GHANA

LAW IN AFRICA1
BY THE RT. HON. DR. KWAME NKRUMAH2
[After some preliminary remarks, President Nkrumah con-
tinued :—]
. . . What is pertinent to say here, however, is the fact that in
opening these buildings we are reviving part of our African culture
and heritage interrupted by the colonial period, and we are not
embarking on any new venture. Long before the foundation of the
universities of the European continent, from which the modern civil
codes of Europe have been evolved and long before the establishment
of the universities and Inns of Court in the United Kingdom where
the common law was taught and developed, law schools existed on
African soil.
The Maliki School of legal thought, which had started as one of
the more conservative trends, assumed a radical form. The uni-
versities south of the Sahara, like the great University of Sankore
at Timbuctu, were centres of university life and learning. In the
fourteenth century a teacher of law who came to Timbuctu to teach
law, returned to the University of Fez in Morocco saying that the
city of Timbuctu was full of black lawyers and jurisconsults who
knew more law than he did.
These centres of learning were of importance not only because
they were among the foremost centres of culture of the day, but also
because they taught a system of law more advanced at that time
than that existing in feudal Europe. In particular, they established
the principle of the linking of law to social progress. The conception
that law was a part of religion and therefore must serve all men
equally, was an essential part of their contribution. African thinkers
developed this idea into something larger and wider. Ibn Khaldun,
a great African scholar who was also a distinguished lawyer and a
Malikite chief justice in Cairo, had, as early as the fourteenth cen-
tury, pointed out the importance of law being based upon what he
called " social solidarity ", but what we, in our day, would call on
" the support of the masses ". This theory of his is as true in our
day as it was in his. Law, to be effective, must represent the will of
the people and be so designed and administered as to forward the
social purpose of the state. In Ghana we believe that it is only by
socialist planning that we can industrialize and transform our
country. Our lawyers therefore, if they are to understand the spirit
of our laws, must understand the basic principles upon which the
1
This is the text of the speech made by President Nkrumah at the formal
opening of the Accra Conference on Legal Education and of the Ghana Law
School, 4th January, 1962.
• President of the Republic of Ghana.
103

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 104 Ghana [1962] J.A.L.
state is directed and why certain laws are enacted, repealed or
amended by Parliament. The teaching of law is totally incomplete
if it is not accompanied by a background of economic, social and
political science, and even politics, science and technology.
The teaching of law in Africa would also be totally incomplete if
it did not include a study of African law. The understanding of the
basic principles of customary law is particularly important in that
it is necessary to grasp the process by which this law has responded
to economic and social changes, and the valuable contribution which
it can make to legal thinking.
Well over fifty years ago, one of the greatest of our lawyers,
John Mensah Sarbah, contributed a preface to a book on Colonial
Gold Coast law published at the expense of Sarbah and his
Ghanaian friends, and written by a British colonial judge of the day,
Hayes Redwar. Sarbah began his preface with these words:—
" The African social system is communistic and has been built up
gradually, and, as a race should grow its own laws just as an animal
must grow its own skeleton, so as to meet its own special require-
ments, so has native customary law grown.
The conflict between African communism and European in-
dividualism confronts the legislative reformer in the British West
African Colonies, who, when he essays to destroy, should either
provide an adequate substitute, or give the people affected by his
new enactments facilities to invent their own restraints suitable to
their changed condition. It is doubtful whether the official mind has
yet grasped thoroughly the fact that the underlying principle of the
aboriginal social system is the sense of duty to be performed, respect
to be paid to the aged, and obedience to the man in authority,
whether head of family, headman of a town or chief of a tribe. To
encourage the individual to compete with his neighbour in the per-
formance of work, and to continue to take interest in the progress
of his community is wise; but to insist on individualism to the extent
of encouraging selfishness, and destroying what is undoubtedly good
and beneficial in the native's institutions, is hardly commendable.
In the African social system the formation of a pauper class is
unknown, nor is there antagonism of class against class. Indeed,
recognition by promotion to office and public position in the com-
munity is to many a sufficient incentive to effort and perseverance.
Dealing with individualism, one should not fail to develop all the
various sides of the native's character, in other words, aim at levelling
up; divert to proper use the energy and enthusiasm shown in com-
pany fights; and definitely get rid of the idea that aboriginal ad-
ministration is hopelessly saturated with cruelty and inextricably
permeated with corruption, and therefore should be destroyed. And
in this connection, one should recollect that the ancient Briton at a
certain period seemed to the Romans no less unpromising. In fact
Cicero, writing to his friend Atticus, recommends him not to procure
his slaves from Britain, ' because they are so stupid and utterly
incapable of being taught, that they are unfit to form a part of the
household of Atticus'."
All that Mensah Sarbah is trying to say is that our law must
embody our traditional social attitudes of communal endeavour, of
a classless society and of mutual self help so as to avoid the narrow
interpretation of man's duties to the community and the state, found
so often in Western law.

