The constitution of Ghana (1992) defines the laws of Ghana to comprise;
(i) the constitution, which is the supreme law
(ii) Acts of parliament
(iii) Enactments of parliament
(iv) Rules, orders, and regulations made by institutions with given powers
(v) Existing laws
(vi) Common law which includes the doctrine of equity and customs practiced by certain groups in a society largely.
Although customs can be accepted as part of the laws of Ghana, they fall into the category of least laws should one consider arranging our laws in a hierarchical order form.
Despite its order in the arrangement of laws of Ghana, customs accepted into law by the superior courts of the land must be
- Long-standing
- Not repugnant to natural laws,
- A good conscience and equity
- Not contrary to law and
- Not dehumanizing or injurious to the well-being of people as enshrined in the supreme law of the land which is in the 1992 constitution of Ghana.
Unlike these process outlined to define the creation of laws through parliament and institutions that are creations of parliament or executive, the superior court accepts and creates to a large extent which is part of our customs could be law and used for deciding cases that come to them.
Customs that can be accepted as laws must be standing. This was clearly used in deciding the case of Abayi vrs Aketia. In that case, the custom required that when a chief dies (Tufuhene), the youth could go on a rampage and destroy crops and kill animals. This custom was upheld and accepted into law as something the people had practiced and the court could not be the one to change.
As would have been expected in the case of Ahevi vrs Akoto where the long-standing custom of using a trial by ordeal was seen as something that is repugnant to natural law, a good conscience, and equity (art 17 G)
The court ordered for immediate discontinuation of the custom and was not accepted into being part of the laws of the land.
As mentioned earlier, one of the criteria to accept a custom into law is a custom that is not contrary to law as clearly demonstrated in deciding the case of Foli VII vrs The Republic – AG. In brief, the custom practiced allows the burning of the dead body of a person to pacify for their offences that they were not exonerated while alive. It is also against the law to incremate a body without the approval of a medical officer. This custom which was against a law was not accepted as law for offence of the respondent. The constitution in asf 26(2) abhors any custom that is dehumanizing or injurious to the well-being of people and of such cannot be accepted as a law of Ghana.
These principles with examples of decided cases have demonstrated which customs could be accepted to be part of the laws of Ghana and which other ones cannot be considered.
Though the perceived dichotomy is not clear, but in the wisdom of the superior court which decides on matters of the law, customs brought to the attention of the court will be decided on their merits as previously done to guide the use of our customs.
The fear in other schools of thought are the legal systems adopted wholly from our colonial masters, though going through reforms may not cut off our customs and culture.
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