TOWARDS AN INCLUSIVE VISION OF LAW REFORM AND LEGAL PLURALISM IN GHANA by Ama Fowa Hammond A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in The Faculty of Graduate Studies and Postdoctoral Studies (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) August 2016 © Ama Fowa Hammond, 2016 ii Abstract In post-colonial Ghana, some rules of customary law have been criticised as being inimical to the rule of law and to socioeconomic development. As such, customary law has been a key focus of legal reform. There has been resistance to law reform efforts, especially from communities in rural areas because the state and customary legal systems have failed to reconcile their perceptions of law and legal responsibilities. Taking these legal conflicts as its starting point, this dissertation explores the mechanisms for effective reforms of customary law in a legally plural Ghana. One key objective is to consider the types of legal reforms that might be agreeable to rural dwellers in ways that ensure compliance with state law. Drawing on legal pluralism as a guiding framework for analyzing the relationship between state and customary legal systems, and focusing on intestate succession as one concrete example, I argue that in order for legal reforms to be embraced, especially by rural dwellers, the state must adopt an inclusive vision of law reform, by modifying the machinery of law reform to meet the particular needs of its people. In the context of intestate succession, I argue that the courts should be given discretion, based on suggested guidelines, to vary the extended family’s portion of intestate property. In addition, I argue that changes to intestate law must also be accompanied by political, economic, educational and even psychological changes to the structures that frame the customary legal system. In sum, legal reform must also mean social, political and economic reform. It must also mean establishing and nurturing meaningful reciprocal iii relationships among legal systems and empowering people to consider engaging with and accepting opposing views, with a view to managing conflicts. iv Preface This dissertation is the original, unpublished, independent work by Ama Fowa Hammond. v Table of Contents Abstract ........................................................................................................................................ ii Preface ......................................................................................................................................... iv Table of Contents ........................................................................................................................v Acknowledgements .................................................................................................................. xi Dedication ................................................................................................................................. xiii Chapter 1: INTRODUCTION ......................................................................................................1 1.1 RESEARCH QUESTION AND THESIS STATEMENT .......................................... 4 1.2 OUTLINE OF THE GHANA LEGAL SYSTEM ........................................................ 6 1.3 RESEARCH PROBLEM AND THE HISTORY OF LAW REFORM EFFORTS IN GHANA ............................................................................................................................... 10 1.4 CONTRIBUTION OR JUSTIFICATION .................................................................. 16 1.5 ANALYTICAL FRAMEWORK: LEGAL PLURALISM ............................................ 19 1.5.1 Limitations and Justification of Theoretical Framework ............................... 23 1.6 SCHOLARLY VIEWS ON LEGAL PLURALISM AND LAW REFORM .............. 28 1.6.1 Response to Scholarly Views ........................................................................... 34 1.7 METHODS AND SOURCES .................................................................................... 37 1.7.1 Historical Documents ......................................................................................... 37 1.7.2 Court Decisions .................................................................................................. 39 1.7.3 Legislation ........................................................................................................... 40 1.7.4 Commentaries..................................................................................................... 41 vi 1.7.5 Ethnographic Research Data ........................................................................... 41 1.8 ORGANIZATION OF CHAPTERS .......................................................................... 42 Chapter 2: THE DEVELOPMENT OF CUSTOMARY LAW REFORM IN GHANA ........45 2.1 INTRODUCTION ........................................................................................................ 45 2.2 A DESCRIPTION OF THE PRECOLONIAL TRADITIONAL LEGAL ORDER . 46 2.3 SOURCES OF CUSTOMARY LAW ........................................................................ 51 2.3.1 Custom ................................................................................................................. 52 2.3.2 Subsidiary Legislation ........................................................................................ 53 2.3.3 Religion ................................................................................................................ 53 2.3.4 Summary ............................................................................................................. 55 2.4 DEVELOPMENT OF CUSTOMARY LAW DURING THE EARLY COLONIAL ERA: 1821-1944 ..................................................................................................................... 56 2.4.1 Relationship between the Customary and Imported Legal Systems ......... 65 2.5 FORMAL RECOGNITION OF CUSTOMARY LAW: SUPREME COURT ORDINANCE, 1876 ............................................................................................................... 66 2.6 FACTORS THAT ACCOUNTED FOR CHANGES TO THE CUSTOMARY LAW…. ..................................................................................................................................... 73 2.6.1 Christianity ........................................................................................................... 73 2.6.2 Creolization, Economic Progress and Education .......................................... 75 2.7 WHAT IS MISSING IN LAW REFORM? LESSONS OF THE PAST AND REFORM IMPLICATIONS .................................................................................................... 81 2.8 CUSTOMARY LAW IN THE POST-COLONIAL ERA: ASCERTAINMENT AND APPLICATION, 1957-2015 ................................................................................................... 90 vii 2.9 CONCLUSION ............................................................................................................ 97 Chapter 3: THE INTESTATE SUCCESSION LAW, PRESSURES FOR CHANGE AND THE IMPACT OF REFORMS ...................................................................................................99 3.1 INTRODUCTION ........................................................................................................ 99 3.2 THE PRE-1985 STATUS QUO: THE DEVELOPMENT OF CUSTOMARY LAW THROUGH THE LAW OF SUCCESSION TO PROPERTY ......................................... 100 3.2.1 The Traditional Family ..................................................................................... 101 3.2.2 The Matrilineal Family System: The Property Rights of Spouses ............ 104 3.2.3 The Matrilineal Family System: The Property Rights of Children ............. 106 3.2.4 Problems with the Matrilineal System of Inheritance .................................. 107 3.2.5 State Intervention ............................................................................................. 109 3.2.6 Judicial Reforms ............................................................................................... 112 3.3 INTERNATIONAL PRESSURES FOR CHANGE ............................................... 122 3.4 THE INTESTATE SUCCESSION LAW, 1985, (PNDC LAW 111) ................... 124 3.4.1 Understanding the Intestate Succession Law ............................................. 126 3.5 HOW RELEVANT IS CUSTOMARY LAW TO THE CURRENT LAW ON INTESTATE SUCCESSION ............................................................................................... 130 3.6 CURRENT PRESSURES FOR CHANGE AND THE CONSTITUTION .......... 139 3.6.1 Non-Governmental Organisations ................................................................. 141 3.6.2 The Courts ......................................................................................................... 144 3.6.3 The Press .......................................................................................................... 146 3.7 THE EFFECT OF LAW REFORMS ...................................................................... 149 3.8 WHY REFORMS HAVE NOT BEEN SUCCESSFUL ........................................ 154 viii 3.9 CONCLUSION .......................................................................................................... 160 Chapter 4: ATTEMPTS AT LAW REFORM AND THE MUTUAL CONCESSION APPROACH ...............................................................................................................................161 4.1 INTRODUCTION ...................................................................................................... 161 4.2 EFFORTS AT BRIDGING GAP BETWEEN STATE LAW AND LIVING CUSTOMARY LAW ............................................................................................................. 161 4.2.1 Current Project on the Ascertainment of Customary Law ......................... 161 4.2.2 Law Reform Efforts by the Parliament of Ghana ........................................ 166 4.3 UNDERSTANDING THE CONFLICT ................................................................... 176 4.4 THE BASIS OF AN INTESTATE SUCCESSION LAW IN GHANA ................. 177 4.5 PREFERRED TYPOLOGY: THE MUTUAL CONCESSION APPROACH ..... 180 4.5.1 Sharing the Estate ............................................................................................ 181 4.5.2 Sharing Small Estates ..................................................................................... 193 4.5.3 Recognising Limits ........................................................................................... 194 4.5.4 Assumptions ...................................................................................................... 195 4.6 ADVANTAGES OF THE MUTUAL CONCESSION APPROACH .................... 196 4.7 PROBLEMS WITH THE MUTUAL CONCESSION APPROACH ..................... 201 4.8 CONCLUSION .......................................................................................................... 207 Chapter 5: A MULTI-LAYERED CONCEPT OF LEGAL PLURALISM AND LAW REFORM ....................................................................................................................................209 5.1 INTRODUCTION ...................................................................................................... 209 5.2 TOWARDS AN INCLUSIVE AND MULTI-LAYERED CONCEPT OF LEGAL PLURALISM .......................................................................................................................... 210 ix 5.3 UNDERSTANDING THE OTHER LEGALITIES ................................................. 213 5.3.1 The Politics of Legal Pluralism ....................................................................... 213 5.3.2 Legal Pluralism: Economic Empowerment .................................................. 217 5.3.3 Legal Pluralism: Education and Psychology ................................................ 225 5.4 ADVANTAGES OF A MULTI-LAYERED CONCEPT OF LEGAL PLURALISM… ...................................................................................................................... 234 5.5 RELATIONAL ASPECTS OF LEGAL PLURALISM AND LAW REFORM ...... 236 5.6 CONCLUSION .......................................................................................................... 242 Chapter 6: CONCLUSION ......................................................................................................244 6.1 MOTIVATION ............................................................................................................ 244 6.2 LESSONS LEARNT AND CHANGING COURSE .............................................. 245 6.3 USING LEGAL PLURALISM AS AN ANALYTICAL FRAMEWORK ................ 247 6.4 POLICY IMPLICATIONS OF RESEARCH........................................................... 248 6.4.1 The State Must Be Open to Legal Pluralism; it does Not Undermine Sovereignty ....................................................................................................................... 249 6.4.2 Is Law Reform Just A Legal Exercise? ......................................................... 252 6.4.3 Ghana and the Internationalization of Lawmaking ...................................... 254 6.4.4 Advancing the Lives of the People ................................................................ 256 6.4.5 Changing the Focus of Legal Education in Ghana ..................................... 258 6.4.6 The Judiciary ..................................................................................................... 259 6.4.7 Women and Access to Education .................................................................. 261 6.5 ACHIEVEMENTS (AND THEORETICAL IMPLICATIONS) .............................. 263 6.6 LIMITATIONS OF STUDY AND MATTERS ARISING ....................................... 269 x 6.6.1 Interdisciplinary Approach............................................................................... 269 6.6.2 Legal Pluralism and Issues Arising ............................................................... 270 6.7 AREAS FOR FUTURE RESEARCH ..................................................................... 272 6.8 CONCLUSION .......................................................................................................... 274 REFERENCES ..........................................................................................................................276 xi Acknowledgements I am profoundly grateful to my initial supervisor, Prof. Wesley Pue, who saw me through some of the most important stages of the PhD process and provided great support and encouragement. My deep and sincere gratitude goes to my other supervisors, Professors Karin Mickelson and Renisa Mawani, and my advisory committee member, Prof Doug Harris, for their enlightening guidance and warm support. You understood my vision and helped to me to achieve it through your invaluable ideas and constructive feedback. Thank you very much. I am very grateful to my sponsors without whose support I would not have been able undertake this project. To the Peter A. Allard School of Law, the Law Foundation Fellowship BC, the Margaret McNamara Memorial Fund, USA, the Ghana Education Trust Fund and the University of Ghana, I say thank you very much. To my husband Daniel and my sons Kofi and Kobina: you were my rock during the course of this research and it was such a privilege walking this journey with you. Thanks for everything. I am exceptionally grateful to my sisters Kay, Amoonua and Adwowa: without your steadfast support, generosity and love, this journey would have been difficult. I am also grateful to my parents, Kofi and Emma Afful and in-laws, Daniel and Lynn Hammond, for their support and invaluable pieces of advice. I am very appreciative of my cousin, Helen Quaye, for being of such great help in diverse ways. My heartfelt thanks go to my colleague, Dr. Raymond Atuguba, for his kind and selfless assistance during the course of my graduate work. I remain indebted to you. xii I would also like to express my gratitude to my friends and colleagues who supported me in various ways during this project: Prof. Kofi Quashigah, Mrs. Christine Dowuona-Hammond, Mr. George Antwi, Kwabena Oteng Acheampong, Mrs. Elizabeth Ofosu-Adjare, Dr. Appiagyei-Atua, and Ms. Yaa Nimako. Last but not least, I thank Nana Afehyia, the chief whose words provided inspiration for this research. xiii Dedication This dissertation is dedicated to the loving memory of my dearly departed uncle, Prof. John Evans Atta-Mills. You made this possible by your many acts of indescribable selflessness. Rest in Perfect Peace 1 Chapter 1: INTRODUCTION In Ghana, the reform of customary law has been proceeding with greater intensity in recent years, necessitated by the perceived need to accelerate socioeconomic development. The focus of the law reform exercise has been customary law, as some of its rules have been criticised as being inimical to the rule of law, socioeconomic development and modern human rights norms. The attempts at reforming customary law by the State have been met with resistance, especially by rural dwellers. My own interest in customary law reform was triggered during my short experience as a private legal practitioner in Accra. This period brought me into contact with the chief of a village in the Eastern Region of Ghana.1 In a discussion about the workings of state law, he remarked mockingly in twi,2 “nkran fuᴐ ne mo mbra nkô” to wit, ‘the laws of Accra are for the people of Accra.’ This statement represents one of the most profound insights I have ever gained into the divide between state law and customary law and the undeniable importance of customary law in the lives of those in the rural areas. I had no doubt that the chief was very serious about his views on state law and was sharing an opinion that seemed to be widely held. He explained further how his life and that of his people were regulated by customary law, which included the occasional edicts he and his elders made. When asked how he enforced rules of custom, he replied defiantly, “wo wu a memba!” meaning, ‘if you (the transgressor) die, I will not 1 Ghana is divided into ten administrative regions of which the Eastern region is one. For a better appreciation of the divisions, see “Ghana,” online: <http://www.ghana.gov.gh/index.php/about-ghana/regions>. 2 Twi is a local dialect spoken by most of the Akan tribe of Ghana. 2 attend your funeral,’ an act he explained was so humiliating no one wanted to endure it. It was from these statements, that this research project was sown. I began to take more of an interest in customary law, a law I had studied very little as a law student. Additionally, my work as a member of the National Steering Committee on the Ascertainment of Customary Law Project (ACLP)3 took me to the countryside where I realized first-hand that state law had very little impact in villages. I also became more involved with some of my distant relatives and other rural folk with whom I had previously had limited relationships because our life experiences seemed worlds apart. I listened to them, read about them and tried to understand their mode of reasoning. Sometimes I did, other times, I did not. However, I realized that customary law was understudied and its efficacy, pervasive influence and power were lost on reformers, resulting in reforms that were hardly followed in the countryside.4 Also, I became more conscious of how some of these reforms shortchanged the local people as the more educated made demands based on their perceived rights at customary law, but resisted customary responsibilities, having circumscribed their obligations in light of state law, basically exploiting the benefits of both legal systems. 3 In Ghana, the National House of Chiefs (NHC) and the Law Reform Commission (LRC) are undertaking a joint project called the Ascertainment of Customary Law Project. It seeks to ascertain and document customary law. This project started in 2007. 4 Edward Kutsoati & Randall Morck, “Family Ties, Inheritance Rights, and Successful Poverty Alleviation: Evidence from Ghana,” online: (2012) NBER Working Paper No. 18080, 14-16 < www.nber.org/papers/w18080>. 3 In my dealings with local people, I was affected the most by their sincere belief in the legitimacy of their law. I know that for most people sincerity of itself is not an excuse to disregard state law or perpetuate abusive practices, but it was enough for me to embark on a journey aimed at finding ways to include their subjugated voices in national discourse. It was an opportunity to stress the importance of traditional understandings about law, rights and responsibilities and why these must be reflected in legal reforms. Perhaps it is worth stating that as a Ghanaian, addressing the interface between the customary and formal legal systems in the law reform policy of Ghana is not entirely an academic question, as my own life experiences have been influenced by both systems. While I am by virtue of my academic and social experiences committed to the state legal system, I am also a product of the customary legal system. This largely explains my vacillating sympathies throughout this dissertation. I come to this project as a legal reformer. My commitment to customary law reform centers on those customary law rules that may be potentially harmful to the people they seek to serve. I argue for a process of legal reform in which the state and customary legal systems work together in ways that protect the interests of Ghanaians, especially those who live in rural areas. This dissertation proceeds on the assumption that customary law reforms are necessary, as certain traditional practices potentially infringe upon socioeconomic rights.5 5 See Gordon Woodman’s summary of most of the claims made against non-state systems. Gordon Woodman, “The Development Problem of Legal Pluralism: An Analysis And Steps Toward Solution” in Brian Z Tamanaha, Caroline Sage & Michael Woolcock, eds, Legal Pluralism and Development: Scholars 4 1.1 RESEARCH QUESTION AND THESIS STATEMENT My foregoing experience has culminated in a desire to explore the question: what are the mechanisms and strategies required by the state to ensure that customary law rules, which have the potential to infringe upon human rights,6 are reformed in a manner that is agreeable and comprehensible to the rural people, and thus, effective in ensuring compliance with the state law? Drawing on legal pluralism as a guiding framework for analyzing the relationship between state and customary legal systems, and focusing on intestate succession as one concrete example, I argue that for customary law reforms to be embraced, especially by those in the countryside, the state must adopt an inclusive vision of law reform by modifying the machinery of law reform to meet the particular needs of its people. In the specific context of intestate succession, I argue that the courts should be given discretion, based on suggested guidelines, to share intestate property in a manner that acknowledges the importance of the extended family to the Ghanaian society. More generally, I argue for the adoption of a multilayered and inclusive approach to law reform. This requires firstly, that the concept of law, and invariably legal pluralism, is and Practitioners in Dialogue (NY: Cambridge University, 2012) 129 at 130 [Woodman, “Legal pluralism”]; Deborah H Isser, “Understanding and Engaging Customary Justice Systems” in Deborah Isser, ed, Customary Justice and the Rule of Law In War-Torn Societies (Washington DC, United States Institute of Peace, 2011) 325 at 325. See also Laurence Juma, “African Customary Law and Human Rights in Kenya: Making a Case for Institutional Reformation and Revitalization of Customary Adjudication Processes” (2001-2002) 14 St Thomas L Rev 459 at 461. 6 Woodman, “Legal Pluralism”, supra note 5; Isser, supra note 5. 5 conceptualized differently. Specifically, there must be a clear distinction between legal rules and law because law is a much broader concept; moreover, there are different concepts of law. If the distinction is made, it will become evident to the state that its past reforms have focused only on one aspect of law, that is, legal rules. Secondly, and related to the first point, law must be re-conceptualized to include its social dimension. Hence, law reform should be synonymous with social, economic and political reform. In other words, legal rules must be changed alongside socioeconomic development. Lastly, law embodies values; both legal systems make claims to promoting and protecting the welfare of their people.7 Thus, for reforms to be effective, law reformers must continuously appeal to these inherent values. A deeper understanding of the various legal systems will show that they are not too far apart in their conceptualization of these values. Thus, reformers must identify and utilize these values as a basis for reconciling the customary and state legal systems. This chapter will provide an outline of the Ghana legal system, explaining its political structure and sources of law. This will be followed by a brief account of the history of law reform in Ghana. The background to the research problem will be detailed, after which I will explain and justify my use of legal pluralism and why I see it as the most appropriate analytical framework for this project. I will explain my sources and give an outline of what each chapter entails. 7 The customary legal system is “all about truth and reforming the bad in the society,” Commission on Human Rights and Administrative Justice, “Trokosi as a Form of Customary Ritual Servitude” (2008) 1 at 55. The state has also declared its commitment to liberty, equality of opportunity and prosperity. See the Preamble of the Constitution of the Fourth Republic of Ghana, 1992 (Laws of Ghana (Rev. Ed. 2004), Vol I, 140) [The Constitution]. 6 In this research, I use the expression, “Natives” to refer to those Africans who were born and lived in the Gold Coast, now called Ghana. I use this term mostly in Chapter Two of this dissertation to distinguish Ghanaians from Europeans colonists. Even though almost all Ghanaians or ‘Gold Coasters’ may refer to themselves as indigenous peoples, I refrain from classifying them as such because the modern application of the expression is restrictive. The ‘Natives’ as used in this dissertation, do not constitute the non-dominant group in the country. Everyone in the Gold Coast (Ghana) identifies as a Native by virtue of birth. I also use the expressions, “countryside dwellers” or “rural population” to refer to those who live in the villages or the rural areas of Ghana. The expressions, “African customary law”, “Native customary law” and “non-state law,” as used in this dissertation, refer to the totality of norms and rules of custom recognized by the various communities in Ghana. I use these terms consistently with the existing literature.8 While the terms do not mean that there is a single uniform set of customary law rules in Ghana, the rules need not be affirmed by the judiciary.9 1.2 OUTLINE OF THE GHANA LEGAL SYSTEM Ghana is a West African English-speaking country. It has a population of approximately 25.9 million10 and has over a hundred ethno-linguistic groups which are further 8 Muna Ndulo describes customary law as the indigenous law of the various ethnic groups of Africa. Muna Ndulo, “African Customary Law, Customs, and Women’s Rights” 18:1 Ind J Global Legal Stud 87 at 88. However, Juma is of the view that African customary law refers the rules of custom which have been endorsed by the Courts. In his opinion, practiced or living customary law is better described as “African customary practices, beliefs or value systems.” Juma, supra note 5 at 464. 9 This is the position of the Constitution of Ghana. The Constitution, supra note 7, art 11. 10 The Commonwealth, “Ghana,” online: < www.commonwealthofnations.org/yb-pdfs/ghana_country_profile.pdf>. 7 subdivided into numerous cultural and linguistic units, accounting for the legal and cultural pluralism in Ghana.11 Ghana became the first sub-Saharan country to gain political independence from Britain in 1957, and became a Republic in 1960.12 Ghana is a unitary state with a unicameral legislature.13 Though it is divided into ten administrative regions, none of the regions possesses legislative authority. Ghana is a democracy and has an executive president who may be elected to serve up to two four-year terms.14 The parliament of Ghana is made up of 275 members who exercise legislative power.15 The Judiciary is headed by a chief justice16 and it has jurisdiction in all civil and criminal matters.17 The judiciary consists of the Supreme Court, which is the highest court of appeal in all matters; the Court of Appeal; the High Court and Regional Tribunals.18 The judiciary also includes lower courts.19 Currently, there are two groups of lower courts. The conventional state courts are the Circuit Courts, District courts and Juvenile courts, (in descending order of importance). The traditional courts are the National House of Chiefs, Regional Houses of Chiefs and the Traditional councils (in 11 E Kofi Agorsah & G Tucker Childs, Africa and the African Diaspora: Cultural Adaptation and Resistance (Indiana: Authorhouse, 2005) 50. 12 UNDP in Ghana, “About Ghana,” online: <www.gh.undp.org/content/ghana/en/home/countryinfo/>. 13 The Commonwealth, “Ghana: Constitution and Politics,” online: <http://thecommonwealth.org/our-member-countries/ghana/constitution-politics>. 14 The Constitution, supra note 7, art 66 (1) & (2). 15 Ibid, art 93 (2). 16 Ibid, art 125 (4). 17 Ibid, art 125 (5). 18 Ibid, art 126 (1) (a). 19 Ibid, art 126 (1) (b). 8 descending order of authority).20 Other lower courts may be established at the discretion of the Chief Justice.21 Ghana’s legal system is based on the English common law and customary law. In 1876, the common law, the doctrines of equity, and the statutes of general application which were in force in England on 24th July, 1874, became part of the laws of the Gold Coast.22 The laws of Ghana, according to the 1992 fourth republican Constitution comprise the Constitution; enactments made by or under the authority of the Parliament established by the Constitution; Orders, Rules and Regulations made by any person or authority under a power conferred by the Constitution; the existing law; and the common law, which includes the doctrines of equity and the rules of customary law, including those determined by the Superior Courts.23 Islamic law is applied by the courts as customary law.24 This dissertation focuses on three types of law: state law, judicial customary law, and living customary law. “State law” in this dissertation, refers to the laws passed by Parliament and signed into law by the President.25 It also refers to the laws of foreign origin, including the English common law, the doctrines of equity, and the statutes of 20 Ibid, art 39. 21 Ibid, art 39 (e). 22 The Gold Coast Supreme Court Ordinance (No. 4 of 1876) s 14 [Supreme Court Ordinance]. On the current application of the English Statutes of General Application, the Courts Act states that until provision is made by law in Ghana, certain Statutes of England including the Charitable Trusts Act, 1868 (s.12) and the Trustee Act of 1843 (s. 1-5 & 7-34) shall continue to apply in Ghana. However, these Acts are subject to “any statute” in Ghana. See s 119 of the Courts Act, 1993 (Act 459) and the second schedule to the Act [Courts Act]. 23 The Constitution, supra note 7, art 11. 24 See the case of Brimah & Cobsold v Asana,  1 GLR 118. 25 This includes those Acts which have changed aspects of customary law, e.g. Intestate Succession Law, 1985 (PNDC Law 111) (Laws of Ghana (Rev. Ed. 2004), Vol V, 1951) [PNDC Law 111]. 9 general application. Technically, judicial customary law is state law because it is living customary law which has been modified by the judiciary,26 using the principles of natural justice, equity and good conscience.27 However, I distinguish it from state law because of its origin. Living customary law refers to the rules of law developed and applied within particular communities in Ghana, which have not been modified by the state or any of its organs. Economic productivity in rural areas is relatively low, decent medical care is limited, and formal education is often not a priority, due to labour intensive and agricultural economies. The central government focuses most of its development activities in cities at the expense of rural areas. Livelihoods are sustained mainly by subsistence farming. These communities are far removed from the central government; they are characterized by a strong belief in the metaphysical realm of life and they regulate their societies largely according to customary law. 28 It is estimated that approximately half of Ghana’s population lives in rural areas.29 26 Any court of competent jurisdiction established under the Courts Act has the authority to modify the rules of customary law. Courts Act, supra note 22 at s 117. 27 Ibid as 54. 28 Brian Tamanaha explains that “customary normative systems continue to exert the strongest influence in places that have undergone limited penetration from modern economic systems, mass media, government institutions, and public education.” Brian Z Tamanaha, “Understanding Legal Pluralism: Past to Present, Local to Global” (2008) 30 Sydney L Rev 375 at 409 [Tamanaha, “Understanding Legal Pluralism”]; see also Juma, supra note 5 at 487. He explains that these communities significantly depend on traditional African beliefs and customs as a means of regulating societal life. 29 See the 2011-2015 figures. The World Bank, “Rural Population,” online: <http://data.worldbank.org/indicator/SP.RUR.TOTL>. 10 1.3 RESEARCH PROBLEM AND THE HISTORY OF LAW REFORM EFFORTS IN GHANA In Ghana, it is no secret that those who live in urban areas and those who live in the villages or countryside are governed by virtually different set of laws, especially in the areas of marriage, land ownership and succession to property. While state law largely regulates the lives of those who live in these urban areas, the lives of those in the countryside are regulated by customary law. Research indicates that several reasons account for this state of affairs. A significant number of rural dwellers have no knowledge of state law.30 Additionally, a number of local communities are unwilling to surrender their cultural heritage and embrace a legal system that they can hardly identify with.31 Also, most of them may not have the requisite capacity to engage with the formal state system and its institutions. It is well documented that customary law used to govern almost exclusively the lives of all the people of Ghana (formerly the Gold Coast) before the advent of colonialism.32 The beginning of law reforms in the Gold Coast is traced to the famous bond of 1844 which ostensibly, empowered the British colonialists to reform the laws of the people of 30 Kutsoati & Morck, supra note 4 at 23-24. 31 Victor Gedzi, “Principles and Practices of Dispute Resolution in Ghana: Ewe and Akan Procedures on Females Inheritance and Property Rights” PhD thesis, International Institute of Social Studies of Erasmus University, Rotterdam, The Hague, Netherlands. (2009) 109-111, online: <repub.eur.nl/res/pub/32640/90-423-0372-7_DOK%5B1%5D.pdf>. 32 An anthropologist, Max Gluckman, believes that customary law is pre-colonial and suggests that African societies had a system of law that was similar to what the British had. See Sally Merry, “Law and Colonialism” (1991) 25:4 Law & Soc'y Rev 889 at 900-901 [Merry, “Law and Colonialism”]; Gordon Woodman states categorically that “[t]he customary laws were here before the colonizers arrived….” Gordon Woodman, “A Survey of Customary Laws in Africa in Search of Lessons for the Future” in Jeanmarie Fenrich, Paolo Galizzi & Tracy Higgins, eds, The Future of African Customary Law (New York: Cambridge University Press, 2011) 9 at 11 [Woodman, “Customary Laws in Africa”]. 11 Cape Coast,33 the administrative center of the British settlements in the Gold Coast. Thereafter, many other pieces of legislation were passed to make significant modifications to the existing customary law. One of the most important reformatory pieces of legislation passed during the colonial era was the Supreme Court Ordinance. As earlier indicated, by this Ordinance, the common law of England, the doctrines of equity, and the statutes of general application became part of the laws of the Gold Coast.34 Significantly, this Ordinance determined the application and development of customary law in the Gold Coast. Though it formally recognized its existence and application, thereby formally recognising legal pluralism in the Gold Coast, it subordinated customary law to the laws of foreign origin. Indeed, the colonial era saw the gradual liberalization35 of customary law by both the native and state courts where the rules of custom had to pass a foreign standard of equity, good conscience and natural justice.36 Writing about British West Africa in 1971, Nii Amaa Ollennu, a legal scholar, explains 33Nii Amaa Ollennu, “The Changing Law and Law Reform in Ghana” (1971) 15:2 J Afr L 132 at 157. 34 Supreme Court Ordinance, supra note 22 at s 14. 35 Naomi Fisher explains that the liberalization of indigenous law occurs whenever “Aboriginal context and ontology is removed thereby leaving aboriginal law without that which makes it what it is.” See Naomi Fisher, “Out Of Context: The Liberalisation and Appropriation of ‘Customary’ Law as Assimilatory Practice,” online: (2008) 4:2 Acrawsa E-Journal 1 at 3 <www.acrawsa.org.au/files/.../47FISHEROutofcontextlastone.pdf>. 36 Ollennu, supra note 33 at 158; Sally Moore also explains that “customary law is endorsed provided it is congruent with a British conception of natural justice, morality, or legality.” Sally Falk Moore, “Treating Law as Knowledge: Telling Colonial Officers What to Say to Africans About Running ‘Their Own’ Native Countries” (1992)26:1 Law Soc’y Rev 11 at 18. 12 that the guiding principle of customary law reforms was to mould customary law to the general principles of British law.37 The introduced laws were based largely on imported liberal notions and discourses of the fundamental freedoms38 which were propagated as being universal, natural and capable of arising only from the foreign law or the law of the state.39 It would seem, however, that the imposed law did not permeate every legal space in these societies as state law and judicial customary law are barely adhered to in rural Ghana. It has been confirmed that “while the lives of some people were completely transformed, [under colonial rule] others hardly knew the European rulers were here before they began to leave.”40 Ade Ajayi, a historian, suggests that the changes brought about by colonialism simply did not change the consciousness of some of the people in these societies.41 Law reforms in post-colonial Ghana have generally proceeded on two fronts, namely the judicial and the statutory process. Postcolonial courts42 continue to apply the same liberal tests used in the colonial era in order to ensure that customary laws are 37 Ollennu, supra note 33 at 159. 38 Cruickshank, Eighteen Years on the Gold Coast of Africa, Including an Account of the Native Tribes, and Their Intercourse With Europeans (London: Hurst and Blackett, 1853) 26. 39 David Trubek & Marc Galanter explain that the liberal legalist model of law in society assumes that state institutions are the primary enforcers of social change even though it is well established that tribes exert greater control on people than the state. See David Trubek & Marc Galanter “Scholars in Self- Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States” (1974) Wis L Rev 1062 at 1080. 40 JF Ade Ajayi, “The Continuity of African Institutions under Colonialism" in TO Ranger, ed, Emerging Themes of African History (East Africa Pub House, 1968) 189 at 195. 41 Ibid at 200. 42 Nii Amaa Ollennu explains that post-colonial courts have not shown any originality in law reform especially in cases such as negligence and defamation etc. He elucidates that they disregard local conditions and that “English decisions … [are] slavishly accepted and applied.” Ollennu, supra note 33 at 159. Presently, even though English decisions are only of persuasive influence, it is arguable that English notions of justice are decisive in determining customary law cases before the Ghanaian courts. 13 redesigned to adapt to the notions of rule of law,43 democracy, equality44 and modernity.45 Since state law cannot use custom without turning it into something else, the courts have only succeeded in creating a version of customary law that is different from what is practiced by the local people46 and which is referred to as judicial customary law. Statutory reforms by parliament have also altered the customary law significantly. The laws of Ghana have outlined the procedures for the application, ascertainment, recognition, assimilation and declaration of customary law generally. Through Acts of Parliament, changes have been made to the laws on land tenure. Laws have also been passed to criminalise customary practices such as widowhood rites, ritual servitude and female genital mutilation47 because of the view that these practices do not meet modern human rights standards. Significantly, the Intestate Succession Act, (PNDC Law 111)48 was also passed in 1985 in reaction to both local and international pressure on the government to respond to the changing notion of family, and consequently, the distribution of intestate property. More importantly, it was to provide especially for women and children who were denied the property of their intestate deceased husband and father respectively because of the different modes of allocation of intestate property 43 Addae v Asante,  2 GLR 288. 44 Kombat v Lambim, [1989-90]1 GLR 324; Republic v. Accra New Town District Magistrate Court: Ex parte Papafio  CC 53. 45 Abebreseh v Kaah  2 GLR 46. 46 Jean Zorn & Jennifer Corrin, “‘Barava Tru’: Judicial Approaches to the Pleading and Proof of Custom in the South Pacific” (2002) 51:3 ICLQ 611-639, 635; William B Harvey, Law and Social Change in Ghana (Princeton: Princeton University Press, 1966) 250. 47 Criminal Offences Act, 1960 (Act 29) (Laws of Ghana (Rev. Ed. 2004), Vol III, 1701), ss 69A, 278A and 314A. 48 Hereinafter referred to as PNDC Law 111. 14 defined by the matrilineal system of inheritance. The Intestate Succession Law is discussed extensively in Chapter Three and Four as it is the focal point around which this dissertation will devise strategies for the effective reform of customary law. The important question to ask is the extent to which these judicial and legislative changes have been heeded by Ghana’s rural population. As Antony Allott, a Professor of African Law, puts it bluntly, “they carry on as if the new law had not been passed.”49 Even though Samuel Asante, a legal scholar, thinks that the legislature is the more effective instrument for the reforms generally,50 Gani Aldashev et al explain that “solutions imposed by legislative fiat tend to have dismal results because they inevitably create misunderstandings, uncertainty, and disputes.”51 Thus, Gani Aldashev et al suggest that customary law be allowed to evolve and modernize through court decisions.52 The Law Reform Commission of Ghana, established in 1968, has also been instrumental in reforming the country’s laws. The Commission receives, considers and 49 Antony Allot describes the attitude toward customary law reforms generally, and not specifically to the reform of the laws of succession. Antony Allott, The Limits of the Law (London: Butterworths, 1980)197. 50 Samuel Asante holds the view that we cannot entrust meaningful legal reforms to the courts because the judicial machinery is slow. He explains that nearly all major reforms of common law rules in Ghana have been accomplished by legislative action. He admits, however, that the courts are more likely to be sensitive to customary law. See SKB Asante, “Over a Hundred Years of a National Legal System in Ghana: A Review and Critique” (1988) 31:1-2 J Afr L (Essays in Honour of A. N. Allot) 70 at 81-83. 51 Gani Aldashev et al, “Formal Law as a Magnet to Reform Custom” (2012) 60:4 Econ Dev Cult Change 795 at 798; see also Rita Ozoemena & Michelo Hansungule, who insist that legislation hampers the development of indigenous or customary law.” See also Rita Ozoemena & Michelo Hansungule, “Re-envisioning Gender justice in African Customary Law through Traditional Institutions” online: (Centre for Policy Studies, 2009) policy Brief 63 < www.cps.org.za/cps%20pdf/polbrief63.pdf>. 52 Aldashev et al, supra note 51 at 798. 15 makes proposals for the initiation and reform of any law in the country;53 it makes practical proposals for the development, simplification and modernization of the law;54 it advises the supervisory Minister of State on policies for law reform;55 it undertakes the examination of particular areas of the law and formulates proposals for reform after appropriate research;56 and lastly, it obtains information on the legal systems of other countries that may facilitate the performance of its functions.57 The procedures used by the Commission seek, as much as possible, to obtain input from relevant stakeholders. The Commission tries to publicize relevant issues and holds hearings to promote public awareness and debate. Despite these efforts, customary law reforms have not been successful in the country side. Under the Chieftaincy Act of Ghana, the National and Regional Houses of Chiefs are assigned important roles in the process of applying, assimilating, declaring and ascertaining of customary law.58 However, in practice, this seems to be the function of the judiciary. The recommendations made by the Houses of Chiefs are subject to both substantive and procedural limitations by the Executive arm of Government.59 Indeed, the state has not been able to make deliberate changes to practiced customary law, and judicial customary law (the customary law made by judges) is hardly enforced in local communities. Consequently, Edward Kutsoati and Randall Morck have said that 53 Law Reform Commission Act, 2011 (ACT 822) s (3) (a). 