made to serve, it is rejected and falls into desuetude.
Law’s force depends on voluntary compliance by the majority of the people and coercion of
the deviant minority. It cannot be enforced against all of the people all of the time. ‘When a
law is obviously ridiculous, people tend to ignore it and feel justified in doing so.’ 32 The mass
and unrepentant disregard for Ghana’s Rent Act 1960 (Act 220) which has rendered the law
obsolete though still technically in force, should be a cautionary tale told to Parliament of
the danger of legislating in ways that the people cannot sensibly comply with.
V. Conclusion
Provisions in legislative pieces like the Companies’ Act 1963 (Act 179) or the Legal Profession
Act 1960 (Act 32) apply, at least in our present state of development, only to narrow swatches
of the population; notably the middle and upper classes. Section 74 of the Marriages Act,
by contrast, has ever more permeating reach. The choices that each resident, no matter
where she is positioned in the socio-economic order, can make in the sphere of personal
partnership are directly and unavoidably circumscribed by this provision. And yet its
subsection (1)(a) is vague; it’s meaning hard for a regular Ghanaian to ascertain. Worse, it
serves to delegate legislative power and responsibility to another Parliament; ironically the
same one we agitated for release from. It is here asserted that it is not compatible with the
declaration of Constitutional Supremacy made in Article 1 of the Ghanaian Constitution.
Our legislative independence and our Parliament’s duty to legislate in ways we can comply
with, and for our benefit, are matters of such primal importance that we cannot afford to be
apathetic about any sign of lapse or negligence on their part. Otherwise, we give credence
to Ekins’ sombre statement that ‘some peoples lack the capacity to rule and should be under
Kotey N A, Legal control of Rents of Premises in Urban Areas of Ghana: lessons and Prospects, [1989-90] vol
32
XVII Review of Ghana Law 8-37.

the care of another; others have abused their freedom and should be restrained.’33
As it stands, what Section 74(1)(a) implies is this: Parliament’s only duty to us is to enact laws
in procedurally impeccable form. This is a dangerous proposition that cannot be allowed to
stand any longer. Our only protection against the abuse of the legislative power of Parliament
by our Parliamentarians is to require them to exercise their power responsibly. It is plausible
to assert that a unicameral legislature is under an even greater duty to legislate responsibly,
than each Chamber of a bicameral one might be. Ghana has a unicameral legislature; thus
the preceding proposition fully applies. And we, the subjects of the law, for our part, have
more cause to insist that they do so.
If this provision has any impact on Ghanaians consulting it at all, it is that it leaves them
confused and no better informed than they would have been, had they not bothered to
consult it in the first place. Section 74(1)(a) of the Marriages Act has shockingly survived
four Republics and five Parliaments under the current Republic. It has had its day. The time
has come to shed off the vestiges of our colonial dependence and our Parliament must lead
the way. Rubber stamping another Parliament’s work is not responsible use of legislative
authority. Creating vague prohibitions, particularly in matters of such far-reaching relevance
as marriage, is not responsible use of legislative authority. The Ghanaian people deserve
much better from their chosen representatives.
33
R Ekins, How to be a free people The American Journal of Jurisprudence, Vol. 58, No. 2 (2013), pp. 163–182
p 182

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2 |GIMPA LAW REVIEW VOLUME 1 - No.

Justice Emile Short(Former Commissioner of the Commission on Human Rights and

Dr. Alex Ansong

Rev. Dr. William Edward Adjei

Mr. Tawiah Akyea

Dr. Alex Ansong

The GIMPA Law Review is published by the:

