Evolution of Sources

of Law in Ghana
Samuel Fenbetti Esq.
TIMELINE OF EVOLUTION

• ABROGATION OF
REPUGNANCY TEST

• INCORPORATION OF
COMMON LAW • THE SOURCES OF LAW IN
GHANA ARE
• PRESIDENTIAL MAINTAINED FROM 1969
SUPREMACY

PRE 1960 1960 1969 1979 1992

• THE BOND OF 1844 • THE GHANAIAN COMMON
LAW IS BORN, • THE SOURCES OF LAW ARE
• SUPREME COURT INCORPORATING MAINTAINED FROM 1969
ORDINANCE- 1876 CUSTOMARY LAW WITH AND 1979
THE ENGLISH COMMON
LAW
PRE 1960
WITH THE BOND OF 1844, THE
FANTE CHIEFS ALONG THE
COAST CEDED LEGAL
JURISDICTION TO THE BRITISH
IN EXCHANGE FOR
PROTECTION AGAINST THE
ASANTES.
“…We, Chiefs of countries and places so
referred to…do hereby acknowledge that
power and jurisdiction and declare that the
first objects of law are the protection of
individuals and of property. Human
sacrifices, and other barbarous customs, such
as panyaring, are abominations and contrary
to law. Murders, robberies, and other crimes
and offenses will be tried and inquired of
before the Queen’s judicial officers and the
Chiefs of the district, molding the customs of
the country to the general principles of
British law.”
PRE 1960
THE SUPREME COURT ORDINANCE OF
1876 ESTABLISHED A SUPREME COURT
“ As is the case with all customary
IN GHANA EQUIVALENT IN
JURISDICTION TO THE HIGH COURT IN
law , it has to be proved in the first
ENGLAND. instance by calling witnesses
● THE PRINCIPLES OF COMMON LAW
AND EQUITY IN FORCE IN
acquainted with the native
ENGLAND AS AT JULY 24, 1874,
CAME INTO FORCE IN THE GOLD
customs until the particular
COAST customs have, by frequent proof in
● NATIVE LAW WAS TO BE USED IN
MATTERS OF MARRIAGE, TENURE
the courts, become so notorious
AND TRANSFER OF PROPERTY,
INHERITANCE, AND WHENEVER
that the courts take judicial notice
ENGLISH LAW WOULD SERVE
GROSS INJUSTICE.
of them.”
● HOWEVER, NATIVE LAW HAD TO
PASS THE REPUGNANCY AND ANGU V ATTAH
PROOF TESTS
1960
● THE 1960 CONSTITUTION WAS THE
SUPREME LAW

● CUSTOMARY LAW WAS MADE A

SOURCE OF LAW ALONGSIDE THE
COMMON LAW.

● ENACTMENTS BY PARLIAMENT WERE A

SOURCE. HOWEVER, THE PRESIDENT
COULD REFUSE ASSENT AT ANYTIME.
HE ALSO HAD THE POWER TO MAKE
LAW BY LEGISLATIVE INSTRUMENT AT
ANYTIME, MAKING HIM A DE FACTO
SOURCE OF LAW. Otchere v The State

● THE REPUGNANCY TEST WAS

ABROGATED BY THE COURTS ACT 1960

● CUSTOMARY LAW BECAME A MATTER

OF LAW IN ANY COURT.
1969 CONSTITUTION

● THE 1969 CONSTITUTION WAS THE

SUPREME LAW OF GHANA, AND ALL
OTHER LAWS WERE SUBJECT TO IT.

● ENACTMENTS MADE BY OR UNDER

THE AUTHORITY OF PARLIAMENT-
THE PRESIDENT COULD NOT
AUTONOMOUSLY PASS LEGISLATION.

● THERE WAS INTRODUCED THE

COMMON LAW OF GHANA, TO BE
DIFFERENTIATED FROM THE
COMMON LAW OF ENGLAND. THIS
WAS AN AMALGAMATION OF THE
PRINCIPLES OF COMMON LAW AS
WELL AS EQUITY, AND CUSTOMARY
LAW.
1979 CONSTITUTION

● THE 1979 CONSTITUTION

FOLLOWED THE 1969
CONSTITUTION IN DECLARING
SUPREMACY ABOVE ALL OTHER
LAWS

● IT ALSO MAINTAINED ALL OTHER

SOURCES AS PROVIDED IN THE 69
CONSTITUTION, INCLUDING THE
COMMON LAW OF GHANA.
1992 CONSTITUTION

● THE 1992 CONSTITUTION IS

CURRENTLY THE SUPREME
LAW OF GHANA. Article 1(1).
Mensima & Ors v The Republic

● ARTICLE 11 OUTLINES THE

SOURCES OF LAW IN GHANA
TO INCLUDE ALL THE
SOURCES OUTLINED IN THE
1969 AND 1979
CONSTITUTIONS.
THE UNCONSTITUTIONAL GAPS

● WITHOUT A CONSTITUTION, WHAT

BECOMES THE SOURCE OF LAW?

● E. K Sallah v Attorney General

● Gbedemah v Awoonor Williams

THANK YOU