Article 11 -- Laws of Ghana

(1)

The laws of Ghana shall comprise-

(a)

this Constitution;

(b)

enactments made by or under the authority of the Parliament established by this Constitution;

(c)

any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution.

(d)

the existing law; and

(e)

the common law.

(2)

The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.

(3)

For the purposes of this article, ``customary law'' means the rules of law, which by custom are applicable to particular communities in Ghana.

(4)

The existing law shall, except as otherwise provided in clause (1) of this article, comprise the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution, and any Act, Decree, law or statutory instrument issued or made before that date, which is to come into force on or after that date.

(5)

Subject to the provisions of this Constitution, the existing law shall not be affected by the coming into force of this Constitution.

(6)

The existing law shall be construed with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution.

(7)

Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall -

1. be laid before Parliament;
2. be published in the Gazette on the day it is laid before Parliament; and
3. come into force at the expiration of twenty-one sitting days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Order, Rule or Regulation by the votes of not less than two thirds of all the members of Parliament.

NOTES:


1.) Regarding the definition of ``customary law'' in Article 11(3): the constitution says that customary law constists of ``rules ...which by custom are applicable to particular communities'' (emphasis added). As it applies to land law, this seems to indicate that rules concerning land will vary according to custom from one area of Ghana to another. What kinds of groups does the phrase ``particular communities'' refer to? Ethnic groups? Stools? Villages or neighborhoods? Families?

2.) The ``common law of Ghana'' includes customary law as well as British common law. What about problems of terminology in Ghanaian land law and the conflicts sometimes caused by use of British land law terms and concepts by judges and lawyers. How will judges decide cases where British common-law and Ghanaian customary law conflict?

3.) Laws which existed before ratification of the 1992 Constitution remain valid. Many of these old statutes still have effect in land law. A series of Acts from 1962 are particularly relevant. The Land Registry Act, 1962 (Act 122), the Administration of Lands Act, 1962 (Act 123), section 1 of the Concessions Act, 1962 (Act 124)^2.1 and the State Lands Act, 1962 (Act 125)^2.2 are all important in land law.

4.) Of course, the Constitution provides that Parlimentary enactments will superceed customary law rules. Some statutes, then, will modify or remove the rules of customary law developed by the courts.

Footnotes

... 124)^2.1

The remainder of Act 124 has been repealed.

... 125)^2.2

Act 125 has been heavily modified by subsequent legislation, also.