Ghana Law: Past, Present and Future

Andrew Otchie shares his experiences following a recent trip to Ghana and offers his reflections on its legal history and legal profession.

In May 2012, the sudden and unforeseen passing away of my Father made it necessary for me to undertake a long overdue trip to Ghana, and experience its very different culture, traditions, and legal system. While many practising at the Bar of England & Wales may have had some experience in dealing with Ghanaians in this jurisdiction (a diaspora which has in many ways assimilated to British customs and routines), an experience of the way of life in West Africa can often come as something of a culture shock, even to those of African heritage. I found myself in the midst of the unfortunate, although all too common situation, of trying to administer the property of someone who had died without leaving a will, and the ensuing problems that can be further complicated by differing applications of common, and customary law.

Ghana boasts of itself as a beacon to other African countries, with a safe and stable democracy, growing economy, and reasonably progressive laws and institutions in place, such as its Commission on Human Rights and Administrative Justice (CHRAJ). The legal profession remains an attractive proposition for many graduates and with a sudden influx in the number of private institutions which offer University-level law courses, a greater number of Ghanaians than ever before are now able to take up law as a course of study. However, beneath the surface, there are apparent problems regarding access to justice for the poor, tolerance of cultural practices that breach human rights, and an acute disquiet among members of the legal profession grows, as the number of law graduates called to the Ghanaian Bar increases, while very few dare to venture outside of the 3 main cities to practice, bringing about an imbalanced legal market.

The Ghanaian legal system is a direct product of its colonial past. Over a number of centuries, the British administrators of the country, then known as the Gold Coast, imported a constant flow of refined upper middle-class gentlemen, who would be the Judges to sit in the High Court, and even as the Chief Justices of the Supreme Court, to decide cases concerning the likes of bitter land disputes between various tribes, who was right in complicated trade disputes between merchants, and what punishments ought to be imposed when heinous crimes had been committed. This means that equitable doctrines, as well as the main concepts in contract, tort, evidence, criminal law, and civil procedure, are the same as the law of England & Wales; however in regard to property, family and constitutional law, there is an apparent deference to many of the ancient traditions and customs, which make up Ghana’s customary law and have existed in many parts of Africa, long before any Europeans had arrived.

A result of the interaction between the dual system of common and customary law can mean that there are differing methods by which a formal procedure can be achieved. For example, a willing couple may enter into a legal marriage, by declaring themselves bound to each other for richer, for poorer, for the rest of their lives (or until a legal divorce is granted by a Court); while on the other hand, a customary marriage may be founded upon an exchange of gifts, from the suitor to the Bride’s family (dowry), although this would not prevent the man from entering into other (polygamous) marriages if he so chooses. Many Ghanaian lawyers seem keen to continue the links with their English legal heritage and hold in high regard the rational principles set in place by English law so many years ago. Yet, traditional African beliefs and practices die hard, and often little can be achieved without the consent of tribal elders, chiefs, and heads of family.

Entering and practising at the Bar

The legal system allows those that are called to the Ghana Bar to practise as both a Solicitor and Barrister, and because registration with the Ghana Bar Association is not obligatory, there is no accurate record of exactly how many lawyers there are in practice (the figure is thought to be around 2,500). Whilst some form of pupillage is required to be taken up by aspiring lawyers in Ghana, many of the same difficulties that are faced by law students in this jurisdiction arise for newcomers to the profession, for example the problematic shortfall in the number of places available in practice after study, and the predicament of having to spend inordinate amounts of money on legal education, while feeling that the rich and those with family connections in the profession are not so burdened.

In recent times, a significant number of Ghanaian lawyers who are outside the country have returned back to Ghana to contribute their expertise from time spent overseas. A “post-call” course at the Ghana School of Law enables qualified lawyers to do so, by being called to the Ghana Bar after completing a 3 month course at a cost of £4,000. Increasingly, international law firms with an interest in developing economies are forging alliances with small local firms in order to benefit from large scale corporate transactions (in 2008, Vodafone acquired a 70% stake in state owned Ghana Telecom for $900,000,000) and there is nothing to prevent a lawyer without any national, ethnic, or African heritage from registering with the Ghana Bar Association in order to practise law in Ghana, as long as they have 7 years post-qualification experience.

In 2010, Ghana benefitted from a tremendous inflow of capital as the country started to produce oil in commercial quantities. While this new dimension in its economy may have brought good prospects for lawyers (and especially those trained in the English law), novel legal and moral challenges now emerge, as the ever gloomy tales of corruption in public office surface and the apparent risks of burgeoning environmental damage transpire.

What we can learn

How then did these factors affect the quality of the legal advice and advocacy that I received in Ghana? The continuing similarities with our legal systems are apparent and even after centuries gone by, the skills in advising, drafting and advocacy will continue to be very much influenced by the jurisdiction of England & Wales. While the availability of legal textbooks was depressing, I was lifted up by the fact that a number of eminent lawyers (educated in England) were the architects of Ghana’s struggle for independence from the British, which culminated in it achieving status as a Republic in 1960 –the persistence and fiery spirit that aimed to establish a self-regulating and just society, prevails in many lawyers unto this day.

Although separated by the vast Sahara desert and the deplorable history in which African slaves were once insurable cargo, so that their lives were capable of being disposed of without a crime having been committed under English law (Gregson v. Gilbert (1783) 3 Douglas 232, 99 E.R. 629), there is still much, through human experience, which the English and Ghanaians can say they hold in common. As this year we have celebrated the Diamond Jubilee of the Queen, and the 60th anniversary of Her role as Head of the Commonwealth (therewith the end of the British Empire), it is as useful as ever, to endeavour to preserve the links between our countries through an understanding of their legal systems.

Andrew Otchie, 12 Old Square

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