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 Vol. 6. No. 2 Law in Africa 105
For example, the emphasis laid by nineteenth century judges in
Britain and in the United States on the rights of property are entirely
inappropriate in Ghanaian conditions.
There is a ringing challenge to African lawyers today. African
law in Africa was declared foreign law for the convenience of
colonial administration, which found the administration of justice
cumbersome by reason of the vast variations in local and tribal
custom. African law had to be proved in court by experts. But no
law can be foreign to its own land and country, and African lawyers,
particularly in the independent African states, must quickly find a
way to reverse this juridical travesty.
The law must fight its way forward in the general reconstruction
of African action and thought and help to remould the generally
distorted African picture in all other fields of life. This is not an
easy task, for African lawyers will have to do effective research into
the basic concepts of African law, clothe such concepts with living
reality and give the African a legal standard upon which African
legal history in its various compartments could be hopefully built up.
Law does not operate in a vacuum. Its importance must be
related to the overall importance of the people, that is to say, the
state.
Law, like all other subjects and perhaps more than most, must be
practically applied. I am convinced that its application, like that
of other subjects, must be relative. No absolute application of the
knowledge of law could therefore be of use either to the lawyer
himself or to his client or clients.
Two Ghanaian lawyers trained in the United Kingdom were once
arguing on property in my presence. It was Ghanaian property.
One of them, newly arrived, referred to something called Fee Tail.
At once the other exclaimed: " Fee Tail? Here in Ghana? You
must be dreaming !" The Fee Tail lawyer knew of Fee Tail in
English law and believed, therefore, that there must be a Fee Tail
in Ghanaian law. But our lawyers must do their utmost to serve
Africa in the context of our own conditions and circumstances, our
traditions and culture, our hope and aspirations.
It is important that we realize the great advantages which may
result from a progressive and organized development of common-
law legal institutions. In this matter I took the initiative early this
year of proposing to the United Kingdom Government that there
should be some much more organized method for the giving of legal
technical aid and for the making known of the law reform taking
place in various parts of the Commonwealth.
In making these proposals I had in mind the great quantity of
legal reform and investigation which we have carried out in Ghana
since independence. These have all been based upon a close study
of Ghanaian conditions and are therefore likely to contain ideas and
principles suitable for other emergent common law countries. I
hope, indeed, that all our visitors from abroad will take away with
them copies of our reports on the reform of company law and on the
establishment of a new law of insolvency, which are examples of the

