I was inspired to publish this simple piece because I caught myself repeatedly telling my international colleagues that Ghana is a common law country. This is a popular misconception because of our colonial heritage, because in actual fact, Ghana practices a mixed legal system. Let me explain:
Law is not only a system of rules but a reflection of a society’s culture, values, and historical development. Around the world, legal systems can generally be grouped into four major legal traditions: common law, civil law, religious law, and customary law. You may be familiar with five and not four because in many countries, especially those with colonial histories or diverse populations, these traditions coexist to form mixed legal systems; the mixed legal system is sometimes referred to as the fifth tradition. Ghana offers a prime example of such a pluralistic system, combining elements of four primary legal traditions in varying degrees.
Common Law Tradition
The common law tradition originated in England and was exported through colonial expansion, as was the case with Ghana. It is characterized by the doctrine of precedent (stare decisis), where past judicial decisions are binding (based on a hierarchical court system) and inform future rulings. Judges play a crucial role in interpreting the law and, through their rulings, contribute to the development of legal principles. This is commonly called case law and they form part of the general body of applicable laws. Common law systems emphasize adversarial proceedings in which parties present arguments before a neutral judge or jury, as we see in criminal proceedings. The parties present evidence and the judge ensures that proceedings comply with procedural and evidentiary rules. In the end, the judges also apply the relevant substantive laws to decide on the case. This system is widely practiced (not exclusively, I might add) in countries such as the United Kingdom, the United States, Canada, and former British colonies like Nigeria and India.
Civil Law Tradition
The civil law tradition is rooted in Roman law and was developed further in continental Europe, particularly in France and Germany. It emphasizes codification — laws are written in comprehensive legal codes that aim to cover all aspects of legal life. Judges in civil law systems are not considered law-makers but rather interpreters of statutory law. The trial process is often inquisitorial, with judges playing an active role in investigating the facts of a case to determine the truth. Civil law systems are predominant in Europe, Latin America, and parts of Asia.
Religious Law Tradition
Religious legal traditions are based on sacred texts and religious doctrines. The most prominent among these is Islamic law (Sharia), which derives from the Quran and Hadith. Religious law governs not only spiritual life but also civil matters such as marriage, inheritance, and criminal justice in some jurisdictions. Countries such as Saudi Arabia enforce religious law either exclusively or alongside secular laws. It is possible to find separate dedicated units or entities that enforce aspects of religious law in addition to other general norms enforced by police officers. Religious law varies in scope and authority depending on the jurisdiction and its integration into the national legal system.
Customary Law Tradition
Customary law is founded on long-standing practices, customs, and beliefs of a community. It is typically unwritten, passed down orally, and enforced by traditional authorities. Customary law often emphasizes restorative justice, reconciliation, and community harmony over punishment. These practices are often reflective of the unifying cultural values of the community. This tradition is most prominent in Africa and some parts of Asia. Though informal by nature, customary law is increasingly being codified or formally recognized by national legal systems, particularly in matters of family law, land tenure, and inheritance.
Mixed Legal Systems
Many countries do not conform strictly to one legal tradition but rather blend elements of two or more. These mixed legal systems are often the product of colonial histories, legal reforms, globalization, development, or pluralistic societies with diverse ethnic and religious groups. Mixed systems are complex in practice but they offer flexibility in addressing the diverse needs of a society.
Ghana’s Legal Tradition: A Mixed System
Ghana exemplifies a mixed legal system, influenced by its colonial past, traditional institutions, and evolving statutory frameworks. These are the sources of law in Ghana under article 11 of the 1992 Constitution:
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.
(3) For the purposes of this article, “customary law” means the rules of law, which by custom are applicable to particular communities in Ghana.
As a former British colony, Ghana inherited the common law system, which continues to form the backbone of its legal practice today. The principle of stare decisis is applied by the superior courts, and English legal doctrines remain influential, particularly in areas not explicitly covered by Ghanaian statutes, like in contract and commercial law.
Customary law holds a special place in Ghana’s legal system. It governs significant aspects of daily life, including land tenure, chieftaincy, marriage, and inheritance. Article 11 of the 1992 Constitution shown above explicitly recognizes customary law as a source of law, provided it does not conflict with the Constitution or any Act of Parliament. Customary law is dynamic, evolving over time and varying between ethnic groups, but its integration into the formal legal system through courts and legislation helps ensure legal continuity and cultural relevance. For instance, in many land matters, historical evidence of a community as well as evidence of customary land rights rules guide the determination of ownership. See the cases of Ejisu Stool & Another vrs Addai and Oblie vrs Lancaster.
Sometimes, terminological problems can lead to a friction between customary land law and common law, but these are often resolved by the courts through interpretation. It is similar to what we see when courts consider matrilineal and patrilineal inheritance rules in property disputes. Additionally, the Marriages Act 1884-1985 (Cap 127) recognizes traditional marriage as a stand alone form of marriage, or as a precursor to an ordinance marriage. Matrimonial law is one of the instances where common law and customary law have been married, the best example being the performance of customary marriage prior to a wedding. Customary laws also applies in the dissolution of marriage as provided in the Matrimonial Causes Act, 1967 (Act 367). Check out the case of Boamah vrs Ampadu.
Religious law in Ghana also plays a recognized role, predominantly in matters of marriage and divorce among Muslim communities under the Marriage of Mohammedans which is provided in Part Two of the Marriages Act 1884-1985 (Cap 127). Christian marriages are also permitted in Part Three of the same statute.
In addition, Ghana has developed a robust body of statutory law through legislative processes. Acts such as the Criminal Offences Act, 1960, the Marriages Act 1884-1985, the Children’s Act, 1998, the Companies Act, 2019 and the Chieftaincy Act, 2008 demonstrate the influence of civil law principles in the codification and organization of legal rules. These laws have replaced applicable common law principles.
Conclusion
The legal traditions of the world offer diverse approaches to justice, shaped by history, religion, culture, and political development. While common law, civil law, religious law, and customary law have distinct features, their intersection in mixed systems reflects the reality of a globalized and pluralistic world. Ghana’s legal system, blending these traditions, serves as a living example of how multiple legal heritages can coexist and evolve. It also highlights the importance of legal pluralism in respecting cultural identity while upholding constitutionalism and the rule of law.