54Ibid at s (3) (c). 55 Ibid at s (3) (d). 56 Ibid at s (3) (e). 57 Ibid at s (3) (g). 58 Chieftaincy Act of Ghana, 2008 (Act 759) ss 49-55. 59 Ibid at ss 51, 52, 54. 16 formal legal reforms have a very limited impact on most Ghanaians, but are useful to the few who are connected to the formal economy. They explain further that the reforms are hardly helpful to those who live in villages and are dependent on the traditional economy.60 What then is the best way of reforming customary law to make it implementable, especially in rural Ghana? This is the central question that this dissertation seeks to answer. 1.4 CONTRIBUTION OR JUSTIFICATION My dissertation seeks to provide insights to the government of Ghana to help determine its vision for law reforms, and accordingly, streamline its policies to ensure that reforms are effective. It is only when a clear vision of law reform and the particular facts of customary law reform are worked out that informed steps can be taken towards reforming the law successfully. I hope the state will be better equipped to decide on the principles by which it should be guided.61 Also, this dissertation will argue that law reform is also about establishing and nurturing meaningful reciprocal relationships with other legal systems. It is about engaging with other systems in a respectful way, and sustaining these relationships through cooperation, compromises and negotiations. My work will emphasize the uniqueness of all legal systems and focus on their distinctive strengths, abilities and needs. It will 60 Kutsoati & Morck, supra note 4 at 15. 61 Kenneth Keith, “Philosophies of Law reform” (1989-1992) 7 Otago L Rev 363 at 363. See Keith’s discussion of the principles that should guide reformers. 17 advise the state that acknowledging and respecting other legal systems in the context of alternative beliefs and traditions is essential to Ghana’s future. As a document directed principally to government authorities, my dissertation will suggest that a fragmented approach to law reform, which focuses on the modification of legal rules, as opposed to a holistic approach, which advocates the promulgation of more equitable rules and the implementation of socioeconomic development as a vehicle for reforms, is socially costly. It undermines the rule of law and inevitably, socioeconomic development. Ultimately, I hope that the conclusions reached by this dissertation will empower the state to realize the inevitable connection between legal reforms and development. This research will also put the spotlight on the unintended effects of the internationalization of law making, which in fact, largely characterizes legal developments in Ghana. Acts of parliament are made to give effect to international obligations or standards. My dissertation will suggest that laws that are promulgated without due regard to the social context of the recipient country are a threat to sustainable legal development. I hope this realization will place the state on the path to developing legal reform strategies that embrace social circumstances and result in the making of laws that are relatable and implementable. Furthermore, my work will suggest that law reform is about empowering people to make different, but informed choices. It is about enabling people through the provision of education and related resources to consider engaging with and accepting opposing 18 views, with a view to managing conflicts and building stronger relationships. I hope that my work helps the state to realise that by empowering its people, it will be promoting their autonomy and giving them real choices, which in turn, can yield effective reforms. This dissertation devotes much attention to the meaning and scope of law. I contend that law is a very broad concept that includes the sociocultural reality that it administers, and I hope this sparks debate about the kinds of professionals that must be charged with the task of reforms. It is also envisaged that the state will appreciate the need to involve professionals other than legal professionals, in the reform of law so that all the dimensions of law and of lawmaking are expertly considered. My research could be beneficial to many other countries, especially post-colonial African countries that are at a crossroads in their attempts at managing the tensions that result from the plurality of legal systems. I hope they will be inclined to the creation and promotion of an inclusive vision of legal pluralism and legal reforms. I hope that the state will be more focused on the common boundaries that it shares with the customary law system because it is a prerequisite to an effective law reform exercise. Also, I hope that the state comes to terms with the fact that the efficacy of State-led reforms depends largely on the extent to which they reflect the core values of the customary legal system. Finally, a successful execution of the project could help customary law reforms to take place in a way that reflects the lived experiences of Ghanaians living in rural areas, and involves their genuine input. This will result in the readiness of these people to embrace the changes introduced by the reforms. Ultimately, it will help strengthen the human 19 rights protection and promotion mechanisms derived from international law and incorporated into the Constitution of Ghana. 1.5 ANALYTICAL FRAMEWORK: LEGAL PLURALISM Ghana’s legal system is legally pluralistic. The concept of legal pluralism, generally, describes situations where two or more legal orders exist within the confines of a given space. In Ghana, such pluralism manifests itself in the co-existence of state law with judicial customary law, the living customary law of the various ethnic groups and Islamic customary law.62 The central argument of legal pluralism is that various normative orders or social fields exist in most societies and that state law is not the only regulatory system in a state. In the words of John Griffiths, one of the key modern proponents of legal pluralism,63 “not all law is state law nor administered by a single set of state legal institutions.”64 Griffiths, like most legal pluralists, rejects the ideology of legal centralism which asserts the supremacy of state law and maintains that “law is and should be the law of the state, uniform for all persons, exclusive…and administered by a single set of state 62 Even though the courts in Ghana regard Islamic law as customary law, it is doubtful that it is so perceived by Muslims. 63 It would seem that the concept of legal pluralism gained momentum with Griffiths’ article, “What is Legal Pluralism” (1986) 24:1 J Legal Pluralism 1-55. The fact remains though that the concept is not new. Legal pluralism was the normal state of affairs for at least 2000 years of European history. From the mid-to-late medieval period there were various types of law, sometimes conflicting, occupying the same space and lacking any overarching hierarchy or organization. These forms of law included various versions of local customs, Germanic customary law, feudal law, lex mercatoria, and the canon law of the Roman Catholic Church among others. These existed actively until the establishment of the state system, which came with the belief that Government and law were the instruments needed to achieve social objectives. See Tamanaha, “Understanding Legal Pluralism”, supra note 28 at 377-381. 64 J Griffiths, supra note 63 at 5. 20 institutions.”65 He argues that the ideology of legal centralism simply reflects the moral and political claims of the modern nation state. Accordingly, he embraces the fact of legal pluralism which he recognizes as a situation whereby: law and legal institutions are not all subsumable within one ‘system’ but have their sources in the self-regulatory activities which may support, complement, ignore or frustrate one another, so that the ‘law’ which is actually effective on the ‘ground floor’ of society is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism and the like.66 Thus, there are multiple self-regulating normative orders which interact between and among themselves in various societies; in practice, law is shaped through these interactions. Griffiths’ vision of legal pluralism exposes the myth and illusion of legal centralism67 and aptly captures the reality of “the phenomenon of law beyond the state.”68 His description of legal pluralism appropriately describes the essence of classic legal pluralism which exists in most post-colonial societies where foreign legal systems were imposed on the native ones, leaving the transplanted law and the customary law to co-exist within the boundary of the nation-state.69 Classic legal pluralism is the most pronounced form of pluralism in Ghana. It is worth mentioning that since Griffiths, many other approaches to legal pluralism have emerged,70 some seeking to expand the 65 Ibid at 3. 66 Ibid at 39. 67 Ibid at 4. 68 Patrick Glenn, “Sustainable diversity on law” in Brian Z Tamanaha et al, eds, Legal Pluralism and Development: Scholars and Practitioners in Dialogue (New York: Cambridge University Press, 2012) 95 at 101. 69 J Griffiths, supra note 63 at 8. 70 One such approach is new or State Legal pluralism. See Gordon Woodman, “Ideological Combat and Social Observation: Recent Debates about Legal Pluralism” (1998) 42 J Legal Pluralism 21-59 [Woodman, “Ideological”]; Sally Moore, “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study” (1973) 7:4 Law & Soc'y Rev 719-746; Marc Galanter, “Justice in Many 21 frontiers of the concept and others seeking largely to bring more conceptual clarity to the concept. It is important to note that legal pluralism means different things to different people or professionals. International lawyers, sociologists, legal anthropologists and social scientists may understand the concept differently, as they may have different goals and “political purposes.”71 Benda-Beckmann explains that the confusion surrounding legal pluralism is as a result of the fact that authors look for “‘the one’” correct or useful concept for both lawyers and social scientists, without appreciation of the fact that the other is engaged in a different enterprise.”72 Socio-legal theorists, for instance, are interested in developing a sophisticated analytical approach to contemporary legal forms while social scientists are dedicated to working out a social scientific approach to law.73 An acknowledgment of a multiplicity of normative orders inevitably leads to questions about how these different legal orders may co-exist and interact meaningfully. Questions relating to possible modes of interaction are important because of the inequalities and the struggles for dominance that are bound to exist among them. In Rooms: Courts, Private Ordering and Indigenous Law” (1981) 19 J Legal Pluralism 1-47; On Global legal pluralism, see Paul Schiff Berman, “The New Legal Pluralism,” (2009) 5 Ann Rev L & Soc Sci 225-242; on postmodern legal pluralism, see Gunther Teubner, “The Two Faces of Janus: Rethinking Legal Pluralism” (1992) 13 Cardozo L Rev 1443-62 and Boaventura de Sousa Santos, “Law: A Map of Misreading. Toward a Postmodern Conception of Law” (1987) 14 JL & Soc'y 279-302; on Critical Legal Pluralism, see Martha-Marie Kleinhans & Roderick A Macdonald, “What is a Critical Legal Pluralism?” (1997) 12 CJLS 25-46. 71 Tamanaha, “Understanding Legal Pluralism”, supra note 28 at 391. 72 Franz Von Benda-Beckmann, “Who's Afraid of Legal Pluralism?” (2002) 47 J Legal Pluralism 37 at 41. 73 Tamanaha, “Understanding Legal Pluralism”, supra note 28 at 391. 22 Ghana, for instance, even though customary law is recognized as one of the country’s sources of law, in practice, limitations are placed on its content and application. I contend that legal pluralism is the most suitable framework for analyzing the relationship between differently positioned normative orders. This is, first, because it seeks to create awareness about the existence of multiple legal spaces and their complex and dynamic interaction; it draws attention to other systems and discourses, especially, those obscured by the state. For this reason, it has been described as a sensitizing concept.74 Secondly, it challenges the States’ claim to exclusive legal validity and legitimate power and illuminates the actual power of the seemingly lesser systems. Thirdly, legal pluralism largely rejects the state as a standpoint from which to analyze law.75 Fourthly, it elucidates the complexity of law as it raises important questions about the meaning and scope of the concept of law; and lastly, it raises even more fundamental questions about the location and constitution of power in a social field or legal system. Legal pluralism is not a “creature of the law schools” 76 or “something that academic lawyers do;”77 it is an unavoidable social fact. 74 Franz and Keebet Von Benda-Beckmann, “The Dynamics of Change and Continuity in Plural Legal Orders” (2006) 53-54 J Legal Pluralism 1 at 14. They hold the view that Legal pluralism is not an explanatory theory, but primarily, a sensitizing concept. See also Westermark, who explains that the “general value of an interactional orientation toward legal pluralism is that it acts as a sensitizing concept which calls attention to neglected aspects of social life.” George D Westermark, “Court Is an Arrow: Legal Pluralism in Papua New Guinea” (1986) 25:2 Ethnology 131 at 147. 75 Anne Griffiths, “Legal Pluralism” in Reza Banakar and Max Travers, eds, An Introduction to Law and Social Theory (Oxford: Hart Publishing, 2002) 289 at 298. 76 Simon Roberts, “Against Legal Pluralism” (1998) 42 J Legal Pluralism 95 at 97. 77 Ibid at 97. 23 1.5.1 Limitations and Justification of Theoretical Framework Though a very useful framework, legal pluralism has significant drawbacks, two of which are most pertinent to my research. Firstly, it offers very little on the question of how plural legal systems could best interrelate and gives no direction for law reform,78 other than being a constant reminder of the fact that different normative orders can exist in a given space. Secondly, it suffers from a major conceptual problem of not being able to provide “a criterion for distinguishing non-state law from anything else that has a normative dimension.”79 The principal contribution of legal pluralist scholars has been to destabilize the concept of legal centralism.80 It would seem that most of the views expressed about legal pluralism remain merely descriptive and do not go beyond a sociological or anthropological acknowledgement of the phenomenon. Sally Merry confirms this when she points out that “Legal pluralism is not a theory of law or an explanation of how it functions, but a description of what law is like. It alerts observers to the fact that law takes many forms and can exist in parallel regimes. It provides a framework for thinking about law, about where to find it and how it works.”81 This explanation illustrates the extent to which the concept has been rendered docile. However, it must be infused with the power to solve the problems it exposes. Not only has legal pluralism as a concept 78 Miranda Forsyth, A Bird That Flies With Two Wings: the Kastom and State Justice Systems In Vanuatu (Canberra: ANU Press, 2009) 48. 79 Kleinhans & MacDonald, supra note 70 at 32. 80 Brian Z Tamanaha, “A Non-Essentialist Version of Legal Pluralism” (2000) 27:2 JL & Soc'y 296 at 299 [Tamanaha, “Non-Essentialist”. 81 Sally Engle Merry, “Legal pluralism in Practice” (2013) 59:1 McGill LJ 1 at 2 [Merry, “Legal pluralism in Practice”]. 24 become immobile, it does not seem to aid our understanding of how legal systems should interrelate.82 The evidence reveals that there are many incidents of competition and undue dominance among legal systems and so legal pluralism must be able to rise to the occasion of providing a mechanism for fair interactions. Lastly, legal pluralism does not seem to offer any direction for legal change or law reform.83 This is unsatisfactory for a concept that is touted as providing an alternative approach to re-conceptualizing the relationship between law and society because legal change is the bedrock upon which socioeconomic developments occur and thrive. But is legal pluralism really immobilized because it is framed largely as a descriptive concept or is it simply an underutilized concept? Legal pluralism holds the potential to be more than just a descriptive concept; it can aid the facilitation of legal change if legal scholars would envision law in its entirety. My work will show that it is possible to do legal pluralism and to use it to solve relational conflicts. In fact, legal pluralism should reject its reputation of being just a sensitizing concept, a pool of stagnant water and embrace a vision of a “flowing river of living water.”84 This will be discussed further in Chapter Five as part of efforts to construct a multilayered concept of legal pluralism. The second major deficiency of legal pluralism is its inability to distinguish what is legal from what is not. As an analytical tool it has been criticized as standing upon an unstable analytical foundation and “tenuous footing”85 which will eventually lead to its 82 Forsyth, supra note 78 at 44. 83 Ibid at 48. 84 Holy Bible, New International Version (2011) Luke 7:38. 85 Tamanaha, “Understanding Legal Pluralism”, supra note 28 at 392. 25 demise.86 This is largely because of the lack of success in attempting to formulate a single scientific or cross-cultural definition of law. Various definitions of law abound.87 Some of them envision law as being primarily for the maintenance of social order and conclude that since every society is able to maintain some kind of order, they all have law.88 Others see law as being governmental social control, meaning that law is determined by the state, and lastly, others focus on its content, the fact that it must be inherently just.89 Fundamentally, almost all the definitions, while very insightful, are “extraordinarily expansive”90 and essentially, blur the divide between the legal and non-legal. It has thus been recommended that the concept must be entirely reconstructed, or retired.91 Certainly, legal pluralists may have been unable to find a universal definition of law, but for most purposes, I maintain that an analysis of relationships between plural legal systems can be done without having such a definition. Ironically, Brian Tamanaha, a legal scholar, who makes most of these criticisms, illustrates with a great degree of 86 Brian Z Tamanaha, “The Folly of the 'Social Scientific' Concept of Legal Pluralism” (1993) 20 JL & Soc'y 192 at 192 [Tamanaha, “Folly”]. 87 Significantly, many definitions of law have been proposed by legal pluralists. To cite a few, Gordon Woodman suggests that “law covers a continuum which runs from the clearest form of state law through to the vaguest forms of informal social control” Gordon Woodman, “Ideological”, supra note 70 at 45. Likewise, John Griffiths asserts that “all social control is more or less legal”, J Griffiths, supra note 63 at 39; Paul Berman also thinks that law can be found in “day-to-day human encounters such as interacting with strangers on a public street, waiting in lines, and communicating with subordinates or superiors.” Paul Schiff Berman, “The Globalization of Jurisdiction” (2002-2003) 151:2 U Pa L Rev 311 at 505. 88Brian Z Tamanaha, “Law” (2008) St. John’s University School of Law Legal Research Papers Series 08-0095, 1 at 6 [Tamanaha, “Law”]; see also Tamanaha, “Understanding Legal Pluralism”, supra note 28, 375 at 393. Brian Tamanaha asserts that “hence there are many legal orders in society, including the family, corporations, factories, sports leagues, and indeed just about any social arena with social regulation. 89 Tamanaha, “Law”, supra note 88 at 6-10. 90 Tamanaha, “Understanding Legal Pluralism”, supra note 28 at 393. 91 Tamanaha, “Folly”, supra note 86 at 193. 26 success that it is possible to study legal pluralism without a definition of law.92 In fact, he goes as far as to suggest that we accept that there is a “plurality of legal pluralisms.”93 Nonetheless, does the inability of scholars to find an acceptable definition for law undermine the quest to understand other legalities? I contend that it does not. In fact, what is law is never in doubt by those who live by the law. As a matter of fact, if we cast our vision beyond what is convenient to the many problems of the world dependent on law for a solution and to the wider purposes of law, we will accept without doubt that our mission to find a universal definition of law is time unfruitfully spent. While we may never have a “God-given” definition of law,94 we are reminded that the tag “law” should not only be given to the dictates of an elected group of people nor must it necessarily be written.95 The absence of a “formal structure staffed by wigged and learned gentlemen” does not mean the absence of law.96 Indeed, the meaning of law has never been resolved in legal philosophy, and there are compelling reasons to believe that it is incapable of resolution.97 More importantly, the absence of an acceptable definition of law should not hinder the development of new approaches to law reform. 92 Tamanaha, “Understanding Legal Pluralism”, supra note 28 at 392. 93 Ibid at 392. This image of pervasive pluralism has not, however, gone unchallenged. For some critics, the objection is overtly ideological, legal pluralism undermines respect for the Rule of Law. This is essentially the point argued by JPB Josselin de Jong, “Customary Law: A Confusing Fiction” in AD Rentein & A Dundes Folk Law: Essays in the Theory and Practice of Lex Non Scripta (New York: Garland, 1994) 111. See also Kleinhans & Macdonald, supra note 71 at 32. 94 Allott, supra note 49 at 121-122. 95 Ibid at 51. 96 Ibid at 53. 97 Tamanaha, “Understanding Legal Pluralism”, supra note 28 at 392. This is because theorists have different intuitions about what law is and that these intuitions are influenced largely by their perception of what law ought to be, not to mention that fact of their different backgrounds and objectives. Tamanaha “Law”, supra note 88 at 6. 27 The very fact of not being able to agree on a definition of law has the advantage of opening up dialogue about its purposes.98 It invites us to rethink the notion of law and to realize that “the very concept of law must change [in order] to justly recognize the differently-positioned identities that constitute human social life.”99 Legal pluralism questions positivist ways of thinking about legal validity as it embraces other socio-cultural regulatory systems. And for the purpose of my work, it brings other marginalized ‘legal’ discourses such as practiced customary law within the domain of Law. The ability of legal pluralism to spur reflection on the nature of law far outweighs its conceptual deficiencies. In some respects, my approach to legal pluralism is qualitatively different from the socio-legal and anthropological perspectives on the concept.100 These perspectives are relevant to my work to the extent that they indicate that state law is not the only important and effective normative order in people’s lives. My work is not about legal pluralism simpliciter, it is about legal pluralism and law reform. More specifically, my work seeks to design law reform strategies from a legal pluralistic perspective. Thus, I now review the literature on pluralist approaches to legal reform. 98 Merry, “Legal pluralism in Practice”, supra note 81 at 8. 99 Tie Warwick, Legal Pluralism: Towards A Multicultural Conception of Law (Aldershot: Ashgate Pub Ltd, 1999) 21. 100 There is a vast body of literature on legal pluralism: see Sally E Merry, “Legal Pluralism” (1988) 22 Law & Soc’y Rev 869 [Merry, “Legal pluralism]; J Griffiths, supra note 63 at 1-55; MacDonald & Kleinhans, supra note 70 at 25-46; Moore, supra note 70 at 719-746; Tamanaha, “Folly”, supra note 86 at 192-217; Tamanaha, “Understanding Legal Pluralism” supra note 28 at 375-411; F Von Benda-Beckmann, supra note 72 at 37-83; Woodman, “Ideological”, supra note 70 at 21-59. 28 1.6 SCHOLARLY VIEWS ON LEGAL PLURALISM AND LAW REFORM Bradford Morse and Gordon Woodman, like Miranda Forsyth, are among the very few scholars to have attempted to develop a legal pluralist approach to law reform. Focusing on how the state may relate to customary law, Morse and Woodman explain that the state may choose to reform or conserve customary law or it may choose to combine these options.101 Morse and Woodman point out that the law reform method used by the state depends on the relationship that the lawmaker has with customary law and the lawmaker’s attitude toward it. If the lawmaker is “unaware” of customary law or is “antagonistic” toward it, reforms are more likely to be of the negative class, which are generally unsympathetic.102 When lawmakers are knowledgeable about customary law, the reform strategies are more likely to be of the positive class, which are more accommodating.103 Morse and Woodman explore a variety of legal measures that the state can adopt in its relationship with customary law, classified broadly as negative and positive. The negative measures describe state measures that contradict norms of customary law by prohibiting, either directly or incidentally, a permitted norm or conduct of customary law.104 State law may also directly or incidentally negate a customary norm of validation 101 Bradford W Morse and Gordon R Woodman, “Introductory Essay: The State’s Options” in Morse and Woodman, eds, Indigenous Law and the State (Providence, Rhode Island,: Foris Publications, 1988) 5 at 6. 102 Ibid at 21. 103 Ibid. 104 Ibid at 7-10. 29 and nullify the effects of such norms.105 Prohibition involves the active deployment of state powers to discourage social acceptance of customary law.106 These negative measures characterize the competition that may exist among normative orders. Negative measures are inspired by a commitment to the goals of nation building and economic development, which non-state law is generally believed to inhibit.107 Positive measures capture the various ways in which the state may recognize, incorporate and acknowledge customary law.108 Recognition may be by admitting customary law as fact, though this does not entail an acceptance of the legal nature of customary law.109 In this regard, state law may, in sentencing a convicted criminal, take into account customary law as part of the convict’s social environment and beliefs. This, however, does not involve any adjustment to state law in response to customary law.110 Woodman and Morse’s positive measures also include the acknowledgment of existing legitimate powers held by a customary institution. State law may confer on a state institution powers concurrent with those granted or recognized as held by a customary institution.111 The writers admit that the problem with this approach is the determination of how conflicts will be resolved, unless there is an “all-embracing law” with norms superior to those of the two bodies in conflict.112 Woodman and Morse hold the view 105 Ibid at 7-10. 106 Ibid at 7. 107 Ibid at 21. 108 Ibid at 10. 109 Ibid at 10-11. 110 Ibid at 10. 111 Ibid at 19. 112 Ibid at 20. 30 that measures of acknowledgment are less likely to distort the social reality of customary law.113 These measures describe how legal systems may complement and depend on each other. They largely exemplify ‘active’ legal pluralism, where each system is given a voice and comparable levels of recognition to be able to hold its own. Another positive measure is the incorporation of customary law. Here, the state incorporates into its own norms a customary norm or a portion of it.114 In this regard, imperative norms of customary law are enforced by the state,115 or norms of validation are incorporated into state law, giving the norms the same legal effect in state law as they have in customary law116 or a customary law concept is given the same or similar meaning under state law as it has under customary law.117 Though he is cautious about generalizing the effects of incorporation, Woodman argues that the incorporation of norms usually entails their distortion, as the laws stated are not coterminous with the customary law norms.118 The laws do not represent the cultures from which they are derived. Incorporation privileges the state and ingrains legal centralism. Morse and Woodman are the principal contributors to the development of a legal pluralist approach to law reform.119 Their analysis of the different measures of acknowledgment is an important start to the development of an analytical framework.120 113 Ibid at 20. 114 Ibid at 11. 115 Ibid at 11. 116 Ibid at 12. 117 Ibid at 12. 118 Ibid at 15. This view is attributed to only Gordon Woodman. 119 Forsyth, supra note 78 at 48. 120 Ibid at 49. 31 However, Miranda Forsyth concludes that their discussion demonstrates that no comprehensive framework has yet been proposed by legal pluralist scholars or law reformers and thus, suggests her own strategies.121 Forsyth examines the issue of conflict management between the state and customary legal systems in Vanuatu. Discontent with the fact that conflict management strategies by the government and donor agencies have focused on building the capacity of only state institutions, Forsyth argues for the extension of such services to the customary or ‘Kastom’ legal system. However, she recognizes that the state and non-state systems must have a relationship for this to be possible. She examines how constructive interaction can be fostered between the two systems, and concludes that despite the differences between the two, it is possible for them to work together in a mutually beneficial manner. This, she says, requires changes to the structural relationship between them. In support of her conclusion, Forsyth, whose pluralistic approach to legal reform focuses on “doing” legal pluralism,122 presents seven types of relationships that may exist between the state and non-state justice systems.123 These describe the interaction, competition, collaboration and interdependence that may characterize relationships among various normative orders. Apart from assessing the potential advantages and disadvantages of these relationships based on their effectiveness, she evaluates the various internal changes and mutual adaptation measures that the various systems will 121 Ibid at 52. 122 Ibid at xix. 123 Ibid at 201-264. 32 have to effect in order to develop meaningful collaboration between and among them. Finally, she designs a methodology for implementing the types of relationships identified. Forsyth’s first model involves the state actively repressing a non-state justice system by formally legislating to ban the latter from exercising any adjudicative powers it may have. In the second model, the state unofficially encourages reliance on the non-state justice system though no formal recognition is given to its operation; the state turns a blind eye to the fact that the non-state justice system arbitrates the majority of disputes. In this model, while the state does not actively suppress the non-state justice system, it does not support it in any way.124 In Forsyth’s third model, there is no formal recognition, but active encouragement of the non-state justice system by the state and greater collaboration between the two systems. This model, according to Forsyth, is the result of the awareness by government of the limitations of the state justice system and the effectiveness of the non-state justice system in certain respects.125 The support given to the non-state system by the government is active though informal. The legal systems “reinforce each other’s legitimacy, as they are perceived as working together rather than in competition with each other.”126 124 Ibid at 207. 125 Ibid at 208. 126 Ibid at 209. 33 Under the fourth model, the state gives formal acknowledgement to the jurisdiction of the non-state justice system. This model involves the state giving limited legislative recognition to a non-state justice system, but no exclusive jurisdiction, no coercive powers and minimal financial support. Though there is some collaboration between the two systems, the state does not lend to the non-state its enforcement mechanisms.127 Forsyth’s fifth model involves the state formally recognizing the legitimacy of the non-state system exercising exclusive jurisdiction within a defined area or on a specific subject matter. Under this model, the non-state system has the right to enforce its judgements since it is independent of the state.128 The principal advantage of such a system is that it allows non-state systems to function without interference from the state system, which in fact might undermine their effectiveness or interfere with their integrity.129 In the sixth model, the state formally recognizes the adjudicative functions of the non-state and actually gives its coercive powers to the latter.130 Forsyth’s last model involves incorporating the non-state justice system entirely into the state system.131 The significant advantage of this model is that it fosters cross-fertilization of ideas and procedures between the two.132 Non-state systems are made to conform to state constitutions. 127 Ibid at 210. 128 Ibid at 214. 129 Ibid at 216. 130 Ibid at 217. 131Ibid at 222. 132Ibid at 223. 34 1.6.1 Response to Scholarly Views The delicate networks of possible interactions between the state and non-state actors described by these scholars exemplify the various degrees of communication involved in “doing” legal pluralism. It demonstrates that legal pluralism does not just consist of the presence of different legal orders co-existing within a given space; it consists of the interaction, collaboration, intercommunication, interdependence, reciprocity and competition that exist between and among various normative orders.133 It also demonstrates that law reforms involve more than just changing legal rules and that law reform also involves establishing and fostering relationships. Woodman and Morse, unlike Forsyth, do not provide us with concrete examples of how the measures actually work.134 Also, stopping at the presentation of the interactional approaches fails to acknowledge those other realities which encompass the totality of law and of legal pluralism. Apart from acknowledging one “mutual adaptation”135 measure, that is, the importance of law makers in having appreciable knowledge of customary law,136 Woodman and Morse do not consider those circumstances under which the recommended relationships might work. The closest to an admission of the existence of such circumstances is their declaration that “[t]he next stage is a classification of the policies which may be manifested in these measures, along with a 133 A number of legal pluralists have emphasized the intercommunication between legal systems. For instance, John Griffiths in his What Is Legal Pluralism discussed the “patterns of competition, interaction, negotiation, isolationism” among legal systems. J Griffiths, supra note 63 at 39. 134 This fact is also acknowledged by Forsyth, supra note 78 at 50. 135 These are measures that facilitate the working of the typologies. See Forsyth, Ibid at 225ff. 136 Morse & Woodman, supra note 101 at 21. 35 study of the relations of those policies to social, economic and political circumstances.”137 They leave this task for another day. I owe Woodman and Morse a measured evaluation of their work, as they indicated that they were merely trying to initiate the development of a general theory of legal pluralism and law reform, rather than to present a finished framework.138 I argue that legal reforms do not occur just by implementing the typologies described. The current Intestate Succession Act of Ghana incorporates some of the demands of customary law of succession into the state law, but this has not accelerated compliance to an appreciable level in rural Ghana. Therefore, using a specific typology or combining typologies, I argue, will not result in workable reforms. I maintain that such reforms can only thrive in the right environment; in rural Ghana, the reforms will be successful if the right social, economic and political environment is created. I give Forsyth credit for suggesting mutual adaptation strategies to facilitate the effective working of her proposed typologies. She recognizes that reforms do not occur just by interacting, and especially, on a constricted plane of legal rules. As part of her mutual adaptation measures, she suggests the adoption of a less adversarial approach to litigation since many aspects of customary justice systems are closer to the procedures and approaches of the inquisitorial system used in many civil law countries than the adversarial approach used in common law countries.139 Furthermore, she advocates for the reform of the laws of evidence to make them less complex and more culturally 137 Ibid at 21. 138 Ibid at 7, 20-21. 139 Forsyth, supra note 78 at 229. 36 relevant.140 On the other hand, she invites the customary justice system to introduce good management initiatives, such as record keeping in its justice system in order to ensure consistency in its decisions.141 Even though she recognizes that other factors must exist for interactions to be possible, Forsyth’s suggestions do not reflect the fact that reforms are more likely to be effective if the economic, social and political playing fields of the legal systems are levelled. There must be a foundation upon which to build the mutual adaptation measures. Moving away from legal pluralism as solely a theoretical construct, my dissertation builds on the works of Morse and Woodman and Forsyth. To this end, I seek to advance a comprehensive concept of legal pluralism, one that makes a distinction between legal rules and law, understands law to include its social dimension, and prioritizes the values inherent in law. In this dissertation, I begin to develop what I regard to be workable adaptation measures needed to facilitate reforms. I argue that if legal pluralism is understood in its entirety, it has the potential to offer a range of possible approaches and legal solutions to specific issues.142 Legal pluralism has been described and analyzed by many scholars, but as Forsyth argues, it can also be done and this is what my research seeks to demonstrate. By suggesting that the state facilitates reforms to the political, socioeconomic and even psychological structures that frame the customary legal system, and to some extent, its own, I consider myself to be “doing” legal 140 Ibid at 230. 141 Ibid. 142 Sue Farran, “Is Legal Pluralism An Obstacle To Human Rights? Considerations from the South Pacific” (2006) 38:52 J Legal Pluralism 77 at 77. 37 pluralism, as I am advocating a level playing field for all legal systems. As an analytical concept put into practice, legal pluralism may offer solutions to problems of legal reform. I concede that my very pragmatic approach to legal pluralism and law reform in Ghana may appear to be inconsistent with prevailing views on legal pluralism. In fact, some may even find my approach as opposed to legal diversity and cultural identity. It is important to note that I am not suggesting that state law be the benchmark against which the legitimacy of other laws is determined. Nor do I agree that a single view of legality can be imposed on varied legal experiences. However, I maintain that it is possible to celebrate diversity by actively practicing and promoting inclusiveness and relationality between state and customary law. 1.7 METHODS AND SOURCES I study and analyze the attempted reforms to the law of intestate succession, as an example of how customary law reforms have been done. Based on this example, I make recommendations about the effective process for law reform. My work analyzes documents from the following sources. 1.7.1 Historical Documents I investigate the relevant historical records, using them primarily as a source of examples of policy designs. These include quasi-constitutional documents such as the Bond of 1844 by which it is believed that the natives of the Gold Coast gave the British the right to reform their laws. Discussing the Bond invites debate on whether the natives 38 of the Gold Coast surrendered their legal rights, and if so, how that impacted law reform, especially during the colonial era. Apart from being essential to understanding and judging past events, the historical documents offer me an opportunity to evaluate and synthesize evidence in order to establish facts as well as draw informed conclusions about past events which have shaped both state and Customary law and which can also provide useful insights into how they may be reconciled. In using these documents as a source of knowledge, I am mindful of the trap of drawing conclusions about history based entirely upon current concepts and understandings. Additionally, I examine institutional records indicating the trajectory of reforms over time. These records give an insight into existing power relations and structures and how they play out in the interface between the state and customary legal systems. I examine official reports of parliamentary debates to reveal attitudes to customary law reform.143 These records are examined and interpreted to provide an understanding of the policy decisions about customary law reform, their limitations if any, and the lessons and opportunities they offer for novel approaches to and perspectives on customary law reform in Ghana. I also assess NGO reports, including a report submitted by Women in Law and Development (WiLDAF-Ghana)144 on the implementation of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). This report 143 Ghana, Official Report of Debates of Parliament (4th session of the 5th Parliament of 4th Republic) Fourth Series Vol. 77, No. 38 (Thursday, 19th July, 2012); Ghana, Official Report of Debates of Parliament (4th session of the 5th Parliament of 4th Republic) Fourth Series Vol. 76, No. 2 (25th January, 2012). 144 The WiLDAF-Ghana. “Shadow Report to Ghana’s Third, Fourth & Fifth Reports on the Implementation of the CEDAW in Ghana” (18 April 2005) online: <https://documents-dds-ny.un.org/doc/UNDOC/GEN/N05/317/55/PDF/N0531755.pdf?OpenElement>. 39 sheds light on attitudes toward gender and customary law, but equally important, the nature of the pressure on government to change its unsatisfactory customary practices and laws that do not favour nuclear families. An investigative report published by the Commission on Human Rights and Administrative Justice (CHRAJ) is also examined as an example of the factors that are prerequisites to meaningful law reforms. This report is central to my thesis because it substantiates the findings on what is lacking in the reform of the intestate succession law and law reform strategies, generally. 1.7.2 Court Decisions I examine both pre and post-colonial court cases, using them as a site for thinking about what judges say and how they say it. Most of the cases involve the application of the law of succession, particularly intestate succession. I also use the cases as illustrations of the kinds of customary practices that have been abolished. Additionally, I use them to demonstrate how law reform happens and the changes that have been made to the reformatory strategies over the years. The colonial and immediate post-colonial court decisions are examined to explain the legal processes and strategies, such as the repugnancy clause test,145 which were used by the State courts to almost extinguish customary law. I also examine contemporary court decisions to illustrate judicial attitudes. This will enable me, in formulating a new law reform model, to draw conclusions on whether or not the judiciary can reform laws in a manner that reflects the 145 Courts Act, supra note 22 at s 54. 40 lived experiences of rural dwellers. The cases will focus largely on testate and intestate succession. 1.7.3 Legislation I explain and analyze past legislative efforts. I assess pieces of legislation such as the British Settlements Act of 1843146 and the Supreme Court Ordinance of 1876.147 I use the laws as examples of policy designs. I also examine some of the more recent legislation, especially, the Intestate Succession Law of Ghana (PNDC Law 111).148 I pay attention to the specific practices that have been changed and the reasons offered for the change. It is important in attempting to reconcile customary law and state law that my research assesses the supposed harm that the state seeks or sought to cure. This highlights the areas of conflict and provides an avenue for reconciling differences. I pay particular attention to the language used in the explanatory memoranda149 so as to unearth preconceived notions, if any. This is helpful to the reconciliation process as my research examines the foundations of these notions and uses the insights gained to promote reconciliation. Focusing on the language of the legislation also helps to determine whether the legislature is likely to be able to reform customary law in a way that will not strip it of its essence. 