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 106 Ghana [1962] J.A.L.
constructive legal thinking which is being done in Ghana today and
which also illustrate how we have been able to utilize the experience
of foreign experts to assist in solving highly technical and difficult
legal problems.
I have recently received a letter from Mr. Macmillan welcoming
the ideas, offering assistance and making a number of positive and
concrete suggestions on which the United Kingdom Government
are consulting other Commonwealth Governments. I should there-
fore like to take this occasion to put on record our sincere thanks
to the United Kingdom Prime Minister and Government for their
interest and assistance in this proposal, which seems to me an
admirable example of the way in which Commonwealth countries
can co-operate. I hope, however, that the scheme, when finalized,
will be of a kind in which all countries whose legal systems derive
in whole or in part from the common law may participate.
In reforming our own laws we have sought technical assistance
from Commonwealth countries, the Irish Republic and the United
States of America. In our new legislation, we have adopted a
number of local principles advocated by such bodies as the New York
State Law Revision Committee. Such outside help is of value pro-
vided, of course, that the basic principle—that all our laws must be
designed to meet the needs and aspirations of our people—is never
forgotten.
Indeed, the object of our founding a law school and establishing
a law faculty at the University was to teach law appropriate to
Ghana and not the law and the political thinking of any other
country, however appropriate that law and political thinking might
be in that particular country. Naturally, since we have inherited
the common law system from the United Kingdom and since much
of our written law is founded upon Acts of the United Kingdom
Parliament and upon ordinances of the colonial days, much of the
legal instruction given us was based upon English and Common-
wealth law.
It is therefore natural that we should look in the main for law
teachers who have been trained in English law, but it is the duty
of these teachers not to represent English law as the standard to
which we must necessarily conform or as containing fixed and rigid
principles from which we must never depart. They must regard it
rather as a foundation from which to build in a form adapted to
our own social system. We must broaden the scope of law taught.
In a developing country, the first priority is not for lawyers trained
to conduct litigation between weakhy individuals.
Unfortunately, colonial conditions produced just this type of
lawyer, and our own colonial legal system resulted in, for example,
" land " cases between chiefs involving law suit after law suit.
In the old days, one case alone might go on appeal to the Privy
Council two or even three times upon one or other aspect of the
matter and perhaps take up to twelve years before a final decision
was reached. In consequence, there was no certainty as to the legal
position and the revenues of the traditional authorities involved were
wasted in the working of a fantastically cumbersome, expensive and

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 Vol. 6. No. 2 Law in Africa 107
dilatory process. Land disputes of this nature should be settled, as our
law now permits, by appropriate actions by the administration. The
land litigation of the past should serve as a warning of the disastrous
consequences of attempting to apply English legal forms to issues for
which they were never intended.
The lawyers needed in a developing state are, in the first place,
those trained to assist the ordinary man and woman in his everyday
legal problems and particularly in the new problems likely to arise
through industrialization. For example, lawyers are required by the
trade union movement to assist in making effective agreements with
employers and seeing to it that the individual trade unionist obtains
what is legally due to him if he is injured at work or is illegally dis-
missed. In the same way, lawyers are required throughout the
country so that in small towns and villages inexpensive but good
advice can be had by the ordinary man and woman so that they
are not put at a disadvantage in dealing with a wealthy trading or
commercial firm.
This is a very different conception to that of the lawyer of colonial
days who lived in the big towns and spent most of his time in court
or chambers dealing with a very restricted class of client. In con-
sequence of the nature of his work, he was very liable to become
subconsciously an exponent of the views of colonial economic
interests.
Secondly, and perhaps most important of all, we need lawyers in
the service of the state, to deal with treaties and commercial agree-
ments and with questions of private and public international law.
A modern state requires also in its public services an increasing
number of persons with legal education, not only as advisers and
legal technicians, but also in the day-to-day administration of the
country.
You all know my general views, and it is therefore not necessary
for me to elaborate what I have always stressed on innumerable
occasions, namely, the need for African unity. This, however, is not
only a political question. It is also a matter of constantly increasing
inter-African economic and cultural relations. Thus, Ghanaian
lawyers must become well acquainted with the law of other African
countries and must be taught at least the principles of civil and
administrative law as obtaining in many African states through their
adoption of a system based on the great European continental codes
of the nineteenth century.
In my view, legal education in Africa should be founded on a
grasp of the systems of law which exist in our continent today. It
must also be based upon a sound knowledge of progressive economic
and social theory. We must avoid the tendency to suppose that the
form in which the law is administered is more important than the
content of the law. Law is converted into a reactionary force once
it is regarded as an abstract conception, which is in some mysterious
way universally applicable without regard to the economic and
social conditions of the country in which it is being applied. The
reverse is true. The law should be the legal expression of the
political, economic and social conditions of the people and of their

