In 1957, Ghana attained independence from the British. Upon their arrival on the radiant shores of Ghana, the British did not hesitate in imposing their customs and principles on the autochthonous people. One of the many things impressed on the indigenes was the English Common Law System. The English Common Law would forever alter and shape Ghana’s jurisprudence. This article will trace the advent and the adoption of the Common Law System in Ghana.
Westminster is a city in London which most people refer to as the United Kingdom’s legal capital because of its proximity to the Supreme Court and Parliament. Its Ghanaian counterpart is Makola, a town in the Nation’s capital which has always been the legal hub of the Country. Ghana’s premier law school, Supreme Court and lower courts are all located within this small, yet important town that bustles with life.
Ghana, once considered the gateway to Africa has fallen short in its quest to develop and build its Legal System. We seem to have veered off the route that our colonial masters plied. This is not to say that we should have followed and copied blindly the steps taken by the monarchy that once governed us.
Thus, the question I seek to ask is: What was the wrong turn we took, on our journey from Westminster to Makola?
FROM WESTMINSTER TO MAKOLA; THE WRONG TURN WE TOOK.
By: P. KOFI KYERE ASANTE
CENTRAL UNIVERSITY
LLB (300) ONGOING
Over the years, law students studying Ghana’s legal system have been taught what is practically trite knowledge by now that Ghana is a common law country, whereas its contiguous neighbours; Togo and Ivory Coast are all civil law countries. The premise for Ghana’s classification as a common law country and its aforementioned neighbours as civil law countries is bereft of factors such as geographical location or race. The legal systems of most African countries were most likely inspired by their historical antecedents and the relationships they maintained with their former colonial masters. As a matter of fact, Ghana’s choice of a common law system was inspired by the fact that its colonial masters, the British, were progenitors of common law. Countries like Nigeria, Kenya and Gabon, who had the same relationship with the British also practice the English common law system in their respective jurisdictions.
For this reason, I think it would be germane to give a brief history of the evolution of common law in the UK.
Common law as the name connotes, are laws common to the Kingdom. The Norman conquest of 1066 is regarded as the inception of English law. Before that period, the English courts were presided over by bishops and earls and they applied customary laws of German origin. William, the Duke of Normandy after the battle of Hastings centralised this administrative system and separated the church from the court, thus removing the bishops as judges.
The King who was referred to as the fountain of justice created the King’s court, the Curia Regis. The Curia Regis was centralised in Westminster, but its judges went around to hear cases at the circuit level. Through this, the system of stare decisis was introduced as the judges applied the laws they came up with on similar cases. Common law initially was rigid and strict, consequently there were a lot of challenges that confronted it at the time. For instance, it was difficult to initiate an action against someone if that particular action did not fall under any of the writs available. Any action that was not properly initiated usually didn’t see the light of day. Notwithstanding these challenges, the remedies the common law system provided weren’t adequate enough, as it was strictly based on a few writs.
Equity was then brought in by the King to remedy the situation. The rapid growth of equity brought about a conflict between common law and equity, as more indigenes preferred to resort to equity instead of common law. King James I on the advice of Lord Bacon decided that equity was to prevail over common law anytime there was a conflict between the two. This decision was not received well initially, but the Judicature Act 1873, was passed to fuse the two systems. As a result of the aforementioned, common law and equity are practised together in the UK. Article 11(2) of the Constitution of Ghana, 1992 also recognises common law and equity as one.
Westminster, as some of you may know is where both the Supreme Court of UK and the House of Commons is situated, whereas Ghana’s prime law school and Supreme Court is located at Makola. In the quest for Ghana to become the gateway to Africa, it appears Ghana took a different trajectory which has hampered the development of our legal system. A route which is quite different from what those we are learning from took. Thus, the question I seek to ask is, what was the wrong turn we took, on our journey from Westminster to Makola.
As indicated in the previous paragraph, the Constitution of Ghana, 1992 recognises common law as part of our laws. Therefore, since Ghana practices the common law system, it is to be expected that we emulate the system well in order to get a better part of it, if not similar.
However, the current situation in Ghana doesn’t leave much to be desired. So, the question one is likely to pose is, what was the wrong turn we took in the realisation of this dream, the dream of becoming the gateway to Africa.