146 The British Settlements Act of 1843. 147 Supreme Court Ordinance, supra note 22. 148 PNDC Law 111, supra note 25. 149 This usually accompanies an Act of Parliament and it outlines the reasons for the promulgation of the law. 41 1.7.4 Commentaries I will evaluate various commentaries and scholarly articles. The works of S.K.B. Asante, Antony Allott, Nii Amaa Ollennu, J.M. Sarbah, Ekow Daniels and Roger Gocking are particularly helpful in providing the historical context to law reforms in Ghana.150 It is interesting to see through the works of these writers the trajectory of customary law and what is possible in reforms. 1.7.5 Ethnographic Research Data I rely on ethnographic research data to confirm various facts such as the level of compliance with the Intestate Succession Law, (PNDC law 111) in rural Ghana. I also rely on these reports to furnish me with some of the reasons for the assessed compliance level. Victor Gedzi, in his research on the level of compliance with the Intestate Succession Law, surveyed 150 respondents151 and made some interesting observations and conclusions about rural attitudes towards reformed customary law.152 Similarly, Edward Kutsoati and Randall Morck in their 2012 research paper, Family Ties, Inheritance Rights, and Successful Poverty Alleviation,153 surveyed 322 widows living in four villages in Southern Ghana. Their survey revealed, among other things, that many 150 Asante, supra note 50 at 163-171; Ollennu, supra note 33 at 132-181; JM Sarbah, “Maclean and the Gold Coast Judicial Assessors” (1909-10) J Afr Soc’y 349-359; Ekow Daniels, “Development of Customary Law” (1991-92) 18 RGL 68-94; Roger Gocking, “Creole Society and the Revival of Traditional Culture in Cape Coast during the Colonial Period” (1984) 17:4 Int J Afr Hist Stud 601-622. 151 Gedzi, supra note 31 at 108. 152 Ibid at 112. 153 Kutsoati & Morck, supra note 4. 42 years after the passage of PNDC Law 111, traditional inheritance norms persist.154 I will rely on these works as reliable sources of the state of Intestate succession in rural Ghana. Though I am aware of the limitations of surveys, when the conclusions are consistent with those of other writers, I deem them reliable as primary sources. Also, in view of the fact that the studies are specific to certain rural communities, I realize that there is a limit to the generalizations I can make. 1.8 ORGANIZATION OF CHAPTERS Chapter Two delves into Ghana’s colonial history with a focus on its legal history to show the historical conflicts between the state and the customary legal system. I will discuss the trajectory of customary law in Ghana, showing how it existed before colonialism, and the changes it underwent during the colonial era up to the immediate post-colonial period. I will emphasize what the lessons of the past suggest about what legal reforms are likely to work. Chapter Three explores how the statutory and customary law of intestate succession currently functions in present day Ghana. I explain the old rules of succession in matrilineal societies and their impact on women and children especially. I detail the pressure that was exerted on the government to abolish the customary law rules and promulgate a law that supposedly reflected the changing face of the family in Ghana. Also, I evaluate the effectiveness of the law and explain the main sources of conflict between the state and customary legal systems in the area of intestate succession. This 154 Ibid at 3. 43 chapter is intended to open up debate about what the state’s vision for law reform should be. Chapter Four presents the first part of my two-level strategy for the reform of the law of intestate succession in Ghana. It analyzes current reform efforts aimed at bridging the gap between state law and living customary law and then, proposes specific recommendations to the Intestate Succession Law. The chapter attempts to balance conflicting values that the state and customary legal systems hold in order to find common ground between them. Accordingly, it argues that the socioeconomic role played by the extended family in the life of a deceased relative should be considered by the courts in determining the portion of intestate property that should devolve to the extended family. The recommendations aim at giving the extended family a fair chance to make a case for what is arguably, its due share of intestate property. Chapter Five discusses the second part of my proposed strategy for the effective reform of customary law by the state. The strategies proposed in this chapter are more general. The main argument made in this chapter is that effective law reform must recognize and incorporate aspects of the body of law it is trying to reform. This chapter takes the works of Miranda Forsyth, Gordon Woodman and Bradford Morse, explained above, a step further. This is done by analyzing law (and legal pluralism) to include its social, economic and political dimensions, and arguing that these dimensions must also be reformed for any proposed measures to work. Expanding the ambit of the concept provides an opportunity to objectively assess the nuances of law and the important demands of law reform. 44 The concluding chapter ties together and synthesizes the various issues discussed and arguments made in this dissertation. It discusses the lessons learned and the policy and theoretical implications of my proposals. It also suggests areas that need further research and highlights the limitations of my study. 45 Chapter 2: THE DEVELOPMENT OF CUSTOMARY LAW REFORM IN GHANA 2.1 INTRODUCTION This chapter describes the political and legal history of Ghana to reveal how the current customary law regime developed. As earlier indicated, this dissertation centers on three types of law: state law, judicial customary law, and living customary law. These have emerged in competition with one another as a result of Ghana’s history. Customary law has undergone significant changes as a result of colonialism, western education systems and religion, socioeconomic advancements and judicial and legislative interventions. These interactions have given rise to a population that is arguably undecided about state law and judicial customary law, but more faithful to living customary law and its value system. This is a problem for law reform. Though this attitude toward state law is pervasive in most post-colonial states in Africa, it is under-appreciated by urban-based technocrats and professional reformers. Also, the impact of reforms has been felt less in the rural areas than among urban dwellers. This is hardly surprising as most reforms to-date have not been based on existing traditional understandings about law. In order to understand the current state of customary law in Ghana, its nature and place among Ghanaians, especially those in rural areas, and what is possible in reform, I will trace the development of customary law, emphasizing what the lessons of the past suggest about what is likely to work and what is likely to fail in legal reforms. 46 I will show how customary law existed before colonialism and the changes it underwent during the colonial era through the end of the twentieth century. With regard to precolonial customary law, the discussion will center on a description of the traditional legal order, showing the institutional structures through which customary law operated. It will also explore the sources of customary law in order to give deeper insight into the workings of the system. A discussion of the foregoing will help illuminate the status of customary law among the natives of the Gold Coast. This chapter will also pay particular attention to the operation of customary law during the colonial period, as Ghana’s current complex system of legal pluralism, which forms the basis of the problem that this paper seeks to address, can be attributed largely to her colonial past. 1 Indeed, “colonialism shaped a framework for the politics of legal pluralism.”2 Lastly, I will analyze the relevant pieces of legislation, emphasizing how they have shaped customary law. 2.2 A DESCRIPTION OF THE PRECOLONIAL TRADITIONAL LEGAL ORDER A description of customary law in precolonial Ghana is essential to understand its existing status and to understand why legal reforms today remain challenging. This account will show that customary law does not just represent a phase in the legal and political development of Ghana, but rather that it is an established and structured way of 1 It is a fact that in Ghana and in most postcolonial states in Africa, legal pluralism existed before the advent of colonialism. Commenting on Nigeria, Abdulmumini Oba describes the nature of ethnic pluralism in precolonial Nigeria which had over 250 tribes. However, this pluralism was complicated by the introduction of British or foreign law. See, Abdulmumini Adebayo Oba, “The Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction” (2004) 52:4 Am J Comp L 859 at 859. 2 Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History 1400-1900, (Cambridge: Cambridge University Press, 2002) 2. 47 life which is grounded on certain core social beliefs and values. This discussion will focus on the legal roles of the major traditional functionaries like the chiefs. It will also give insight into the nature and objectives of the customary law system. An overall appreciation of how the system works and the values it prioritizes, while unraveling what is possible in reforms, will also shed light on my main argument that law reform methods must be adapted to the distinctive needs of the people. Customary law existed in the Gold Coast before colonialism. It is well-documented that customary law governed almost exclusively the lives of the natives of the Gold Coast before the advent of colonialism in the beginning of the nineteenth century.3 John Mensah Sarbah, a distinguished Gold Coast lawyer and nationalist, writing in 1897 confirms that as far back as 1665 there was in the Gold Coast, “an organized society having kings, rulers, institutions, and a system of customary laws,”4 most of which he explains remained at the time he was writing. The period Sarbah refers to pre-dates even the unofficial colonization of the Gold Coast. Similarly, Joseph Casely-Hayford,5 a Gold Coast lawyer and politician, points out that “[u]nlike …other colonies of Great Britain…, on the Gold Coast, you had to deal with an aboriginal race with distinctive 3 Gordon Woodman, a legal academic, in his discussion on customary law in Africa states categorically that “[t]he customary laws were here before the colonizers arrived.” See Gordon Woodman, “A Survey of Customary Laws in Africa in Search of Lessons for the Future” in Jeanmarie Fenrich, Paolo Galizzi and Tracy Higgins, eds, The Future of African Customary Law (Cambridge: Cambridge University Press, 2011)[Woodman, “Survey”] 9 at 11. 4 John Mensah Sarbah, Fanti Customary Laws (London: William Clowes & Sons limited, 1903) v [Sarbah, “Fanti Customary Laws”] [emphasis added]. 5 Joseph Ephraim Casely-Hayford (1866-1930) was also a teacher and author. He served on the Gold Coast Legislative Council in 1916 and received an MBE in 1919. 48 institutions, customs and laws….”6 To further buttress the integrity of the precolonial traditional governance system, Casely-Hayford insists that: if you are free to admit it, you will see that you find here [in the Gold Coast]already a system of self-government as perfect and efficient as the most forward nations of the earth today can possibly conceive. A people who could, indigenously, and without a literature, evolve the orderly representative government which obtained in Ashanti and the Gold Coast before the advent of the foreign interloper, are a people to be respected and shown consideration when they proceed to discuss questions of self-government.7 Pre-colonial Ghana consisted of both centralized and non-centralized states. My description of the customary legal system in precolonial Ghana focuses on the more centralized states of the Gold Coast, as the customary systems in these areas were relatively more developed, and could be said to represent the ideal of traditional government for the majority of Ghanaians. The Ashanti, Akim and Kwahu tribe8 were organized into highly centralized states under well-established political authorities.9 They were headed by Paramount chiefs or kings who were the executive heads, and were supported by councils of elders or councillors. These kings had executive, religious, legislative, judicial and military responsibilities. 6 Joseph Ephraim Casely-Hayford, Gold Coast Native Institutions (London: Sweet & Maxwell, 1903) 10.(emphasis added) The established legal system that Casely-Hayford seems to describe is hardly surprising because among other reasons, the Gold Coast has a unique history of close interaction with other ‘kingdoms’ existing at the time. For instance, the Gold Coast had strong trade relations with some of the empires, especially in Northern Africa before actual ‘foreign’ contact. These trade relations continued into the eighteenth century; the Portuguese also participated in it after their arrival on the Gold Coast in 1471.See “Trade in Ghana,” online: <http://www.ghanadistricts.com/home/?_=49&sa=4768&ssa=773>. 7 Casely-Hayford, supra note 6 at 128-129. 8 These tribes are part of the Akan ethnic group, which is the largest ethnic group in modern day Ghana. It should be noted that there are different systems of customary law applicable to the various Akan communities in the Gold Coast (and present-day Ghana) even though there are striking similarities among them. 9 SKB Asante, “Over a Hundred Years of a National Legal System in Ghana: A Review and Critique” (1988) 31:1-2 J Afr L (Essays in Honour of A. N. Allott) 70 at 83 [Asante, “Hundred Years”]. 49 It has been noted that “[t]hese states had all the elements of an Austinian state - a political sovereign backed by well-organised law enforcement agencies and habitually obeyed by the citizenry.”10 Also recognised is the fact that “infractions of well-articulated legal norms attracted swift sanctions imposed by state officials.”11 Samuel Asante, a distinguished legal scholar, explains further that these tribes boasted an elaborate court system and that “[t]he concept of law in these states was, in substance, hardly distinguishable from that of a modern state.”12 In support of this assertion, he elaborates that “[t]he old western myth about the prevalence of a barbarous anarchy in Africa before the civilising mission by Europeans has long been exploded by more perceptive observers.”13 In this regard, he cites Hoebel as having written about the Ashantis thus: with the Ashanti of the Gold Coast of West Africa, we are confronted with an elaborate primitive social system that is sophisticated in political structure and to a certain degree in matter of law. Theirs is a massive military state with cities and towns that had all the elements of a nascent civilisation save writing ... In general terms their law was comparable to that of the ancient civilisation so ably analysed by Sir Henry Maine. ... The viability of the primitive Ashanti state provided the structure that made it possible for the Ashanti (with the Fante) to be the first native African state in modern times to emerge from colonial ‘tutelage’ into the fellowship of free nations.14 Though Asante admits that most of the societies in the Northern territories of the Gold Coast were not as centralized as those in the southern part,15 he blames Western jurists and anthropologists for declaring these societies lawless, merely because of their 10 Ibid at 83. 11 Ibid. 12 Ibid; see also Casely-Hayford, supra note 6 at 128-129. But Cruickshank refers to accounts such as these as “exalted conceptions of their…kingly state and of the traditionary glory of their ancestors…” See Brodie Cruickshank, Eighteen Years on the Gold Coast Of Africa, Including An Account of The Native Tribes, and Their Intercourse With Europeans. (London: Hurst and Blackett, 1853) 7. 13 Asante, “Hundred Years” supra note 9 at 83. 14 Adamson Hoebel as cited in Ibid at 83. 15 Asante, “Hundred Years” Ibid at 83. 50 perceived absence of an “equivalent to the Austinian sovereign.”16 He notes that such a declaration simply demonstrates a lack of appreciation of the dynamics of the traditional legal processes. Asante further elucidates that in precolonial Ghana, there were traditional functionaries learned in the law, who had special responsibilities in directing the proceedings in the chiefs’ courts and acted generally as legal experts. He explains that among the people of the Ashanti Kingdom, every Chief had a linguist who was the chief’s spokesperson as well as the ‘attorney-general’ of the state. These legal experts and the elderly in society helped to transmit customary law from one generation to the next.17 Within the customary legal system, dispute settlement focused on conciliation and reconciliation. The goal of dispute settlement was not the punishment of murderers and other criminals, though admittedly, this was necessary for the maintenance of public peace, but the promotion of reconciliation and the facilitation of amicable dispute resolution. It has been observed that the most important function of the court was “the determination of differences between man and man, the redress of private wrongs, the regulation of the rights of persons and communities in the quiet enjoyment of their possessions. And most important of all, the adjustment from time to time of the machinery of the social organization so as to keep pace with the operations and requirements of the community in the process of its development.”18 It would seem that 16 Ibid at 84. 17 Ibid at 83. 18 JM Sarbah “Maclean and the Gold Coast Judicial Assessors” (1909-10) Journal of the African Society 349 at 357-358 [Sarbah, “Maclean”]; See also JH Driberg who explains that African law is actually based 51 the customary legal system acknowledged the importance of keeping laws at pace with socioeconomic developments. The objectives of the customary law system were not necessarily different from those of the imported system. According to Cruickshank, the British legal system focused on “the equal distribution of justice to [the] rich and poor,”19 and the protection of rights.20 Court decisions were impartial and restitution was rigidly enforced when someone was wronged. He also indicates that the legal system punished acts of oppression, sought to maintain order21 and believed that the principles of justice had to be enforced for the general good of society.22 The fundamental difference between the two systems would be that unlike the imported system, the customary law system determined rights and responsibilities largely on grounds of age, gender, kinship, and birth order.23 This determination and a number of other customary practices and procedures described would be challenged during the colonial era as backward, and attempts would be made to reform them. 2.3 SOURCES OF CUSTOMARY LAW Knowledge of the sources of customary law is essential for a better understanding of why reforms and their implementation are onerous and why such reforms need to be on the need to maintain social equilibrium. JH Driberg, “The African Conception of Law” (1935) 34:136 JRAS 230 at 231. 19 Cruickshank, supra note 12 at 11. 20 Ibid at 16. 21 Ibid at 22-23. 22 Ibid at 22, 26. 23 Woodman, “Survey”, supra note 3 at 9, 10. 52 purpose and strategic. For instance, understanding the religious underpinnings of the law will promote debate on what the current vision for law reform should look like and the kinds of professionals or persons who must be entrusted with customary law reforms. 2.3.1 Custom The main source of customary law in pre-colonial Ghana was custom, which was derived from the usages of the community. In many respects, the nature of native custom could be likened to the English common law, though unlike in the lawmaking process in the common law system, the traditional courts were not solely responsible for making law.24 Although the traditional courts made and applied law, they were for all intents and purposes simply offering a platform for the application of well-established community norms.25 These traditional courts were not “specialised organs for recording, systemising and shaping the growth of the law.”26 The judicial process was open to the whole community and most men and women participated in it. The elders of the various communities were regarded as the “natural repositories of the law,” which they handed down orally. It would seem that the absence of written records of custom did not affect the operations of the traditional courts. Traditional functionaries such as the linguists have also been interestingly described as 24 Asante, “Hundred Years”, supra note 9 at 84. 25 Ibid. 26 Ibid. 53 being “well-versed in forensic science and learned in the law.”27 As has been indicated, they were the “legal experts” and responsible for the proceedings in the traditional courts.28 2.3.2 Subsidiary Legislation Another source of law was subsidiary legislation. This consisted of decrees issued by the various chiefs or kings and their councillors and promulgated by the “beating of the gong-gong.”29 Essentially, the king made law with his council of elders and these laws were brought to the attention of the people by playing the gong-gong drum. It is important to note that the traditional legal system had a concept of notice, to ensure that new laws were communicated to the people. The traditional system was largely democratic; lawmaking was not entirely in the hands of the king and his elders, and public participation was a key feature of the system. As earlier noted, the law making process was open to the whole community who could at public meetings pass resolutions.30 2.3.3 Religion Yet another source of customary law was religion. Religion permeated and still permeates every aspect of native life. In fact, “[t]he dichotomy between private and public offences, the whole systems of land-ownership, the functions and status of 27 Ibid. 28 Ibid. 29 This is a drum with a high pitch used for long distance communication in rural Ghana. 30 Asante, “Hundred Years”, supra note 9 at 84. 54 political dignitaries all revolved around religious precepts. In short, law reflected indigenous cosmological ideas.”31 Commenting on the native belief in the supernatural, Casely-Hayford says that “[t]he native of the Gold Coast profoundly believes in the world of Spirits.”32 He adds that the native earnestly believes that the “spirit of the departed relative hovers around him by day as well as by night and he has both the physical and the spiritual sense to perceive its presence.”33 He observes that “his [the Native’s] sense of smell detects the presence of a ghost in a house.”34 The king or the Paramount chief, in the Native system, was the Spiritual head of his people. But the actual working of the system was in the hands of the priest through whom the dead communicated with their living relatives and vice versa. Writing about the Ashanti customary law, Rattray emphasizes the indisputable fact that “religion …is inseparable from law”35 and explains that religion is the foundation upon which the customary legal system is built. But with a deep belief in the spirit world came practices like human sacrifices.36 These practices became the focus of the Bond of 1844. 31 Ibid. 32 Casely-Hayford, supra note 6 at 3. 33Ibid at 102. 34 Ibid. 35 RS Rattray, Ashanti Law and Constitution (London: Clarendon Press, 1929) ix. 36 The religious fervor of the Native is demonstrated especially in his or her relationship with his or her land, which is regarded as an ancestral heritage. Land in Ghana, according to traditional philosophy, is sacred. While some ethnic groups in northern Ghana regard the earth spirit as “the giver of life and the wherewithal to live,” the Ashantis regard it as “as a supernatural female force - the inexhaustible source of sustenance and the provider of man's most basic needs.” Land, it was believed, could not be individually owned as absolute ownership would deprive future generations of their share. Additionally, it was believed that it would sever the links between the ancestors, those living, unborn and future generations. SKB Asante, “Interests in Land in the Customary Law of Ghana-A New Appraisal” (1965) 74:5 Yale LJ 848 at 852 [Asante, “Interests in Land”]. 55 2.3.4 Summary This brief description of the precolonial legal order seeks to stress the fact that before colonialism, there was a structured traditional legal system which regulated the administration of justice, among other functions. The traditional system, it could be argued, had most of the qualities of a modern state. It should also be clear that the absence of a complicated dispute settlement system ensured closeness between the people, who actually participated in the law-making process, and the functionaries. Paying close attention to the role of religion in the customary legal setup is very important because it casts doubt on the appropriateness of reforming customary law simply by legislation. Customary law may have been unwritten, but this undoubtedly did not affect the administration of justice as understood by the natives. What actually affected the administration of justice, as defined by the imported legal system, was the nature of some traditional practices and the beliefs that engendered them. These practices and beliefs contravened the English notions of justice and morality, not only because they were brutal, but also because they were sometimes misunderstood. Traditional Court procedures were also regarded as backward, while the authority wielded by the chiefs was considered excessive and its exercise, undemocratic. These issues would be the focus of the customary law reforms during and after the colonial period. 56 2.4 DEVELOPMENT OF CUSTOMARY LAW DURING THE EARLY COLONIAL ERA: 1821-1944 With the beginning of colonialism came significant changes to the customary laws of the people of the Gold Coast. Customary law reform in the colonial era generally proceeded through legislative and judicial means. Though some of the reforms were the result of the perceived barbarity of the customary laws, others resulted from ignorance. For example, the movement from traditional communal ownership of land to the more westernized individual ownership during the colonial era was based on the view that the former inhibited individual enterprise.37 It is not surprising then that one is cautioned to “be gentle with custom, more particularly when …[one is] not fully acquainted with it [as] custom is the outcome of generations of experience under conditions which [one] can hardly fully appreciate, and as a working principle [one] shall do well to assume that no custom is entirely foolish or groundless.”38 Though the British were not the first Europeans39 to arrive on the Gold Coast, they were the ones who eventually colonized 37 See Asante’s discussion on this issue. Asante, “Hundred Years”, supra note 9 at 88. 38 CCF Dundas, (1926) as Quoted in Daniels, “Development of Customary Law” (1991-1992) 18 RGL 68 at 75 [Daniels, “Development”]. 39 Though the Portuguese were the first Europeans to arrive on the Gold Coast in the fifteenth century, their focus was not to colonize the region, but to engage in the trade of gold, among other goods. To solidify their base on the Gold Coast and to ward of trading competitors, the Portuguese built castles and forts within which they observed their own laws. It is reported that by an agreement with the people of Elmina, where the São Jorge da Mina castle was built, the “right” of a Portuguese city was conferred on the castle. Subsequently, visitors who trooped to Elmina to trade with the Portuguese were also made subject to the Portuguese code of laws. The Portuguese were followed by the Dutch, the French, Swedes and English traders who fought their way to the Gold Coast to partake in the booming gold, ivory and slave trade. There seems, however, to be no evidence of any significant attempt to interfere with the existing laws of the Gold Coast by the Portuguese, Dutch and French. Kofi N Awoonor, Ghana: A Political History from Pre-European to Modern Times (Accra: Sedco and Woeli publishing, 1990) 52. 57 the Gold Coast and introduced a new legal system based on English Common law,40 which gradually undermined customary law. According to Ekow Daniels, a Ghanaian legal scholar, “[t]here can be no doubt that British colonialism posed the first challenge to the existence of our customary laws.”41 Colonialism in the Gold Coast began effectively in 1821.42 With the establishment of a petty claims court in Cape Coast, and the appointment of British merchants sitting as magistrates, incursions were made into African customary law. These courts tried both civil and criminal cases in and outside of the forts (among the locals) even though their jurisdiction was officially limited to the forts.43 Colonial interference in the operation of customary law accelerated after 1828 with the appointment of George Maclean as governor of the Gold Coast.44 Like the former 40 The English Common Law emerged in England in the Middle Ages and was applied in most British colonies the world over. In Ghana, by virtue of the Supreme Court Ordinance, the Common law of England became part of the laws of Ghana. The Gold Coast Supreme Court Ordinance (No. 4 of 1876) s.14 [Supreme Court Ordinance]; see also Nii Amaa Ollennu, “The Changing Law and Law Reform in Ghana” (1971) 15:2 J Afr L 132 at 158 [Ollennu, “Law Reform in Ghana”]. 41 Daniels, “Development”, supra note 38 at 70. 42 Ekow Daniels explains that even though the Gold Coast was officially declared a colony in 1874, the dissolution of the African Company of Merchants which traded in Africa and the subsequent vesting of all their possessions including, the forts and castles in the British Crown marked the actual (though unofficial) colonization of the Gold Coast. The African Company of Merchants was established by the British and it monopolized access to the British market. See Daniels, “Development”, supra note 38 at 70-71; Ollennu also explains that it was in 1821 that the British crown, by virtue of the commonwealth Act (1 & 2 Geo. IV, c. 28) and Letters patent of 1821, officially took over the administration of the forts that had been acquired previously by the British merchants in the Gold Coast. See Nii Amaa Ollennu, The Law of Testate and Intestate Succession In Ghana (London: Sweet and Maxwell, 1966) 4 [Ollennu, “Succession”]. 43 It should be noted that the British governor appointed to the Gold Coast was vested with judicial powers. Ollennu, “Succession” supra note 42 at 4. 44 In 1928, the British crown re-vested their authority in the Committee of Merchants, which in 1830 appointed George Maclean to serve as Governor of British forts on the Gold Coast. 58 administration, he exercised “irregular jurisdiction” outside the forts,45 reportedly at the invitation of the natives who voluntary submitted themselves to British equity.46 According to an English judicial assessor, Cruickshank, the natives were awed by British justice since their own ideas of justice “were not of that enlightened character,” but influenced by “the prejudices of a dark superstition and traditionary customs.”47 Cruickshank described the natives as ignorant and absurdly superstitious and insisted that abstract reasoning with such people was just impossible and unlikely to achieve sustainable reforms.48 Describing what he thought was an effective law reform strategy in the Gold Coast between 1847 and 1853, Cruickshank asserted that reforming customary law required that the natives had “an implicit faith in the benevolent intention of the law giver, a consciousness of his general superiority, and of the advantages of obedience, occasional demonstrations of his power, and the certainty of power in withstanding it.” He described these as “essential to the abolition of a confirmed custom.”49 This strategy, in his opinion, worked because of what he perceived to be a 45 Maclean and the British merchants commissioned as magistrates, administered English law in the forts. The ‘irregular’ jurisdiction exercised outside of the forts was normalized in the subsequent series of bonds with the natives. For instance, the Bond of 1844 which was signed with some of the chiefs in Cape Coast. Antony Allott, “Native Tribunals in the Gold Coast 1844-1927: Prolegomena to a Study of Native Courts in Ghana” (1957) 1:3 J Afr L 163 at 163; Ollennu, “Succession”, supra note 42 at 5. 46 Ollennu, “Succession”, supra note 42 at 4; Allott, “Native Tribunals”, supra note 45 at 163; Jörg Fisch claims that ‘British law’ was not imposed on the natives and that it was rather claimed by them as it was a privilege to be allowed to live under European law. Jörg Fisch, “Law as a Means and as an End: Some Remarks on the Function of European and Non-European Law in the Process of European Expansion” in W. J. Mommsen & J. A. De Moor, eds, European Expansion And Law: The Encounter Of European And Indigenous Law In The 19th and 20th Century Africa And Asia (New York: Berg, 1992) 15 at 31. 47 See Cruickshank, supra note 12 at 7. 48 Ibid at 27. 49 Ibid at 27-28. 59 semblance of conformity to colonial laws by the natives, but I contend that the supposed conformity was, in fact, superficial.50 The popularity of Maclean’s court, I believe, encouraged the British to promote their justice system as Governor Maclean took his powers a step further and sought to abolish the “more pernicious or barbarous practices of customary law.”51 With the additional goal of fulfilling the aims of the colonial enterprise, various pieces of legislation were passed to solidify British rule and law and to subjugate customary law to it. For instance, in 1843, the Foreign Jurisdiction Act regularized Maclean’s jurisdiction by officially appointing him judicial assessor and stipendiary magistrate52 with the authority to advise on issues of customary law.53 According to Cruickshank, Maclean was empowered to administer the whole country “not in accordance with the strict form of English law, but with a large discretionary power to assimilate native law and practice to English ideas of justice.”54 To this end, Maclean opted to serve as judge 50 Cruickshank asserts that the native was submissive to Europeans in order a “to obtain some bribe or concession” and “to obtain new privileges”, Ibid at 28-29. 51 Even though the main preoccupation of Maclean and his fellow magistrates was to protect commerce, the reform of customary law became very important to him. He took securities from certain principal chiefs to ensure his control over the administration of justice in the local communities. The chiefs were compelled to lodge in the Cape Coast castle a greater portion of their gold as guarantee of their good conduct and their willingness to appear before the governor if they were summoned. Cruickshank, Ibid at 14; See also John Mensah Sarbah, Fanti National Constitution: A Short Treatise on the Constitution and Government of the Fanti, Ashanti, and Other Akan Tribes of West Africa (London: William Clowes & Sons limited, 1906) 80 [Sarbah, “National Constitution”]. Maclean also stationed a soldier in each important district, thus ensuring that cases of oppression and injustice were brought to his notice, and that chiefs answered his summons to the Governor's Court at the Cape Coast Castle. Allott, “Native Tribunals”, supra note 45 at 164. 52 This was a salaried British magistrate who is a professional lawyer appointed under statutory provisions to act instead of or in cooperation with lay justices of the peace. Online: <http://www.merriamwebster.com/dictionary/stipendiary%20magistrate>. 53 Sarbah “Maclean”, supra note 18 at 350. 54Cruickshank, supra note 12 at 195. (Emphasis added). Allott disagrees with Cruickshank’s assessment and insists that Maclean was simply an advisor to the Native chiefs who had to decide cases in 60 instead of assessor on cases of customary law, with the local chiefs and elders rather serving as assessors.55 It is interesting that Maclean would assume the role of making decisions on cases of customary law brought before the courts instead of simply assisting the chiefs to decide cases. This would substantiate my observation that there was no desire to guide the growth of customary law, but rather to alter it because customary law had to resemble English law if it was to be taken seriously. In fact, the task given to the colonial officers was to “observe, such of the local customs …as may be compatible with the principles of the law of England”.56 The British colonists regarded customary law as backward and incapable of providing the legal and social framework that the colonialists considered essential for the execution of the colonial agenda. But what they failed to realize was that while it was fairly easy to integrate customary law into British colonial law, it was virtually impossible to assimilate native values and sensibilities into British ones. This agenda would accordance with customary law and not English law. Allott suspects that Maclean had hitherto been in the practice of sitting in the Forts as a judge with the chiefs rather acting as his assessors. Allott, “Native Tribunals”, supra note 45 at 163, 165. 55 Ollennu, “Succession”, supra note 42 at 7. This is also confirmed by a later assessor, Sir James Marshall, who described his function as follows: “As Judicial Assessor I was a sort of head chief and sat with the local chiefs in Court, hearing cases brought by natives among themselves.’” Allott, “Native Tribunals”, supra note 45 at 167. 56 On September, 3, 1844 an Order-in-Council was made requiring judicial authorities in the Gold Coast, to observe those local customs that were compatible with the British law. Order of September 3rd, 1884, (6 & 7 Vic., c 94) s 2 (Emphasis added). 61 inevitably create variations in customary law, some versions more in tune with British laws57 and values, and others, virtually untouched. The British Settlements Act of 1843 would also significantly determine the fate of customary law; 58 it continued the gradual assimilation of customary law, thus forcing it to fit itself into an unfamiliar frame.59 Perhaps it is an understatement to suggest that African customary law had to compete with the received law, as the British Foreign Jurisdiction Act stated in no uncertain terms the status of customary law vis-a-vis foreign law thus: Whereas by treaty, capitulation, grant, usage, sufferance, and other lawful means Her Majesty hath power and jurisdiction within diverse countries and places out of Her Majesty's dominions: and Whereas doubts have arisen how far the exercise of such power and jurisdiction is controlled by and dependent on the laws and customs of this realm, and it is expedient that such doubts should be removed: Be it therefore enacted by the Queens most excellent majesty . . . that it is and shall be lawful for her majesty to hold, exercise and enjoy any power or jurisdiction which her Majesty hath now or may anytime hereafter have in any country or place out of her Majesty’s dominium’s in the same and as ample a 57 Jörg Fisch claims that colonial law was not necessarily English law, but “of European origin or inspired by such law….” Fisch, supra note 46 at 33; Robert Seidman also asserts that “English law may have nominally been the general law of the colonies; but it was a peculiar form of English Law that had excised from it corpus any of the democratic forms or economic protections.” He also described colonial law as a truncated version of English law unsuitable for the colonies. Robert Seidman, “The Reception of English Law in Colonial Africa Revisited” (1969) 2 East Afr L Rev 47 at 78; see also Bonny Ibhawoh who describes it as “lower standard of English law.” Bonny Ibhawoh, Imperialism and Human Rights: Colonial Discourses of Rights and Liberties in African History (Albany: State University of New York Press, 2007) 65. 58 The British Settlements Act of 1843 s 2 established the Gold Coast as a distinct territory, and gave the British Crown legal authority to make orders-in-council, as well as establish courts for the purpose of preserving law and order and facilitating the administration of justice; The Act also empowered the Queen-in-council to confer criminal, civil, original or appellate jurisdiction on any court. (s 4). 59 Driberg, supra note 18 at 231. Driberg suggests that the distinction between criminal and civil law is meaningless to the native African. He is of the opinion that if the native Africans did make the distinction, they would speak of private and public law. Rattray has his doubts about the use of the expressions public and private law. See Rattray, supra note 35 at 286. 62 manner as if her Majesty had acquired such power and jurisdiction by the cession or conquest of territory.60 This Act, therefore, put all doubts about the supremacy of foreign law over customary law to rest. Together with the British Foreign Jurisdiction Act, 1843, the British Settlements Act aided the extension of British hegemony and sovereignty by insisting that customary legal systems give way to the imported system and “exist at the pleasure of British legal concepts or principles.”61 The Bond of 1844 appears to have officially sanctioned the reform of native custom. The famous Bond was signed by Commander Hill, the first governor of the Gold Coast, with the Fanti62 chiefs at Cape Coast.63 The Bond permitted the Queen’s judicial officers sitting with the chiefs to mould the customs of the country to the general principles of British law. Specifically, it states that: 1. Whereas power and jurisdiction have been exercised for and on behalf of Her Majesty the Queen of Great Britain and Ireland, within divers countries and places adjacent to Her Majesty's forts and settlements on the Gold Coast, we, the chiefs of countries and places so referred to, adjacent to the said forts and settlements, do hereby acknowledge that power and jurisdiction, and declare that the first objects of law are the protection of individuals and of property. 60 See the preamble to the Foreign Jurisdiction Act, 1843. (Emphasis added). On the issue of cession or conquest of territory, Justice Marshall in the case of Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) explains that a title obtained by conquest is acquired and maintained by force and that conquest actually does give legal title to land; also in the case of United States v. Percheman (1833) 32 U.S. at 86–87, Justice Marshall explains that “a cession of territory [which is usually by treaty] is never understood to be a cession of the property belonging to its inhabitants.” 61 Daniels, “Development”, supra note 38 at 72. 62 This is a subgroup of the Akan tribe. Most Fanti’s live in the Central Region of present-day Ghana. 63 This is a coastal town and the capital of the Central Region of present-day Ghana. 63 2. Human sacrifices and other barbarous customs, such as panyarring,64 are abominations and contrary to law. 3. Murders, robberies and other crimes and offences will be tried and inquired of before the Queen's judicial officers and the chiefs of the district, moulding the customs of the country to the general principles of British law.65 Whether or not the Bond in fact gave the British legal authority to reform the customary laws of the Gold Coast is still debatable. Tracing the legal history of Ghana, Nii Amaa Ollennu explains how the Bond gave the colonialists legal authority to rule the people of the Gold Coast, and to modify their laws according to the principles of British law. He holds the view that the Bond laid the legal foundation for the subsequent colonization of the Gold Coast and also granted the British judicial powers. He however points out that “it never was in the contemplation of the Chiefs and people of the British West African countries that by accepting British rule, and by the establishment of courts to administer English law, they were abrogating their own laws and customs, and their right to exercise jurisdiction in accordance with the principles and practice of these laws and customs.”66 They may not have intended to abolish their laws and customs, but did they not appreciate the fact that they had given up their right to exclusive judicial authority? Sarbah seems to suggest that they were somewhat aware of this fact. He points out that the native rulers did not give exclusive judicial power to the British since criminal trials, as indicated in the Bond, were to be conducted before the Queen’s officers and the 64 This is a practice whereby a creditor temporarily detains a person from the debtor’s household as collateral for the repayment of a debt. 65 The Bond of 1844 (6th March 1844) s 1-3. 66Nii Amaa Ollennu, “The influence of English law on West Africa” (1961) 5 J Afr L 21 at 25 [Ollennu, “English Law”]. 