SOURCES OF LAW

Sources of law, according to “Ghana Legal System, by Emmanuel Kwabena Ansah” can be
defined as avenues by which laws that govern a country, draw their validity. Simply put sources
of law can be defined as, various landmarks in law, which provide authenticity, for which laws
which govern a nation can be enacted. These sources of law, are placed in two distinct
categories. These categories are; Primary Sources of law, and Secondary Sources of law. The
submission below, hopes to fully discuss, to an appreciable extent, these sources of law, with the
aid of relevant constitutional provisions, statutes and case law.
Primary sources of law, can be defined as “the black letter law” or those sources of law,
which state the law. In Ghana, all primary sources of law, can be found in Article 11 of the 1992
Constitution. The hierarchy of these primary sources of law, can however be found in the case of
Kpobi Tsuru v Attorney General, in the dictum of Dotse JSC who indicated that the
Constitution, comes first in the hierarchy of laws, followed by Acts of Parliament, and any acts
delegated to other bodies being subsidiary legislation, the existing laws and the common law.
Article 11(1) of the 1992 Constitution of Ghana, indicates the Constitution in itself as a source
of law. Article 1(2) of the 1992 Constitution indicates that, the Constitution is the highest law of
the land, and any other law, which is inconsistent with the 1992 Constitution shall to the extent
of its inconsistency, be rendered null and void. The previous statement, indicates the supremacy
of the 1992 Constitution of Ghana as a source of law, and that any other law, which is in
contravention with any provision as provided by the 1992 Constitution of Ghana, shall be struck
out. This principle has received judicial blessing in the case of Mensima and Others v Attorney
General. The facts of the above case lied that, the plaintiffs, were members of a cooperation
known as “Egyaa Distiller’s Cooperative”, which was known for distilling a local gin known as
“Akpeteshie”. However the plaintiffs, broke away from this association, to become independent
distillers, of the local gin. As a result, the former distiller’s cooperative, harassed the plaintiffs,
by the use of the police force, and impounded the plaintiffs’ goods. The plaintiffs the filed an
action against the defendants for their deeds. The defendants argued that, the defendants were
mandated by regulations 3(1) of the Manufacture and Sale of Spirits Act, to become licensed
distillers, only if they were members of an authorized distiller’s cooperation. The plaintiffs
argued that regulations 3(1) of the Manufacture and sale of Spirits Act, was incontravention with
Article 21(1)(e) of the 1992 Constitution, since it impeded on the right to associate at will. The
court held that, the above regulations were indeed in contravention, with Article 21(1) (e) of the
1992 Constitution, and was therefore null and void. Again in the case of New Patriotic Party v
Attorney General (CIBA case) and Ghana Bar Association v Attorney General (Abban Case),
the same principle is established.
Article 11(1) (b) of the 1992 Constitution outlines the fact that the legislations or Acts of
Parliament are considered as sources of law in themselves. Some examples of these Acts include
The Criminal Offences Act, 1960 (Act 29), which outlines all criminal offences and their
remedies, as well as the Courts Act, 1993 (Act 459), which outlines the various courts, their
hierarchy as well as their functions. Thus Acts of Parliament can also serve as sources of law.
Subsidiary Legislation on the other hand, can also serve as a source of law. This basically refers
to power vested in a body by the constitution to make laws in the stead of the legislature. It
makes use of statutory instruments, which come in three forms; Constitutional Instruments,
Legislative Instruments, and Executive Instruments. Constitutional Instruments refer to powers
conferred on a person or a body, by the constitution. For example: The 1992 Constitution in
Article 45(1) has mandated the Electoral Commission to compile a voter’s register for the
purposes of Elections. This is a perfect example, of a constitutional instrument which grants the
Electoral Commission to compile a voter’s register. Then again, Legislative Instruments, refer to
powers conferred on a body by the legislature, or Acts of Parliament. For example: Aliens
(Registration) (Amendment) Regulations 1974 (LI 969) which indicates how aliens or foreigners
in the state can register to be citizens, amongst others. This instrument is a significant source of
law in Ghana. Once more executive instruments, can be defined as statutory instruments that are
of neither legislative nor judicial character, and need not be presented before parliament before
its approval. For example: E.I. 64, which mandated the closure of all borders of Ghana,
beginning from March 25th, 2020 at 12 a.m. was an executive instrument issued by the executive
arm of the government of Ghana so as to ensure COVID-19 regulations. However, this has been
subject to litigation in times past, as to whether executive instruments were to be laid before
parliament or not. First is the case of Baffour Osei Akotto v Attorney General. The facts of the
case lie that the president by virtue of E.I 80, 81 and 82, had hoped to create some new districts
for the purposes of administration. The plaintiff however, filed against the actions of the
president, claiming that such an action should be presented before parliament per Article 11(7) of
the 1992 Constitution of Ghana for parliamentary approval. The court held that executive
instruments were of neither legislative nor judicial character and therefore need not be presented
before parliament for approval. However in the case of Margaret Banful v Attorney General,
the facts lie that the defendant being the president, had agreed to accepting and settling two
refugees namely; Mohammed Bin Atef, and Mohammed Salih Al-Dhubi, for two years at most,
as part of a treaty with the United States of America. The plaintiff then filed against the actions
of the president indicating that, the actions of the President were unconstitutional since he failed
to honour Article 75 of the 1992 Constitution, and that his acts had contravened the above
provisions. The defendant had also argued that, the agreement signed did not fall under any of
the orders, rules or regulations indicated in Article 75 of the 1992 Constitution, and therefore,
was an Executive instrument and nor a legislative Instrument. The court held that, the agreement
signed was a treaty between the two countries, and thus fell under the order, rules and regulations
stipulated under Article 75 of the 1992 Constitution of Ghana, and was therefore subject to
parliamentary approval under the conditions stipulated in Article 75 of the 1992 Constitution. In
the recent case law concerning this litigation, we have the precedent of Association of Finance
Houses v Bank of Ghana the facts lied that, the defendants had issued some directives pursuant
to sections 56 and 92 of Act 930. The plaintiffs argued that these directives fell under the orders,
regulations and rules under Article 11(7) of the 1992 Constitution and demanded parliamentary
approval. The defendants, indicated that the directives were for administrative purposes and not
of legislative nature and therefore need not be laid before parliament. The court then held that the
directives did not fall under any of the orders, rules or regulations of Article 11(7) of the 1992
Constitution of Ghana, and also were for administrative nature and not legislative nature and
therefore needed no parliamentary approval, as espoused by Kulendi JSC.
