Sources of Law in Ghana

  • Sources of Law Overview

    • Defined as the quarters from which legal rules are made or acquired their character.
    • Categories include:
    • Formal Sources: Gives law its validity (e.g., Constitution).
    • Legal Sources: Direct means through which law is created.
    • Literary Sources: Written materials knowledge of the law comes from.
    • Historical Sources: Factors influencing law development.

  • Constitution as a Source of Law

    • Article 11 of the 1992 Constitution outlines sources in descending order of importance:
    • (a) Constitution
    • (b) Parliamentary enactments
    • (c) Orders, Rules, Regulations under constitutional authority
    • (d) Existing law
    • (e) Common law
    • The Constitution is the supreme law; laws inconsistent with it are null and void (Article 1(2)).

  • Parliamentary Legislation

    • Essential source of law; conferred powers under the Constitution (Article 93(2)).
    • Process to create, amend, or repeal laws involves:
    • Introduction and first reading
    • Committee consideration and second reading
    • Consideration and third reading
    • Presidential assent
    • Legislation must conform to the Constitution; inconsistent laws can be invalidated (e.g., NPP v. A-G).

  • Subsidiary Legislation

    • Rules created by subordinate bodies under parliamentary power, including:
    • Statutory Instruments
    • Legislative Instruments
    • Executive Instruments
    • Must be laid before parliament and published in the gazette to come into force after 21 sitting days unless annulled.

  • Existing Law

    • Refers to all written and unwritten laws before the Constitution's adoption.
    • Existing laws remain effective as long as they align with the Constitution's provisions.
    • Example case: Ellis v. Attorney-General, demonstrating existing law's continued effect.

  • Common Law in Ghana

    • Comprises:
    • Received English common law
    • Doctrines of equity
    • Customary law as determined by the Superior Courts
    • Broader than English common law due to local adaptation.
    • Customary and Islamic laws are significant parts of Ghanaian law, recognized under Article 11(3).

  • Conclusion

    • Understanding the sources of law provides insight into Ghana’s legal framework and its constitutional supremacy.
    • Each category plays a crucial role in shaping the legal landscape of the nation.