64 chiefs. He adds that the chiefs “did not divest themselves of their judicial rights in civil or all criminal matters.”67 While it would be interesting to ascertain exactly how the chiefs understood the implications of the Bond, in the words of the Privy Council, “there is no presumption, that a native of Ashanti, who does not understand English, and cannot read or write, has appreciated the meaning and effect of an English legal instrument, because he is alleged to have set his mark to it by way of signature.”68 This view is supported by Kofi Awoonor who describes the Bond as a “monumental fraud” and contests its legality based on his contention that it was signed by chiefs who were not literate in the English language. Referring to the chiefs, he questions, “who translated the document for them?” and concludes that “it was the same British agents,”69 casting doubt on the widely purported legality of the document. In spite of his concerns and accusations, he admits that the Bond provided the basis for the subsequent introduction of a legal system that disregarded African aspirations.70 But Cruickshank, a British judicial assessor from 1847-1851, when describing the legal history of the Gold Coast makes a valid observation about the legal relationship between the Gold Coast and Britain during this period. He states that: “Indeed we had no legal jurisdiction in the country [Gold Coast] whatever. It had never been conquered or purchased by us, or ceded to us. The chiefs, it is true, had, on several occasions, sworn allegiance to the crown of Great 67 See Sarbah, “National Constitution”, supra note 51 at 99. 68 Atta Kwamin v Kufuor,  P.C. 261 The case involved a lease signed between a Gold Coast chief and an English gold prospector. All the Africans involved in the transaction were illiterate and did not understand the Memorandum of Agreement. 69 Awoonor, supra note 39 at 80. 70 Ibid at 83. 65 Britain; but by this act, they only meant the military service of vassals to a superior. Native laws and customs were never understood to be abrogated or affected by it.”71 2.4.1 Relationship between the Customary and Imported Legal Systems On the relationship between the customary and imported legal systems during this period, it should be pointed out that in spite of the growth of British law on the Gold Coast and its influence on Native law, it would seem that there was less friction between the two72 because their paths met mainly in the forts and less frequently in the protectorate where the chiefs’ courts dominated. This may be attributed to the fact that there was not much of a relationship between the Native and British courts. Essentially, the Native courts73 were allowed to operate as before, though certain criminal offences were dealt with by the British courts74 and civil appeals were referred to the judicial assessor. Also, judicial assessors did not have the right to supervise the Native courts or interfere in local government duties.75 The minimal-interventionist policy may have accounted for the rather peaceful coexistence of two seemingly opposed systems. Furthermore, the supposed harmony between the two systems may also be attributed partly to the nature of the customary law reform strategy that Maclean adopted. In a glowing tribute to Maclean, Sarbah, describes him as having “a most abiding belief in 71 Cruickshank, supra note 12 at 186-187. 72 Describing the operations of the Native’s Courts from 1843 to 1850, Allott records that during this period there was no conflict between the customary and British legal system. Allott “Native Tribunals”, supra note 45 at 165. 73 These courts were otherwise called African, customary, or local courts); primarily, these courts administered African customary law. Allott, “Native Tribunals”, supra note 45 at 163. 74 These were the “superior courts of a territory;” they administered mostly English law. Ibid. 75 Ibid at 165. 66 the overruling direction of Providence.”76 Sarbah reports that Maclean constantly explained his decisions thus: “I assure you this gives me no uneasiness at all; sooner or later the truth will appear, and God would never permit such wickedness to prosper.”77 It would appear that Maclean was able to touch on a subject, religion or belief in the supernatural, which the natives were all too familiar with. The African, having been described as incurably and notoriously religious, might well have connected with a reform strategy that hinged on such beliefs. Additionally, Maclean made efforts to educate the natives on the value of the imported norms and practices. He spoke with the chiefs and made them understand the basis of his decisions. Also, the reforms took into consideration changes for which the Gold Coast was developmentally ready.78 The reform strategies adopted during the colonial period will be discussed further in this chapter. 2.5 FORMAL RECOGNITION OF CUSTOMARY LAW: SUPREME COURT ORDINANCE, 1876 Having laid the requisite legal and political foundation, the British declared the Gold Coast a Colony with its own executive and legislative council on 24 July 1874. The 76 Sarbah “Maclean”, supra note 18 at 351. 77 Ibid. 78 Ibid at 356. Cruickshank also seems to think that abstract reasoning with the natives was impossible given that, in his view, they were ignorant and superstitious. See Cruickshank, supra note 12 at 27-28. 67 Supreme Court Ordinance of 1876 created a national judicial system and marked the beginning of Ghana’s modern legal system.79 Among many other changes, the 1876 Ordinance reformed the application and administration of customary law. The Ordinance sought to make provision for the administration of justice and gave statutory backing to the application of customary law, which was now to be administered in the higher levels of the judicial hierarchy. Though customary law was formally recognized, its application was to be done by British or British trained judges whose philosophical orientation was analytical positivism and who regarded the rather severe doctrine of stare decisis as central to the judicial process.80 By this Ordinance, the common law, the doctrines of equity and the statutes of general application which were in force in England on July, 24, 1874, were made part of the laws of the Gold Coast.81 Inevitably, the common law and the rules of equity “were set as the standard of justice and righteousness”82 by which the appropriateness of the customary law was to be judged. Of particular interest is section 19 which states that: 79 An earlier Supreme Court Ordinance of 1853 was limited to coastal settlements and gave no prominence to customary law. No wonder it has been described as “an attempt to marginalize indigenous jurisprudence.” Trevor R Getz, Slavery and Reform in West Africa: Toward Emancipation in Nineteenth-Century Senegal and the Gold Coast (Ohio University Press, 2004) 104. The jurisdiction of the Supreme Court of her Majesty’s forts and settlements was limited to coastal settlements. The court had both civil and criminal jurisdiction and the local chiefs who attempted to adjudicate the more serious criminal offences found themselves in breach of the jurisdiction of the British. Such attempts often resulted in hostile relations with the Governor. Roger Gocking explains that in 1865-66, King Aggrey of Cape Coast attempted to imprison some of his subjects without first appealing to the British courts and this resulted in hostilities with the then Governor of the Gold Coast. See Roger Gocking, “British Justice and the Native tribunals of the southern Gold Coast Colony” (1993) 34 J Afr Hist 93 at 96 [Gocking “British Justice”]. 80 Asante, “Interests in Land”, supra note 36 at 848-849. 81 Supreme Court Ordinance, supra note 40 at s 14. 82 Ollennu, “Law Reform in Ghana”, supra note 40 at 158. 68 Nothing in this Ordinance shall deprive the Courts of the right to observe and enforce the observance, or shall deprive any person of the benefit, of any native law or custom existing in the Gold Coast, such law or custom not being repugnant to natural justice, equity, and good conscience, nor incompatible either directly or by necessary implication with any ordinance for the time being in force. Such laws and customs shall be deemed applicable in causes and matters where the parties thereto are natives, and particularly, but without derogating from their application in other cases, in causes and matters relating to the tenure and transfer of real and personal property, and to inheritance and testamentary dispositions, and also in causes and matters between natives and non-natives where it may appear to the Court that substantial injustice would be done to either party by a strict adherence to the rules of English law. No party shall be entitled to claim the benefit of any local law or custom, if it shall appear either from express contract or from the nature of the transactions out of which any suit or question may have arisen, that such party agreed that his obligations in connection with such transactions should be regulated exclusively by English law: and in cases where no express rule is applicable to any matter in controversy, the Court shall be governed by the principles of justice, equity, and good conscience.83 It should be emphasized that throughout the colonial era, customary law was allowed to exist simultaneously with the introduced British law; what the Supreme Court Ordinance of 1876 did was to define its scope of application, specifically, the subjects and the conditions of its application by the courts. Section 19 suggests that the application of customary law by the courts was dependent on proof that the said law or custom actually existed in a given locality. The court held in Welbeck v. Brown84 that a legal rule had to be proven to have existed from “a time to which the memory of man runneth not to the contrary.”85 Not only was this task virtually impossible, it also suggested that customary law was unchanging. Native law was 83 Supreme Court Ordinance, supra note 40 at s19. 84 Cited in Sarbah, “Fanti Customary Laws”, supra note 4 at 185. 85 Welbeck v. Brown, (1884) Sar FCL 185 at 188. This decision was frequently criticised and was thus not followed. 69 foreign law in its own land and had to be proved in the Courts as the British and British-trained judges were unfamiliar with its rules. The often-quoted case of Angu v. Attah explains: As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have, by frequent proof in the courts, become so notorious that the courts will take judicial notice of them.86 Furthermore, customary law was to be applied in matters between the natives of the Gold Coast, though it could be extended to a matter between a native and a non-native where the courts found it just to do so. The specific circumstances under which this power could be exercised are not stated, thus allowing the courts wide discretion. Customary law would not be applied in a case, if the courts determined by the wording or the nature of the agreement between the feuding parties that they intended their transaction to be regulated exclusively by English Law. It would seem that there was a presumption in favor of the initial application of customary law until the courts found a reason not to apply it. Also striking is the limited sphere of operation of customary law. Without stating expressly that customary law was to be applicable only in matters involving land, inheritance and marriage, customary law governed these areas. Additionally, British and British trained judges were to ascertain the existing rules of customary law on issues brought before them; however, they were not mandated to 86 Angu v Attah, (1916) Gold Coast Privy Council Judgments, (1874-1928) 43. 70 apply the ascertained rules to the case if the customary law rule violated the principles of natural justice, good conscience and equity. The notorious repugnancy test clause, with no defined method of application, was a license to simply change customs that the courts just did not like,87 though it did not authorise the substitution of an ‘invented’ customary law. As Asante would say, “official contempt for ‘native’ law was hardly veiled.”88 Furthermore, where the courts found no express rules on a given subject before them, they were to be guided by the principles of natural justice, good conscience and equity. It is important to note that by this provision, both British and British trained judges were inevitably to apply British notions of justice which impliedly, were universal and embodied a higher set of values. According to Elias, the demands of the repugnancy clause were in reality not easy to implement because of the absence of a clear criterion to determine the prescribed standard. He says that this was especially difficult for the colonial judge who was torn between applying the standard of purely English morals or the local sentiments of right and wrong, which were sometimes at variance with the former.89 Apparently, the standard was “impliedly incorporated in English law or…at least revealed to the eyes of the English judges.”90 Nevertheless, Allott explains that the repugnancy clause was only used to a limited degree to strike down certain features of 87 Antony N Allott, “What Is to Be Done with African Customary Law? The Experience of Problems and Reforms in Anglophone Africa from 1950” (1984) 28 J Afr L 56 at 59 [ Allott, “African Customary Law”]. 88 Asante, “Hundred Years”, supra note 9 at 86. 89 TO Elias, “Customary Law: The Limit of Its Validity in Colonial Law” (1954) 13:3-4 Afr Rev 97 at 99. 90 William Burnett Harvey, Law and Social Change in Ghana (Princeton: Princeton University Press: 1966) 245 [Harvey, “Law and Social Change in Ghana”]. 71 the customary laws which were felt to be unjust.91 The clause was finally removed from the law in 196092 because it was considered “unfitting to the dignity of the indigenous laws of the people of Ghana.”93 Perhaps, a more serious and related problem was the legal uncertainty that this provision posed for not only the judges, but even more importantly, the litigants whose conduct, according to principles of natural justice, must be based on prior knowledge and understanding of the existing customary law. Nonetheless, judicial decisions were made based on the prescribed ‘external’ principles and through these decisions, cultural convictions about inferiority and superiority were produced. These convictions had force and power because they were institutionally backed;94 the colonial judges spoke with the authority of the colonial state.95 The perceived inferiority of customary law aided the gradual detachment of the burgeoning educated middle-class Ghanaians from their native law and its institutions. These elite had misgivings about native law; they feared 91 Allott, “African Customary Law”, supra note 87 at 59. 92 The repugnancy clause had hitherto been re-enacted as s 87(1) of the Courts Ordinance, Cap 4 (1951 Rev.) which provided for the continued application of laws were not “repugnant to natural justice, equity and good conscious” and not “incompatible either directly or by necessary implication with any ordinance for the time being in force.” This provision was replaced by the choice of law rules in the Courts Act, 1960 (C.A. 9), s. 66, but this Act did not re-enact the repugnancy clause. Presently, customary law will not be applied if it is injurious to the health and wellbeing of a person. See Article 39(2) of the Constitution of the Fourth Republic of Ghana, 1992 (Laws of Ghana (Rev. Ed. 2004), Vol I, 140). 93 FAR Bennion, Constitutional Law of Ghana (London: Butterworths, 1962), 416. 94 Sally Engle Merry, “Courts as Performances: Domestic Violence Hearings in A Hawai’i Family Court” in M. Lazarus-Black and S. F. Hirsch, eds, Contested States: Law Hegemony and Resistance (New York: Routledge, 1994) 35 at 36 [Merry, “Courts as Performances”]. Merry argues that court hearings serve as critical sites for the creation and imposition of cultural meanings. 95 Sally Engle Merry, Colonizing Hawai’i: The Cultural Power of Law (Princeton: Princeton University Press, 2000) at 265-266 [Merry, “Colonizing Hawai’i”]. 72 that it would undermine their credibility as educated and enlightened Africans,96 a problem which would later on affect the reform of customary law. Equally significant is the fact that under section 19, a customary law rule was inapplicable to any case brought before a court if the rule contravened existing or future colonial legislation. This undermined customary law given that English law and customary law were two very different systems of law, and were based on different values, principles and societal expectations; it is to be expected that their rules on the same issue may differ. Daniels suggests “it is difficult to understand the import of this provision in view of the fact that the regime of the operation of each law was meant to be generally separate.”97 On this particular requirement, Allott also submits that: On the whole, it is unreasonable to invalidate a rule of customary law because it is inconsistent with an introduced rule of English law. Unless the English law was introduced specifically so as to remedy some defect in the customary law, then the customary law should prevail (or at least be administered without modification).98 The Supreme Court Ordinance had important implications for the application and development of customary law in the Gold Coast. Though it formally recognized its existence and application, thereby formally endorsing legal pluralism in the Gold Coast, 96 Kwabena Ofori-Attah explains that such traditional customs and practices were regarded as uncivilized. In some elite organizations, it was unacceptable to speak any language apart from English. These elite adopted Christian names and dressed like Europeans. Kwabena Dei Ofori-Attah, “Urbaniation and schooling in Africa: Trends, Issues, and challenges from Ghana during the colonial era” in William T. Pink, George W. Noblit, eds, International Handbook on Urban Education (Dordrecht: Springer, 2008) 23 at 43-45; Mensah Sarbah also explains that respect for native law and custom degenerated to the point where in 1889 the Mfantsi Amanbuhu Fekuw, i.e. the Fanti National Political Society (later known as the Aborigines Rights Protection Society) was forced to adopt various measures to “stimulate pride among Africans in their culture.” Sarbah, “National Constitution”, supra note 51 at xii. 97 Daniels, “Development”, supra note 38 at 75. 98 Antony Allott, Essays in African Law: With Special Reference to the Law of Ghana (London: Butterworths, 1960) 196 [Allott, “Essays in African Law”]. 73 it put customary law beneath English law and the principles of equity, natural justice and good conscience. However, in spite of the far reaching implications of the 1876 Ordinance for the administration of customary law, it had no real effect on the lives of the vast majority of Gold Coasters who did not have access to the formal courts. Their version of customary law did not have to compete with other laws. However, the Africans who interacted more with the received law, gradually fell for its appeal. The spread of Christianity and education, and increased access to economic opportunities accounted for the growing acceptance of the received law and resistance to certain customary law practices. 2.6 FACTORS THAT ACCOUNTED FOR CHANGES TO THE CUSTOMARY LAW 2.6.1 Christianity The growth of Christianity was one of the factors that accounted for the dissatisfaction with customary law.99 The nineteenth century saw intense propagation of the gospel throughout the Gold Coast. Missionaries established schools100 and those who graduated from these schools acquired notions of justice and fairness that were largely different from those endorsed by customary law or African traditional religion.101 Those 99 JF Ade Ajayi, “The Continuity of African Institutions under Colonialism” in T. O. Ranger, ed, Emerging Themes of African History (East Africa Pub, House, 1968) 189 at 195. Ajayi indicates that Christianity “shook the people’s confidence in the old gods and the old social order” and “encouraged a scientific disbelief in the direct intervention of supernatural forces in human society.” These factors, he claims “destroyed faith in the traditional sanctions that held society together.” 100 Ofori-Attah, supra note 96 at 31-32. 101 Ibid at 43-44. 74 who converted to Christianity were encouraged to turn their backs on their past which included their culture.102 Having acquired different perspectives on certain customary law practices, the leadership of the various churches saw the need to sidestep traditional norms and introduce their own. For instance, the Basel mission,103 which had profound influence in the Greater Accra and Eastern regions of modern day Ghana, introduced ‘Christian marriage,’ which is a union of a man and a woman, unlike the customary marriage which could be polygamous. Also, unlike the customary law system where intestate property belonged to the extended family, the Mission introduced inheritance rules which were aimed at ensuring that the nuclear family enjoyed a reasonable portion of the intestate’s estate.104 Such reforms influenced other religious denominations who went as far as to suggest the extension of benefits offered to widows and children of those married under the 1884 Marriage Ordinance to their counterparts married under the customary law system.105 Even traditional councils106 and individual chiefs passed 102 Jones Darkwa Amanor, “Pentecostalism in Ghana: An African Reformation”, online: Cyber Journal for Pentecostal Charismatic Research 1 at 1 <www.pctii.org/cyberj/cyberj13/amanor.html>. (This article is not dated). 103 The early Basel Missionaries laid the foundation for the Presbyterian Church of Ghana. The said churches evolved a system of succession, the rules of which were applicable to the estates of members of the Church who died intestate, subject in most cases to the family members’ acceptance of the Church system. 104 Gocking, “British Justice”, supra note 79 at 106-7. 105The Superintendent Minister of the African Methodist Episcopal Zion Mission at Winneba (This is a coastal town in the Central Region of present-day Ghana) in 1933, made a proposal to the Central Province Provincial Council Meeting of chiefs in Saltpond, (This is also a coastal town in the Central Region of Ghana.) to extend the benefits offered to widows and children of those married under the 1884 Marriage Ordinance to their counterparts married under the customary law system. This proposal was not accepted as it did not seem to have the support of the majority. Ibid at 107-108. 106 The Akim Abuakwa State Council proposed that a third of the estate of a person who died intestate be shared equally among his children. Roger Gocking explains that this was proposed as a bylaw. It had no 75 resolutions for the equitable sharing of intestate property to take care of widows and children,107 in line with the Christian prescription for intestate succession.108 It must be noted, however, that such extra-legal systems developed by the churches for the distribution of intestate property were not considered part of the laws of the Gold Coast; the rules were therefore not enforceable in a court of law.109 Juristic developments in the Gold Coast also influenced attitudes toward customary law. Asante explains that the evolution of western land interests such as the common law freehold, with its focus on exclusive ownership, seemed attractive to the natives and challenged the dominion of the Stool.110 This greatly undermined the power and authority of the chiefs and inevitably, the integrity of customary law. 2.6.2 Creolization, Economic Progress and Education Another factor that influenced attitudes towards African customary law was creolization. I use the expression to describe the phenomenon of Africans emulating the European way of life. I refer not only to the euro Africans, but also to the Africans who were legal effect because it was never approved by the Governor-in Council, as required by the Native Administration Ordinance of 1927. Ibid at 108. 107 The Winneba State Council is reported to have passed a resolution recommending that one-third of the property of a male intestate should go to his wife and children. Ibid. 108 See the case of Frempoma & ors v Buxton, cited in Ollennu, “Succession”, supra note 42 at 148. 109 Akyeampong v Marshall, as reported in AKP Kludze, Modern Law of Succession in Ghana (Dordrecht: Foris Publications, 1988) at 278-279. 110 According to Asante, a stranger-purchaser had absolute ownership of the land in the proprietary sense and unlike the native usufructuary interest holder, the stranger could alienate the land without reference to any authority. He was also not mandated to render any services to the grantor-stool after payment of the purchase price. Asante suggests that the quantum of the interest which passed to the stranger was considerably more substantial than the classical usufruct which traditional law accorded to the individual. Asante, “Interests in Land” supra note 36 at 861. 76 economically well off, largely educated and who copied the European way of life.111 Creolization started initially in Cape Coast, the administrative center of the British settlements on the Gold Coast. Cape Coast was as a “small westernized society along the Coast of West Africa”112 that became partially creolized through its contact with European traders in the seventeenth century.113 The people, who did not refer to themselves as creoles, served as intermediaries between the Europeans and their African counterparts by spreading Christianity and Western civilization to their “less fortunate” fellow Africans who lived inland.114 They also acted as agents between the African producers’ stationed inland and the European trading interests on the coast.115 It is alleged that these elite, described as standing “between two radically different worlds” believed that “they were destined to replace Europeans as the main agents of “civilization.”116 The people of Cape Coast were generally well educated. For instance, Philip Quarcoe (1741-1816), the first African to be educated in Oxford University, returned to the Gold Coast and is reported to have “imparted light to his countrymen” and also established a school.117 The number of educated people increased greatly during the colonial era due to the establishment of a number of elementary and secondary schools by missionaries. 111 Roger Gocking explains that by the mid-nineteenth century the term creole was used to describe all those who emulated the creole way of life. Roger Gocking, “Creole Society and the Revival of Traditional Culture in Cape Coast during the Colonial Period” (1984) 17:4 Int J Afr Hist Stud 601 at 602 [Gocking, “Creole Society”]. 112 Ibid at 601. 113 Ibid at 602. 114 Ibid. 115 Ibid. 116 Ibid at 602, 605. 117 See Michel Doortmont, Pen-Pictures of Modern Africans and African Celebrities by Charles Francis Hutchison: A Collective Biography of Elite Society in the Gold Coast Colony (Leiden: Brill, 2004) 346. 77 With a large pool of beneficiaries of ‘western’ education, it was not unexpected that there would be demands for changes to the customary law. Most of these ‘creoles’ were economically well-off and thereby largely self-reliant. They openly castigated certain customary law practices, especially in the area of succession to property. For instance, the Gold Coast Independent, a newspaper founded in 1918 by Hon. Dr. Frederick Victor Nanka-Bruce, a Gold Coast doctor, politician and member of the Legislative Council, reported in 1932 that the matrilineal family was “a primitive idea which every people at one stage of their evolution must pass through.”118 This feeling was widespread among the elite. It would seem that because they were property owners, the elite were reluctant to have their extended family members inherit their self-acquired property on their death intestate. In fact, with the elite’s western education and changed values, the customary system did not seem to meet their needs. Gocking suggests, “Conflict between the matrilineage and the nuclear family was an inevitable by-product of the success of Westernization, particularly in the coastal towns of the Gold Coast.”119 There were also economic benefits in shunning the traditional system.120 Embracing western notions such as the concept of the nuclear family meant that they could renege on their responsibilities towards their extended family members.121 Inevitably, in 1946, 118 Roger Gocking, “Competing Systems of Inheritance before the British Courts of the Gold Coast Colony” (1990) 23:4 Int J Afr Hist Stud 604 [Gocking, “Competing Systems of Inheritance”]. 119 Ibid at 604. 120 Ibid. 121 Ajayi, supra note 99 at 196. 78 changing conceptions about the constitution of the traditional customary family began to show up in the courts.122 In one such case, the judge emphasized the effect of western ideas on the development of customary law. He quotes Sarbah as having said that “with the exception of the coast[al] towns where there is much contact with European ideas, self-acquired or private property in its strict sense does not exist over the whole country.”123 The educated Africans formed groups such as the Gold Coast Youth Conference established in 1929 by J.B. Danquah, a statesman, lawyer and historian, and J.E. Casely-Hayford, a lawyer and politician. It is said to have been limited to the “‘quality’ elite among the youth who were to become the next generation of middle-class urban professionals.”124 In 1938, the Conference published its views on how intestate property had to be divided, while religious leaders and the press, among other organized groups, also advocated for the extension of rights enjoyed by women married under the ordinance to those married under customary law.125 122 In the case of Araba Busumafie v Hydecooper, the deceased died intestate. She was survived by her sister, the 1st defendant. She also left behind a self-acquired house. As the rightful heir of the deceased, the 1st defendant took possession of the house. After many years, she sold it to the 2nd defendant. The plaintiff-appellant, cousin of the 1st defendant and the deceased, sued to set aside the sale of the house to the 2nd defendant. The Plaintiff argued that the house in question was family property and therefore, her consent was a necessary condition for the validity of the sale. The Court held that the house passed as ancestral property to the 1st defendant, who could sell the property without reference to anyone since she (the 1st defendant) had no children or sisters. Araba Busumafie v Hydecooper (1946) DC (Land) '38-'47, 245. This was an appeal from the Native Court of Cape Coast. 123 Per Jackson J, ibid at 246. 124 David E Apter, “Ghana” in Carl G. Rosberg Jr. and James S. Coleman, eds, Political Parties and National Integration In Tropical Africa (Berkeley and Los Angeles: University of California Press, 1964) 259 at 272. 125 Ekow Daniels, “Recent Reforms in Ghana's Family Law” (1987) 31:1&2 J Afr L (Essays in Honour of AN Allott) 93 at 94 [Daniels, “Ghana's Family Law”]. 79 The educated elite greatly influenced the judicial system. For instance, they replaced the chiefs, sub-chiefs, linguists and councillors in the native courts set up by the Governor who was empowered under the Native Courts (Colony) Ordinance126 to appoint those he deemed fit to manage the courts. More educated people were thus appointed to such advisory positions and with the change in membership, there were bound to be changes in the customary law that these courts applied. It must be mentioned that together with the Native Authority (Colony) Ordinance,127 the Native Courts (Colony) Ordinance actually marked the end of ‘tribal’ administration of customary law. As the substantive customary law was being changed by statute and by the socioeconomic changes in the Gold Coast, the legal procedure in the native courts was also affected. Allott explains: These institutions [native courts] were left in place, and originally were given considerable freedom to function in a traditional way. Reforms however were gradually introduced, which led to the native courts being progressively anglicised in their jurisdiction, their personnel, and their procedure. Clerks to keep the records; court records reporting the decisions and their reasons in some instances; the use of written process to summon parties and witnesses; the training of court members; the eventual selection of court members on the basis of their qualifications rather than their customary position - all these changes were gradually introduced in most of the British territories. The end result was that by the closing period of British colonial rule, the so-called native courts - now 126 Native Courts (Colony) Ordinance 1944 (No. 22). 127 Native Authority (Colony) Ordinance 1944 (No. 21). 80 often renamed local courts, African courts, or customary courts - bore little resemblance to the traditional institutions which they gradually replaced.128 The new court personnel, educated natives, were trained as court registrars and as the main legal advisors to chiefs129 as the uneducated struggled with the technical rules regulating appeals to the higher courts. Commenting on the role of these registrars with respect to customary law reforms, Gocking suggests “[t]he complex interplay between customary law and the English common law on the colony often required that they act as law “modifiers” and “amenders’ of customary law.”130 But one wonders where the allegiance of these registrars lay. Was it to their employers who had elevated them to a position which was previously the exclusive preserve of certain members of society, or to the values underlying native custom? Was it to their changed notions of individual rights and liberties, or to the traditional communal need for the maintenance of social equilibrium? It did not take long to find out. Gocking indicates that one of the more important registrars, W.Z. Coker, allowed couples living in concubinage to bring their cases before the courts as though they were married. This, Gocking explains, was hitherto not possible and he accuses Coker of “sanctioning an alternative to native marriage.”131 With these changes in outlook, taste and perception resulting from western education, creolization, economic progress and Christianity, agitation for changes to the customary law persisted. 128 Allott, “African Customary Law”, supra note 87 at 58. 129 They were trained in evidence giving, English composition, police duties, native history, law and custom. Gocking, “British Justice”, supra note 79 at 105. 130 Ibid at 105-106. 131 Ibid. 81 2.7 WHAT IS MISSING IN LAW REFORM? LESSONS OF THE PAST AND REFORM IMPLICATIONS In spite of the factors discussed above, customary law still thrived. Perhaps the changes brought about by colonialism did not change the consciousness of some in the Gold Coast. In fact, even the most creolized resorted to local customs when necessary. It was not uncommon for these elite to turn to traditional customs and institutions to challenge British policy.132 They also resorted to the judicial assessor’s court, which determined cases involving customary law, to hide from their creditors by having family members assert that their mortgaged property belonged to the traditional family.133 The extended family, apart from being a reliable source of labor for their rich, educated relatives, also made family land, property and gold dust available to them.134 By so doing, the elite were endorsing the very institutions which by virtue of their social standing they were expected to reject. “Such involvement with the traditional order presented this elite with a continuing dilemma that they were never able to resolve satisfactorily.”135 It should also be recognized that the process of creolization was never really complete in the relevant towns of the Gold Coast.136 For instance, the creoles were never geographically cut off from their homes and were not completely cut off from native society. In these partially creolized communities, matrilineal ties persisted and 132 Gocking, “Creole Society”, supra note 111 at 604. 133 Roger Gocking, “Competing Systems of Inheritance”, supra note 118 at 606. 134 Ibid. 135 Gocking, “Creole Society”, supra note 111 at 604-605. 136 Ibid at 605. 82 influenced succession to property. “In general, traditional culture maintained a powerful re-assimilative appeal.”137 Though Christianity played a pivotal role in attempting to change the consciousness of the Africans, it has been argued that the God that Christianity presented to the Africans was alien to African culture, and the lack of effort to “build bridges between [Christianity] and the cultural milieu of the people it sought to win over” resulted in the production of Christians who were so “only in the mind but not in the heart.”138 The legal reforms made to the customary law were therefore not likely to be fully embraced. Many reasons account for the problems encountered by the colonial state in the middle of the 19th century in its attempt to reform customary law, especially in the countryside. Even though the relationship between the British and customary legal system, as earlier indicated, was amicable up until the middle of the 19th century, it changed soon thereafter.139 This was primarily the result of the ideological differences between the two systems which manifested themselves in many ways. These differences affected the manner of customary law reform. I will briefly discuss some of my observations about the reform methods that were used. First, the Supreme Court Ordinance of 1876 abolished the position of Judicial Assessor. Based on the evidence, it seems as though abolition may have affected the guided development and reform of customary law. It appears that the assessors were in very 137 Ibid. 138 Amanor, supra note 102. 139 Allott “Native Tribunals”, supra note 45 at 169. 83 close contact140 with the natives and had a reasonably thorough appreciation of customary law and of the natives themselves and thus, may have conducted reforms in a manner that took the particular needs and personalities of the natives into consideration. For instance, David Patrick Chalmers, a judicial assessor in the Gold Coast from 1869 to 1872 is said to have “addressed himself to the study of the customary laws,”141 in order to help promote the administration of justice in the Gold Coast. He is also reported to have been the “first judicial assessor to record systematically Native law and customs enunciated by the Chiefs.”142 With this knowledge, one gets the impression that the judicial assessors were able to ensure that the reforms sat well with traditional views and understandings. I maintain that the first step to customary law reforms is an exhaustive understanding of the system and the world view that informs it and it seems that some of the judicial assessors were committed to doing so. This may explain why the relationship between the imported and customary legal systems seemed relatively good during the period when assessors were still part of the legal system. Commenting on the role of Sir James Marshall who served as judicial assessor from 1872-74, Ollennu credits him with having “helped to mould the customary law and to regularize customary procedure in the local court; particularly…in bringing out the best in the customary law of the various tribes among whom he worked, in providing a 140 Sarbah “Maclean”, supra note 18 at 351, 355-356. Sarbah describes some of the assessors as being in very close contact with the natives. 141 Ibid at 355. 142 Ibid. 84 written record of the customary law, and in disseminating it.”143 I find it very important that Marshall, unlike even modern day judicial officers, did not pretend that the whole country was guided by just one system of customary law. He acknowledged the fact that the various tribes had different versions of customary law. Marshall could only have achieved this because he was knowledgeable about the law and the local people. A better insight into Marshall’s reform strategy can be gleaned from his counsel: The result of my own experience is that the way to rule and improve these Native populations is to take them as we find them, making use of what we believe to be good and harmless, whilst repressing what is cruel and unjust. And one who treats these Natives with consideration and, as far as possible, with respect for the beliefs, law, and customs which are theirs, and which have come down to them from their forefathers, soon finds that he gains an influence among them which nothing else will bring him. Instead of starting a steam-engine and smashing the cart, get into the cart and ride with the Native driver, and do what you can to make him improve his cart, so that in time he may prefer the engine and take to it. Even in their fetish superstitions there is no use treating them as folly. Fetishism is a tremendous power throughout Africa, and cannot be put down by ridicule and contempt.144 His insight into African customary law and how to change it is remarkable and profound. He highlights that there is something useful and important about customary law. This will be discussed further in Chapter Five, as part of my attempt at re-conceptualizing legal pluralism. He also stresses the importance of customary law and fetishism to the natives, hence cautioning against treating them with contempt. Marshall knew that the natives had to be treated with respect in order to gain their trust. He may not have genuinely respected the customary system, but at least, he understood it and this helped him to succeed at his job. Most satisfying is Marshall’s analogy of the cart and 143 Ollennu, “Succession”, supra note 42 at 7. 144 Sir James Marshall as quoted in Sarbah “Maclean”, supra note 18 at 355-356. 85 steam engine and accordingly, his realization that economic and social developments are critical to legal reforms, though the results from such developments may take a while to be realized. Brodie Cruickshank was also a judicial assessor who stayed in the Gold Coast for 18 years and was in close contact with the native peoples. His knowledge of customary law has been described as “extensive and exact.”145 Interestingly, he spoke Fanti, a local dialect, fluently.146 This is significant as knowing the local dialect, presumably, helped him to bond with the locals. It may also have helped him to understand the culture since knowledge of a language, its proverbs, sayings, and folklore, potentially, opens doors to the people’s minds. He seemed to have understood native law to the extent that he suggested that its reform required the “watchful and resolute caution of a skillful reformer.”147 In my opinion, Cruickshank’s pronouncements about the natives and customary law, discussed earlier,148 depict his bias against both, but he understood that reforming customary law was more than correcting technical errors. Arguably, the most celebrated British judicial assessor, George Maclean, was also fairly fluent in Fanti,149 suggesting that legal reforms require a more intimate relationship with the recipient community. He held this position from 1843 to 1847. Maclean has been praised by Gold Coasters for disseminating justice throughout the country. In fact, Allott explains that most of the assessors, including Marshall, Chalmers, and surprisingly, 145 Sarbah, Ibid at 351. 146 Ibid. 147 Cruickshank, supra note 12 at 24. 148 Ibid at 7. 149 Sarbah, “Maclean”, supra note 18 at 351. 86 Cruickshank, “expressed their favourable opinion of native customary law as the appropriate legal system for natives.”150 With the judicial assessors, the middlemen between the native and English courts gone, the natives were faced with the harsh reality of dealing with a foreign and often incomprehensible system of justice.151 The second reason that accounts for the problems encountered by the colonial state in its attempt to reform customary law was that the reforms did not seem to take into consideration the changes that the natives could relate to. This, I contend, is very important, as reforms must respect sociocultural realities as well as the economic environment. John Mensah Sarbah explains that during the administration of the Merchant Government in 1829, the court, which involved the chiefs, “admirably” took into consideration “the extent of the reformation which the country was at any time capable of bearing,” in introducing customary law reforms.152 If this was possible then, it should be now. Thirdly, the earlier reforms involved educating and negotiating with the locals. Sarbah explains that Maclean turned the courtroom into a “lecture room” where he virtually reasoned with the chiefs and the natives who gathered daily in the courtroom.153 He 150 Allott, “Native Tribunals”, supra note 45 at 167, Fn 2. 151 In spite of the role played by the judicial assessors, Mensah Sarbah reports that by 1869, there was “too much law and too little equity” in the judicial assessors court. He indicates that the object of appointing the judicial assessor seems to have been forgotten. See Sarbah, “National Constitution”, supra note 51 at 105. 152 These courts were located in the forts and castles. JM Sarbah, “Maclean”, supra note 18 at 356-367. 