SOURCES OF LAW

INTRODUCTION TO LAW
THE LAWS OF GHANA
 INTRODUCTION TO LAW
• “What is Law?” has engaged the attention of many and yet there is no easy
and straight forward answer.
• Henry Abraham in “The Judicial Process” stated that “What is law has been
defined by Priests, Poets, Kings, Philosophers, Marxists and Prophets yet
there have been no answers to the question. Law is the entire gamut of human
life both in thought and in action”
• Many schools of thought have advanced different perceptions of law.
• These varied thoughts are presented by
• the Historical School,
• the Sociological School,
• the Natural Law School,
• the Realists,
• the Positivists and
• the Marxist-Leninist School.
•
• The definition of law in terms of the historical school of
jurisprudence as first enunciated by the German von Savigny is that
the rules and norms governing society “derive from their history,
their environmental conditions, and their common consciousness or
volksgeist.
• The sociological school of jurisprudence studies the circumstances
which create the legal institutions, and the relationship between
those legal institutions and other social institutions which condition
the scope and the operation of law. According to Roscoe Pound, the
main features of the sociological school of jurisprudence are the
functional aspect of law and not its abstract contents. It believes that
human experience is the basis of law and that law is designed to
meet dynamic social needs.
• Judges must be more concerned with the justice of the case and not
the law per se. The exponents of the Natural Law School, St
Thomas Aquinas and St Augustine argue that “what is not just
cannot be law.” To them, natural Law is a “higher Law” or the law of
nature “binding upon human societies in the absence of, or as a
supplement to positive law.
• Legal realism identifies law with the activities of Judges and officials
of adjudication. Realists like Oliver Wendell Holmes in “The Path of
Law” said ‘Prophecies of what the courts will do in fact and nothing
more pretentious. The life of the law has not been logic: it has been
experience. The felt necessities of the time, the prevalent moral and
political theories, intuitions of public theories, avowed and
unconscious even the prejudices which judges share with their
fellowmen’. It is in fact what the judge decides.
• For the Positivists, law is the collection of rules laid down by an
identified legal authority. It is the command of the sovereign. John
Austin described the sovereign as a determinate human superior who
the bulk of the population in a given nation habitually obey who does
not himself obey any higher power or authority. According to Hart, law
is not based on fear of sanctions but on legal authority. Kelson
stressed on the ‘Grundnorm’- the will of the people. Law is law only
when it emanates from a central organ which must have legitimacy.
• To the Marxist-Leninist School, Law is the legal expression of
property relations in society. Law is an instrument of the ‘Haves’ to
protect their properties and to suppress the ’Have-Nots’. Equality calls
for the leveling of classes within the society. Law that is not based on
equal property relations is not law. The economic imbalances within
the society must be redressed.
 METHODS OF CLASSIFYING THE LAW

• There are many categories of law.

• Traditionally, classification of law has taken two forms.
• This is the distinction between criminal law and civil law.
• Criminal law includes prosecution by the government of a person for
an act that has been classified as a crime.
• A "crime" is any act or omission (of an act) in violation of a public law
forbidding or commanding it.
• Offences like stealing, robbery, rape and murder are classified as
criminal as these actions are sufficiently anti-social to warrant
punishment by the state in the form of imprisonment of the offender or
by the imposition of a fine.
• Its prime objective is to punish the offender. If the harm is criminalised
in legislation, criminal law offers means by which the state can
prosecute the perpetrator
• Civil cases, on the other hand, include individuals and organizations
seeking to determine legal arguments.
• Civil law provides for the making of contracts, wills, ownership and
transfer of property, regulation of employment and family matters
among others.
• Apart from contracts where two or more parties have entered into a
binding agreement which can then be enforced, the other main type
of civil liability arises in tort.
• This covers acts or omissions where a person’s interests have been
adversely affected by the defendant such as physical injury,
damage to property or the publication of defamatory statements.
• In this instance the focus is to compensate the injured party.
• Each of these sets the rules for a distinct area of human activity.
• Contract Law
• Property law
• Trust law
• Tort law
• Family law
• Labour law
• Business law (also known as Commercial law)
• Immigration law
• Tax law
• Environmental law
• Administrative law
• Constitutional Law
• International law
 LAW AS A RULE
• Generally then laws are set of legal rules, principles and practices.
• Enacted, developed and evolved
• to regulate the affairs of people in a given environment.
• Law is a formal mechanism of social control.
• Law is a formal control mechanism that provides a system for dealing
with and resolving disputes that may arise as well as
• providing some restrictions and compliant conditions to those wishing
to disrupt social order.
