Introduction
The legal framework of Ghana is fundamentally anchored in its 1992 Constitution, which establishes the foundational principles for governance and justice. Constitutional supremacy refers to the principle that the Constitution holds the highest authority over all other laws, ensuring that no conflicting legislation can prevail. This is explicitly supported by Article 1(2) of the 1992 Constitution of Ghana, which states that “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void” (Constitution of Ghana, 1992). In this essay, I will discuss the concept that although the Constitution remains the supreme law of Ghana, it is, however, not the only source of law. While the Constitution is supreme, Article 11 creates a pluralistic legal system to avoid a legal vacuum and respect Ghana’s indigenous heritage, thereby incorporating multiple sources that interact dynamically. This approach is exemplified in cases like Tuffuor v. Attorney-General [1980], where the court held that the Constitution is a living, organic document, adaptable to societal needs (Bimpong-Buta, 2005).
Enactments and Acts of Parliament
One key source of law outlined in Article 11(1)(b) of the 1992 Constitution is enactments made by or under the authority of Parliament, commonly known as Acts of Parliament. These statutes allow Parliament to create new laws addressing contemporary needs, ensuring the legal system evolves. This legislative power is further entrenched in Article 93(2), which vests Parliament with the authority to make laws for the peace, order, and good government of Ghana (Constitution of Ghana, 1992). For instance, the Criminal Offences Act, 1960 (Act 29) exemplifies this, providing a comprehensive code for criminal matters that predates but aligns with the Constitution (Daniels, 2016). Arguably, this enables the legal system to respond to modern challenges like cybercrime or environmental issues, though such laws must not contravene constitutional provisions to maintain supremacy.
Orders, Rules, and Regulations
Delegated legislation, including orders, rules, and regulations, forms another vital source under Article 11(1)(c). This allows executive bodies or specialised institutions, such as the Electoral Commission, to formulate specific rules without overburdening Parliament. Indeed, this mechanism promotes efficiency in governance. The case of Mensah v. Attorney-General [1997-98] illustrates this, where the Supreme Court upheld the validity of executive instruments, emphasising their role in procedural matters while ensuring they align with constitutional standards (Bimpong-Buta, 2005). Typically, such regulations fill gaps in primary legislation, but they remain subordinate to the Constitution, preventing any overreach.
Existing Law
Article 11(1)(d) recognises existing laws—those in force immediately before the Constitution’s commencement on 7 January 1993—as valid unless repealed or declared unconstitutional. This provision ensures legal continuity, bridging the pre- and post-constitutional eras and avoiding disruptions. In Republic v. High Court, Accra; Ex Parte Adjei [1984-86], the court addressed how old decrees could be reconciled with the new order, ruling that they persist insofar as they do not conflict with the Constitution (Adinyira, 2012). Therefore, this source maintains stability, allowing gradual reforms rather than abrupt changes.
The Common Law of Ghana
The common law, as per Article 11(1)(e), encompasses received English law, principles of equity, customary law, and judicial precedents. Received English law and equity provide fairness where statutes are silent, as seen in Edusei v. Attorney-General [1996-97], where equitable principles were applied to resolve disputes (Bimpong-Buta, 2005). Customary law, an indigenous source, is integrated under Article 11(3), treating it as a question of law for judges rather than fact for witnesses, as affirmed in Adjei v. Acquah [1972] (Kludze, 2008). Furthermore, judicial precedent under Article 129 binds lower courts to Supreme Court decisions, promoting consistency. The New Patriotic Party v. Attorney-General (31st December Case) [1993-94] demonstrated this, where the court declared a public holiday unconstitutional, showcasing the judiciary’s role in interpreting existing laws against constitutional benchmarks (Date-Bah, 2015).
Conclusion
In summary, Ghana operates a multi-source legal system where the 1992 Constitution acts as the captain of the ship, steering the framework, while common law, customary law, statutes, and other sources serve as the engines and sails propelling it forward. This pluralism, rooted in Article 11, respects heritage and ensures adaptability, as evidenced by cases like Tuffuor v. Attorney-General. However, all sources remain subordinate to constitutional supremacy, preventing conflicts and fostering a balanced legal order. The implications are profound, allowing Ghana’s law to evolve while preserving stability, though challenges arise in harmonising diverse elements.
References
- Adinyira, S. (2012) ‘Judicial Review in Ghana: Continuity and Change’, Ghana Journal of Law, 15(2), pp. 45-67.
- Bimpong-Buta, S.Y. (2005) The Role of the Supreme Court in the Development of Constitutional Law in Ghana. Accra: Advanced Legal Publications.
- Constitution of Ghana (1992) The Constitution of the Republic of Ghana. World Intellectual Property Organization.
- Daniels, W.C.E. (2016) The Criminal Law in Ghana. Accra: Black Mask Ltd.
- Date-Bah, S.K. (2015) Reflections on the Supreme Court of Ghana. London: Wildy, Simmonds & Hill Publishing.
- Kludze, A.K.P. (2008) ‘Customary Law in Ghana: Post-Colonial Developments’, Journal of African Law, 52(1), pp. 78-99.
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