153 Ibid at 356; but Cruickshank described the natives as ignorant and absurdly superstitious and explained that abstract reasoning with such people was just impossible. He asserts that reforming customary law required “an implicit faith in the benevolent intention of the law giver, a consciousness of his general superiority, and of the advantages of obedience, occasional demonstrations of his power, and 87 says that these courtrooms were always crowded with listeners from the remotest communities.154 At such sessions, he explains further, the “principles of justice were disseminated” and the chiefs learnt that injustice done in their judicial capacities could affect them individually.155 Law reform involves negotiations, but it seems that after Maclean’s tenure, it became a lost art; its reformist impact was lost on reformers. Fourthly, reforms must be done by qualified people who know what is at stake. Sarbah explains that in the past, a person could only be appointed a Magistrate after a year of local residence in the Gold Coast. He clarifies that the purpose of the residency requirement was to acquire “local experience”156 and laments its abolition. This is important to my argument that customary law reforms cannot take place in a vacuum; they must take account of the local environment. Sarbah compares the crop of judicial officers in the Gold Coast to the British Bench at the time and commends the latter for its “training and experience.”157 He describes the members of the British Bench as being “[s]prung from the people”158 and praises them for being “familiar at first hand with the social conditions, speaking the common language and in close touch more or less with current events.”159 He accuses District Commissioners in the Gold Coast of having “no experience whatever of anything worth mentioning”160 and “having to pick up knowledge the certainty of power in withstanding it, are essential to the abolition of a confirmed custom.” See Cruickshank, supra note 12 at 27-28. 154 Sarbah “Maclean”, supra note 18 at 356-367. 155 Ibid at 356-367. 156 These courts were located in the forts and castles. Ibid at 357. 157 Ibid at 356. 158 Ibid at 356-357. 159 Ibid. 160 Ibid. 88 from the Court Registrar or law practitioners as [they] go along.”161 In his opinion, the absence of these qualities on the Gold Coast Bench explains its inability to make meaningful reforms, thus stressing the fact that the competence of those who reform the law matters. Furthermore, Sarbah was not mistaken about the enormity of the task of the reformer. To him, customary law reform was not simply the correction of a “technical error;”162 it constituted a fundamental change to the way of life of the natives. Consequently, he suggested that it be done by judicial officers who had “highly trained faculties,” were “intelligen[t],” “open-mind[ed]” and “read[y] to receive new light.”163 They required the capacity to “look at law in its widest aspects,”164 and never lose sight of its aims. Such officers, he said, had to be “associated with intelligent Chiefs and other fit persons disinterestedly giving him information of present-day condition of things.”165 With such cooperation, Sarbah was confident that a judicial officer “could effect by way of reforms what the [then] Legislative Council… [could not] even attempt.”166 Sarbah understood that reforms did not have to be left entirely to lawyers; judicial officers had to work with chiefs who were custodians of customary law and other professionals. Additionally, the conflict between the two systems emerged from the fact that the British colonial officers disrespected the customary law system. Sarbah does not fail to touch 161 Ibid. 162 Lawrence Friedman, “Is there a Modern Legal Culture?” (1994) 7 Ratio Juris 118 at 119. 163 Sarbah, “Maclean”, supra note 18 at 359. 164 Ibid. 165Ibid. 166Ibid. 89 on the obvious disregard for the native courts and rulers. Firstly, he chides the judges and magistrates for failing to pay heed to the Supreme Court Ordinance,167 which empowered them to try cases with the assistance of native chiefs or experts in native law.168 He questions the inability of the courts to take advantage of the flexibility of customary law to reform it to suit the needs of the people. He also queries the failure of the courts to refer matters to the native courts even when it is so prescribed by law and criticizes the tendency to focus solely on the application of English law. Sarbah knew that customary law reforms could not take place without the cooperation of the traditional rulers. Just as changes to state law involve government functionaries, changes to native law must involve the traditional government. Lastly, it would seem that reforms will be successful if the natives themselves, as well as customary law, are respected. Sarbah describes the failure of the “English courts to explain and interpret their decisions to the litigants, as a “very grave mistake.”169 He says that “[w]hether parties are represented by Counsel or not, understand English perfectly or otherwise, a Judge's decision, except in petty cases, ought to be interpreted so as to be understanded [sic], of the people within hearing, for only by such means can the public… find out the best way to apply its principles to the various needs of to-day.” I contend that while this approach would have helped the natives to relate to the foreign law, it would also have enabled them to realize that the foreign law, like their customary law, can also protect their rights and liberties. Moreover, the state could have 167 Supreme Court Ordinance, supra note 40 at s 81. 168 Sarbah “Maclean”, supra note 18 at 356-357. 169 Ibid at 358. 90 succeeded in developing a truly unified court system. The incomprehensibility of the courts’ decisions to the natives may have held them back from accessing the introduced court system. No wonder the courts soon grew apart from the people. With the introduction of the English legal principle of stare decisis, customary law progressively moved away from representing the practices of the people to being what the judges thought the law ought to be. Thus, there developed in Ghana what is termed judicial customary law, the law recognized by the courts, and which differs from the customary law actually practiced by the people whose law it was. 2.8 CUSTOMARY LAW IN THE POST-COLONIAL ERA: ASCERTAINMENT AND APPLICATION, 1957-2015 Ghana currently has a unified court system. There are no native or local courts in Ghana. According to Sally Merry, “contemporary elites in Africa see modernization and nation-building as requiring a unified legal system, often drawing on models of European law.”170 Post-colonial Ghana did not alter the course of the customary law reforms already underway in the country. Ghana was “hardly in a ‘post-colonial’ moment. The official apparatus might have been removed, but the political, economic and cultural links established by the colonial domination still remain[ed] with some 170 Sally Engle Merry, “Legal Pluralism” (1988) 22:5 Law and Soc`y Rev 869 at 872 [Merry, “Legal Pluralism”]. 91 alterations.”171 In 1958, the Local Courts Act abolished the native courts and created a number of local courts to replace them.172 The process of absorbing the native courts into the bequeathed British court system was fairly smooth, as the modifications made to the courts throughout the colonial period had prepared them for their eventual integration. Lay magistrates173 and not Chiefs presided over these local courts.174 It is worth remarking that the local courts, by law, could try civil cases and only three specific customary offences, namely, putting a person into fetish;175 recklessly, unlawfully or frivolously swearing an oath; and possessing any poisonous, noxious or offensive thing with intent to use such thing to endanger or destroy human life or to hurt, aggrieve or annoy any person.176 These offences were later abolished by the Courts Decree of 1966, which also abolished the local courts.177 The current Criminal Offences Act of Ghana does not recognize 171 Aimé Césaire, Discourse on Colonialism, with introduction written by Robin Kelly and translated by Joan Pinkham, (NY: Monthly Review Press, 2001) 27. 172 The Local Courts Act, 1958 (no.23) s.4.The process of eliminating the native courts or tribunals was actually meant to be gradual. The first local courts were not established until December 1959. These local courts were later abolished by the Courts Decree in 1966. William Burnett Harvey, “The Evolution of Ghana Law since Independence” (1962) 27:4 Law & Contemp Probs 581 at 585 [Harvey, “The Evolution of Ghana”]. 173 These are ordinary people with no legal qualifications that make decisions in magistrate courts. 174 Courts Act, supra note 172 at s 5(1). Regarding the current role and status of chiefs in Ghana, see arts 270-277 of the Constitution of the Fourth Republic of Ghana, 1992 (Laws of Ghana (Rev. Ed. 2004), Vol I, 140) and the Chieftaincy Act, 2008 (Act 759) [Chieftaincy Act, 2008]. 175 This may be described as an appeal to a fetish, [a spirit that has a permanent presence in its shrine] to bring judgment upon another. This is usually done through a fetish priest, the medium and mouthpiece of the fetish. Judgment may take the form of death. See the case of Obeng Alias Nkobiahene v Dzaba,  1 GLR 172-177, where the plaintiff “swore a fetish” on the defendant. 176 Courts Act, supra note 172 at s 10-11 & the First Schedule, s 9. 177 The Courts Decree, 1966 (NLCD 84). The customary offences indicated, which were spelt out in previous enactments, ibid, were left out of NLCD 84. Furthermore, none of the courts set up in NLCD 84 were entrusted with jurisdiction to try any specified customary offence. 92 customary law offences.178 In theory, the customary perception of wrong and right has been eroded and the imported notions are now applied nationally. On this point, Allott conjectures thus: It would be interesting to debate the issue of unified criminal law, since much of criminal law expresses a social and moral attitude. Whose moral and social attitude is to be expressed by the criminal law, and what concessions, if any, should be made to differences of opinion or even of behaviour? The answer generally is that it is the law-making elite which imposes its view of these matters, though when, say, the offence of bigamy is abolished as being inconsistent with African acceptance of polygamous unions, we can say that the elite view coincides with the popular view.179 Nonetheless, it has been accurately observed that “we all know that day in and day out, that in the self-created tribunals of our traditional rulers and elders, the citizens are punished for various customary offences.”180 Indeed, state law or state recognized customary law has little impact in the countryside and state law cannot compel action181 unless it embraces local circumstances and traditional understandings of law. Focusing on two important pieces of legislation, I will briefly describe the current regulatory framework for the assimilation, declaration, ascertainment and application of customary law. 178 See the Criminal Offences Act, 1960 (Act 29) (Laws of Ghana (Rev. Ed. 2004), Vol III, 1701). 179 Allott, “African Customary Law”, supra note 87 at 65; however, Ollennu says that the Natives themselves realized that the English criminal justice system was better than theirs because it was more effective in dealing with crimes. Ollennu, “English Law”, supra note 66 at 25. 180 George Kingsley Acquah, “Customary Offences and the Courts” [1991-92] 18 RGL 36-67. 181 Antony Allott, The Limits of the Law (London: Butterworth, 1980) 45 [Allott, “The Limits of the Law”]. 93 While in theory, the various Houses of Chiefs are tasked with the responsibility of assimilating the customary law into the common law, subject to Executive approval,182 in practice, this seems to have been almost exclusively a judicial function. The National House of Chiefs may on its own initiative or upon the request of the Minister or a joint committee comprising representatives of all the Regional Houses of Chiefs, consider whether a rule of customary law should be assimilated by the common law. If the proposal is favorably considered, a draft declaration prepared by the National House shall be forwarded to the Minister who shall give effect to it by legislative instrument, after consultations with the Attorney General.183 Where a rule is declared to be assimilated it becomes part of the common law and is referred to as “a common law rule of customary origin.”184 But what is the rationale for categorizing the resulting rule as either common law or customary law as the resulting rule would derive its force from the enacting statute or legislative instrument?185 It has been argued that “to bring into the common law the customs of some particular community does not merely alter the term by which they are described. Their scope of 182 Chieftaincy Act, 2008, supra note 174 at s 54(1); Chieftaincy Act, 1971 (Act 370) s 45 [Chieftaincy Act, 1971]. 183 Chieftaincy Act, 2008, supra note 174 at s 54(1-3). A similar provision was found the in Chieftaincy Act, 1971, supra note 176 at s 45. The main difference being that the draft declaration prepared by the National House of Chiefs under the 1971 Act had to be submitted to the President who would consult with the Chief Justice to make a legislative instrument giving effect to the recommendations of the National House of Chiefs. The National House of Chiefs is an ‘association of chiefs’ with defined adjudicatory and advisory functions. Its functions include: (a) advising a person or an authority charged with a responsibility under the Constitution or any other law for any matter related to or affecting chieftaincy; (b) undertaking the progressive study, interpretation and codification of the customary law with a view to evolving, in appropriate cases, a unified system of rules of customary law; (c) undertaking an evaluation of traditional custom and usage with a view to eliminating custom and usage that is outmoded and socially harmful. Chieftaincy Act, supra note 174 at ss 1 & 3. 184 Chieftaincy Act, 2008, supra note 174 at s 55(1). 185 Harvey, “The Evolution of Ghana” supra note 172 at 596. 94 application and their future treatment in the legal order are also basically changed.”186 The alteration of a rule of customary law follows a similar procedure.187 On the issue of declaring customary law, the current Chieftaincy Act states that where a Traditional Council considers the customary law which is in force within its area to be uncertain or desires to have it modified or assimilated by the common law, the Council shall make representations on the matter to the House of Chiefs in the region.188 The House of Chiefs on its own initiative or at the request of the traditional council shall draft a declaration of what the customary law is for a given area and forward this to the National House of Chiefs.189 The National House shall in turn submit it with the necessary modifications, if any, to the Minister of State who may give effect to the law by legislative instrument.190 Thus, even though the various houses of chiefs have legally prescribed roles to play in the reform of customary law, these roles, as earlier mentioned, are circumscribed. Regarding the ascertainment of customary law, prior to the promulgation of the 1960 Courts Act, customary law was a question of fact and had to be proved by evidence; it is now a question of law.191 As a question of law, the courts192 are no longer mandated to 186William Burnett Harvey, “A Value Analysis of Ghanaian Legal Development since Independence,” online: (1964) Articles by Maurer Faculty Paper 1188 < www.repository.law.indiana.edu/facpub/1188> [Harvey, “A Value Analysis”]. 187 Chieftaincy Act, 2008, supra note 174 at 52(1-4). 188 Ibid at s 50. 189 Ibid at s 51(1) (2). 190 Ibid at s 51(4). 191 The Courts Act, 1960 (C. A 9), s 66 & 67 indicate that any question as to existence or content of a rule of customary law is a question of law for the court and not a question of fact.) The current Courts Act 1993 (Act 459) (Laws of Ghana (Rev. Ed. 2004), Vol III, 1351) s 55 (1) [the Courts Act, 1993] has replaced Paragraph 67 of the Courts Act of 1960. 95 ascertain the customary law, but to treat it like other law. In the resolution of disputes, the courts are permitted to consult reported cases, textbooks and other appropriate sources if there is any doubt about the content of a rule of customary law. This is not mandatory. The courts may also invite written opinions from a House of Chiefs, Divisional or Traditional Councils or experts in customary law. As a result of these permissive provisions, the Ghanaian judiciary rarely resorts to expert witnesses to help ascertain the applicable customary law in cases before them. Customary law is determined according to judicial precepts and the related doctrines of equity, natural justice and good conscience. Nevertheless, by virtue of the doctrine of precedent, which underpins the borrowed English judicial system, and which is inevitably applicable to customary law, the growth of customary law has been suppressed. The content of what is described as judicial customary law is at variance with practiced customary law. However, the binding force of customary law depends on its acceptance and use by the people whose lives it regulates. Once it is settled by a judicial decision, its binding force now depends on courts, and it ceases to be customary law.193 The choice of law rules embodied in the Courts Act194 determine how customary law should be applied vis-à-vis common law rules. The Act states that in determining the 192 Refer to art 126 of the Constitution of the Fourth Republic of Ghana, 1992 (Laws of Ghana (Rev. Ed. 2004), Vol I, 140) for a list of the courts of Ghana. 193 Antony Allott, “The Judicial Ascertainment of Customary Law in British Africa” (1957)20:3 Mod L Rev 244-263, 258 [Allott, “The Judicial Ascertainment”]; see also Harvey, “Law and Social Change in Ghana”, supra note 90 at 250. 194 The Courts Act, 1993, supra note 191 at s 54. 96 law applicable to an issue arising out of any transaction or situation, the courts shall apply the law intended by the parties to the transaction.195 If it is with regard to the devolution of a person's estate, the courts shall apply their personal law in the absence of any intention to the contrary.196 Where the parties are subject to the same personal law, the courts shall apply that law, but where they are subject to different personal laws, the court shall apply the relevant rules of their different systems of personal law to achieve a result that conforms to natural justice, equity and good conscience.197 In spite of these provisions, under the Courts Act,198 unless a party to the suit makes a case for the application of customary law, the court is not obliged to find a reason to do so, thereby annulling the presumption in favor of the application of customary law to cases where the parties are natives. Harvey suggests that the Courts Act “improves the status of the common law… in its competition with indigenous legal norms.”199 The fact of the matter is that even though the Courts Act makes room for the application of customary law in cases brought before the courts,200 neither litigants nor the courts take advantage of this provision; the application of English common law is almost automatic. In spite of the effect of judicial and legislative changes, and other factors such as western education systems, religion, changed notions about property rights, the 195 Ibid. 196 Ibid. 197 Ibid. 198 Ibid at s 54 (1). 199 Harvey, “The Evolution of Ghana”, supra note 172 at 600. 200 Courts Act, 1993, supra note 191 at s 54 (1) (5) & (6). 97 evolution of the concept of family and socio-economic advancement, living customary law continue to exist. According to Woodman: It would be difficult to find any individual, in the past or today, who has abandoned the entirety of their indigenous culture and replaced it by taking the imported culture as the sole guide to their social relations. Those who, often skilfully and with conviction, adopted the imported culture for some parts of their lives, continued to live other parts according to one or another of the indigenous cultures.201 2.9 CONCLUSION This chapter has attempted to show the historical evolution of the reform of customary law generally. It described the precolonial customary law governance institutions as well as the key features of the law in order to show how the system works and clarify the values it prioritizes. It has highlighted the changes that customary law underwent during the colonial era and what remains of it. The colonial period challenged the customary law system, which largely existed at the pleasure of the colonialists, especially in the major towns where British contact was greater. This chapter examined how creolization and economic progress, education and Christianity aided in seemingly detaching the natives from their traditional system. However, these influences were stronger in the cities than in the countryside and, in fact, even in these cities the influences were not strong enough to eradicate customary law. The realization that these changes hardly affected practiced customary law merged into a discussion about the strengths and 201 Gordon R Woodman, “Ghana: How does state law accommodate religious, cultural, linguistic and ethnic diversity?” in Marie-Claire Foblets, Jean-François Gaudreault-Desbiens & Alison Dundes Renteln, eds, Cultural Diversity And The Law: State Responses From Around The World (Brussels: Bruylant, Ėditions Yvon Blais, 2010) 255 at 259 [Woodman, “Ghana”]. 98 limitations of the law reform methods adopted during the colonial and immediate post-independence period. Those entrusted with the responsibility of reforming customary law must be capable of the task; they must appreciate the demands of legal reforms. They should withhold their prejudices and respect the customary system, have in-depth knowledge about the people and their law. They must also recognize that reforms must consider what the country is capable of accommodating, given its particular circumstances; they should have a clear vision of what they seek to achieve and be realistic as to what is possible in reform. This chapter also explored the post-colonial legislative efforts at managing the development of customary law. The next chapter examines how the law of intestate succession currently functions in Ghana. It discusses what has been reformed, what necessitated the reforms, whether the lessons from the past were heeded and whether the reforms have been effective, especially in the countryside. 99 Chapter 3: THE INTESTATE SUCCESSION LAW, PRESSURES FOR CHANGE AND THE IMPACT OF REFORMS 3.1 INTRODUCTION This chapter explores how the statutory and customary law of intestate succession currently functions in Ghana. My intention is to use the law of succession as the focal point from which to assess the effectiveness of customary law reform strategies. To provide the needed context, I provide a brief overview of the general principles of the customary law of intestate succession as they pertained to matrilineal communities in Ghana before the Intestate Succession Law, PNDC Law 111, 1985. This is followed by a discussion of the limitations and the alleged abuses that characterized the matrilineal system of inheritance, resulting in immense pressure on the government to reform the system, to bring it into conformity with international standards. This discussion is followed by a description of the relevant provisions of PNDC Law 111, which is applicable to all Ghanaians irrespective of their religious affiliation and traditional family membership.1 My intention is to provide enough information about the law to show how it works, and also enhance the ensuing discussion about the current advocacy activities in Ghana. I then analyze the continued importance of customary law, both judicial and practiced, to the statutory law of succession. My goal is to provide a balanced view of how the law actually functions; showing the gap between the two strands helps to focus attention on the shortcomings of customary law reform methods. 1 See the memorandum to the Intestate Succession Act, 1985 (PNDC Law 111) (Laws of Ghana (Rev. Ed. 2004), Vol V, 1951) [PNDC Law 111]. 100 I then discuss the limitations of PNDC Law 111 and the recent NGO-led demands for further reforms in the law of succession. I examine existing research data to show the extremely low level of compliance with PNDC Law 111, especially in rural Ghana, and explore the main factors that account for this. Finally, I evaluate the effectiveness of the current reform efforts aimed at bridging the gap between judicial and practiced customary law. This sets the tone for the introduction of alternative reform strategies in the next chapter. 3.2 THE PRE-1985 STATUS QUO: THE DEVELOPMENT OF CUSTOMARY LAW THROUGH THE LAW OF SUCCESSION TO PROPERTY This discussion focuses on the law applicable to intestate succession in matrilineal societies in Ghana. I do not discuss the customary law of succession as it relates to patrilineal communities or to Muslims. I have chosen to concentrate on the matrilineal system because its rules on inheritance are arguably more controversial. Before the enactment of PNDC Law 111, various rules and laws governed the distribution of intestate property. The applicable rules depended on whether the deceased was married under the Marriage Ordinance2 or was a Muslim whose marriage was registered under the Marriage of Mohammedan’s Ordinance (Cap 129),3 or whether the 2 The Marriage Ordinance, 1884 (Cap. 127) Laws of the Gold Coast, (1951. Rev.) [Marriage Ordinance]. This Ordinance provided rules for the devolution of intestate property and these were applicable to those who married under the Ordinance as well as their children, even if their children were not married under same. This Ordinance is currently cited as Marriages Act, 1884 – 1985 (CAP. 127), Part III (Laws of Ghana (Rev. Ed. 2004), Vol V, 3801). 3 On the death intestate of a Muslim, the devolution of his property was determined or regulated by Islamic Law. The succession provisions in the Marriage of Mohammedans Ordinance were applicable only if (1) the deceased was of the Muslim faith, (2) married according to Mohammedan rites, and (3) the marriage was registered as required by the Ordinance. See, Marriage of Mohammedans Ordinance (Cap 101 deceased belonged to a matrilineal or patrilineal family system. Each of these systems of distribution had deficiencies.4 3.2.1 The Traditional Family The customary law of inheritance is founded on the rules of matrilineal or patrilineal descent.5 Consequently, all analysis of the law of succession begins with the traditional family. Depending on an individual’s parentage and the particular ethnic group to which one belongs, one is deemed to be from either the matrilineal and patrilineal family systems. Every individual is believed to belong to one or the other. The matrilineal family is deemed to consist of all persons, male or female, who are in the direct female line of descent from a common female ancestor.6 As earlier stated, the patrilineal system is not the focus of this research. The traditional family is the most important social institution7 and political unit in the customary legal system because it determines access to political and socioeconomic rights.8 For instance, it determines the enjoyment of rights in land and movable 129) Laws of the Gold Coast, (1951. Rev.) s 10. [Mohammedans Ordinance]. Section 10 was repealed by section 19 of the Intestate Succession Act, PNDC Law 111. This Mohammedans Ordinance is currently cited as Marriages Act, 1884 – 1985 (CAP. 127), Part II (Laws of Ghana (Rev. Ed. 2004), Vol V, 3801). 4 See generally Christine Dowuona-Hammond, “Women and Inheritance in Ghana” in A. Kuenyehia, ed, Women And Law In West Africa: Situational Analysis Of Some Key Issues Affecting Women, (Accra: Human Rights Study Centre, Faculty of Law, University of Ghana, Legon, 1998) 132-168. 5 WC Ekow Daniels, “The Impact of the 1992 Constitution on Family Rights In Ghana” (1996) 40:2 J Afr L (Liber Amicorum for Professor James S. Read) 183 at 185 [Daniels, “Family Rights In Ghana”]. 6 John Mensah Sarbah, Fanti Customary Laws, 2nd ed (London: William Clowes &Sons limited, 1903) 33 [Sarbah, “Fanti Customary Laws”]. 7 LK Agbosu, “Legal Composition of the Akan Family” (1983-86) 15 RGL 96 at 96. See Rattray’s views on the nature of the traditional family; RS Rattray, Ashanti Law and Constitution (London: Clarendon Press, 1929) 2. 8 To date, the traditional family continues to determine the political and socio-economic rights that one may be entitled to under customary law and even statute law. Under the current Intestate Succession Act, 102 property, succession to property and hereditary offices. The family includes dead relatives,9 and individual wrongdoings affect the whole family unit which must of necessity atone for the ‘sins’ of the individual.10 Responsibilities towards the family are legal and moral. Generally, under customary law, upon one’s death intestate, one’s self-acquired property becomes family property.11 In matrilineal communities, the devolution of property upon death intestate is determined by tracing descent through one’s mother. While the wider or maximal lineage has a right of control over the estate, the right of immediate enjoyment is the prerogative of the sub-lineage.12 Even though the entire a portion of the intestate property devolves according to the rules of the customary law of inheritance and the beneficiaries of this portion are determined by the rules of customary law. 9 Awoonor explains that the fulfillment of responsibilities to the dead relatives is believed to determine the general success and well-being of those living. Kofi N Awoonor, Ghana: A Political History from Pre-European to Modern Times (Accra: Sedco and Woeli publishing, 1990) 4. 10 Ibid. 11 One is entitled to make a will to change this outcome, though not entirely. Every Ghanaian of sound mind and of age can make a will. One can either make a customary law will (oral will) known as samansiw, or one can make a will in accordance with the Wills Act 1971(Act 360) (Laws of Ghana (Rev. Ed. 2004), Vol VII, p. 4401). It would seem that under customary law, a testator cannot disinherit his successors completely. According to Ollennu, the customary law prohibits a man from disposing of the whole or the majority of his property to persons outside the circle of family and dependents, dependants being his wife and children. Nii Amaa Ollennu, “Family Law in Ghana” in Le Droit De La Famille En Afrique Noire et À Madagascar-Surveys made at the request of UNESCO (Paris: Editions G.P. Maisonneuve Et Larose 11, rue Victor-Cousin, 1968) 159-194,181. [Ollennu, “Family Law in Ghana”].Allott also explains that “[i]f there was one thing which customary laws abhorred, it was the idea that the holder of property should be able to deprive his customary heirs and successors of their inheritance by a unilateral act of his own not sanctioned by his family.” Antony Allott, “What Is to Be Done with African Customary Law? The Experience of Problems and Reforms in Anglophone Africa from 1950” (1984) 28 J Afr L 56-71, 62 [Allott, “African Customary Law”]. Also under state law, if the High Court is of the opinion that a testator has not made reasonable provision whether during his lifetime or by his will, for the maintenance of his or her father, mother, spouse or child under 18 years of age, and that hardship will be caused as a result, the High Court may, taking account of all relevant circumstances, notwithstanding the provisions of the will, make reasonable provision for the needs of such father, mother, spouse or child out of the estate of the deceased. Wills Act 1971(Act 360) (Laws of Ghana (Rev. Ed. 2004), Vol VII, 4401) s 13(1). 12 Ollennu explains that even though the whole family has a stake in the property of their deceased relative, the courts have gradually confined the beneficiaries to a very small group such as the children and very close relatives of the deceased. Ollennu holds the view that this trend is the result of 103 estate devolves on one’s customary family, a customary successor is appointed to administer the estate on behalf of the family.13 This successor was under a legal obligation to look after the surviving children and spouse from the proceeds of the estate, but this did not always happen.14 Daniels summarizes the matrilineal system of inheritance as follows: Our inheritance law may be said to have been based on at least three main ideas or concepts …(a) that men are regarded and treated, not as individuals, but always as members of a particular group, e.g. a gens, house, clan, lineage or family; (b) that the society has for its units not individuals, but groups of men united by the reality or the fiction of blood-relationship; and (c) that the group which we call the family was considered to be a corporation which never died.15 Thus, the traditional family is the centre around which the socio-economic and political organization of the society revolves. Individual rights and liberties are determined by membership in the family. The traditional family also emphasizes the physical and convenience, the influence of the common law, and a misconception of those who constitute one’s family under customary law. He insists that the judicial position is definitely not the customary law. Nii Amaa Ollennu, “Changing the law and Law Reform in Ghana” 15:2 J Afr L 151 [Ollennu, “Law Reform in Ghana”]. 13 This is a family member appointed by the customary family to administer the estate of the deceased for the benefit of the whole family, including himself. He “steps into the shoes” of the deceased and ensures that the rights of the surviving spouse and children are honored. It should be noted that a customary successor is not the same as an executor, an heir or next of kin. An heir in most jurisdictions takes the property for himself or herself and can do whatever he or she likes with it; nobody has a right to question him or her if he or she wastes or even sells the estate. Successors in other countries too have similar rights, but the Customary Successor in Ghana has no such right of ownership, he is a caretaker with a beneficial interest.” The English law of succession does not recognize the concept of a customary successor. See Nii Amaa Ollennu “Family Law in Ghana,” supra note 11 at 187. 14 It was common to find the family ejecting the widow and children from the deceased spouse’s home, leaving them destitute. See EVO Dankwa, “Adwoa Dankwa, the Helpless and Hopeless, Poor and Pesewaless Widow” (1974) 6 RGL 136. See Akua Kuenyehia, “Women, Marriage, and Intestate Succession in the Context of Legal Pluralism in Africa” (2006) 40 UC Davis L Rev 385 at 392. 15 According to Ekow Daniels, “[i]n the eyes of customary law, the family is regarded like a corporation aggregate which consists of several members related genealogically. It has the distinctive characteristic that it never dies. The death of a member made no difference to the collective existence of the aggregate body.” Ekow Daniels, “Development of Customary Law” (1991-92) 18 RGL 68 at 88 [Daniels, “Development”]; See also Awoonor, supra note 9 at 3. 104 “sacred”16 connection between the individual and his or her community and requires its members to think of themselves as part of a group. A person is judged according to how well he or she serves the wider family interest. The family is regarded as a legal entity with dispositive rights, rights it exercises to ensure that its members are well taken care of. The family is regarded as a legal entity17 and is usually compared to a corporation, which legally, is designed to outlive its founder. Its membership may change, but it lives on as that pillar that binds its members together and holds them accountable for looking after the interests of the whole group. 3.2.2 The Matrilineal Family System: The Property Rights of Spouses I use the earlier case law to explain living customary law because these cases emerged during the period when the courts accepted the living customary law presented to it by feuding parties. In matrilineal communities, spouses are completely excluded from inheriting any part of each other’s estate.18 The customary position is that spouses in matrilineal communities do not belong to each other’s family,19 and that one can only inherit property from a blood relation. Evidently, under the matrilineal system of inheritance, consanguineal ties are superior to affinal ties. It may be appropriate to describe the traditional family as “a nucleus of blood relatives surrounded by a fringe of spouses” as opposed to “a nucleus of spouses and their off-spring surrounded by a 16Nii Amaa Ollennu, The Law of Testate and Intestate Succession In Ghana (London: Sweet & Maxwell, 1966) 77 [Ollennu, “Succession”]. 17Agbosu, supra note 7 at 96. 18 Quartey v Martey,  GLR 377 [Quartey]. 19 Fordwour v. Nimo,  1 GLR 305. 105 fringe of relatives.”20 Spouses hold separately the property they acquire individually during the subsistence of their marriage. Such property is not regarded as joint property. Justice Hayfron-Benjamin explained in the case of Yeboah v Yeboah21 that joint ownership of property by persons not connected by blood is not a principle of customary law, but adds that customary law does not prohibit the creation of such joint interest.22 Sarbah also advises that “[m]arried people have no community of goods, but each has his or her particular property.”23 In matrilineal communities, customary law gave a wife no legal entitlement to property she had helped her spouse to acquire; she only had a right to be maintained out of the intestate estate. Ironically, a female spouse was obliged under customary law to assist her husband in his occupation.24 The case of Adom and another v Kwarley thus held that a wife who assists her husband in his trade does not become a joint-owner of the property acquired therefrom.25 This rule is based on the fundamental principle of customary law that a wife and child were dependent on their spouse and father respectively for their livelihood.26 In sum, it would seem that the matrilineal system of inheritance was both legally and socially unfair, especially to surviving spouses who through hard work had helped their 20 American Sociologist Ralph Linton as quoted in Kofi Oti Adinkrah, “Ghana's Marriage Ordinance: an Inquiry into a Legal Transplant for Social Change” (1980) 12:18 J Legal Pluralism 1 at 12. 21 Yeboah v Yeboah,  1 GLR 305. 22 Ibid at 114. 23 Sarbah, “Fanti Customary Laws”, supra note 6 at 6. 24 Quartey, supra note 18 at 377. 25 Adom & another v Kwarley,  1 GLR 112. 26 Abebreseh v Kaah & others,  2 GLR 46 [“Abebreseh”]. 106 deceased spouses to acquire property, and yet could not lay claim to any portion of the property. 3.2.3 The Matrilineal Family System: The Property Rights of Children Legally, children born to a man from a matrilineal family, unlike those born into the patrilineal family,27 are not considered part of their father’s family.28 As a result, they could not succeed to any of his self-acquired property on his death. In fact, they had no legal right to any specific portion of their father’s estate.29 They also had a responsibility to assist their father in his trade or business, though that assistance did not entitle them to any specific beneficial interest in the property which the father acquired with the earnings from the said trade. However, the principles of customary law impose on a father in a matrilineal community an indisputable obligation to house, support, and advance his children. Accordingly, the children, while young, had to be supported financially from their father’s estate by his customary successor.30 Sarbah explains authoritatively on the position of children born in matrilineal communities as follows: 27 With specific respect to the treatment of children, the perceived injustices in the matrilineal communities were graver than what pertained in patrilineal communities. Children born in patrilineal communities unlike those in matrilineal families belong to their father’s family. For this reason it has been said that the children of an intestate were entitled to succeed to their father’s estate as of right. Addo and another v Manko,  2 GLR 454 supports the view that in Patrilineal communities’ children succeed to their fathers’ self-acquired property as of right. This has been disputed by others who assert that the self-acquired property of the deceased from a patrilineal community became by operation of law the property of the family to which he belonged on his death intestate. See Budu v Amponsah and Others, [1989-90] 1 GLR 150, see also AKP Kludze, Ewe Law of Property (London: Sweet & Maxwell, 1973) 290-291 [Kludze, “Ewe Law of Property”]. 28 See Fordwour, supra note 19 at 305. 29 Eshun & others v Johnfia, [1984-86] 1 GLR 105. 30 Ibid; see also Agyei v Addo, (1950) DC (Land) '48-51, 288. 107 When a person such as A dies, having his own acquired property, moveable and immoveable, he is not succeeded by his sons, free-born or domestic, whose only right is that of a life interest in the dwelling-house built by their father, the deceased, on a land not family property. For if the house be built on family land, the children have only right of occupation during good conduct. If anyone living in the house of his father deny the right of the proper successor, or commit waste or injure the house, or encumber or sell it, he thereby forfeits his life interest. Such person must make the necessary repairs, and may quit if the successor requires it for himself as a residence.31 Thus, the customary legal system offered very little protection to children born into matrilineal families. These children could not depend entirely on the intestate estates of their deceased fathers to provide for their education and general sustenance. Such incidents flowing from the traditional family system were viewed as unfair by some Ghanaians and were challenged during and after the colonial era. 3.2.4 Problems with the Matrilineal System of Inheritance Admittedly, some of the customary law rules were harsh while others were simply abused. For instance, a surviving widow and children were entitled to reside in a house built by their deceased husband and spouse respectively, but this right was subject to the condition of good conduct.32 This rule was potentially harsh and worked to the disadvantage of widows and children. Indeed, it was not uncommon for a surviving widow and children to be ejected from the matrimonial home on the death of their spouse and father respectively. Invariably, the deceased’s young children were badly 31 Sarbah, “Fanti Customary Laws” supra note 6 at 105. 32 See the case of Amissah-Abadoo v Abadoo,  1 GLR 110 at 131. 108 affected, and in some cases, had to drop out of school. In sum, they were left destitute.33 This was especially unfair to widows who had contributed to the acquisition of the property in question, but could not prove their contribution. This was normal as the customary system, having patriarchal tendencies, did not discourage women from allowing their husbands to register jointly acquired properties in the husband’s name. Bernice Sam, a lawyer and Elizabeth Ardayfio-Schandorf, a social scientist, explain that when cases to determine property ownership ended up in court, it was difficult for adjudicators to make a finding of co-ownership if women could not give evidence of such. In addition, they discovered that even where the women had made direct financial contributions, the property was acquired or registered in the name of the man alone as there seemed to be a view that “custom demands that property must be owned by a man” and “registered in his name.”34 Also, the customary law rule that a woman was required to assist her husband in his occupation, though such assistance did not confer on her any inalienable rights in property acquired thereby, inevitably resulted in far more impoverished widows than widowers.35 33 Dowuona-Hammond, supra note 4 at 140-141, 145. See also Kuenyehia, supra note 14 at 392. See also J Ofori-Boateng, “The Courts and Widows in Distress” (1973) 5:2 RGL 106-119. 34 See Bernice Sam & Elizabeth Ardayfio-Schandorf, “Consensual Unions in the Western Region of Ghana: their Relation to Violence against Women and Property Rights” (Women in Law and development in Africa [WILDAF], 2006) 56. I doubt the accuracy of these statements as Mensah Sarbah has explained that “[m]arried people have no community of goods, but each has his or her particular property”. Sarbah, “Fanti Customary Laws”, supra note 6 at 6. 35 Dowuona-Hammond, supra note 4 at 132. 109 Moreover, it was not unusual for some customary successors to abuse their positions of trust by reneging on their responsibility to provide for the surviving spouse and children. Customary successors were generally required to ensure equity in the distribution of property. Akua Kuenyehia, a legal academic, explains that customary successors in the past discharged this obligation “with all seriousness,” but blames the “present individualistic age” for their neglect of duty.36 The inability of customary successors to ensure equity in the distribution of property called the effectiveness and fairness of the customary law rules into question. The customary legal system seemed to have no mechanism for ensuring the protection of rights or for ensuring that its rules were complied with, and this greatly undermined its efficacy as a legal system intent on promoting the general well-being of its members. 