• The law is a set of rules that control conduct to ensure that there is
order and harmony in society
• Law is a system of rules a society sets to maintain order and protect
harm to persons and property and usually enforced through a set of
institutions.
• Laws are guidelines that set out appropriate behavior.
• Rules and regulations ensure the protection of life and property and
maintain orderliness
• Rules of law are made by the central authorities
• Laws are written by legislators
• Some legal rules are enacted by persons or institutions with authority
to legislate or authority to create rules.
• Citizens are obliged to obey valid laws that come into existence in
accordance with the procedure for making laws.
• They are enforced by the police, supported by the court and prison
systems.
• They are defined as a set of binding rules of conduct.
• A rule means a norm and what the law says reflects the intentions of
the lawmakers which is supposed to reflect the will of the society as a
whole.
• The binding force of legal rules does not depend on the acceptance of
the rules by members of the society but by virtue of the fact that the
rules in question are declared by the appropriate authority.
• Laws serve a variety of functions including regulating conduct, resolving
conflicts, administering punishment and conferring benefits among
others.
• As an instrument of social control, conduct is controlled through
• prohibition,
• compulsion,
• guidance,
• direction,
• permission,
• sanction and
• facilitation of social and business behaviour by law.
 THE LAWS OF GHANA
• Sources of law - origin of legal rules giving it its binding
force.
• Article 11(1) of the Constitution of the Republic of Ghana,
1992 enumerates the laws of Ghana as:
• This Constitution
• Enactments made by or under the authority of the Parliament
established by this Constitution
• Any Orders, Rules and Regulations made by any person or
authority under a power conferred by this Constitution or any
other law
• The existing law and
• The common law
 THE CONSTITUTION
• A Constitution is a body of legal rules described as fundamental and
supreme.
• It confers and allocates power to various institutions of government
• It also defines the relationship between the government and the
governed as well as between the various institutions of government.
• The legitimacy of a government is derived from a Constitution.
• A Constitution may be written or unwritten in a single document or series
of documents
• Some provisions are entrenched and some are non-entrenched ie rigid
and flexible
• Entrenched provisions are to safeguard the provisions in the
Constitution.
• They have stringent procedures such as referendum to be followed to
amend such provisions.
• Articles 289 to 292 of the 1992 Constitution deal with the amendment
procedures.
• The constitution is a unitary one with all governmental powers vested
in the central government even though there is recognition of
decentralisation through local government administration.
• Ghana is a republican state with a presidential system with the Head
of State also the Head of Government.
• The Constitution provides for a multi party system and outlaws a one
party state.
• Ghana has a unicameral constitution where there is a single law
making body.
• The 1992 Constitution is the highest and fundamental law and the
supreme law of Ghana.
• All authorities and other laws must conform to the constitution.
• Sowah JSC in Tufour v AG held that A written constitution such as ours is not an
ordinary Act of Parliament.
• It embodies the will of the people, mirrors their history and has the letter of the law.
• The notion is that the 1992 Constitution has both the letter and the spirit.
• Francois JSC in Kuenyehia v Archer stated that a constitutional document must be
interpreted to allow the written word and the spirit …to exist in perfect harmony.
• Acquah JSC in the case of NMC v AG stated that the constitution is a document that
expresses our sovereign will and embodied our soul.
• The Constitution is viewed as a living document which expresses the will of the people,
the letter of the law and the intentions behind the provisions in the Articles.
• Article 1(2) of the Constitution states that any law that is inconsistent
with any provision of the Constitution is to the extent of the
inconsistency void.
• Kpegah JSC in Yeboah v JH Mensah stated that the Constitution is
the supreme law of the land and all persons must look at it and adjust
their actions accordingly.
• The Constitution is the source of power and authority for the organs of
state namely the Executive, the Legislature and the Judiciary.
• Their functions and their inter-relationships are derived from the
Constitution.
• Many other institutions like the Council of State, the Commission on
Human Rights and Administrative Justice, the National Commission
for Civic Education, the Public Service among others are established
by the Constitution to ensure rule of law, order, justice and harmony.
 THE PREAMBLE
• The natural and inalienable right of the people of Ghana to establish
a framework of government which shall secure for them and
posterity the blessings of liberty, equality of opportunity and
prosperity.
• Spirit of friendship and peace with all peoples of the world;
• Solemn declaration and affirmation of the commitment to Freedom,
Justice, Probity and Accountability.