Ghana Institute of Management and Public Administration

©Faculty of Law, Ghana Institute of Management and Public Administration,2015

IMPERFECTING PERFECTIONS: CHOICES IN CONSTITUTIONAL METHODOLOGY

JUDICIAL INDEPENDENCE AND THE EXECUTIVE BRANCH IN NIGERIA 53

ACCORDING APPROPRIATE LEGAL RECOGNITION OF MINORITIES IN AFRICA 70

IS TRADITIONAL KNOWLEDGE INTELLECTUAL PROPERTY? 89

TOWARDS THE EFFECTIVE IMPLEMENTATION OF THE ECONOMIC AND

FAIRNESS AND INTEGRITY OF THE ARBITRATOR UNDER THE ALTERNATIVE

LOCATING THE MEANING OF SECTION 74 (1) (A) OF THE MARRIAGES ACT:

THE WHIPS OF JURISPRUDENCE: THE UNWRITTEN “FUNDAMENTAL LAW”,

II. Law and Judicial Duty – Positivists and Non-Positivists Conceptions

what law is or a constitution is as a law, in part, therefore becomes a necessary precondition to

a. Of the Nature of Law

b. Hart’s Concept of Law and its Conceptual Foundations

Salmond is unequivocal in criticising Austin’s command theory for a different reason. He

c. The Voice of Moderation: The Contingent Mergence of Morality and Law

This claim of Green though persuasive, is conceptually problematic. In fact, it is difficult

By implication if Fuller is taken as rejecting the separation thesis espoused by Hart, he is to

e. Dworkinian Anti-Positivism and Substantive Natural Law Account of Legality

consensus77 such as contemplated laws on marital rape in Ghana or military decrees

Perhaps this illustration of Dworkin’s criticism of Fuller fundamentally highlights Matthew

Regardless of these differences, it is reasonable to suggest that all illustrative criticisms,

Nonetheless, Dworkin is careful not to be seen as suggesting that written rules or

Nevertheless, Dworkin’s closely allied concern is on an unrestrained discretion to be used

III. Law and Judicial Duty: The Unwritten Fundamental Law

a. The Traditional Roots of the Unwritten Fundamental Law

to the unwritten fundamental law.

Pollock, Expansion of the Common Law at 122

Law Quarterly Review 543 ff.

b. The Supremacy of the Unwritten Fundamental Law

Notwithstanding the presence of theoretical proponents153 of unlimited sovereignty in

c. The “Unwrittenness” of the Fundamental Law

present to matters of constitutional governance in Britain and other countries of common

V. Unified Theory of Law, Judicial Duty and Constitutional Interpretation: Legal

An account of law as an aspirational moral idea is enhanced by such incorporation. The

IMPERFECTING PERFECTIONS: CHOICES IN CONSTITUTIONAL METHODOLOGY AND

The dominance of originalism and modern purposivism as alternative approaches to

construction,18 purposive interpretation,19 modern principle of construction20 and purposive

II. The Election Petition

III. Modern Purposivism vrs. Literalism

Gbadegbe JSC concurred in the court president’s preferred interpretive approach by

I am here persuaded by the modern purposive approach to interpretation to where

IV. The Desirability of the Modern Purposive Approach for Constitutional

There is a tendency to view originalism as an obsession in American intellectual debates and

Even if Fontana’s distinction between revolutionary and reorganizational constitutions

Ghana’s constitution-making experiences reveal conscious incremental attempts to

after it has been abrogated, suspended or overthrown.38

On the evidence, the 1992 Constitution is a culmination of decades of deliberate

“[t]he original constitution was devoted primarily to the mechanisms of democratic

JUDICIAL INDEPENDENCE AND THE EXECUTIVE BRANCH IN NIGERIA

II. Theoretical Framework

There is a growing recognition and acceptance that, in order for people – as

III. International/Constitutional Framework

espousal of some basic principles as guide to national constitutional perspectives. Most

Without defining “independence of the judiciary”, it earlier provides as a fundamental

i. National Judicial Council

ii. Judicial Funding

JUDICIAL INDEPENDENCE AND THE EXECUTIVE BRANCH IN NIGERIA 53

ACCORDING APPROPRIATE LEGAL RECOGNITION OF MINORITIES IN AFRICA 70

IS TRADITIONAL KNOWLEDGE INTELLECTUAL PROPERTY? 89