3.2.5 State Intervention The colonial government had in 1884 attempted reforms with the promulgation of the Marriage Ordinance37 which introduced European concepts of marriage and family. This was seen as an attempt to abolish customary values.38 The consent of the traditional family to customary marriages was mandatory among most ethnic groups. However, with the growth of Christianity and formal education, some people did not find this consent necessary and did not seek it.39 These people usually contracted their marriages according to the rites of their religious denomination; these marriages were 36 Akua Kuenyehia, supra note 14 at 392-393. See also Dowuona-Hammond, Ibid. 37 Marriage Ordinance, supra note 2. 38 Daniels, “Development of Customary Law”, supra note 15 at 85. 39 Nii Amaa Ollennu, “Succession”, supra note 16 at 239-240. 110 not legally enforceable.40 On the death intestate of any of the parties to such marriages, the traditional family of the deceased failed to provide for the surviving spouse and children because such a spouse was regarded as a concubine.41 The Marriage Ordinance was thus passed to create a system of marriage other than the customary law marriages. The Ordinance was also passed to legalize the existing marriages solemnized according to religious rites and to provide for succession to the estate of persons who married under the Ordinance and their children on their death intestate.42 It is important to note that a person who married under the Ordinance and their children could hold family property in respect of which they had no testamentary powers. This happened if they were appointed customary successor to a deceased family member or head of his or her family.43 However, under the Ordinance, family members could not succeed to the self-acquired property of relatives who married under the Ordinance. As a result of the protests against this injustice, the Ordinance was revised (section 48) to incorporate new rules of succession applicable to those who legalized their union pursuant to it.44 Section 48(1) of the Ordinance provided that where a person subject to native law or custom contracted a monogamous marriage under the Ordinance and died intestate, two-thirds of his or her property was to devolve on his or her widow and children in accordance with the law of England on the distribution of intestate property in force on 40 Ibid. 41 Ibid at 240. 42 Ibid at 241-242. 43 Ibid at 241. 44 Ibid at 243-244. 111 the 19th of November, 1884. The remaining one-third was to be distributed in accordance with the customary law of the intestate. Also, the property of a child born to parents married under the Ordinance was to be disposed of in the same fashion.45 The significance and overall impact of the provision was limited given that only a few natives married under the Ordinance.46 It is estimated that more than 80% of marriages in Ghana are contracted under customary law.47 The mid-twentieth century saw a significant influx of English juristic, economic and social ideas into the Gold Coast, which resulted in calls by the natives for changes in the laws of succession.48 On 9 May, 1959, the Government appointed a Commission of Inquiry to study the existing forms of the customary law of inheritance and make recommendations. As a result, in May of 1961, the Government published a White Paper on Marriage, Divorce and Inheritance which presented its proposals and asked 45 In furtherance of the Marriage Ordinance, the court in the case of Vanderpuye v. Golightly and Others was prepared to set aside a land transaction after 15 years and hold that “the land in dispute was the self-acquired property of the plaintiffs’ father and upon his death intestate they [the plaintiffs] had acquired interest in two-thirds of it by virtue of the Marriage Ordinance, in spite of succession being matrilineal among the Ga Mashi.” Under the Ordinance, the remaining one-third was to be given to the customary family. Interestingly, this law applied to children of such marriages even if they did not contract their marriages under the Ordinance. Vanderpuye v Golightly & Others  GLR 453. 46 The Ordinance was not suited to African conditions. It was also difficult to ascertain and interpret the applicable English rules on the devolution of property. Most of the rules dated as far back as the 17th century. Additionally, determining the various fractions required by the law was very challenging, especially, when the deceased left behind a huge estate and was also survived by most of the people entitled to succeed under his estate. See Memorandum to Law 111, supra note 1 at i & ii; See also AKP Kludze, “Problems of Intestate Succession in Ghana” (1972) 9 UGLJ 89 at 97-98 [Kludze, “Succession in Ghana”]. Section 48 has been repealed by section 19b of the Intestate Succession Act, 1985 (PNDC Law 111) (Laws of Ghana (Rev. Ed. 2004), Vol V, 1951) [PNDC Law 111]. 47 Steven J Salm & Toyin Falola, Culture and Customs in Ghana (Westport CT: Greenwood Publishing Group, 2002) 131. 48 Roger Gocking, “British Justice and the Native tribunals of the southern Gold Coast Colony” (1993) 34 J Afr Hist 93 at 106-7 [Gocking, “Native tribunals”]. 112 the general public for comments.49 The White Paper, among many other recommendations, proposed the abolition of section 48 of the Marriage Ordinance which gave a third of intestate property to the extended family. Basically, it proposed that no property should devolve on the extended family if the deceased left behind a spouse, children or their descendants. The extended family only got a share if the deceased left behind only a spouse or no other close family members. It is reported that three bills were published pursuant to these proposals and the comments received, though none of them was passed into law because of “opposition from various sections of the community.”50 In view of this, the judiciary took up the mantle of leadership and made various changes to the law of succession, generally. 3.2.6 Judicial Reforms The plaintiffs in most of the cases brought before the courts were women. This is because in most parts of Ghana, customary law does not envision the possibility of a man succeeding to his wife’s property.51 First, the judiciary reacted to the customary law principle that a spouse had no interest in property she had helped her husband to acquire because she was obliged to help under customary law. This reaction was in the form of an obiter dictum in 1962 where the court seemed to draw a distinction between 49 It is reported that the response was tremendous and that various proposals were submitted by traditional authorities, religious bodies and individual citizens. WC Ekow Daniels “Recent Reforms in Ghana's Family Law, (1987) 31:1&2 J Afr L (Essays in Honour of A. N. Allott) 93-106, 95 [Daniels, “Reforms in Ghana”]; See, Ollennu, “Family Law in Ghana”, supra note 11 at 191-192. 50 Ollennu “Family Law in Ghana”, supra note 11 at 191-192. 51 Henrietta Mensa-Bonsu, “The Intestate Succession Law of Ghana: Practical Problems in Application” (1994) 8 Yearbook of African Law 105 at 109. Mensa-Bonsu explains that a known exception to the rule is the Sissala tribe of Northern Ghana. 113 the monetary and non-monetary contribution of a spouse and said that where the wife's assistance took the form of substantial financial contribution, she was entitled as of right to a share in the properties acquired by the husband.52 This dictum was a clear departure from the customary law, but it should be noted that a spouse’s entitlement was dependent on a “substantial” financial contribution. This notwithstanding, the courts were emboldened to make future definite pronouncements on the entitlement of spouses. In 1976, the courts confirmed this dictum unequivocally in the case of Abebreseh v Kaah & others,53 where the wife contributed one half of the purchase price of the plot of land on which the matrimonial home was built. The husband’s successor sold the house and the wife sued claiming it was joint property. Sarkodee J (as he then was) said “[t]aking the evidence as a whole I am of the view that the part played by the plaintiff in the construction of the house…was more than mere assistance given by a wife married under customary law to her husband.”54 The rights of children in matrilineal communities also got judicial attention. In 1963, the Supreme Court decided the case of Manu v Kuma.55 In this case, the defendant was the customary successor of the deceased who died in 1939 and who left behind a spouse, children and a large estate. Though the deceased’s properties including his cocoa farms and houses were in the custody of the defendant, he failed to use them for the 52 Gyamaah v Buor,  1 GLR 196. 53 Abebreseh, supra note 26 at 46. 54 Ibid at 54. 55 Manu v Kuma,  2 GLR 464-471. 114 benefit of the surviving spouse and children. The widow, as a result, single-handedly supported her children for ten years after the death of her husband. The widow, the plaintiff in this case, relying on an arbitration award confirmed by the West African Court of Appeal, instituted an action to recover from the defendant the cost of maintaining and educating her children. The defendant argued that the arbitral award was merely advisory and that it did not create a binding and enforceable obligation on him to maintain and educate the children of the deceased. He contended that they were the responsibility of the plaintiff’s matrilineal family. He argued further that under customary law there was only a moral and not a legal obligation on a successor to educate the children of the deceased to any specific advanced level. The court sought to decide this last issue. Relying on the works of anthropologists such as Robert Rattray and M.J. Field and other scholars such as Mensah Sarbah and J.B Danquah to foreground the customary responsibilities of a father towards his children, the Court held: The customary law is a progressive system. Its basic principles are so elastic in their application as make them capable of application to any stage of the cultural, social and economic progress of the nation and tribes. At a stage of development when agriculture and craftsmanship in their various forms were the thing of the time for men, and rudimentary house-craft was the prime concern of women, the father's responsibility which his successor assumed would extend to such training as would fit the child for that society.56 The court held inter alia that the duty of a successor under customary law to maintain and educate the children of a deceased was legally enforceable. But this responsibility 56 Ibid at 468. 115 was also legally enforceable under customary law. By custom it was the legal responsibility of the customary successor to provide for the surviving widow and children out of the estate of the deceased.57 This obligation was based on the belief that the deceased’s responsibility to train and educate his children extended beyond his death. These duties were limited to the volume of the property left by the deceased. The fact that the duty of a successor under customary law to maintain and educate the children of a deceased was legally enforceable, did not derogate from the customary law rule that a child had no right to succeed to a definite portion of the estate of his deceased father. Notable changes were also made to the rights of widows under customary law. A widow was now entitled to claim from her husband’s estate any money she may have used to maintain herself and her children as well as their medical expenses.58 The Court reiterated that these changes were based on the customary law principle that a man is responsible for the maintenance of his wife and children. Prior to this decision in 1975, the court held in In Re Appiah (Decd.); Yeboah v. Appiah,59 that a widow has a possessory right of occupation in the self-acquired house of her deceased husband. It held further that the widow and children had an exclusive right of possession to the self-acquired matrimonial home of a deceased husband and father where the facts and circumstances were such that inconvenience would be 57 Kuenyehia, supra note 14 at 392. 58 Manu, supra note 55 at 465. 59 In Re Appiah (Decd.); Yeboah v Appiah  1 GLR 465. 116 caused to the widow and children by admitting members of the family of the deceased.60 The right of the children to reside in their father’s self-acquired property was subject to their being of “good behavior.” This principle was also challenged by the courts who felt that the qualification in practice undermined the full enjoyment of the right by surviving widows and children. Wiredu J. in Amissah-Abadoo v. Abadoo observed in obiter: The injustices and hardships caused to children and widows by tacking on the phrase ‘subject to good behaviour’ as a limitation to their rights to reside in houses which their deceased father and husband respectively die possessed of, irrespective of how they came by such property have been ignored indiscriminately in the past to the detriment of children and widows. The conduct of the family flowing from this neglect must be frowned upon as behaviour not countenanced by customary law and calls for an urgent need for a more realistic and practical re-appraisal of this aspect of the customary law in view of the fast social changes in the community caused partly by the high rate of inter-tribal marriages and partly by the development of the money economy which has provided other modes of acquiring wealth.61 By 1979, the courts had made a definite pronouncement on the requirement of good behavior demanded of children for their continued stay in their father’s self-acquired property. Justice Osei-Hwere in the case of Amissah-Abadoo v Daniels and Others noted that the aforementioned right was for the life of the children and not conditioned upon good behavior.62 He described the children as “their own masters in the house”63 and their interest in the house as possessory and added that “[a]ny attempt by their father’s successor or head of family to implant members of the family in a father’s self- 60 Ibid at 223. 61 Amissah-Abadoo, supra note 32 at 131. 62 Amissah-Abadoo v Daniels & Others,  509 at 516. 63 Ibid at 518. 117 acquired house to the diminution of the comfortable life-style to which the children had been accustomed must be considered an undue interference against their possessory interest which they were entitled to resist.”64 Eshun and Others v Johnfia also challenged the customary law rule which permitted children to be evicted from their father’s home in some extreme cases, such as when the customary successor required the use of the house for himself or any member of the matrilineal family.65 Sarbah explains that this was permissible as the children were only entitled to enjoy their matrilineal family property.66 The court did not mince words in proclaiming that the customary law rule did not have any “moral or legal justification whatsoever in the present day Ghana.”67 The court stated per curiam that: Indeed, we consider this view outmoded and not in keeping with the present state of our national development and should not be countenanced by the courts in modern Ghana. In this era of our social development and transformation, progressive thinking demands that the estate of the deceased father should be charged with some of the late father's obligations towards his children and it will be inequitable to oust the children from their late father's house on that flimsy ground.68 The court prayed that no other court would entertain such “an unconscionable claim.”69 Perhaps the biggest blow to customary law was the High Court decision by Justice Archer in Re Antubam (dec'd); Quaicoe v Fosu & Anor as he challenged the very 64 Ibid at 510. 65 Eshun, supra note 29 at 105. 66 Sarbah, “Fanti Customary Laws, supra note 6 at 105. 67 Eshun, supra note 29 at 108. 68 Ibid. 69 Ibid at 109. 118 composition of the matrilineal family. 70 In this case the plaintiff and head of family of the deceased brought an originating summons for the determination, inter alia, of whether the wives and children had any interest in the estate of the deceased. Relying on the customary law as recorded by Sarbah in 1903, counsel for the plaintiff averred that the children of the deceased were not entitled to any specific portion of the deceased’s estate as they did not belong to their father’s family and argued that the extended family was entitled to the estate absolutely. The judge explained in obiter dictum: Since these pronouncements were made in the last quarter of the last century, customary law in Ghana has progressed and developed in accordance with the tempo of social, commercial and industrial progress. So far as land tenure is concerned, farming rights have been converted into building and residential rights, customs which appear to be repugnant to natural justice, equity and good conscience have been gradually extinguished by judicial decisions. The then legislature played a less effective role in these spontaneous developments engineered by public opinion. The courts have embraced these developments without adhering strictly to the original customary rigid rules. Ghana is a developing state with remarkable social and economic transformations which render some of our customary rules antediluvian. If the customary law is to retain its place as the greatest adjunct to statutory law and the common law, it cannot remain stagnant whilst other aspects of the law are in constant motion.71 Justice Archer was determined to deliver his judgment in what he called “the true spirit of the Ghana Constitution.”72 In this regard, he relied on his “constitutional license,”73 namely, Article 42(4) of the Constitution, which permitted the High Court to disregard 70 In Re Kofi Antubam (dec’d); Quaicoe v Fosu & Another,  GLR 145. 71Ibid at 138-145. 72 Ibid at 144. 73 Ibid at 145. 119 the previous decisions of other courts.74 Archer subjected the customary law to “judicial malleability”75 thus: I propose to stress that certain concepts, notions and conditions which prevailed when Sarbah wrote his book no longer prevail. For instance, the successor has to maintain the children as if they were his born children and also to marry the widows of the deceased. In other words the successor inherits the children and the widows as if they were inheritable chattels. Today women have attained a status equal to men with the right to decide for themselves their suitors or consorts in marriage and even to struggle to maintain their infant children during widowhood.76 Archer J. continued: Again, widows surviving and their children by the deceased were entitled to reside in any house built by the deceased because of the rather limited accommodation available in those days when everyone believed in sharing a small room or verandah in a family house. Accommodation was therefore of paramount necessity, hence the emphasis on right to residence. In modern Ghana the trend is to move away from family house into more commodious modern houses with hygienic amenities. (It should therefore be proper for any widow or child who is offered accommodation in a family house to opt to live there or to live elsewhere and to sub-let his accommodation and receive the income accruing from his allocation.)77 Without committing any heresy, I am also prepared to take the plunge and to assert that the proposition that children are not considered members of the father's family is contrary to all biological principles, alien to well-known doctrines of all accredited religions and opposed to common sense. The logic of the customary rule is that because children are not considered members of the father's family, therefore they are completely excluded from any share of or right 74According to Justice Archer, Justice of the High Court (as he then was) “My conviction is that decisions of the Privy Council, the former West African Court of Appeal and the former Court of Appeal are no longer binding by the iron nexus of binding judicial precedent. Nevertheless the decisions of these courts have to be treated with the greatest respect.” See Ibid. 75 Ibid. 76 Ibid. 77 Ibid. 120 to his property. As I have already argued if the basis for this exclusion does not make sense then the exclusion itself cannot stand.78 Justice Archer’s comments should not be taken lightly. The insubstantial entitlements of spouses on the death of their spouses intestate may have been criticised by many people as being unfair, but for a judge or any other person to criticise the very composition of the family system was unconventional, to say the least. However, his comments do not seem to me to reflect a growing intolerance toward the traditional family system per se, but rather anger about what seemed to be an abuse of the vulnerable. Collectively, these decisions reveal some facts about customary law that are pertinent to my dissertation. Firstly, the decisions seem to agree that customary law is flexible and versatile. This constitutes one of the greatest strengths of customary law in that it makes it amenable to change. To a large extent, it can transform itself to solve the ever-changing needs of its people. While reformers can capitalize on this quality of customary law, it is important to consider the degree to which it is flexible and versatile because customary law is not susceptible to every wind of change. Secondly, they all seem to admit that the country has progressed socioeconomically and they demand that customary law lives up to these changes, but it does not seem that much consideration is given to whether these developments have impacted the areas and the people whose lives are governed almost completely by customary law. Having been left out of the economic security and social renewal, it is arguable that 78 Ibid. 121 these faithful adherents of customary law do not have the capacity to help facilitate legal change. Nonetheless, with the growth in urbanisation and its attendant notions and assumptions,79 as well as increased economic development and opportunities in Ghana, came changing notions about the family. The nuclear family now formed an economic unit that seemed more capable of supporting itself; it no longer had to rely on the extended family for financial support. There was also a movement towards the involvement of women in economic activities outside the home and this also greatly improved the fortunes of the nuclear family.80 It was doubtful that customary law could support an urban population structured around the nuclear family. This signalled the need for a law that would suit the emerging trends. As a result of the problems posed by the customary system of inheritance and the socio-economic reforms indicated, there was pressure, both local and international, on the government to change its laws on intestate succession. 79 Henrietta Mensa-Bonsu explains that PNDC Law 111 is based largely urban-based assumptions including the assumption that the customary family no longer serves any purpose during the life or upon the death of a person. She explains that the family has always been a source of moral and financial support to its members. Mensa-Bonsu, supra note 51 at 109-110. 80 Ibid at 105-106. 122 3.3 INTERNATIONAL PRESSURES FOR CHANGE Ghana has signed and ratified various human rights conventions including the International Covenant on Economic, Social, and Cultural Rights,81 the Convention on the Elimination of All Forms of Discrimination against Women,82 the United Nations Convention on the Rights of the child83 and the African Charter on Human and Peoples Rights.84 These conventions place an obligation on the government to protect the rights of women in all aspects of their lives, as well as to protect children from abusive practices. Though these conventions were initially of just persuasive influence in Ghana, it is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which Ghana signed onto in 1980, that really influenced the passage of PNDC Law 111. To a large extent, the government has taken its international obligations seriously as failure to do so could cause reputational damage. In response to these obligations, the government has promulgated or amended some pieces of legislation to conform to international standards. For instance, it has amended the Criminal Offenses Act to criminalize female genital mutilation and harmful traditional widowhood practices.85 It 81 International Covenant on Economic, Social and Cultural Rights, 999 U.N.T.S. 3 [hereinafter referred to as ICESCR]. The Covenant was adopted on December 19, 1966, and entered into force on January 3, 1976. It was ratified by Ghana on 7 Sep 2000. 82 Convention on the Elimination of all Forms of Discrimination Against Women, G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46 (1980) [hereinafter referred to as CEDAW].Ghana signed the Convention on 17th July 1980 [CEDAW]. 83 This was signed by Ghana on the 29th of January, 1990. 84 This was adopted on June 27, 1981 and entered into Force October 21, 1986. 85 Female circumcision-sections 69A; Cruel customs or practices in relation to bereaved spouses- section 88A of the Criminal Offences Act, 1960 (Act 29) (Laws of Ghana (Rev. Ed. 2004), Vol III, 1701). 123 has also enacted the Children’s Act to better protect the rights of children,86 and the Intestate Succession Law and its amendments to safeguard the property rights of the nuclear family.87 CEDAW also requires signatories to “modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”88 This provision demanded far-reaching changes to customary law, a system of law that determines rights and responsibilities on the basis of gender and age, among other criteria. Demands such as these gave the government the impetus to change its laws of succession in spite of the opposition that I believe it knew it would face, especially from the rural folk. The Committee on the Elimination of all Forms of Discrimination against Women adopted a General Recommendation which states that: There are many countries where the law and practice concerning inheritance and property result in serious discrimination against women. As a result of this uneven treatment, women may receive a smaller share of the husband's or father's property at his death than would widowers and sons. In some instances, women are granted limited and controlled rights and receive income only from the deceased's property. Often inheritance rights for widows do not reflect the 86 Children's Act, 1998 (Act 560) (Laws of Ghana (Rev. Ed. 2004), Vol II, 2951). 87 Ghana noted these achievements in its report to CEDAW, See WiLDAF-Ghana, “Shadow Report to Ghana’s Third, Fourth & Fifth Reports on the Implementation of the CEDAW in Ghana (June 2006) available at <http://www.iwraw‐ap.org/resources/pdf/Ghana_SR.pdf> [WiLDAF report].These reports are the latest ones sent by Ghana to CEDAW. 88 CEDAW, supra note 82, art 5(a). 124 principles of equal ownership of property acquired during marriage. Such provisions contravene the Convention and should be abolished.89 Parties to these international agreements are not only legally bound to operationalise these provisions, but are also required to submit progress reports periodically.90 The burden of having nothing to show could be heavy as it affects a member state’s reputation and credibility, not to mention the potential economic and political risk it poses for a developing country that relies on foreign aid to meet even its basic needs. 3.4 THE INTESTATE SUCCESSION LAW, 1985, (PNDC LAW 111) The Intestate Succession Law was thus promulgated in 1985 in an attempt to find a solution to the injustices and inequities inherent in the existing systems of inheritance. The Law was passed by the then military government of Ghana, the Provisional National Defense Council. In the absence of a parliament and the presence of a debatably executive-controlled judiciary, it was easy for the government to pass this law after minimal consultation with stakeholders.91 The Law was intended to provide uniform rules of succession applicable in Ghana irrespective of one’s religious or family membership or the type of marriage contracted.92 It was not surprising that the passage of the much awaited PNDC Law 111 drew positive remarks from many quarters. Jeanmarie Fenrich & Tracy Higgins have 89 General Recommendation No. 21 (13th Session, 1994), Equality in marriage and family relations, 34-35, online: <http://www.un.org/womenwatch/daw/cedaw/recomm.htm>. 90 Under CEDAW, a member state must submit national reports at least every four years on measures taken to comply with their treaty obligations. 91 Kuenyehia explains that social research and public debate before the passage of the law were virtually absent. See Kuenyehia, supra note 14 at 398. 92 PNDC Law 111, supra note 1. 125 observed that “[t]he changes the Intestate Succession Law made to customary law were momentous: for the first time, a surviving spouse had a legal claim to a portion of the estate.”93 Christine Dowuona-Hammond, a legal academic, also described the law as “a bold and significant effort to achieve equity and justice for the nuclear family” and as constituting an “attempt to alleviate the misery of widows and children.”94 The promulgation of the law was particularly liberating for those urban dwellers that had developed different notions of justice and rights and felt entitled to more than the former laws offered. Even those whose spouses died before the promulgation of the law clamoured to have their cases heard by the courts claiming that their cases were already pending before the court, a chief or a head of family.95 The courts revelled in the opportunity to give a purposive interpretation, instead of a strict, literal and grammatical interpretation, to the word pending so as to have more cases determined by PNDC Law 111.96 In one case the court held: Since it was clear from the memorandum on PNDCL 111 that the object of section 21(2) was to give expression to the concern of the courts which had constantly lamented their impotence to remedy the customary law which they had often considered to be unjust, the legislature would not in the circumstances limit their concern to only cases physically pending before the courts. 93 Jeanmarie Fenrich & Tracy Higgins, “Promise unfulfilled: Law, Culture and Women’s Inheritance Rights in Ghana” (2001) 25 Fordham Int'l LJ 259-341, 294 [Fenrich & Higgins, “Promise unfulfilled”]. 94 Dowuona-Hammond, supra note 4 at 166. 95 See the following cases: Kyei and others v Afriyie,  1 GLR 257; In re Sackey ( dec’d); Ansaba v Mbeah, (1992) 1 GLR 214; In Re Armah; Armah v Armah,  1 GLR 140. If the cases were pending before the court, a chief or a head of family, they could be determined according to the new Intestate Succession Act. 96 Section 21(1) of PNDC Law 111, supra note 1 states specifically that “the Law is applicable in the settlement of any claim or adjudication pending before the court or a chief or head of family under customary law in respect of the administration or distribution of the estate of an intestate who died before the commencement of the Law.” For those who died before the enactment of the law, the legal position was that their rights had already accrued under the old laws which included customary law. 126 Accordingly, a liberal construction would be offered for section 21(2) of PNDCL 111 and it would be interpreted to include cases which were commenced after the promulgation of PNDCL 111 as also pending before the courts, especially since it should be borne in mind that at that time the old laws had been repealed.97 The memorandum to the law explained that the existing laws appeared to have been “overtaken by changes in the Ghanaian family system.”98 Admitting the role of global social influences on the changing notions of family in Ghana, the memorandum explains that “the importance of the extended family is gradually shifting to the nuclear family as pertains in other parts of the world.”99 It further explained that “[t]he growing importance of the nuclear family brings with it its own logic of moral justice.”100 Commenting on how these changes were likely to impact the customary legal system, the memorandum elucidated that “[t]his brings with it a corresponding weakening of the extended family which is therefore less likely to be able to support the widows in the family.”101 But the victory was short-lived, and clashes between the state and customary legal systems were soon to emerge. 3.4.1 Understanding the Intestate Succession Law PNDC Law 111 has provisions on how the intestate estate should be divided, presumptions made by the law on the issue of survivorship, the effects of intermeddling with the estate and the penalties for ejecting a spouse from the matrimonial home, 97 Re Armah, supra note 95 at 140. (Emphasis added). 98 PNDC Law 111, supra note 1 at 1. 99 Intestate Succession Bill, 2013 [The Bill]. 100 PNDC Law 111, supra note 1 at 1. 101 Ibid. 127 among other provisions. Here, I will describe those provisions that acknowledge the customary law of intestate succession. PNDC Law 111 applies to cases of full and partial intestacy and is only applicable to the self-acquired property of the deceased. It excludes stool,102 skin103 and family property.104 The Law prescribes a formula for the distribution of the estate, a formula which has been criticised for its disregard for the polygynous nature of most marriages in Ghana. Under the law, where the deceased leaves behind a house, the spouse and children are entitled to the house and hold it as tenants-in-common. In addition, the law confers on them an absolute legal interest in the household chattels.105 The rest of the estate is referred to as the remainder or residue; the mode of distribution of this portion depends on those who survived the deceased. Where the deceased is survived by a spouse, child and parent, the estate is divided into 16 parts; three parts are given to the surviving spouse, nine to the surviving children, 102 Literally, a stool refers to the seat (throne) that traditional rulers or a chief sits on; it is a source and symbol of authority. Most ‘stools’ have property of which land is usually one. Stool property is that property owned by communities and held in trust for the people by the stool. The legal title of all the stool property is vested in the stool itself and never in the occupant of the stool. Daniels, “Development”” supra note 15 at 68. 103 Chiefs or kings in the Northern region of Ghana sit on the skins of wild animals like lions or leopards. The skin is the equivalent of a stool or throne. 104 PNDC Law 111, supra note 1 at s 1 (2). All property acquired with family resources or property devised to the family is family property. GR Woodman, “The Acquisition of Family Land in Ghana” (1963) 7:3 J Afr L 136-151,136-138 [Woodman, “Family Land in Ghana”]. The traditional family head may hold the property in trust for the family. 105 PNDC Law 111, supra note 1 at ss 3 & 18. Under the Law chattels include: “jewelry, clothes, furniture and furnishing, refrigerator, television, radiogram, other electrical and electronic appliances, kitchen and laundry equipment, simple agriculture equipment, hunting equipment, books, motor vehicles other than vehicles used wholly for commercial purposes and household livestock.” 128 two to the surviving parents and two parts are distributed in accordance with the rules of customary law. Second, where the deceased is survived by a spouse and parents but no child, the residue is divided into four parts, with two parts going to the spouse, one part to the parents and one part devolving according to the rules of customary law. Third, where the deceased is survived by only a child and parents, the estate is divided into eight parts; six parts go to the surviving child or children, one part to the parents and one part devolves according to the rules of customary law. Fourth, where the deceased is survived by only a parent, the estate is divided into four parts, with three parts going to the surviving parents and one part devolving according to the rules of customary law. Finally, where the Intestate is not survived by a spouse, child or parent, the entire estate devolves in accordance with the rules of customary law, making the customary family the sole successor.106 Two things must be noted from this summary: (1) the nuclear family was strengthened financially, and socially. It was elevated as the more acceptable and authentic family unit. (2) The extended family was for all intents and purposes, marginalized, disempowered and dethroned as the legitimate family unit in Ghana. The Intestate Succession Bill currently before Parliament is strikingly similar to PNDC Law 111. Like the latter, the bill seeks to provide a uniform system of intestate succession applicable throughout Ghana, irrespective of the traditional family system to which one belongs, the type of marriage contracted or the religion to which one 106 PNDC Law 111, supra note 1 at s 11. 129 subscribes.107 The new provisions in the law seek to further protect the nuclear family. For instance, the bill makes provision for the sharing intestate property in a polygamous family.108 It also makes specific provision for instances where a surviving spouse may have contributed to the acquisition of the matrimonial home.109 For the first time, provision is made for estranged spouses, and judges are given discretion to decide how much to give such a spouse, though the allocation cannot be less than 30 percent of the estate.110 The provisions that are more relevant to my dissertation are those that focus on the share that devolves according to customary law. The current law introduces new criteria for the distribution of property. These take into consideration whether the deceased was in a polygamous relationship111 or is survived by a spouse and “children of another woman.”112 For clarity, I will consider only those provisions that have equivalents in PNDC Law 111. Where the deceased is survived by a spouse, child and parent, the portion that devolves according to customary law in the bill is 5 percent;113 under PNDC Law 111, it is 12.5 percent. In the bill, if the deceased is survived by a spouse and parents but no child, 5 percent devolves according to the rules of customary law114 whereas it is 25 percent under PNDC Law 111. Also, where the deceased is survived by a child and parents, 12.5 percent devolves according to the rules of 107 See the Memorandum to the Intestate Succession Bill, supra note 93. 108 Ibid at s 6. The Intestate Succession Act does not indicate how property is to be shared in a polygamous family. The Act assumes that all families are monogamous. Dowuona-Hammond describes this problem as “one of the most fundamental problems affecting the practical implementation of Law 111.” Dowuona-Hammond, supra note 4 at 154. 109 Memorandum to the Intestate Succession Bill, supra note 93 at s 8 & 10. 110 Ibid at s 7. 111 Ibid at s 6. 112 Ibid at s 15. 113 Ibid at s 5 (1). 114 Ibid at s 13(1). 130 customary law under PNDC Law 111 and 5 percent in the bill.115 Lastly, in the bill,116 where the deceased is survived by only a parent, 10 percent and 25 percent devolve according to the rules of customary law in the bill and under PNDC Law 111 respectively. Evidently, the bill seeks to reduce significantly the portion that goes to the extended family. It should be noted that the family is not mentioned directly as an entity entitled to an interest in the intestate estate. However, it is entitled to a portion of the estate that devolves according to customary law. 3.5 HOW RELEVANT IS CUSTOMARY LAW TO THE CURRENT LAW ON INTESTATE SUCCESSION In spite of its limitations, customary law is still a significant source of law. Regarded as a legacy handed down from generation to generation, customary law enjoys wide acceptance among many Ghanaians. Presently, the state recognizes customary law in the areas of marriage and divorce,117 land ownership,118 chieftaincy,119 and intestate succession, though it recognizes them on its own terms. 115 Ibid at s 14(1). 116 Ibid at s 16. 117 Eighty percent of marriages in Ghana are still celebrated under customary law. These marriages are considered marriages properly so called. Fenrich & Higgins, “Promise unfulfilled”, supra note 93 at 284. A peculiar feature of a customary law marriage is that “it is not just a union of this man and this woman: it is a union of the family of ‘this man’ and ‘this woman.’ Per Ollennu J. (as he then was) in the case of Yaotey v Quaye,  GLR 573. 118 With respect to land, seventy-eight percent (78%) of it is owned by traditional authorities. (stool, skin, clan and family land) Both customary and common law rights exist in land, sometimes such rights may exist in the same piece of land. Officially, the State is in charge of the administration of customary lands. 131 Demonstrating the importance of customary law to the full operation of statutory intestate succession is a fairly simple task and showing how the state, through the courts, has chosen to recognize customary law for its purposes is no different, though judicial customary law has not always been consistent. But the fact is that simply describing these does not provide a true picture of what the customary law (of succession) is and how it functions in Ghana today. This is because in reality, customary law exists on two major planes, the state and customary legal planes. It also exists on several sub-planes within the customary legal system; that is, the various ethnic groups and communities have different versions of customary law. To do justice to this discussion, I consider the judicial customary law of intestate succession, but also throw some light on practiced customary law, where possible, so as to give a fair picture of how the customary law of intestate succession currently operates.120 See W Odame Larbi, “Ghana’s Land Administration Project: Accomplishments, Impact, and the Way Ahead,” online: <siteresources.worldbank.org/INTIE/Resources/4754951302790806106/GOV5Pres2Larbi.pdf>. See also Joseph Blocher, “Building on Custom: Land Tenure Policy and Economic Development in Ghana” (2006) 9 Yale Human Rts & Dev LJ 166 at 182. 119 Chieftaincy is also still recognized in Ghana. The constitution actually guarantees the continued existence of the institution. Constitution of the Fourth Republic of Ghana, 1992 (Laws of Ghana (Rev. Ed. 2004), Vol I, 140) art 270(1) [“The Constitution”]. 120 Gordon Woodman explains that the rules applied by state courts under the name of customary law are not necessarily those observed by subjects outside the ambit of the state courts. Gordon Woodman, “Ghana: How Does State Law Accommodate Religious, Cultural, Linguistic And Ethnic Diversity?” in Marie-Claire Foblets, Jean-François Gaudreault-Desbiens & Alison Dundes Renteln, eds, Cultural Diversity And The Law: State Responses From Around The World (Brussels: Bruylant, Ėditions Yvon Blais, 2010) 255-280; Brian Tamanaha also explains that official customary law, unlike living customary law, develops in accordance with the modes, mechanisms, requirements, and interests of legal officials among others. Brian Tamanaha, “Understanding Legal Pluralism: Past to Present, Local to Global” (2008) 30 Sydney L Rev 375 at 380 [Tamanaha, “Understanding Legal Pluralism”]. 132 The continued relevance of customary law in the distribution of intestate property is unquestionable. For instance, since most marriages in Ghana are contracted under customary law, one must resort to the applicable customary law principles on marriage to determine who a spouse is for the purposes of PNDC Law 111. In theory, the courts claim to determine this by reference to the rules on marriage applicable to the traditional community in question. However, in practice, the courts have established what they deem to be the essential elements of a valid customary law marriage and have in some cases decided the existence of a marriage even where none seems to exist under practised customary law.121 Thus, in Ghana, when determining who is a spouse under customary law for any purpose, including intestate succession, the courts seek to determine whether there exists an agreement between the parties to live together as man and wife, whether the families of the parties consent to the marriage and lastly, if the marriage was consummated.122 If the facts of a case presented to the courts meet these guidelines, a customary law marriage is said to exist. But do these so-called essentials constitute the customary law, properly-so-called, of Ghana? At best, this may be the customary law of those who live in the cities and are more likely to have their matrimonial issues adjudicated upon by the courts, but I maintain that this does not aptly represents the customary law of Ghana, that is, if there is such a thing as the customary law of Ghana. The various tribes of Ghana have their own versions of customary law, so it would not 121 See Justice Nii Amaa Ollennu in Yaotey, supra note 117 and Quaye v Kuevi as reported in Yaotey, supra note 117 at 573; Essilfie v Quarcoo,  2 GLR 180. 122 These essentials were enunciated by Ollennu J. (as he then was) in the case of Yaotey, supra note 117 at 573 and later slightly modified in the case of In re caveat by Clara Sackitey,  1 GLR 180. 