• All powers of Government spring from the sovereign will of the
people;
• Universal Adult Suffrage
• Rule of Law
• Fundamental Human Rights and Freedoms
• Unity and Stability of the Nation
 CONTENTS OF THE CONSTITUTION
• Preamble
• Chapter 1 (Articles 1-3) - The Constitution
• Chapter 2 (Articles 4 & 5) - Territories of Ghana
• Chapter 3 (Articles 6- 10) - Citizenship
• Chapter 4 (Article 11) - The Laws of Ghana
• Chapter 5 (Articles 12-33) - Fundamental Human Rights and

Freedoms
• Chapter 6 (Articles 34-41) - The Directive Principles of State
Policy
• Chapter 7 (Articles 42-56) - Representation of the People
• Chapter 8 (Articles 57-88) - The Executive
• Chapter 9 (Articles 89-92) - The Council of State
• Chapter 10 (Articles 93-124) - The Legislature
• Chapter 11 (Articles 125-161) - The Judiciary
• Chapter 12 (Articles 162- 173) - Freedom and
Independence of the Media
• Chapter 13 (Articles 174- 189) - Finance
• Chapter 14 (Articles 190- 199) - The Public Services
• Chapter 15 (Articles 200-204) - The Police Service
• Chapter 16 (Articles 205-209) - The Prisons Service
• Chapter 17 (Articles 210-215) - The Armed Forces of Ghana
• Chapter 18 (Articles 216-230) - Commission on Human Rights
and Administrative Justice
• Chapter 19 (Articles 231-239) - National Commission for Civic
Education
• Chapter 20 (Articles 240-256) - Decentralization and Local
Government
• Chapter 21 (Articles 257-269) - Lands and Natural Resources
• Chapter 22 (Articles 270-277) - Chieftaincy
• Chapter 23 (Articles 278-283) - Commissions of Enquiry
• Chapter 24 (Articles 284- 288) - Code of Conduct for Public
Officers
• Chapter 25 (Articles 289-292) - Amendment of the Constitution
• Chapter 26 (Articles 293-299) - Miscellaneous
• First Schedule (Sections 1- 37) - Transitional Provisions
 ENACTMENTS BY THE PARLIAMENT
ESTABLISHED UNDER THE 1992
CONSTITUTION
• The enactments (Acts, Statutes) made by or under the
authority of the Parliament established by the
Constitution, 1992
• Parliament is the legislative arm of government
• Authority through primary legislation.
• A bill shall be published in the Gazette fourteen days
before the date of its introduction in the House.
• Bill accompanied by an explanatory memorandum
• The memorandum shall be signed by a Minister or a
Member introducing the Bill.
• The stages of primary legislation are:
• First Reading
• Committee Stage
• Second Reading
• Consideration Stage
• Third Reading
• Presidential Assent
• When the time for presenting Bills arrives Mr. Speaker shall call
successively each Member or Minister in whose name a Bill stands on
the Order Paper.
• The Member or Minister called shall rise in his place and bow to the
Chair and then the Clerk shall read aloud the Long Title of the Bill which
shall then be considered as read the First Time.
• After the First reading it shall be referred to the appropriate Committee
which shall examine the Bill in detail and make all such inquiries in
relation to it as the Committee considers expedient or necessary.
• After the report of the committee and the motion for second reading is
carried the Clerk shall read aloud the Long Title of the Bill which shall
then be considered as read the Second Time.
• When a Bill has been read a Second Time it shall pass through the
Consideration Stage in the House
• At the Consideration Stage of a Bill the House shall not discuss the
principle of the Bill but only its details and may make such
amendments as it considers fit.
• No Bill shall be deemed to have been passed by the House unless it
has been read three times and has passed through the Consideration
Stage.
• The Third Reading shall be taken after the bill has passed through
the Consideration Stage
• A Bill having passed through the Consideration Stage, the Third
Reading shall not be taken until at least twenty-four hours have
elapsed.
• Every Bill passed by Parliament shall be presented to the President
for assent.
• The President shall signify within seven days to the Speaker
whether he assents to the Bill or refuses to give assent unless the
Council of State indicates that it is considering the Bill.
 ANY ORDERS, RULES OR
REGULATIONS
• Legislation or law that is passed otherwise than in an Act of Parliament.
• Also known as delegated, subsidiary or subordinate legislation.
• Body of orders, rules and regulations made by persons or bodies outside
the legislature like ministers, government departments, local authorities,
public corporations etc. under a power conferred by the Constitution or
any other law through
• constitutional instruments
• executive instruments or
• legislative instruments.