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 108 Ghana [1962] J.A.L.
aims for progress. It is the height of absurdity to attempt to assess
the legal institutions of any country by adopting a formalistic yard-
stick which completely disregards the material content of the law
and measures justice or injustice solely by procedural rules. Un-
fortunately such an approach too often marks the attitude of even
the most eminent lawyers towards people with whose economic
needs and social and political aims they do not see eye to eye.
This law school, whose buildings I am formally opening today,
was founded less than two years after Ghana became independent,
to prepare students to become lawyers. Our initiative in this is
proof of our belief in legality and our realization of the need for a
dynamic approach to legal teaching.
The object of the school is to give both full and part time tuition
in law so that those who had wished to become lawyers but who
could not in the past afford the large sums required to study at the
Inns of Court in London, can now qualify. It will thus result in
future generations of Ghanaian lawyers obtaining their qualifica-
tions in their own country.
I am opening this school of law and throwing open its doors not
to Ghanaian students alone, but also to African students everywhere
who may wish to study law here.
In my second task—that of opening the conference—I should like
to express my appreciation of the interest shown by so many
eminent members of the legal profession of other countries who have
done us the honour of coming to participate in this conference. I
am certain that your deliberations will be directed towards achieving
practical results and in particular to working out a common ap-
proach to the study of law so that we may better understand each
others' legal institutions and practice. Above all, any narrow view
of legal teaching should be excluded.
Africa needs many lawyers, always provided—and this is an
essential proviso—that they are trained for the need of their peoples.
They are needed not only on the bench and at the Bar. They are
needed in every sphere of government, whether national or local.
They are needed equally in industry and commerce, and our plans
for state industrial and agricultural development will require the
services, among others, of lawyers. The subjects taught and the
methods of teaching should therefore be positively directed towards
training lawyers to serve their communities.
And now, Mr. Chairman, Ladies and Gentlemen, I have much
pleasure in declaring these buildings of the Ghana School of Law,
and the Conference on Legal Education in Africa, formally opened.

Rlsumg
LE DROIT EN AFRIQUE

II y avait des ecoles de droit en Afrique avant l'arrivee des Europeans.

L'enseignement du droit en Afrique doit comprendre l'e'tude du droit
coutumier africain. L'^tude du droit doit Stre envisaged en fonction des
besoins du pays et du gouvernement. L'enseignement doit tenir tout
specialement compte du contexte socioculturel. Ainsi, en Ghana, les ecole*

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 Vol. 6. No. 2 University of Ghana, Law Department 109
et facultes de droit doivent enseigner le droit propre au Ghana. Neanmoins,
le Ghana releve de la famille juridique britannique et doit en consequence
faire principalement appel a des enseignants specialistes du droit britan-
nique. Les juristes ghaneens doivent aussi 6tudier les droits concernant les
autres parties du continent, y compris les systemes de droit civil. On a
besoin de juristes qualifies pour les services publics aussi bien que pour les
carrieres privees. Les professeurs de droit devront toujours garder ces
notions presentes a l'esprit.