133 be wholly accurate to refer to ‘the customary law of Ghana’ even though the courts continue to try to harmonize the rules of customary law. I cannot say with certainty what would constitute a valid customary marriage among the various ethnic groups in Ghana and this is because the essential requirements differ in form and procedure from community to community. In fact, the courts have also made this observation thus, “[i]n Ghana there are various forms of marriage within the various ethnic groups. In Ashanti . . . there appears to be at least six forms of a valid customary marriage . . . [and] various forms of Ga customary marriages exist.”123 With reference to the essentials laid down by the courts, it is noteworthy that in practice, parental consent is not a necessary precondition for a valid customary law marriage. At least, this is not the customary law of the Fanti tribe as practiced and ascertained by John Mensah Sarbah.124 Secondly, it is highly improbable that consummation of a union is an essential requirement given that under customary law, marriages may be conducted by proxy. It is a well-known fact in Ghana that Ghanaians abroad who cannot for some reason go back to Ghana to marry partners they may have left behind do so by proxy. Usually, a relative of the absent prospective spouse represents the latter during the customary ceremony. Thus, the requirement that a marriage be 123 Afrifa v Class-Peter,  1GLR 359. 124 Mensah Sarbah explains that where the consent of a woman’s family cannot be gained, either because they reside in such a distant place that it is impossible to obtain such consent, a man and a woman who voluntarily agree to live as man and wife for life, can contract a valid marriage provided that such agreement is expressly made in the presence of credible and respectable witnesses, or in the presence of the chief or headman of the place, followed by the man and the woman living as husband and wife. Sarbah, “Fanti Customary Laws”, supra note 6 at 49. 134 consummated to be valid as established by the courts is a judicial creation borrowed from the common law. Whether or not the judicial prescriptions demonstrate the imposition on customary law of concepts and presumptions unknown to it is not in doubt. Dowuona-Hammond confirms that [t]he intestate succession law… appears to be a superimposition of legal prescriptions on existing social structures and institutions which have no place for the values or concepts espoused by the Law.”125 The fact remains that not only will about half of the population of Ghana not subscribe to PNDC Law 111, most of them will also determine the validity of their marriage according to the laws of their respective ethnic groups or communities. Likewise, customary law remains relevant in the distribution of intestate property as it may also determine who a child is or parent is.126 According to PNDC Law 111, a child “includes a natural child, a person adopted under an enactment or under customary law relating to adoption and a person recognised by the person in question as the child of that person or recognised by law as the child of the person.”127 The term “child” in customary law is not limited to one’s biological children. Ollennu explains that a man’s children include his brother’s children and a woman’s children include those of her 125 Dowuona-Hammond, supra note 4 at 133. 126 A parent is defined to include a “natural mother and father and a person recognised by law [and this includes customary law] as the mother or father of the intestate.” PNDC Law 111, supra note 1 at s 18. 127 Ibid. (Emphasis added). The Courts said that “the central question for any judge faced with the issue of whether or not a person is a child within the meaning and intendment of section 18 of PNDCL 111 is whether the deceased recognised the person as his child.” In Re Koranteng-Addow (Decd); Koranteng-Addow v Koranteng, [1995-96] 1 GLR 252. See Dictum of Justice Georgina Wood, Justice of the Court of Appeal (as she then was) 252 at 257. 135 sister.128 For the purposes of succession under customary law though, it has been indicated, that the most important question is not necessarily who the children of the deceased are, but rather, who by custom is entitled to succeed to the property of the deceased. The state, in determining who is a child, also recognises what is termed customary adoption.129 The courts have laid down the guidelines for determining a valid customary adoption though most of these guidelines are not supported by any authority.130 Where community practices have fallen short of these guidelines, the courts have referred to the traditional practices of the community in question as “unessential frills” and have held such adoptions to be valid.131 Also, ethnic distinctions have been ignored and where the courts have been reminded about them, they have justified their decision by claiming that the customary law rules among various communities are the same or that the parties had failed to prove that there was a difference.132 Customary law may also determine whether or not a person died intestate since a will is defined under the Wills Act of Ghana to include what is commonly referred to as a 128 See Ollennu, “Family Law in Ghana”, supra note 11 at 178. Ollennu explains that this is especially so where the biological parents are dead or are incapable of exercising parental rights and obligations. 129 Customary adoption is a form of fosterage where children are voluntarily handed over by their natural parents to another person to raise without reference to state legal processes. See Estelle M Appiah, Protecting the Rights of Children In Ghana: The Legal Framework and Ancillary Matters, online: <http://www.cepa.org.gh/researchpapers/Protecting69.pdf>. Estelle Appiah was the Director of the Legislative Drafting Division of the Attorney General’s Department, Ministry of Justice, Ghana. 130 See the judgment of Anin J. A. in Plange v Plange,  1 GLR 312-323. 131 Tanor & another v Akosua Koko,  1 GLR 451-464. 132 Justice Anin, Plange, supra note 130. 136 customary law will or samansiw,133 and other forms of wills recognised by customary law. Though the formalities for making a valid samansiw, as determined by the courts, are uncertain, it is still recognised by the state, but again, on its own terms. Citing no authority for his decision and contrary to known customary law rules,134 Justice Ollennu in the case of Abadoo v Awotwi decided that the samansiw was a deathbed declaration or had to be made in immediate fear of death.135 Again, basing his decision on no authority, he held that a samansiw made under the influence of alcohol, in anger or extreme happiness is voidable, but not void, and could be revoked by the testator on regaining his mental capacity.136 There are two basic problems with this decision. First, it attempts to import into customary law the common law concept of the revocability of wills. Second, the concept of ‘voidability’ is unknown to customary law.137 It need not be emphasised then that the judicial guidelines may only be useful to the urban dweller who chooses to make an oral will; to the rural Ghanaian, these are virtually unknown and of little value. Commenting on the judicial guidelines for the making of a customary law will, Kludze notes that: the superior courts [are] laying down elaborate procedures to be followed in making wills under the customary law. In so doing the Courts do not claim to be formulating their own rules because they are not clothed with jurisdiction to legislate. It follows that the decisions of the courts, if they are correct, must be merely declaratory of the customary law as practised by the communities to which they relate. Yet we are faced with the chaotic situation where the practice 133 A samansiw is also referred to as an oral will. It would seem that this type of will is known mostly to the people of Southern Ghana. See AKP Kludze, The Modern Law of Succession, (Dordrecht, Foris Publications; 1988) [Kludze, “Modern Law of Succession”]. 134 Sarbah, “Fanti Customary Laws”, supra note 6 at 99. 135 Abadoo v Awotwi, 1 GLR 393. 136 Ibid. 137 Kludze, “Modern Law of Succession”, supra note 133 at 127-128. 137 is different from the law of the statutory courts….But surely, if there exists a divergence between the practised customary law and the judicial customary law, one of them must be wrong; for both cannot be correct.138 Finally, the traditional family to which one belongs is still relevant in the distribution of intestate property. Sections 5 to 10 of PNDC Law 111 recognise the right of the traditional family to a portion of the estate. In fact, under section 10, the traditional family inherits the entire estate if the deceased does not leave behind a nuclear family.139 In this regard, the property is divided based on the rules applicable to the traditional family to which the deceased belonged. As expected, the courts have tried to institute principles to modify the rules on inheritance by modifying the concept of family. Indeed, the reforms made to the customary law of succession have been necessitated largely by changing notions of the composition of the family. But what does the term “family” really mean in Ghana, given that both legal systems, the state and customary legal system, interpret it differently? Which group of persons do we envisage when we talk about family? It has been explained that even though the term, family, has become “a term of art in the law of Ghana,” its meaning remains largely unclear.140 Neither the courts nor lawyers are certain about its meaning as the term is sometimes used in reference to only a few persons and at times, a large group of persons, that is, the descendants of a 138 Kludze, “Succession in Ghana”, supra note 46 at 92. 139 PNDC Law 111, supra note 1 at s 5-10. 140 Kludze, “Succession in Ghana”, supra note 46 at 110. 138 remote ancestor.141 This problem is to be expected as the concept of the nuclear family is unknown to customary law. Western influences have created changes in the perception of the composition of the family that is supposed to inherit property. Ollennu contended that even though the whole extended family has a stake in the property of their deceased relative, the courts have gradually confined the beneficiaries to a small group of people including the children and close relatives of the deceased.142 Ollennu holds the view that this change is the result of convenience, the influence of the common law, and a misconception of those who constitute one’s family under customary law. He insists that the judicial position is definitely not the customary law.143 It is clear from the foregoing that judicial customary law is different from practised customary law and that an appreciation of both is essential to understanding the customary law landscape as well as the different values, needs and considerations that underlie the different systems. On the divergence between practiced and judicial customary law, Anselm Kludze, a legal scholar, indicates: I cannot see any justification for the difference between judicial customary law and practiced customary law. If indeed the courts are declaring the customary 141 Ibid; see also Dowuona-Hammond, supra note 4 at 134. 142 Ollennu, “Law Reform in Ghana”, supra note 12 at 151. It is not settled in law which family inherits the intestate estate. The case of Ennin v Prah, (1959) GLR 44, seems to suggest that it is the immediate family. Justice Ollennu in Kwakye v Tuba says that the intestate estate devolves upon the immediate and wider family together but the right to the immediate enjoyment of the beneficial interest in it and control thereof vests in the immediate family. Also in the case of In Re Atta (Dec’d); Kwako v Tawiah [2001-2002] SCGLR 461 Justice Adzoe Justice of the Supreme Court (as he then was) “whenever the self-acquired property of a deceased intestate is said to become family property, it is the immediate family of the deceased that takes the property.” 143 Ollennu, “Law Reform in Ghana”, supra note 12 at 151. 139 law (as practiced) then the difference can only be explained on the basis that the courts have been wrong. If what is declaratory of practice differs from the actual practice, then the purported declaration must be wrong.144 But Poulter cautions that despite the skepticism about the usefulness and legitimacy of judicial customary law, a researcher who chooses to ignore it does so at his or her risk.145 He says that the decisions are “very much ‘the law.’”146 3.6 CURRENT PRESSURES FOR CHANGE AND THE CONSTITUTION In 1986, after the passage of PNDC Law 111, Ghana signed and ratified the African Charter on Human and Peoples' Rights and this has greatly informed further reforms to the Law and current agitations for change. In fact, the Charter does not just require the government to adopt legislative or other measures to give effect147 to the freedoms in the Charter, but also to “promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood.”148 These obligations are extensive and entreat the government to promulgate laws to deal with the pertinent issues, and also, to actively educate its citizens and ensure that they understand their freedoms and obligations under the Charter. With particular respect to 144 Kludze, “Succession in Ghana”, supra note 46 at 92. 145 Sebastian Poulter, “An Essay on African Customary Law Research Techniques: Some Experiences from Lesotho” (1975)1:2 Journal of Southern African Studies 184. 146 Ibid. 147 Article 1 African (Banjul) Charter on Human and Peoples' Rights, O.A.U. Doc. CAB/LEG/67/3 Rev.5 (1981), [hereinafter African Charter].Ghana ratified the Charter on January 24, 1989. 148 Ibid, article 25. 140 issues of inheritance, article 2 of the Charter requires the elimination of all forms of discrimination against women through appropriate measures and requires member parties to take the needed steps to ensure that widows have a right to an equitable share in the property of their deceased husbands.149 Academics have been quick to point out these and other international obligations to the government. Victor Gedzi, in assessing the effectiveness of PNDC Law 111 in the protection of women’s rights, concludes that certain key provisions in the Law contravene the equality clauses in CEDAW and hopes that the government will be ‘inspired” to either reform or amendment PNDC Law 111.150 He suggests that the implementation of relevant provisions of CEDAW by state parties “will enable women to enjoy their human rights to the fullest.”151 Similarly, Kuenyehia draws attention to the various rights guaranteed by CEDAW and suggests “[t]he importance of these international instruments in the fight for equal rights for women cannot be emphasized enough.”152 She directs her activism at judges in particular and describes as “progressive” those judges who in deciding cases have “call[ed] …to their aid”153 such international treaties when domestic legislation on an issue is deficient. She makes reference to a couple of such judges and invites other 149 See Article 21 of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa. 11 July 2003, online: <http://www.refworld.org/docid/3f4b139d4.html> 150 Victor Selorme Gedzi, “PNDC Law 111 in Ghana and International Human Rights Laws” (2014) 2:2 Global Journal of Politics and Law Research 15 at 19, 26. 151 Ibid at 19. 152 Kuenyehia, supra note 14 at 403. 153 Ibid. 141 judges in Africa to emulate this “pro-rights stance.”154 Lastly, she notes that “[t]he failure of the judiciary to incorporate international human rights standards into their decisions is a sad omission, as human rights based decisions would certainly go a long way to contribute to the human rights jurisprudence in Africa.”155 Tracy Higgins and Jeanmarie Feinrich have also reminded the government of Ghana of its international obligations; they have pointed out where it falls short and have made suggestions on how to address the shortcomings. They point out that Ghana’s inability to ensure that PNDC Law 111 is satisfactorily enforced is a breach of its obligations under CEDAW. In their view, the ineffectiveness of the Law is largely the result of the government's failure to educate its citizenry about women’s rights and “to combat social resistance to the recognition of those rights.”156 They urge the government to provide the needed political leadership and resources to change traditional attitudes about the status of women. They insist that even though it is a difficult task, it remains part of Ghana’s international obligations.157 3.6.1 Non-Governmental Organisations Both local and foreign non-governmental organizations (NGOs) such as the International Federation of Women Lawyers (FIDA), Women in Law and Development in Africa (WiLDAF), Leadership and Advocacy for Women in Africa (LAWA, Ghana) 154 Ibid at 404. 155 Ibid at 403-404. 156 Fenrich & Higgins, “Promise unfulfilled”, supra note 93 at 341. 157 Ibid at 341. 142 Alumnae Incorporated 158 and the African Women Lawyers Association (AWLA)159 have also been instrumental in demanding equal rights for women and children, and obviously, reforms to PNDC Law 111. In February 2014, non-governmental organisations such as AWLA and LAWA-GHANA in partnership with the Women and Minor’s Rights Committee of the Ghana Bar Association160 and the members of the Property Rights of Spouses Coalition, submitted a memorandum on the 2013 Intestate Succession Bill to the Parliamentary Committee on Constitutional, Legal and Parliamentary Affairs. In the joint memo, the partnership expressed its dissatisfaction with the delay in the passage of the bill. It was displeased that the 2008 bill, which in its opinion, was passed to bring the law of intestate succession into conformity with article 22, was allowed to lapse the same year. It regretted the fact that the 2009 Intestate Succession bill, which the partnership lobbied to have passed, also lapsed after its second reading in parliament the same year. The partnership in response to calls by the government for comments on the 2013 Intestate Succession bill submitted its review comments and 158 LAWA-Ghana is a women’s rights organization that advocates laws and policies to promote the rights of women in Ghana. 159 The African Women Lawyers Association (AWLA) is also a leading African women lawyers association. Its branch in Ghana also undertakes activities to promote the rights of women in Ghana. It has also undertaken a number of projects on women’s property rights. It has undertaken joint projects with LAWA-Ghana with funding from the German International Cooperation (GIZ) and from Star Ghana. 160 Constituted by the Ghana Bar Association to study, review and comment on and make as appropriate input into all bills and legislation which relate to women's and minors' rights. 143 urged the parliamentary committee in charge to consider its recommendations to ensure equity and justice.161 These NGOs have been vocal and instrumental in putting pressure on the government to respect the rights of women according to the standards expressed in international agreements. LAWA (Ghana), for instance, drafted a model law on how to ensure the equitable sharing of matrimonial property on divorce and submitted a copy to the Attorney General’s Department. In collaboration with the A-G’s Department, it also undertook consultations on the model law throughout the country. LAWA activists have been known to organise conferences and meetings to discuss similar issues while sensitizing people, especially women, to their rights and the government’s obligations towards them. FIDA and WiLDAF have designed programs to educate people on their rights and responsibilities under various Acts including the Intestate Succession Law.162 Apart from running a Legal Aid center in the capital city, Accra, and a mobile legal aid clinic that conducts legal literacy training nationwide, FIDA also conducts media programs where people are sensitized to the contents of the Law. Additionally, FIDA has translated some of these very important pieces of legislation into local languages.163 WiLDAF also has 161 LAWA (Ghana) Alumnae Incorporated et al. “Memorandum on the Intestate Succession Bill, 2013.” This was submitted to the Parliamentary Committee on Constitutional, Legal and Parliamentary Affairs (February 2014). The document is an unpublished manuscript on file with Mrs. Shiela Minkah-Premo, Chairperson of LAWA-Ghana Alumnae Incorporated. 162 See generally Fenrich & Higgins, “Promise unfulfilled”, supra note 93 at 259-341. 163 Dowuona-Hammond, supra note 4 at 158. 144 Legal Awareness Programs in Ho164 and Takoradi,165 which aim at providing legal education. Through these programs, it is reported that a number of communities have been educated and thus empowered to use the law. Additionally, their legal officers in the named localities have trained legal literacy volunteers who in turn have conducted educational sessions throughout the Western and Volta Regions of Ghana. Like FIDA, WiLDAF also has a radio program with a call-in component which allows listeners to ask questions about the law and receive feedback from the facilitators.166 The educational programs, while seeking to enhance the operation of the law, I believe, have also had the effect of broadening the support base of these NGOs, particularly in relation to their demands on the government. 3.6.2 The Courts The courts have also subtly pushed for change. The constitution requires Ghana to observe its international obligations. It states that “[i]n its dealings with other nations, the Government shall adhere to the principles enshrined in or as the case may be, the aims and ideals of any other international organisation of which Ghana is a member.”167 An interesting provision in the constitution, Article 33(5), also been used as a launch pad from which the courts have indirectly enforced human rights not yet ratified by Ghana. It states: 164 This is the capital town of the Volta Region of Ghana. 165 This is the capital town of the Western Region of Ghana. 166 Fenrich & Higgins, “Promise unfulfilled”, supra note 93 at 328. 167 The Constitution, supra note 119, art 40(d)(v). 145 The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.168 The court took advantage of this provision in the case of Delmas America Africa Line Inc. v Kisko Products Ghana Ltd.169 though this was not to enforce a claim regarding inheritance. In this case, Justice Modibo Ocran, then Justice of the Supreme Court, admitted that the Convention170 he sought to apply was “not yet ratified and thus not technically part of the body of law enforced within our [Ghana] legal system,”171 but he insisted that its contents were “highly relevant” and proceeded to apply them. The 1992 constitution captures the essence of Ghana’s international obligations. The constitution embodies political and civil rights, as well as economic, social and cultural rights. It guarantees the rights of all Ghanaians including women, children and persons with disabilities. Article 22(1) of the Republican Constitution of Ghana stipulates that “[a] spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.” The constitution also mandates Parliament to 168 Ibid art 33(5) (Emphasis added). 169 Delmas America Africa Line Inc. v. Kisko Products Ghana Ltd [2005-2006) SCGLR 75 at 95-96. 170 United Nations Convention on the Carriage of Goods by Sea (1978) [the “Hamburg Rules”]. 171 In Ghana, international conventions are not directly enforceable in national courts unless their provisions have been incorporated by legislation into domestic law. For an international treaty to be regarded as part of domestic law in Ghana, it has to be ratified by an Act or resolution of Parliament. Thus, the interpretation given to article 33(5) conflicts, at least on the face of it, with article 75 of the Constitution, supra note 119. According to article 75 of the constitution: “(1) The President may execute or cause to be executed treaties, agreements or conventions in the name of Ghana. (2) A treaty, agreement or convention executed by or under the authority of the President shall be subject to ratification by an Act of Parliament, or (b) a resolution of Parliament supported by the votes of more than one-half of all the members of Parliament.” 146 enact, as soon as is practicable, legislation regulating the property rights of spouses in order to ensure that spouses have equal access to property jointly acquired during marriage and also that jointly acquired assets are distributed equitably between the spouses upon dissolution of the marriage.172 Furthermore, Article 17 of the 1992 Constitution also deals with equality and freedom from discrimination. In line with CEDAW, it defines discrimination as “different treatment to different persons attributable only or mainly to their respective descriptions by gender, race, place of origin, religion, political opinions, colour, occupation, religion or creed.”173 In spite of the gender sensitive provisions in the Constitution, modern changes and the gains made by PNDC Law 111, it is an undeniable fact that presently, there are still social structures that work against women.174 3.6.3 The Press With press freedom at its height in Ghana, social commentators have also been very active in criticizing the government for its failure to ensure gender equity. In one notable article titled, ‘Hypocrisy! Daboya MP is not Alone in Chauvinist Beliefs about Women,’ the writer condemns a member of parliament for proposing that women who commit 172 The Constitution, supra note 119, article 22(1). A similar provision was found in Article 32 of the Third Republican Constitution of 1979.Upon the abrogation of the Third Republican Constitution of 1979, the provisions in Article 32 were retained by sections 3 and 4 of the Provisional National Defence Council (Establishment) Proclamation, 1981. 173Ghana’s definition uses gender instead of sex. WiLDAF report, supra note 87. 174 Ibid. 147 adultery should be stoned.175 The writer laments the ingrained cultural biases against women in Ghana, biases he condemns as undermining gender equity. Relating these perceived biases to the delay in passing the Intestate Succession Bill, the writer notes that “[t]he deep divisions attending the very bill being debated in Parliament since November 2009, …attest to a deep-seated resistance to ensuring equity for spouses in our body politic.”176 The writer maintains that the legislator “only loudly stated the chauvinism against women that many institutions in Ghana tacitly endorse.”177 Describing what he terms “institutional sexism”178 the writer castigates “religious charlatans [who] malign the worth of women daily from…[their] pulpits, mosques, and traditional shrines, in the name of holy books and esoteric teachings.”179 He anchors himself to the ‘rights narrative’ and reminds us that Ghana’s “gender record” released by the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) revealed that Ghana was “failing on many fronts.”180 Publications such as this are not uncommon.181 175 This statement was not made on the floor of parliament. 176“Hypocrisy!: Daboya MP is not Alone in Chauvinist Beliefs about Women,” Editorial, CitizenGhana (18 November, 2014), online: <http://www.citizenghana.com/hypocrisy-daboya-mp-is-not-alone-in-chauvinist-beliefs-about-women >. 177 Ibid. 178 Ibid. 179 Ibid. 180 The writer indicates that the report advocated that Ghana should adopt a strategy to eliminate harmful practices that discriminate against women and also ensure the full implementation of the laws criminalizing female genital mutilation and other harmful practices. The report also indicated that the perpetrators of the offences should be brought to justice. 181 The Ghana News Agency reports that the United Muslim-Christian Forum (UMCF) Ghana, a voluntary organisation that seeks to “encourage humanity and morality,” organised a series of stakeholder meetings in 2014 to discuss the Intestate Succession Bill. It brought together many Muslim organisations such as Ghana Muslim Mission and the Muslim Students Association. The objective of the meetings was to gather 148 Most of the criticisms against PNDC Law 111 by NGOs, the courts and academics have focused on the fact that some of its provisions, primarily those that favour the nuclear family, are not workable. The current law’s provisions on the fractional distribution of the estate have been difficult to implement. The prescribed ratios are confusing, and they make the application of the law cumbersome. It has been observed that families are more often than not left with the option of selling off the estate to be able to distribute it in accordance with the stipulated formula.182 The law also makes unrealistic assumptions about the Ghanaian family. As earlier indicated customary marriages account for about 80% of all marriages in Ghana and can be polygamous.183 However, the law pretends that everyone has one wife and one set of children and assigns to them one house out of the entire estate, irrespective of the number of houses that are left. Thus, surviving spouses and children are sometimes forced to share a house with strangers, who also happen to be surviving spouses and children. The courts are given no discretion to modify the proportions where the and incorporate the views of Muslims on the Bill for submission to parliament. The Ghana News Agency, “UMCF Organises Forum on Intestate Succession Bill” (10th February, 2014), <http://www.ghana.gov.gh/index.php/2012-02-08-08-32-47/regional/4704-umcf-organises-forum-on-intestate-succession-bill.> While there is pressure on the government to ensure that PNDC Law 111 better serves the nuclear family, there is also pressure on the government by Muslims to recognize the fact that the Koran already prescribes a mode of distribution of intestate property. It is a known fact that most Muslims simply ignore PNDC Law 111. The regional Chief Imam for the Volta region is reported to have said “[w]e continue with our law. We still go with the Koran as it says.” Feinrich and Higgins report that this was said by one Alhaj Hamza Umar. Fenrich & Higgins, “Promise Unfulfilled”, supra note 93 at 335. It seems that the strongest resistance to PNDC Law 111 is by Muslims. 182 Dowuona-Hammond, supra note 4 at 133. See also, Kuenyehia, supra note 14 at 398. 183 PNDC Law 111 does not address the reality of polygamy, despite the fact that more than one in five women aged between 15 and 49 years in Ghana live in polygamous unions. Chronic Poverty Research Centre, “Challenges and Opportunities in Inheritance Rights in Ghana” online: (2011) 3 <http://www.chronicpoverty.org/uploads/publication_files/PN%20Inheritance-Ghana.pdf>. 149 deceased is survived by more than one spouse.184 Hence, the general view seems to be that the law has not achieved its primary aim of protecting surviving spouses and children.185 In the midst of the pressures on government to make the law of succession more equitable, there remains a large number of Ghanaians, mostly in the countryside, who remain faithful to the customary law of succession and seem adamant in their desire to continue to regulate their lives by it. Next I will discuss the findings of researchers who have assessed the rate of compliance with PNDC Law 111 in some of these rural communities in Ghana. 3.7 THE EFFECT OF LAW REFORMS For those who live in rural Ghana, customary law governs almost every aspect of their lives. The state has not been able to make any significant changes to the practice of customary law in the countryside,186 and what is termed judicial customary law is hardly known in these communities. Consequently, Randall Morck and Edward Kutsoati have stressed that formal legal reforms are useful for the few connected to the formal economy and have minimal impact on most Ghanaians.187 For most Ghanaians 184 For a fuller discussion about the failures of PNDC Law 111, see Dowuona-Hammond, supra note 4 at 132-168; see also Fenrich & Higgins “Promise unfulfilled”, supra note 93 at 295ff. 185 Dowuona-Hammond, supra note 4 at 133. 186 Some changes have been. It is reported that even though a study by the United Nations Children's Fund (UNICEF) has revealed widespread practice of female genital mutilation (FGM) in Ghana, the practice is declining. Myjoyonline, “UNICEF report reveals FGM still prevalent” (23rd July, 2013), online: <http://edition.myjoyonline.com/pages/news/201307/109930.php>. 187 Edward Kutsoati & Randall Morck, “Family Ties, Inheritance Rights, and Successful Poverty Alleviation: Evidence from Ghana,” online: (2012) NBER Working Paper No. 18080, 15 150 dependent on the traditional economy, the reforms are hardly helpful. This is true of the Intestate Succession Act. In spite of PNDC Law 111, the old laws on the distribution of intestate property continue to be used especially in the rural areas.188 This is expected as “[h]istory shows that, when a state legislates for a radical departure from customary practice, the legislation is apt to be disregarded.”189 Many reasons account for the low compliance rate including illiteracy, a general lack of education about the law, inaccessibility of state courts, fear of alienation by the community and differences in cultural values. Of these, the differences in the values underlying the customary law and state law systems of inheritance provide the most compelling explanation. As has been explained in the previous chapter, the customary legal system is not just a legal system, but embodies a communally accepted way of life and is believed to have religious underpinnings. This is not to suggest that there is any such thing as pure customary law because there is not. In fact, customary law has been hailed for its versatility and flexibility.190 Under customary law, one does not confront a civilization < www.nber.org/papers/w18080>. 188 Dowuona-Hammond, supra note 4 at 133. 189 Gordon Woodman, “Ghana Reforms the Law of Intestate Succession” 1985 29:2 J Afr L 118 at 127. 190Customary law has undergone many changes. Now, customary land transactions in particular are being evidenced in writing. See, Gordon Woodman, “A Survey of Customary Laws in Africa in Search of Lessons for the Future” in Jeanmarie Fenrich, Paolo Galizzi & Tracy Higgins, eds, The Future Of African Customary Law (Cambridge University Press, 2011) at 15-16 [Woodman, “Survey”]. He explains that the content of ‘living law’ has changed significantly in the past century and continues to do so though the various communities “exercise degrees of independence in determining their reactions” to the forces of change. According to Jeanmarie Feinrich and Tracy Higgins, Professor Takyiwah Manuh, a professor at the University of Ghana, conducted research on the application of the Law in the Ashanti Region and found that when a man dies in a village his family actually believes that it has a right to his home, but because of the influence of PNDC Law 111 and they the fact that the family members “are good”, they 151 with an arrested history. However, there are certain traditional values and beliefs underlying the law generally, to which customary law reforms must attempt to conform if they are to be embraced. State law is foreign to the rural Ghanaian since it is a legal regime whose values and ideologies the rural Ghanaian can hardly relate to. It is made in the distant capital and cannot possibly be aimed at the rural folk whose economic, social and political lives the state cannot purport to understand, much less regulate. For this reason, it has been said of PNDC Law 111 that it constitutes a “foreign solution to an indigenous problem.”191 Kludze also explains: If you …go to my village [in the Volta region of Ghana] and ask the leaders or the chiefs what type of law they are administering, none of them is going to tell you that he is administering folk law and that the courts are administering state law. What is here being called state law they would call-in a pejorative sense-‘English law,’ even though it may well have been enacted by the Parliament of Ghana.192 In a nutshell, state law may speak about rural Ghanaians, but it does not speak to them. It is a system of law they simply do not understand. Customary law is what they know, it is what makes sense to them, it is their natural law. Victor Gedzi in his ethnographic research on the level of compliance with the Intestate Succession Act surveyed 150 respondents. First, he clarifies that in spite of all the allow the widow to have one room in the home of her deceased spouse. See Fenrich & Higgins, “Promise Unfulfilled”, supra note 93 at 325. It should be noted that under PNDC Law 111, the surviving spouse (and children) is actually entitled to the entire house. See PNDC Law 111, supra note 1 at s 4. 191 Dowuona-Hammond, supra note 4 at 133. 192 See dictum of Prof. Kludze cited in: Antony Allott & Gordon R Woodman, “Introduction” in Antony Allott and Gordon R Woodman, eds, People's Law And State Law: The Bellagio Papers (Dordrecht: Foris Publications, 1985) 17. 152 modern changes occurring in rural Ghana, the customary law of succession remains the most well-known law on inheritance among his respondents, with PNDC Law 111 being the third most popular.”193 The popularity of the customary law of succession among rural folk is confirmed by Edward Kutsoati and Randall Morck in their 2012 research paper, Family Ties, Inheritance Rights, and Successful Poverty Alleviation.194 They surveyed 322 widows living in four villages in Southern Ghana. Their survey revealed that a quarter of a century after the passage of PNDC Law 111, it is seldom applied in rural Ghana and that traditional inheritance norms persist.195 While one may be quick to point to the absence of knowledge about PNDC Law 111 as accounting for the low rate of compliance, Gedzi makes an interesting point that “even those who are aware of its [Intestate Succession Act] existence do not comply with the law.”196 Similarly, Kutsoati and Morck reveal that even though about half of the respondents had prior knowledge of the Law at the time of marriage or before the death of their spouse, 70% of them still settled their deceased spouses’ estates in accordance with traditional or religious customs.197 They explain that “[o]ur extensive survey of 193 See, Victor Gedzi, Principles and Practices of Dispute Resolution in Ghana: Ewe and Akan Procedures on Females Inheritance and Property Rights (PhD thesis), International Institute of Social Studies of Erasmus University (2009) [unpublished] 108 online: <repub.eur.nl/res/pub/32640/90-423-0372-7_DOK%5B1%5D.pdf>. [Gedzi, “Dispute Resolution in Ghana”]. 194 Kutsoati & Morck, supra note 187 at 20ff. About half of the respondents had prior knowledge of the Law. 195 Ibid at 3. 196 See Gedzi, “Dispute Resolution in Ghana”, supra note 193 at 112. 197 Kutsoati & Morck, supra note 187 at 22. 153 widows living in matrilineal and patrilineal traditional village societies shows that PNDC Law 111 is little used, even by women familiar with it.”198 Admittedly, an important question would be, how well do these people know the law? Beatrice Duncan and Caroline Brants, according to an earlier study in the Volta region of Ghana, found that the Intestate Succession Act was the best known piece of legislation among their respondents.199 This suggests that the failure to use the Law is not primarily because it is not known or not well known. Even state law enforcement agents in some of these rural areas are reluctant to prosecute or intervene in cases involving rifts between the customary and state legal systems. The evidence seems to suggest that these public servants are most often “reluctant to enforce the formal law and apply sanctions when it is violated because these same officials are often also charged by their traditional communities with upholding customary laws.”200 Higgins and Feinrich report that an Assistant Superintendent of Police at Ho in the Volta region of Ghana admitted that he did not attempt to enforce the criminal provisions of PNDC Law 111 protecting surviving spouses from being ejected from their matrimonial homes. When they sought an explanation from the Director of the Legal Aid Board for the Western Region, he 198 Ibid at 46. 199 Beatrice Duncan and Caroline Brants, “Access to and Control over Land from a Gender Perspective: A Study conducted in the Volta Region of Ghana,” online: (2004) <http://www.fao.org/docrep/007/ae501e/ae501e00.HTM>. 200 See Kutsoati & Morck, supra note 187 at 15. 154 speculated that male police officers “do not want to enforce [PNDC Law 111] because even they would use customary law.”201 3.8 WHY REFORMS HAVE NOT BEEN SUCCESSFUL Reforms have not been as successful because the general vision for law reforms has been the protection of individual rights, the internationalization of law making202 and arguably, Europeanisation.203 This narrow and socially costly vision has resulted in two distinct problems which will be discussed shortly. It would be incorrect to assume that customary law reform methods in Ghana in the 21st century are any different from those of the immediate post-independence era and immediately thereafter. The modern state of Ghana is built on the same administrative structures and similar ideological perspectives as the colonial and post-colonial state, thus making reform efforts similar. According to one legal scholar, “[i]t seems that neither the colonial legislator nor his indigenous successor thought much about the interaction between law and social change.”204 But Blocher thinks that legal reformers should have already learned some lessons since the early law and development 201 See Fenrich & Higgins, “Promise unfulfilled”, supra note 93 at 335-336. Feinrich and Higgins suggest that “Ghana's failure to ensure that members of the police department enforce the criminal provisions of PNDC Law 111, making it an offense to eject a surviving spouse from her matrimonial home or to interfere with her use of the property, violates its obligations under international law by denying women equal protection of the law.” 202 This means that laws are made primarily to give effect to or reflect international obligations or standards. Kenneth Keith, “Philosophies of Law reform” (1989-1992) 7 Otago L Rev 363 at 370. 203 Antony Allott, The Limits of Law (London: Butterworths, 1980) 177. 204 Kofi Oti Adinkrah, supra note 20 at 1. 155 movement struggled when the “Western-style” legal reforms it suggested in developing countries were met with enormous cultural resistance.205 The same conception of customary law, driven by western systems of education, human rights and the ubiquitous notion of modernization, continues unabated. Judges, in deciding cases involving customary law, have been careful to ensure that their reasoning embraces the demands of the current “age of women’s liberation”206 and western standards of “decency, public morality and public policy.”207 Additionally, considerations of a foreign standard of “natural justice and good conscience,”208 and individual freedoms are not uncommon.209 These are the principles of law reform that the reformers are guided by in imposing on a fiercely communalistic society, a system of inheritance that is fundamentally opposed to theirs.210 The fact is that any nation whose legal system does not seem to embody these concepts bears the risk of being branded “backward.” Such tags are destructive, especially for building any economic partnerships with other nations. Sally Merry raises a very interesting point about nineteenth-century Hawai'i where specific narratives legitimated the transfer of legal knowledge and expertise. The narratives, she points out, were about civilization, progress, and Christianity. These were the marks of a modern civilized legal system. She continues that, though today, the narrative is of 205 Joseph Blocher, supra note 118 at 176. 206 Kombat v Lambim, [1989-90]1 GLR 324. 207 Addae v Asante  2 GLR 288. 208 Abebreseh, supra note 26 at 55. 209 Republic v Accra New Town District Magistrate Court: Ex parte Papafio,  CC.53. 210 Keith, supra note 202 at 363ff. 156 globalization, “the rule of law, democracy, and human rights remain implicit measures of civilization and acceptability to a Euro-American global order.”211 Merry points out that the contemporary legal reformer’s supposed vision of democracy and the rule of law are similar to those of the British colonial official’s vision of civilization. She adds that just as the British colonialist confronted signs of ‘barbarism’ which legitimated his or her intervention, so the contemporary reformer struggles against harmful traditional practices which obviously justify whatever reform method he or she may choose to use.212 Thus, the aims of the reformer remain the same and the reform methods also remain the same. The first specific problem that accounts for the low rate of compliance with PNDC Law 111, especially in rural Ghana, is the meagre portion of intestate property given to the extended family, which is the backbone of the customary legal system. To reiterate, intestate property was hitherto the exclusive property of the matrilineal family. The reduced portion does not accord with the legal expectations of the rural Ghanaian. This conclusion is corroborated by Gedzi’s research, which concludes that “[i]t appears, therefore, that the different cultural groups are unwilling to surrender their legal heritages for the new law [PNDC Law 111].”213 This is a very important statement because it underlines the fact that to the rural Ghanaian, customary practices are not just any social practices, they are legal. Secondly, it could be inferred from Gedzi’s statement that to the rural Ghanaian, customary law is a heritage; it is an inheritance 211 Sally Engle Merry, “From Law and Colonialism to Law and Globalization” (2003) 28:2 Law & Soc Inq 569 at 588. 212 Ibid. 213 Gedzi, “Dispute Resolution in Ghana”, supra note 193 at 110. 