 Existing laws are another primary source of law in Ghana. This has been outlined in Article
11(d) of the 1992 Constitution. Article 11(4) of the 1992 Constitution of Ghana defines existing
laws as any written or unwritten laws, that were in existence immediately before the coming into
force of the 1992 Constitution of Ghana. That is to say all laws that were in practice almost
immediately before the 1992 Constitution of Ghana. This has received judicial blessing in the
case of Awutu Ellis v Attorney General, The facts lie that the plaintiff had filed an action in
court against the defendant since PNDCL 294 had misplaced his lands during the era of military
rule by the PNDC. The court held that PNDCL 294 was an existing law, and thus could not be
rendered void. Again see the case of Tuffour v Attorney General, as a similar decision was
held.
Another source of law is the common law. The common law is outlined as a source of law in
Article 11(1) (e) of the 1992 Constitution. Article 11(2) of this same constitution defines
common law, as common law consisting of the common law, doctrines of equity and all
customary laws as prescribed by the Supreme Court of judicature. Common law principles were
known to have been derived from the British common law systems, through ordinances issued in
colonial times. Examples are: Natural Justice, Tort and Judicial Precedents. Equity was also
drawn from the common law systems, in times when the common law had its shortcomings in
the native courts in Britain. This tended to promote some forms of injustice, for which the Court
of Chancery was set up. This court then practiced what was known as equity, to provide
remedies for aggrieved individuals. However, these courts could issue injunctions against the
native courts in carrying out provisions upon the request of individuals, and this became a
nuisance to justice in Britain. As a result the modern court system was established to amalgamate
both the common law and equity, whereas if there was a clash between equity and common law,
equity was to prevail. Then there is the customary law, which is defined in Article 11(3) as all
laws that are applicable within particular societies in Ghana. This has received blessing in the
case of In re Adum Stool; Agyei v Fori, The plaintiff had alleged that, the defendant had
wrongly ascended the throne of the Adum people, since the throne could only be inherited by the
sons and grandsons (Ayete Custom) of the first Adum ruler. However, the defendant alleged that,
he was a descendant of Kyekye Akenten who hailed from a family that provided wives for the
stool, and could therefore inherit the stool. This matter had been put before the Kumasi
Traditional Council who indicated that the descendants of the wives of the stool could also
inherit the stool, and thus held in favour of the defendant. The Regional House of Chiefs also
held same. However, the National House of Chiefs held that such a custom was a novel
proposition, and therefore unreasonable, and must therefore be struck out, thus holding in favour
of the plaintiff. The Supreme Court held that, the defendant had first of all not been able to
establish family ties with the original stool king, and supported the fact that the “Ayete” custom
demanded that only the sons and grandsons could inherit the stool. Thus, the claims of the
defendant were novel and unreasonable and hence, must be struck out.
Once more, we have the secondary sources of law are sources of law that critique, analyze and
explain the law. This can be found in journals (examples include; University of Ghana Law
Journal, UCC Law Journal, Harvard Law Review, KNUST Law Journal and more), Dictionaries
and Encyclopedias (examples include; Black’s Law Dictionary), Scholarly Writings such as;
Ghana Legal System by Emmanuel Kwabena Ansah, Learning the Law, Bimpong Buta: The role
of the Supreme Court in the development of Constitutional Law in Ghana. These secondary
sources of law, hope to explain the law, for the understanding of legal professionals and students.
In a nutshell, above are some of the sources of law, found in Ghana, being the constitution as
the supreme and highest law of the land, the Acts of Parliament and subsidiary legislations, the
existing laws, the common laws made up of the common law, equity and customary law, as well
as secondary sources of law, which exist as scholarly writings on the law.