UNIVERSITY OF GHANA, DEPARTMENT OF LAW

The law department of the University of Ghana was established
in 1958 and admitted its first intake of students in October, 1959.
It runs a four-year course for the LL.B. degree and is responsible
for law teaching in other departments, notably economics and
African studies. The LL.B. degree examination is in two parts; the
first part being taken at the end of the 3rd year and the second part
at the end of the 4th year. The most senior students in the depart-
ment are now in their 3rd year and are taking the LL.B. Part I
examination in June, 1962. It is hoped to produce thefirstgraduates
in June, 1963.
There are some 70 students in the department at the moment and
it is proposed to increase this number to the vicinity of 100 at the
beginning of the next academic session 1962-63.
The establishment for the academic staff of the Department is as
follows:—
1 professor;
2 senior lecturers;
7 lecturers;
1 research fellow.
The former head of department, Professor J. H. A. Lang, resigned
at the beginning of 1962; and Professor W. B. Harvey, of the Uni-
versity of Michigan Law School, has been appointed in his stead.
The other members of the staff include:—
S. K. B. Asante, Esq., LL.B. (Nottingham), LL.M. (London);
D. K. Afreh, Esq., LL.B. (Birmingham), LL.M. (London);
G. R. Woodman, Esq., B.A., LL.B. (Cantab.);
T. O. Rose, Esq., B.A. (Princeton), LL.B. (Yale);
W. C. Daniels, Esq., LL.B., LL.M. (Lond.), Dipl. O.A.S.
Part-time lecturers:—
The Hon. Mr. Justice N. A. Ollennu, Judge of the Ghana High
Court;
E. A. L. Bannerman, Esq., M.A., LL.B. (Cantab.).
The structure of the LL.B. degree is largely based on the recom-
mendations of the International Advisory Committee appointed by
the University to advise on legal education in Ghana. This Com-
mittee consisted of Professor L. C. B. Gower of London University,
Professor Zelman Cowen of Australia, Professor Arthur E. Suther-
land of Harvard and Dr. A. A. Fyzee, Principal and Vice-Chancellor
of the University of Jammu and Kashmir. It recommended inter
alia that the department could profitably combine certain aspects of

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 no Ghana [1962] J.A.L.
the English and American systems of legal education so far as this
was practicable in Ghana. Accordingly as an approximation to the
American insistence on an Arts degree as a prerequisite for admis-
sion to a law school, the first year of the LL.B. course was to be
devoted to giving students a reasonable grounding in the liberal
disciplines. Thus in the first year, students take the following
subjects:—
(1) Introduction to law and legal institutions of Ghana;
(2) Customary law;
(3) Government and politics;
(4) Philosophy or economics.
In the second year the students embark on an intensive study of
substantive law, namely:—
(1) Law of property;
(2) Constitutional and administrative law;
(3) Criminal law; and
(4) Law of contract.
The courses in property law and constitutional and administrative
law extend to the 3rd year when the students also do the law of torts
and criminal procedure and evidence. In the 4th year, the course
is rounded off with:—
(1) Public international law;
(2) Private international law;
(3) Family law;
(4) Commercial law; and
(5) Jurisprudence.
It is probable that some substantive law subjects will be intro-
duced into the 1st year and the volume of non-legal subjects may
be cut down and this will pave the way for the addition of one or
two subjects to the curriculum. Upon graduation, students may
proceed to the Ghana School of Law in Accra for a one-year
practical training before admission to the Roll of Lawyers.
At the moment the Department of Law of the University of Ghana
and the Ghana School of Law, Accra, are two separate entities.
However, the former professor of law who was also head of the
School of Law did submit proposals for a closer association between
the two institutions, though no definite formula of association has
been worked out so far; indeed no firm decision has been taken in
this matter.
The department hopes to embark on an extensive programme of
research into the law of Ghana.

THE GHANA SCHOOL OF LAW, ACCRA

The Ghana School of Law was first established in December,
1958, as an independent institution by the General Legal Council
under section 12 of the Legal Practitioners Act, 1958 (now section 13
of the Legal Profession Act, i960) for the purpose of providing in
Ghana instruction leading to die professional qualification of legal
practitioners. It is not a part of the Department of Law at the