To begin with, I would like to tackle the issue of advertisement. Whereas advertisement by lawyers is prohibited in most African countries who practice the common law system, law firms in the UK have been granted such authorisation to advertise under their firms. Advertisement done by law firms in the UK go beyond website and print media commercials, it also includes television advertisements. It may interest you to know that I was fortunate enough to have come across a few of such commercials being aired on TV stations a few weeks ago in the UK. As a matter of fact, ABN television a Ghanaian owned television station in the UK was one of such stations that had these commercials airing on their platform.
A trip I embarked on at the Bexley Magistrate and Youth court was an eye opener for me. A criminal case which ordinarily would take weeks to be adjudicated over in Ghana, was heard and concluded in less than 3 hours by the magistrates of that court. The case I witnessed was that of a young man who had threatened to stab his mother with a knife after a few exchanges had ensued between them. The young man was arrested by the police and was kept in their custody for a while when he went ahead to vandalise some properties belonging to the police in the course of his confinement. The judges who sat on this case heard and delivered their judgement in less than 3 hours that day. Yes!! You heard me right, I said judges. Whereas district courts in Ghana are presided over by one magistrate, what I saw that day was totally different. I was stunned to see 3 judges sitting together at a first hearing in a magistrate court. The speed at which this ‘hearing’ was done, concluded and how fast the judgement was delivered was indeed novel to me as my two years of visiting Ghanaian courts had never given me such an experience. My interest in the British court system piqued that very day, so I decided to do a tad more research on their magistrate court, and guess what? I came to the realisation that magistrate court judges need not be legal practitioners, they could be lay people in society with good morals. There is a similar practice in Ghana, but this is not often done.
Another visit to Westminster, where the Supreme Court and Parliament house of UK is situated was more of a learning experience to me than the pictures, as a young chap I ideally wanted to take. Even before I proceed, I would like to make an interesting revelation to you, my trip to the supreme court had to be booked online and was followed up by other e-mail correspondence. On my arrival that day, my name which was in their records was mentioned with a funny accent and I was ushered into the building for security checks to be done. What does this tell us? Their systems work!! It may interest you to know that the tours being booked by tourists was another avenue through which their government was making money. The Supreme Court organises a tour for tourists and students who want to see and learn more about the supreme court. Apart from narrating to you, history and structures of the court system, you are taken to a library to have a feel of the books used by the learned Lords. The court rooms are decorated with arts and pictures of great Lords who made law what it is today, a practice which may have inspired what we see in our new high court complex. A special room which looks like a mini museum is also situated in the supreme court building, where robes worn by lords of the Supreme Court and other symbolic items like books signed by the Queen and other artefacts are kept. The website of the Supreme Court has up to date information on cases pending and recent judgements which have been delivered by the Lords.
So, the question I kept asking myself throughout the tour was, why can’t we learn from them? Why don’t we also have a mini museum in our Supreme Courts, by way of keeping our tradition? Why can’t we see or have a feel of our own history with regard to legal education or even have arts and clips of the times when (Tuffuor V AG, Sallah V AG) were landmark cases etc? Why don’t we have a website for our supreme court? Why can’t we the citizens follow live proceedings of the court hearings online? Why are the judgements of the supreme court not readily available on these websites as soon as they are delivered?
So, I ask again? What was the wrong turn we took? Why can’t we learn and be better off, as we have had the privilege of learning from their mistakes. These basic things baffle my imagination, maybe I’m asking for too much, but sincerely this is how I feel.
At a recent conference I attended at Kwame Nkrumah University of Science Technology, one panel member asked a question which hit home for me and I would like to share it with you. His question was; Why isn’t there a division between Barristers and Solicitors in Ghana? Why must one go through the stress of going to Makola just be a barrister and eventually sit in his office and practice as a solicitor? I think this is an area we should take a second look at. Countries like England and Australia have achieved great feats by towing this trajectory.
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1 A radio show in Ghana
- Citation du texte
- Kofi Kyere Asante (Auteur), 2017, From Westminster to Makola. The Wrong Turn we Took, Munich, GRIN Verlag, https://www.grin.com/document/593520
