Working Within the System – West African Style

We have been living in West Africa now for just over a year – we will return to the United States in October of 2023.

Before we moved to Ghana I knew very little about West Africa.  But I know more now.  Living and working in West Africa has been a singular experience.  I previously lived abroad for several years in Canada, England and continental Europe.  But I’ve never before experienced anything like West Africa.

During the past year I’ve been working closely with local attorneys to acquire real estate all over Ghana (and throughout West Africa).  This has required me to become familiar with the Real Estate law of Ghana, and what I’ve learned has been fascinating.

When the British first moved into Ghana they encountered a legal system that consisted of a collection of independent tribal legal systems that had been developed and were being administered by the local chiefs, elders and councils.  As British influence in Ghana expanded the British recognized that the best way of developing and administering a coherent legal system was for the British to recognize the existing “customary” law of each independent tribe and to allow the chiefs, councils and principal elders of such tribes to continue administering and enforcing their “customary” (or traditional) laws – both civil and criminal – as had been done prior to the arrival of the British. However, in order for colonization to operate successfully, the British needed British law to both be operative and to have supremacy over the local “customary” law.  The British therefore didn’t revoke the local tribal or “customary” laws, nor did the British abrogate the authority of the trial chiefs, but instead the British confirmed the authority of the local tribal chiefs and made them subject to British authority. Then, in addition to recognizing the local “customary” law the British introduced English law as the Supreme law of the land.  To the extent that local “customary” law was consistent with and not repugnant to English law, the local customary law was recognized and enforced, but whenever the local “customary” law was either silent on or repugnant to English law then the English law would prevail.  The British legal system therefore consisted of two separate legal systems consisting of local “customary” law and English law, working side by side, with the English law having supremacy.  This legal system was used in Ghana for the 207 years during which Great Britain occupied Ghana; it continued until 1957 when Ghana became an independent nation.  Following independence Ghana maintained this “two- part” judicial system, but the new nation of Ghana replaced some portions of the English legal system with its own new Ghanian law.

After arriving in Ghana I began working with local attorneys on several legal matters.  I quickly recognized that much of the Ghanaian legal system (which apparently had been carried over from the British colonial era legal system) was very familiar.  Many of the legal doctrines and principles I encountered were very similar to those I had worked with in the United States. For example, following independence Ghana maintained the doctrine of Stare Decisis so that the many judicial decisions rendered in Ghana during British colonial rule would remain binding. This makes Ghana a common law nation; the country recognizes writs of Habeas Corpus and the Independence of the Judiciary.  (World Factbook of Criminal Justice Systems).  When I encountered in Ghanaian law many of the legal doctrines, principles and procedures I had used in the United States I was at first surprised.  I subsequently realized that Ghana and the United States both share a legal history that originated with England.  Once I realized that the two countries had a common source for the origin of their legal systems I was less surprised at the commonalities that exist.

A significant aspect of Ghanaian law which I did not expect to encounter was the recognition and use of “customary” tribal law.  In the United States essentially all of the law I worked with was either State or Federal law. But I soon learned that in Ghana a substantial part of the law governing real estate ownership and conveyances is governed by “customary” or local law.  This was completely unfamiliar to me. I learned that during the colonial era the British colonial governors allowed the tribal chiefs to rule their chiefdoms and administer their local tribal laws in both civil and criminal matters. I learned that the authority of the local chiefs to enforce local law and decide local matters was maintained after independence such that in rural towns and villages the chiefs and principal elders still decide some civil matters and also try both minor (and some felony) crimes without ever involving the judiciary operated by the national government (World Factbook of Criminal Justice Systems – see also The Historical Development of the Legal System of Ghana: An Example of the Coexistence of Two Systems of Law). 

Ghana has a constitution which expressly provides that the “Customary” laws of local towns and villages (which are often unwritten) form part of the common law of Ghana. The constitution provides for a Supreme Executive, a Legislature and a Judiciary.  However, chapter 22 of the Constitution also provides that the “institution of chieftancy, together with its traditional councils as established by customary law and usage, is hereby guaranteed.” The constitution establishes a “National House of Chiefs” to undertake a codification of “customary law” (among other things).  Huge tracts of land throughout Ghana are owned by local tribes (which in Ghana are knowns as “stools” or “skins”).  These lands are administered by the tribal Chiefs.

Between their legal functions and their economic standing these tribal Chiefs wield enormous power in Ghana.  Local chiefs are selected not by election in the sense that we think of them in the United States but instead by local law and custom. 

This tribal system that operates on “customary” (and largely unwritten) law is only part of the highly interesting (and rewarding) experience that comes with working within the legal system of a West African nation for more than a year.

Copyright 2017 ROBERT B. JACOBS