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 Vol. 6. No. 2 School of Law, Accra 111
University of Ghana which was set up at the same time, although
plans are now on foot with a view to amalgamating these two
institutions.
The General Legal Council is the body established by the
Government and concerned with the legal profession, the organiza-
tion of legal education, and with upholding the standard of
professional conduct.
On 3rd September, 1958, the General Legal Council by a
resolution delegated its statutory duties and the immediate ad-
ministration and supervision of legal education together with certain
other functions to the Board of Legal Education. The Board is,
accordingly, responsible for selecting subjects in which students are
to be examined, planning the school curriculum, regulating the
admission of students, and for holding preliminary, intermediate and
qualifying final examinations.
In July, 1959, the General Legal Council and the Council of the
then University College invited an international committee com-
posed of three distinguished professors of law to advise on the
curriculum at the school and the qualifications for call to the Bar.
The committee's recommendations were issued in a report which
was accepted by the Government of Ghana, the General Legal
Council, and the University of Ghana. The curriculum and teach-
ing at the School are accordingly based on these recommendations.
Present members of the Board of Legal Education are:—
Sir Arku Korsah, K.B.E., Chief Justice (Chairman);
Mr. Justice van Lare, C.M.G., Supreme Court Judge;
G. C. Mills-Odoi, Esq., Attorney-General;
K. Dua-Sakyi, Esq., Director of Public Prosecutions;
B. E. Kwaw-Swanzy, Esq., Director of Legal Education;
P. E. N. K. Archer, Esq., is the Secretary both for the General
Legal Council and the Board of Legal Education.
Until March, 1960, the School premises were in the Law Courts,
Accra, but are now situate between the Law Courts and Independ-
ence Avenue. The foundation stone was laid by Osagyefo the
President Dr. Kwame Nkrumah, then Prime Minister, on 7th
March, 1959, and were officially opened on the 4th January, 1962,
built at a cost of some ^G63,ooo. There are two wings to the
building—a four-storey to the north-east containing offices, six
modern classrooms capable of taking 300 students, a law library, and
a modern canteen; and a two-storey wing to the west with additional
offices on the ground-floor and a large lecture-hall above.
Establishment of the Law School has rendered it unnecessary for
any Ghanaian who wants to become a lawyer to go to England to
qualify as a barrister or solicitor, and the period during which a
citizen of Ghana could qualify for enrolment in this country as a
legal practitioner, if he obtained a qualification in England or else-
where, ended on 8th August, 1962.
It is the first professional law school to be set up in west or central
Africa, and admission is open to non-Ghanaians as well. The
minimum educational requirements for enrolment as a student at

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 H2 Ghana [ig62]J.A.L.
the school are: (i) having a thorough knowledge of English, spoken
and written, and (ii) having obtained the West African school
certificate, the general certificate of education, or passed some other
examination having a similar standard.
Entrance or admission examination is held annually and consists
of an intelligence or aptitude test, and a written paper and an essay.
The average annual intake of students for the past four years is 54,
and for the current term the total number of active or regular
students on roll is 100.
The School provides courses for a diploma in law which is one
of the qualifications leading to admission to the Bar. A full-time
practical course of a year's instruction is essential before a student
who has passed the appropriate examinations and obtained a
diploma in law can be called to the Bar of Ghana.
Curriculum for the diploma in law is divided into two parts and
consists of the following eight subjects:—
Part I—Introduction to the law and the legal institutions of
Ghana;
The law of contract;
The law of tort;
Property law (1).
Part II -Property law (2);
Constitutional law and administrative law;
Criminal law and criminal procedure;
Family law.
All these subjects relate to the relevant parts of the law of Ghana.
Examinations for the diploma in law are held twice each year, one
for the subjects in Part I, the other for the subjects in Part II.
Whilst subjects in both parts may be taken one or more at a time,
the regulations provide that no student may proceed to Part II
until he has passed all the subjects in Part I.
The teaching staff comprises three full-time, one on secondment
from Yale University, U.S.A., and five part-time lecturers.
A total of 14 students of whom one is a native of South Africa
have, so far, obtained the diploma in law and are undergoing the
prescribed one year's full-time practical training course.
The School has made a start on a new series of law reports known
as the " Ghana Law Reports " which comprise judgments given
during the year 1959 and onwards by the Privy Council (while its
jurisdiction lasts), as well as decisions of the High Court (formerly
Divisional Court) and the Supreme Court (formerly Court of
Appeal).

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