• Be published in the Gazette on the day it is laid before Parliament;
• Come into force at the expiration of twenty-one sitting days after being
so laid unless Parliament, before the expiration of the twenty-one days,
annuls the Order, Rule or Regulation by the votes of not less than two
thirds of all the members of Parliament
• Examples of authorisations for Constitutional Instruments (CI) are Article
33(4), 51, 69(8), 124(5), 157(2), 159, 167(d) and 230.
• Examples of authorisations for Legislative Instruments (LI) are the Labour
Act, 2003 (Act 651) s 174; the Public Procurement Act, 2003 (Act 663) s
97(1); the Chieftaincy Act, 2008 (Act 759) s 71 and 75. The National
Pensions Act, 2008 (Act 766) s 207(1) and the Economic and Organised
Crime Act, 2010 (Act 804) s 73; The Local Local Governance Act, 2016 (Act
936) s 232
• Some Executive Instruments (EI) are for the exercise of Emergency powers
and Curfews
• Under the Local Local Governance Act, 2016 (Act 936) s 225 the President
or the Minister, with the prior approval of the
Cabinet, may by Executive Instrument, delegate any of the functions of the
President or Minister under this Act other than the functions of the Minister
under section 3, to a public officer subject to the conditions specified in the
Instrument.
 THE EXISTING LAW
• Written and unwritten laws in existence prior to the coming
into being of the 1992 Constitution.
• The Laws and Ordinances of the Gold Coast
• Acts of the various Republics
• The various Decrees of the numerous military dictatorships -
• National Liberation Council Decrees (NLCDs).
• National Redemption Council Decrees (NRCDs)
• Supreme Military Council Decrees (SMCDs)
• Armed Forces Revolutionary Council Decrees(AFRCDs).
• Provisional National Defence Council Laws (PNDCLs)
• Interpret them in conformity with the 1992 Constitution
 THE COMMON LAW
• The common law of Ghana is made up of
• the rules of law generally referred to as the common law
• the rules generally known as the doctrines of equity and
• the rules of customary law.
• The received common law is the body of laws which were
developed in England in the 12th Century.
• Emerged out of the mass of customary laws of the English.
• Common law actions were begun by a ‘writ’
• ‘No writ, no remedy’.
• The classic common law or legal remedy is damages
• Damages are granted as of right.
• Common law follows the doctrine of precedent
 EQUITY
• Developed by the Court of Chancery by the 15th Century to temper and
mitigate the harshness and rigours of the common law.
• Courts of Equity were created to hear and determine disputes in which the
Courts of Law could not grant the requested relief.
• Its origin was the exercise by the Chancellor of the residual discretionary
power of the King to do justice among his subjects in circumstances in which
for one reason or another justice could not be obtained in a common law
court.
• Equity means that which is fair and just, moral and ethical.
• Equitable remedies are discretionary.
• The usual equitable remedies are
• injunction
• specific performance
• rectification and
• rescission.
• The maxims of equity embody the general principles which evolved
in the Court of Chancery to govern the way in which equity
operates.
• Among the maxims of equity are:
• Equity looks upon that as done which ought to have been done;
• Equity will not suffer a wrong to be without a remedy;
• Equity follows the law;
• Equity regards substance rather than form;
• He who seeks equity must do equity;
• He who seeks equity must have clean hands;
• Equity aids the vigilant, not the indolent;
• Equity will not permit a party to profit by his own wrong;
• Equity delights to do justice;
 CUSTOMARY LAW
• The rules of law which by custom are applicable to particular
communities in Ghana
• The customs accepted by members of a particular community as
binding upon them.
• Customary law had to be proved by experts like chiefs and
withstood the repugnancy test of the colonial rule.
• By virtue of Article 26(1), every person is entitled to enjoy, practise,
profess, maintain and promote any culture, language, tradition or
religion subject to the provisions of this Constitution.
• The Constitution prohibits all customary practices which
dehumanize or are injurious to the physical and mental well-being of
a person.
• Customary law regulates almost every facet of the Ghanaian society.
• It underlies marriage and family relationships, economic activities, funerals,
inheritance and succession including other forms of property ownership and the
institution of chieftaincy among others.
• The State shall ensure that appropriate customary and cultural values are adapted
and developed as an integral part of the growing needs of the society as a whole.
• The State shall foster the development of Ghanaian languages and pride in
Ghanaian culture.
• the National House of Chiefs is to undertake the progressive study, interpretation
and codification of customary law with a view to evolving, in appropriate cases, a
unified system of rules of customary law.