A Government of Customary Law

By Angela Slater

The belief that a society should be ‘a government of laws, not of men’ is a cliché that all law students are familiar with. For many it has come to signify the idea behind of the rule of law. For me, it contributed to my belief that the law was a neutral, predetermined, formal set of rules. Though law school has twisted my former beliefs beyond recognition, there is no question that this conception of the rule of law has immense importance in western legal systems. Ghana’s legal system however, does not easily submit to this type of thinking.

Like many African nations, Ghana’s legal system is heavily influenced by traditional, regional legal systems. While it would be easy to categorize these legal systems as ‘informal’ and call it a day, this would not really reflect what is really going on in Ghana’s legal climate.  The constitution itself suggests otherwise and speaks to the level of importance people place in their customary laws. Article 11 of the 1992 Constitution specifically adopts customary law as part of Ghana’s common law. The constitution identifies customary law by location and ethnic group, meaning that the many customary traditions from different geographical regions form part of Ghana’s formal legal system. And we thought Canadian law was pluralistic!

As part of Ghana’s unique cultural and intellectual heritage, these traditional ways of thinking influence Ghanaians both politically and legally. However, Ghana is a society in flux and some of these changes are testing their particular brand of legal pluralism. One such trend is increasing rural to urban migration. Many Ghanaians are flocking to major cities such as Accra or Kumasi. While urbanization is nothing new, this trend is having a particular effect on Ghana’s legal culture. Customary legal systems were based on small villages of extended family members. These systems can no longer support an urban population increasingly structured around the nuclear family unit. Extended families have broken and with them have broken the practices which supported and cared for extended family members.

Unsurprisingly, it is the vulnerable members of Ghana’s society who seem to fall into the increasing gap between the traditional and formal legal systems. The fosterage system, where poorer children were sent to live with wealthier relatives, is often cited as one example of a formerly healthy traditional practice which has become problematic. Nowadays, this practice often denotes little more than slavery with children toiling in the homes of strangers for no pay, little food, and no opportunity to attend school. The conditions of these children require LAWA-Ghana to use the term domestic servitude, rather than domestic assistant, to better reflect these children’s situation.

Another trend Ghana grapples with is the changing role of women in society. Though Ghana is literally a government of men, with only 29 female MPs sitting out of 275 seats, women have been transitioning from the home into the workforce. For the first time in history Ghana’s chief justice is a woman. However, many of Ghana’s customary practices are not particularly favourable to women. Traditional gender roles mean that polygamy is widely practiced in Ghana, girls are not considered proper objects of higher education, and marital rape was not considered a crime until very recently[1]. Due to the position of customary law in Ghanaian legal culture the Matrimonial Causes Act (Act 367) recognizes all sorts of customary marriages. However, urban migration, changing roles of women and the breakup of extended families have caused problems for customary marriages and consequently inheritances resulting from them. Extended families once responsible for caring for widows and their children may not want to carry out their customary responsibilities. The situation is even more complicated in polygamous marriages, where several widows and children may be left with little support once the spouse dies.

Because of these concerns in 1985 Ghana introduced a law dealing with successions for those who die without a will. The intestate succession law was revolutionary when it was passed, offering unheard of protections for spouses and children. As much of Ghanaian law it is extremely legally pluralistic, allowing for a portion of the estate to be devolved via the customary practices of a given region. However, several portions of the law are unclear and some provisions continue to discriminate against women. In 2007 LAWA-Ghana joined other civil society organizations in a push to have this law amended. Though the bill got as far as the last reading, it ultimately failed. The current intestate law remains on the books, causing difficulties for many of the women and children left behind after the death of their partner.

Ghanaian treatment of customary law is a fascinating example of how cultural heritage affects what people are willing to accept as the rule of law. Where Canadians would recoil in horror at the idea of such apparently changeable legal practices, this diversity is central to how Ghanaians think about law. In this way acceptance of legal pluralism is hardwired into Ghana’s legal culture. While Ghana faces many challenges one thing is clear: their challenges cannot be solved by attempting to copy Canadian or European legal systems. Customary traditions will always be part of the conversation in Ghana. Whether this turns out to be a strength or a weakness will depend on Ghana’s willingness to confront the challenges posed by a changing society while staying true to their legal heritage.