157 which will not be given up without resistance. Thus, PNDC Law 111 makes erroneous assumptions about the sociocultural and legal leanings of Ghanaians, especially regarding the importance of the extended family. Many of the problems inherent in this Law are a result of the fact that there are some underlying assumptions of the Law which have been proved incorrect. One of these is that the customary family no longer serves any purpose at all during the life or upon the death of a person… these faulty assumptions have in a substantial way affected the effectiveness of the law and are in no small way responsible for the obvious shortcomings. First of all, it is untrue that the customary family serves no purpose at all during the life time of its members. Although this may be the attitude of the Urban elite it is not so for the rural people or the urban poor. Thus, the set-up within which interest in the property of a deceased would be exclusive of all others is not entirely Ghanaian. The family has always been a source of support - financial or moral - for its members.214 Membership of the extended family offers many social and economic advantages. It offers a support system that contributes to the long-term stability and wellbeing of all members. In view of the social standing and importance of the traditional family, and the strong social ties that exist among members of rural communities, individuals are afraid of being alienated if they do not order their lives according to the customary system of inheritance. Kutsoati and Morck have explained that most poor widows are more daunted by the risk of challenging traditional norms than the financial costs involved in using state law. They explain that the consequences of openly disregarding deeply rooted custom can be devastating.215 Higgins and Heinrich also confirm that even where women understand their rights under the law and have the resources to pursue their 214 Henrietta Mensa-Bonsu, supra note 51 at 110-111. 215 See Kutsoati & Morck, supra note 187 at 15-16. 158 claims, they often encounter significant social pressure from their families and communities not to seek legal recourse, but rather to resolve the cases outside of the judicial system.216 In addition to the fear of alienation is the “fear of spiritual reprisals from family members.”217 There is a belief among Ghanaians, especially rural Ghanaians, that certain individuals or groups of people have access to certain mystical or spiritual powers, which they can use for destructive purposes. Gedzi cites an example of a teacher who attributed the paralysis of her two sons to spiritual ‘attacks’ from her deceased husband’s family members, whom she prevented from taking her husband’s property.218 Another woman refused to claim her matrimonial home because she was afraid of similar attacks. For the same reason, another woman declined her share of her deceased spouse’s intestate property insisting that, “I prefer to live in peace with the family members.”219 Thus, belief in the supernatural prevents surviving spouses from defending their property rights. Until PNDC Law 111 addresses the needs and concerns of the extended family, enforcing the Law in rural communities will be a challenge. 216 Some cases do get to the state courts, but the moment these are filed, it signifies “a total breakdown of societal norms; it means that the elders, the chief, the pastor, all highly respected members of the community, have all failed to resolve the dispute.” This was reportedly said by As Samuel Yao Nudo, an attorney in Ho in an interview with Feinrich and Higgins. Fenrich & Higgins, “Promise unfulfilled”, supra note 93 at 334. 217 This was discovered in a fieldwork project among the Anlo and the Ashanti, in the Volta and Ashanti Regions respectively. Victor Gedzi, “Women and Property Inheritance after Intestate Succession, Law 111 in Ghana” (A paper presented at the IAFFE Conference Boston, MA, June, 25-28, 2009), 12, online: <https://editorialexpress.com/cgibin/conference/download.cgi?db_name=IAFFE2009&paper_id=325>. 218 Ibid at 13. 219 Ibid at 13. 159 The second main reason for the low compliance rate is the fact that legal reforms have focused on changing legal rules and have not given equal attention to social, economic and political reforms. As is generally known and as the cases to be discussed in Chapter Five will demonstrate, the extended family is an economic system; it is a wealth creating and wealth maximizing system. This means that laws that potentially interfere with its ability to create wealth will be resisted. Thus, legal changes must be accompanied by changes to the economic circumstances of those in the rural areas. It would seem that the state has not paid much attention to this fact. It also seems that in spite of the power held by traditional authorities, their involvement in reforms is minimal. The cases to be discussed will demonstrate the power wielded by family heads and the freedom with which these heads treat family property as their own, with minimal objection from family members. Also, as noted above, traditional authorities are so powerful that surviving spouses, especially women, are intimidated by the risk of challenging traditional norms.220 This goes to show that the power held by these authorities must be tapped into for the statutory inheritance rules to be embraced by the people. Lastly, the matrilineal inheritance rules are based on the mystical belief that family members are “nurtured by a common sacred blood in the mother’s womb.”221 It is for this reason that those who do not share this blood are excluded from inheriting family property. Education is a prerequisite to enabling people to understand that other special relationships based on love and trust exist, and that the basis of these special relationships are equally important grounds for inheriting property. Again, the fact that 220 See Kutsoati & Morck, supra note 187 at 15-16. 221 Ollennu, “Succession”, supra note 16 at 77. 160 spouses are afraid of defending their property rights because of fear of spiritual acts of revenge highlights the importance of education as a reform intervention. The state should deploy its resources to advancing education, especially in rural Ghana. In sum, legal reforms are also about social, economic and political reforms. 3.9 CONCLUSION I have attempted to show how the statutory and customary laws of intestate succession function in Ghana. This chapter has also explained the potential and actual abuses that have characterized the matrilineal inheritance system and the nature of the pressures that were exerted on the government, resulting in the eventual promulgation of PNDC Law 111. This Law was seen as a major victory for women and children’s rights in Ghana. It was presumed that the Act would guarantee for the first time in the history of Ghana, the financial security of women and children, especially on the death intestate of the spouses and parents respectively. However, the law has not lived up to expectations. Conflicts over property, especially between nuclear and extended families continue, while new conflicts have emerged within polygamous ‘nuclear’ families. More importantly, there is a large number of rural dwellers and some urban dwellers who for various reasons, including the fact that they cannot identify with the values inherent in PNDC Law 111 and the responsibilities it imposes, have chosen to ignore it. This should bother the state. Realizing that the fragmented approach to customary law reforms is not effective, the state must re-define its vision for legal reform. The answer to ensuring adherence to state law lies in the use of a holistic approach to law reforms and the strategy for such is what the next chapter seeks to propose. 161 Chapter 4: ATTEMPTS AT LAW REFORM AND THE MUTUAL CONCESSION APPROACH 4.1 INTRODUCTION This chapter explains the first part of my two-level strategy for the reform of the law of intestate succession in Ghana. It assesses the attempts made by the Ascertainment of Customary Law Project (ACLP) and the Parliament of Ghana to bridge the gap between state law and living customary law. There are ongoing attempts by the ACLP to ascertain customary law, and Parliament in its deliberation on the Intestate Succession bill has attempted, to some extent, to throw light on the effects of ignoring customary law demands and values in the promulgation of state laws. Though it is unclear how these attempts will solve the existing problem, I discuss them to show the current efforts to give a voice to living customary law. This is followed by an explanation of the relevant provisions of the Intestate Succession Act and then a presentation of my proposed reform approach. Lastly, this chapter analyzes the advantages and disadvantages of my suggested approach. 4.2 EFFORTS AT BRIDGING GAP BETWEEN STATE LAW AND LIVING CUSTOMARY LAW 4.2.1 Current Project on the Ascertainment of Customary Law It would seem that Ghana’s attempt to bridge the gap between living customary law and state law has been to ascertain the rules of the former. The Ascertainment and Codification of Customary Law Project (ACLP), was started in 2007 by the National 162 House of Chiefs (NHC) in collaboration with the Law Reform Commission (LRC) to ascertain and document the customary law on land and family. This is in line with the constitutional mandate of the NHC to “undertake the progressive study, interpretation and codification of customary law” and to evaluate “traditional customs and usages with a view to eliminating those customs and usages that are outmoded and socially harmful.”1 It seems that the aim of the ACLP is to codify the ascertained law eventually, also in fulfillment of Article 272(b) of the constitution.2 The first phase of the project was carried out on a pilot basis from 2007 to 2011. Two traditional areas from each of the ten administrative regions of Ghana were selected for the project. Researchers were trained to collect data on land and family law from these communities after which the data was validated at workshops held in these communities. The second phase will see the collection of data from about 30 traditional areas. The final phase involves consultations with traditional leaders of areas not involved in the first and second phases. These leaders will be asked to review the ascertained law and identify variations from their communities after which there will be a final validation. According to the ACLP Secretariat, after the validation, there will be the 1 Article 272 of the Constitution of the Fourth Republic of Ghana, 1992 (Laws of Ghana (Rev. Ed. 2004), Vol I, 140) and section 3(1)(b) and (c) [“The Constitution”]. 2 The Project Secretariat of the Ascertainment of Customary Law Project, Report on the Pilot Phase of the Ascertainment and Codification of Customary Law on Land and Family in Ghana 4 “National House of Chiefs and Law Reform Commission Ascertainment of Customary Law Series, (March 2011) 8 [“ACLP Report”]. 163 “codification of [the] ascertained customary law and eventually, the declaration of the rules of customary law.”3 Ascertainment is a popular reformatory tool that has been employed by reformers to make customary law more certain and accessible. Ascertainment refers to a “precise and juristically worded”4 record of the existing customary law rules and has been described as “less intrusive”5 than codification in that it states the law as it is without attempting much modification. Ascertaining customary law has merit; it has been hailed for ensuring greater certainty in the law6 even though it is not clear the extent to which writing customary law would make it more certain. With regard to the customary laws on intestate succession, I agree, to some extent, with Kludze that “the customary law on the devolution of intestate estates is certain and ascertainable in the several communities.”7 In fact, what is not certain is judicial customary law.8 Allott has no doubt that African customary law is as certain as can be. He explains that there are “many rules of African laws which are as precise and detailed as any pedantic Chancery lawyer could ask for.”9 3 Ibid at 9. 4 See the introduction of AKP Kludze, Ghana: Ewe Law of Property V1 (London: Sweet and Maxwell, 173) [“Ewe Law of Property”]. 5 David Pimentel, “Legal Pluralism in Post-colonial Africa: Linking Statutory and Customary Adjudication in Mozambique” 14 Yale Human Rts & Dev LJ 59 at 80. 6 Antony Allott, “The Judicial Ascertainment of Customary Law in British Africa” (1957) 20:3 Mod L Rev 244 at 244-245 [Allott, “Ascertainment”]. 7 AKP Kludze, “Problems of Intestate Succession in Ghana” (1972) 9 UGLJ 89 at 101 [Kludze, “Intestate Succession in Ghana”]. 8 Ibid at 101. Kludze notes that there exists considerable uncertainty and confusion in customary law as found in decisions of the courts and the writings of text-writers. 9Antony Allott, The Limits of the Law (London: Butterworths, 1980) 45-46, 60 [Allott, “The Limits of The Law”]. 164 Ascertainment can make the law more accessible, but to whom? It has also been said that it has the advantage of being able to provide the courts with a set of principles to aid them in the formulation of decisions.10 To what extent are the courts really aided by the rules of living customary law? Furthermore, it has been commended as being a device that can potentially harmonise the customary laws of the various ethnic groups, where possible, as well as harmonise the customary law, generally, with those laws of western origin.11 Without attempting to reiterate the arguments against ascertaining customary law, I wish to point out that customary law is not static and its contents cannot be verified just by reference to a written document, but by constantly observing the community in question to know the rules they continue to follow and those that have been discarded. Over the years living customary law has undergone many internal changes; it has been affected by political, economic, social and juristic developments. Woodman confirms that the content of ‘living law’ has changed significantly in the past century as a result of “internally generated changes of social attitudes within communities.”12 In view of these realities, ascertained customary law stands the risk of not being in touch with practice. In Ghana, the dangers of ascertainment were first pointed out by Mensah Sarbah who ascertained the customary law of the Fanti tribe in his Fanti Customary Laws. He was well aware that recording the customary law of a semi-developed state could potentially 10 Allott, “Ascertainment”, supra note 6 at 244-245. 11 See the introduction of Kludze, “Ewe Law of Property”, supra note 4. 12 Gordon Woodman, “A Survey of Customary Laws in Africa in Search of Lessons for the Future” in Jeanmarie Fenrich, Paolo Galizzi & Tracy Higgins, eds, The Future of African Customary Law (Cambridge University Press, 2011) 9 at 15, 16 [ Woodman, “Survey”]. 165 stifle its growth.13 Even though some of the customary law rules he ascertained in the early twentieth century are still relevant, the courts have pointed out that certain concepts and conditions which prevailed when Sarbah wrote his book no longer exist.14 It is not clear how ascertaining customary law will help to close the existing gap between state law and living customary law. Firstly, the fact that the law, as practiced by the people, has been ascertained does not mean that it is going to be applied by the courts or other relevant bodies. According to the Courts Act of 1993, customary law can be applied by state courts if its rules meet the requirements of “equity and good conscience” and they are not incompatible with any existing statutory law.15 Thus, customary law, though a constitutionally accepted source of law in Ghana, will be modified, where necessary, before it is applied. In fact, the project report states “[i]t is expected that some of the rules ascertained and documented from the project may be considered by the NHC to be suitable for assimilation into Ghanaian law.”16 As a result, ascertained rules will have to meet a certain standard before they can be incorporated into the laws of Ghana. The report further states that the rules adopted by the NHC shall be submitted to the relevant minister of state who after consultation with the Attorney General may make a legislative instrument giving effect to the recommendation of the NHC.17 The assimilated 13 John Mensah Sarbah, Fanti Customary Laws, 2nd ed (London: William Clowes & Sons limited, 1903) xi. 14 In Re Kofi Antubam (dec’d); Quaicoe v Fosu & Another  GLR 138. 15 The Courts Act, 1993 (Act 459) (Laws of Ghana (Rev. Ed. 2004), Vol III, 1351) s 54. 16 ACLP Report, supra note 2 at 9. 17 Ibid at 10. 166 rule shall be referred to as a common law rule of customary origin and shall be applicable to all relevant issues including those which would have been determined according to the common law or any system of customary law.18 The ascertained rules that are not considered suitable for assimilation will simply be declared rules of customary law applicable to the communities in question.19 The importance of the declaration is not clear as the assimilated rule would supersede the ones not assimilated. Evidently, this process is unlikely to result in a set of rules that the various rural communities can identify with and thus, comply with. 4.2.2 Law Reform Efforts by the Parliament of Ghana The parliament of Ghana has also attempted to draw attention to the gap between state laws and living customary law. Given that PNDC Law 111 was passed by a military government and at a time when there was no parliament, this is the first time that the voice of the people of Ghana is being heard about the Act and the new bill. The debate on the bill has been interesting, exciting and revealing. The current parliament of Ghana is made up of 275 members. The parliamentarians represent the 275 constituencies across the country, most of which are in rural areas.20 Parliament sits in the capital city, Accra. As can be expected, the legislators bring to Parliament differing ethnic and educational backgrounds, lived experiences, biases and shades of opinion. 18 Ibid. 19 Ibid. 20 In Ghana, among other criteria, one may become a parliamentarian if firstly, one is resident in the constituency for which he stands as a candidate for election to Parliament or secondly, if one has resided there for a total period of not less than five years out of the ten years immediately preceding the election for which the person stands, or thirdly, if one hails from that constituency. The Constitution, supra note 1, art 94 (1) (b). 167 While some of the pronouncements made during the debate on PNDC Law 111 appeared to be deliberate attempts at bridging the gap between the two, others simply emphasized the problem. I think that one of the most important observations about the parliamentary debate, apart from attempting to close the gap between state and customary law, is the revelation that Ghanaians embody a hybrid legal identity, which I contend manifests itself in ambivalence towards state law, and overt fidelity to customary law and its value system. Ghanaians inhabit two worlds: the traditional, a product of being legally socialized by customary law, and a modern one resulting from colonialism and globalization. This dual identity impacts their receptiveness to customary legal reforms by the state. Thus, the ensuing discussion, while demonstrating the divide between state and customary law will also show how this complex dual identity influences legal reforms.21 Firstly, the parliamentarians seemed uneasy about discussing the law as they would any other piece of legislation. They were constantly reminding each other that the bill was “fundamental” and was going to “change the family structure”22 in Ghana and cautioned against the use of what one member described as a “hop, step and jump” approach to the deliberations.23 In fact, during one of such deliberations, a member 21 In fact, the clear divide between ‘modernity,’ represented by the state, and tradition, represented by customary law, has been on display in the parliamentary proceedings on intestate succession in Ghana. The differences, I believe to some extent, account for why both the 2008 and 2009 bills lapsed and had to be re-enacted in 2013. The Intestate Succession Bill gives greater inheritance rights to spouses than the previous inheritance law (PNDCL 111 was passed in 1985). The bill is currently before Parliament, having undergone nationwide parliamentary and NGO-led consultations. 22 Ghana, Official Report of Debates of Parliament (4th session of the 5th Parliament of 4th Republic) Fourth Series Vol. 77, No. 38 (Thursday, 19th July, 2012) at para 3142 (Hon. Dr. Matthew Prempeh) [July Parliamentary debate]. 23 Ibid. 168 asked that the debate be postponed until the house was fuller so that more members could take part in the debate, but he was quickly reminded that the house had just debated the public health bill and was entreated to treat the intestate succession bill “as normal,” that is, like any other bill.24 The legislators seemed edgy. Their caution in reforming the law on intestate succession and their insistence on having a fuller house, in addition to the constant reminders about the importance and implications of the bill, demonstrate a fidelity to customary law. It is an admission that customary law affects the lives of most people. It also reveals the legislators relate to the system of customary law. Secondly, referring to the report prepared and presented to the House by the Committee on Constitutional, Legal and Parliamentary Affairs on the proposed bill, a legislator expressed concern that the report suggested that in the distribution of property, some concessions had to be made to customary law ‘spouses’ of persons who had earlier contracted Ordinance marriages.25 Legally, this is wrong. In Ghana, a man who marries under the Ordinance cannot thereafter marry another person under customary law; it is bigamous.26 Marriage under the Ordinance is strictly monogamous.27 The legal implications of the suggestion were obvious to the legislator who described it as “dangerous,” “promoting bigamy” and “undermining the legitimacy” 24 Ibid at para 3143 (Hon. Mrs. Opare). 25 These are marriages contracted under the Marriage Ordinance. The Marriage Ordinance, 1884 (Cap. 127) Laws of the Gold Coast, (1951. Rev.) [Marriage Ordinance]. The Marriage Ordinance is currently cited as Marriages Act, 1884 – 1985 (CAP. 127), Part III (Laws of Ghana (Rev. Ed. 2004), Vol V, 3801). 26 He may marry several women under customary law as customary law marriages are potentially polygamous. 27 One may however marry the same person first under customary law and them later under the ordinance thereby converting a potentially polygamous marriage into a monogamous marriage. 169 of the Marriage Ordinance.”28 He explained that if the country wanted to make changes to its laws on marriage then the Attorney-General had to bring a bill before parliament to repeal the Marriage Ordinance. It is not clear why the committee would consider the issue of such ‘wives’ given the illegal nature of their relationship with the deceased. There are other remedies available to these ‘customary law wives’ if they claim to have acquired property jointly with the deceased, but state law cannot purport to consider them. But, the suggestion was to be expected given the hybridity of their legal past and orientation. I contend that most Ghanaians have a conception of marriage and of familial relationships which is shaped by customary law. Since customary marriages are potentially polygamous, those who made the unfortunate suggestion unconsciously transferred their traditional understanding of marriage onto a set of facts controlled by western-influenced laws. They inadvertently defined legal rights and responsibilities from a traditional perspective. Even though the legislators represent an arm of the state and must be seen to be promoting the ideals of ‘modernity,’ they could not resist the inner compulsion to be faithful to the customary legal system. Another case in point is where a legislator described an incident which happened in his presence in Kumasi, the capital city of the Ashanti region. According to him, the incident, involving a Muslim woman, happened during their regional consultations with selected stakeholders. In his words: 28 Ghana, Official Report of Debates of Parliament (4th session of the 5th Parliament of 4th Republic) Fourth Series Vol. 76, No. 2 (25th January, 2012) at para 86 (Hon. William Boafo) [January Parliamentary debate]. 170 I remember in Kumasi, some ladies who were Muslims appeared before us and their concern was that ever since PNDC Law 111 was made, Muslims have always rejected it because in their opinion, the Quran is Supreme and it says that the eldest son must take the property so they would not abide by any law which says anything to the contrary.29 But another legislator, who is a Muslim, responded that “[t]he Quran does not say that. Indeed, the Quran clearly shows how the estate of a person must devolve on death intestate.”30 He added that “[a]nd it is the only book of religion that deals with succession on death intestate.”31 One wonders why the legislator is making reference to the Quran, or better still, his customary law because the Intestate Succession Act is applicable to the estate of a Muslim who dies intestate. In fact, one of the main aims of the Intestate Succession Act is to provide a uniform law applicable to all Ghanaians irrespective of their peculiar circumstances, including their religious beliefs. The current bill has been resisted most strongly by Muslims. A Chief Imam is reported to have said regarding the Intestate Succession Act and adherence to the Islamic law of succession, "[w]e continue with our law. We still go with the Koran as it says.”32 So, the legislator was in fact drawing attention to the divide between state laws and practiced customary law. His statements give ample evidence of the prevailing ambivalence toward state law, Ghanaian legal inclinations and how these influence law reforms. Again, a very traditional view of the method for the determination legal entitlements of surviving spouses and what it means to contribute to the acquisition of property was 29 Ibid at 88 (Hon. Osei-Prempeh). 30 Ibid at 89 (Hon. Alhaji Fuseini). 31 Ibid. 32 Alhaj Hamza Umar, Regional Chief Imam for the Volta Region. See Jeanmarie Fenrich & Tracy Higgins “Promise unfulfilled: Law, culture and Women’s Inheritance Rights in Ghana” (2001) 25 Fordham Int'l LJ 259 at 335. 171 expressed by another legislator. Explaining his view on how intestate property had to be shared among surviving spouses, he said “the entitlement to any share of the estate of the person must be dependent on your contribution…to the estate and not just that you are a wife. If it is so, it does not make sense.”33 But legally, Ghana has moved from the customary law notion that one must contribute financially to the acquisition of marital property to be entitled to a share of it.34 Gone are the days when the courts upheld the principle that property acquired by a spouse individually during the course of a marriage belonged exclusively to that spouse.35 Currently, marital property is understood to be “property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition.”36 But a legislator, described as a pharmacist, barrister, diplomat and politician, could not help but display his devotion to an age-old principle of customary law, which by virtue of his socialization, appeals to his sense of justice. 37 In another startling submission, a legislator, described as an agriculturist with a Ph.D. (Agronomy) from the Imperial College, University of London, UK,38 seemingly unaware of the objective of the bill, suggested the introduction of a clause that would recognize cultural diversity in the sharing of intestate property, especially among the children of the deceased. He expressed his opinion thus: 33 July Parliamentary debate, supra note 22 at para 3156 (Hon. Joseph Y. Chireh). 34 Berchie-Badu v Berchie-Badu, [1987-88] GLR. 260. 35 Bentsi-Enchill v Bentsi-Enchill, 1976] 2 GLR. 303, 308. 36 Arthur v. Arthur, Civil Appeal Number J4/19/2013 (Decided on 26th July, 2013). 37 Profile on Ghana Parliament website: <www.parliament.gh/parliamentarians/63>. (Hon. Joseph Y. Chireh). 38Profile on Ghana Parliament website: <www.ghanamps.gov.gh/mps/details.php?id=2677>. (Dr. (Alhaji) Ahmed Y. Alhassan). 172 Even though this law [the Intestate Succession bill] recognizes all children to be equal, in certain traditions…, particularly in Islamic tradition, where you have more males in a particular society the distribution is according to a certain formula. In other words, males and females are not weighted equally. So there are fundamental difficulties and we need to do some reflection and consultation in arriving at this. We need to have an omnibus clause to give recognition to certain cultures and the way they distribute property intestate.39 I find this shocking for many reasons. The bill is meant to create a uniform system of intestate succession irrespective of tribal and religious considerations. It is to ensure that all Ghanaians, male and female, are equal before the law and have equal share in the estate of their deceased parent. It is not clear why is the legislator is concerned about traditional beliefs and practices when members of the house have been reminded time and again that the proposed bill was an opportunity to “migrate from…traditional and cultural values and practices to the modern concepts.”40 The legislator clearly understands the import of the proposed bill, that all children are equal and yet, cannot seem to resist the urge to hold on to tradition. His suggestion about the insertion of an omnibus clause recognizing cultural diversity in the sharing of intestate property substantiates the fact that “[n]either Oxford nor Harvard has succeeded in extricating the educated Ghanaian from the intricate web of obligations implicit in the traditional family system.”41 The most interesting submission came from the Honorable Cletus Avoka who, while advocating that the public be well educated about the requirements of the proposed law in order to ensure compliance, seemed at the same time to demand that the customary 39 July Parliamentary debate, supra note 22 at para 3155 (Dr. (Alhaji) Ahmed Y. Alhassan) (emphasis added). 40 January Parliamentary debate, supra note 28 at para 78 (Hon. Cletus Avoka). 41 SKB Asante, “Law and Society in Ghana” (1966) Wis L Rev 1113 at 1124. 173 law on the issues in question be maintained in order to help build a more cohesive society. Referring to the Bill as a “radical…intrusion into our customary system,”42 he called for the provision of extensive education through the various Houses of Chiefs and district assemblies in order to sensitize people to the changes being made to the law. He cautioned that “if we do not do that, we are going to have a lot of chaotic developments in our communities because of the radical departure from the traditional system of inheritance to the system that we are going to have.”43 Then he plunged into a most interesting address: Madam Speaker, even though it [PNDC Law 111] has a popular appeal, the challenges to this bill becoming law are enormous too. We have grown as a society because of certain traditional values, cultural values that we know of, and that is why people envy us. Madam Speaker our tradition has it that one is one’s neighbours keeper; one is one’s brother’s keeper but the effect of this bill will mean that we are limiting this responsibility to the core of the nucleus family and that is why I think it is a challenge. We have seen examples already in the system - relatives who are discharged from hospitals, mental hospitals or other areas have been abandoned and that is because of the collapse of the traditional or the cultural values of our society. So if the introduction of this bill and its implementation at the end of the day will lead to further neglect of our compatriots, I think that there must be some moderation or there must be some intervention somewhere along the line where we can still have some benefit of our traditional values while at the same time ensuring that we bring some equity in the inheritance system that we have in the country. It is important to do so otherwise, the law might become un-implementable. It is easy to pass a law in this House but the question of implementation is going to be a challenge to us….[T]here must be serious and intensive education at all levels of our society so that people can understand and appreciate it, otherwise, it will be an exercise in futility.44 The legislator, firstly, extols the virtues of customary law values. He believes in the customary law and the values that underlie it. He believes that these values account for 42 January Parliamentary debate, supra note 28 at para 90-91 (Hon. Cletus Avoka). 43 Ibid at para 91 (Hon. Cletus Avoka). 44 Ibid at para 90-92 (Hon. Cletus Avoka). 174 the solidarity within families and among the people of Ghana. It is interesting that he believes that Ghanaians are envied because of what their traditional values have molded them into. He makes a case for the extended family system without necessarily indicating how he wants the law modified to accommodate their needs. He obviously understands the dynamics of the family system in Ghana and its role as a system of social security.45 The legislator knows that a bill that seeks to reduce the extended family’s share of intestate property could affect the meaningful role that it plays in ensuring income security in Ghana. But the legislator also seems to appreciate the presumed justness of the external standard and finally, seems to be saying that he wants the best of both worlds. It is uncertain whether the legislator is for or against the bill and the specific modifications to the bill that he desires, if any. Collectively, the views expressed by the foregoing legislators reveal some important truths about attitudes toward state law and customary law in Ghana. First, there is a big gap between state law and practiced customary law and bridging this gap will be challenging. Secondly, customary law still enjoys wide acceptance and support. It is not for nothing that one member described herself as a “proud member of a polygamous family.”46 The legislators demonstrated that Ghanaians are unwilling to surrender their legal heritage or their personal law, hence the suggestion that there be “some 45 Daniel Kwabena Twerefou, Festus Ebo-Turkson & Adow Osei Kwadwo, “Employment Policy Papers: Labour market flexibility, employment and income in security in Ghana” presented to the International Labour Organisation (ILO) 29, online: (2007) <http://adapt.it/adapt-indice-a-z/wp-content/uploads/2014/09/twerefou_-turkson_-kwadwo_2007.pdf>. 46 July Parliamentary debate, supra note 22 at para 3157 (Hon. Mrs. Osei-Opare). 175 moderation”47 in promoting the proposed changes or “some intervention somewhere along the line”48 so that Ghanaians can enjoy simultaneously the benefits of the traditional and state law of inheritance. Third, there seems to be a general ambivalence toward state law and this affects how state law is perceived and received. This is perhaps what Mensa-Bonsu describes as “the total indifference to the law…that the average person displays.”49 It appears that there is a general lack of confidence and trust in the state system. Fourth, there is a willingness to accept state law, but on condition that it reflects traditional values and is thus relatable. The parliamentarians know the actual value of state laws that are not relatable. They recognize that the “Laws that [they] make are meant to be obeyed,”50 and so are disturbed that the proposed law, if alien in its demands, would “be observed more in breach than in compliance.”51 The debate on PNDC Law 111 clearly highlights the dilemma that legislators and policy makers face in managing and reconciling diverse legal systems. The legislators seemed genuinely concerned about making a piece of legislation that reflects customary values. However, I maintain that the final piece of legislation will not represent their apprehensive voices as the country strives to modernize its laws for political and strategic reasons. Moreover, one legislator made it clear that the House had “looked at the best practice and what is taking place in other jurisdictions where the emphasis 47 January Parliamentary debate, supra note 28 at para 91 (Hon. Cletus Avoka). 48 Ibid at para 92 (Hon. Cletus Avoka). 49 Henrietta Mensa-Bonsu, “The Intestate Succession Law of Ghana: Practical Problems in Application” (1994) 8 Yearbook of African Law 105 at 126. See also Joseph Blocher, “Building on Custom: Land Tenure Policy and Economic Development in Ghana” (2006) 9 Yale Human Rts & Dev LJ 166 at 175. He explains that people often choose to rely on social agreements even when they are fully aware of the requirements of formal law. 50 January Parliamentary debate, supra note 28 at para 78 (Hon. Kyei-Mensah-Bonsu). 51 Ibid at para 89 (Hon. Osei-Prempeh). 176 today is on the nuclear family.”52 Additionally, the concerns of the legislators do not include a very important aspect of my proposed reform strategy, addressing the socioeconomic and political circumstances of rural Ghanaians. In view of this, I present my approach. 4.3 UNDERSTANDING THE CONFLICT The tension between the state and customary legal systems with regards to the rightful beneficiaries of intestate property is a conflict between individual and community aspirations. It stresses the divide between liberalism53 and communitarianism.54 The intestate Succession Act is grounded on the idea that in the distribution of intestate property “the importance of the extended family is shifting to the nuclear family, as pertains in other parts of the world.”55 Moreover, the Courts have held that “[w]e need strong nuclear families to build strong nations.”56 However, Agbosu, a legal scholar, accuses those who are against the extended family inheriting intestate property as being influenced by “Anglo-American conceptions of tenure and the intrusion of capitalist ideas of private enterprise which stress private ownership of the means of production.”57 He explains further that, “the socio-economic 52 Ibid at para 82 (Hon. Mr. Yaw Baah). 53 This is a political theory that emphasizes the notions of individual rights and personal freedoms, among other notions. Will Kymlicka, Contemporary Political Philosophy: An Introduction, 2nd ed (New York: Oxford University Press, 2002) 212. 54 Communitarianism is a social philosophy that emphasizes the interest of communities and societies over those of the individual. Communitarians believe that liberals neglect the extent to which individual freedom and well-being are only possible within community. Ibid at 208-209, 212. 55 Memorandum to the Intestate Succession Bill, 2013 [The Bill]. 56 Neequaye & another v Okoe, [1993-94] 1 GLR 538 at 547 [“Neequaye”]. 57 LK Agbosu, “Legal Composition of the Akan Family” [1983-86] 15 RGL 96 at 107. 177 underpinnings of the doctrine [of the nuclear family] is movement away from the traditional, communal, ethical and economic value systems concerning property rights which lay emphasis on social cohesion and strengthening of family bonds.”58 To Agbosu, capitalism will disrupt the ‘community economy’ and impede social cohesion. My aim is to balance conflicting values that the state and customary legal systems hold, in order to find common ground. This balancing act is important because: In the exegesis of the customary law, it must continually be borne in mind that we are not making a law for the minority of the urban community alone.….And that [t]he fact that such individualisation policies are acceptable to the urban minority and the educated elite does not necessarily mean that it will be healthy for the rural community or the country as a whole.59 To achieve this balance, I propose what I deem must form the basis of an intestate succession law in Ghana. 4.4 THE BASIS OF AN INTESTATE SUCCESSION LAW IN GHANA Generally, the rules of intestacy should be designed to reflect the presumed intention of the deceased; to meet the needs of the survivors; to recognize the contribution of the survivors to the accumulation of the intestate’s estate, and to promote the institutions of the nuclear and extended families. Lastly, the mode and pattern of distribution must be seen as fair by potential beneficiaries and should not create disharmony or disdain for the legal system. 58 Ibid at 108. 59 Ibid at 110. 178 I maintain that the intestate succession law of Ghana must be premised on three fundamental ideas. First, rules of intestacy should reflect the presumed intention of the intestate. This may be at odds with customary law; however, this recommendation does not represent an assertion of unrestrained individual volition, knowing that this freedom could be abused. Hence, the intention of the intestate should be determined in light of reasonable community expectations. Though a liberal approach, it is important to determine the intention of the intestate because my aim is to balance interests and not to cater solely to the needs of the customary legal system. Moreover, a number of Ghanaians live at the intersection of state law and customary law and must also be given a voice. The courts should be able to balance individual and community goals relying on my proposed mutual concession approach. Among other methods, the ‘presumed intention’ must be measured by the reasonable expectations of those similarly culturally and socio-economically situated as the deceased. Understandably, this argument raises justifiable questions about what constitutes “reasonable expectations” and those “similarly socio-economically situated.” While, in theory, explaining these expressions may be challenging, I contend that this may be less so in practice. Those “similarly socio-economically situated” may be described, simplistically, as a group of people with similar social and financial circumstances, and the views of such people on intestate succession may describe their “reasonable expectations.” I agree that my answers to the meanings of the expressions used are rather simplistic, but my intention is to 179 provide a framework for considering the issues highlighted, and not to provide conclusive answers. Furthermore, I maintain that the intestate succession laws should distribute the estate of the deceased person according to the collective view of the community as to what is fair and equitable in the circumstances. What constitutes fairness and equity may seem obvious, but it is not, given the fact that it is the varying meanings placed on these expressions that accounts for the different systems of intestate succession in Ghana. While the customary legal system questions why the spouse of a deceased, not being a member of the deceased’s traditional family, should have alienable rights in the intestate estate, the state also questions why surviving spouses and children should be deprived of the benefit of their deceased spouses’ and parents’ estates, especially when they may have contributed to their acquisition, directly or indirectly. Arguably, both systems have different notions of what constitutes fairness. This situation requires, inevitably, that the law respects legal diversity. If the society in question is one that values blended families or other forms of relationships, and in the case of rural Ghana, the extended family, the rules must as much as possible be made to accommodate such familial relationships. Lastly, for the purposes of intestate succession in Ghana, the rules must reflect the importance of the matrilineal and patrilineal family systems upon which the system of customary intestate succession is based. By so doing, the rules would inevitably reflect the need to reward kindness and create an incentive for people to invest in others, like the extended family has a reputation for doing. In Ghana, the family is recognized as a 180 legal entity which plays various meaningful roles in the lives of its members “from the cradle to the grave.”60 Among the things which a Ghanaian treasures most is belonging to a family. The family is believed to be united by blood ties. As Ollennu explains, “the family denotes a group of all the members each of whom was fed and nurtured by a common sacred blood in the mother’s womb.”61 All members of the family who do not share this blood are outside the lines of inheritance. These proposals reflect the Ghanaian fact-situation. The current allocations to the beneficiaries in the Intestate Succession Act are based on the assumption that there have been considerable changes to the concept of family in Ghana. But upon what basis was this assumption made? Just by observing the lives of those who live in the urban areas? Upon my proposed basis of an intestate succession law, I now analyze my preferred reform approach which I term a mutual-concession approach, a pluralist approach to law reform. 4.5 PREFERRED TYPOLOGY: THE MUTUAL CONCESSION APPROACH As discussed in Chapter One, Gordon Woodman and Bradford Morse are among a few scholars who have attempted to show how legal pluralism is done; they outline a legal pluralist approach to law reform. They seek to explore a range of formal legal measures that the state can adopt relating to customary law. However, the
UBC Theses and Dissertations
Towards an inclusive vision of law reform and legal pluralism in Ghana Hammond, Ama Fowa 2016
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