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Understanding The Ghanaian Legal System

The legal system is modeled largely on the English common law and has a lot of resemblance although over the years...

The Ghanaian legal system, as all other legal systems, is unique in its own way, taking into consideration the culture and history of the Ghanaian people. The legal system is modeled largely on the English common law and has a lot of resemblance although over the years we have localized or domesticated portions of the legal system to reflect our norms and values to better fit within our political culture and history.

The 1992 Constitution is the latest rendition of our Constitution which ushered in the 4^th republic of Ghana after a rollercoaster history of democratic governance and coup d’etats. The  1992 constitution has been Ghana’s longest lasting constitution so far having existed for 31 years now as well as the 4^th republic. The 1992 constitution spells out what the sources of law are in Ghana and these are spelt out in its Article 11. The sources of law are:

• the Constitution
• Acts or enactments by or under the authority of Parliament as established by the Constitution
• Orders, Rules and Regulations made by any person or authority under a power conferred by the Constitution
• Existing law
• Common law

This writeup is not intended to go into the history and workings of the Ghanaian legal system but to give an appreciable understanding of the general operation of the legal system. At a later opportunity, we could delve more into the meaning and effect of the various sources of law in Ghana. However, as a point of interest, the customary law, comprising the rules of law and custom applicable to particular communities, are recognized and upheld by the Constitution to the extent that they do not violate or contradict other provisions of the Constitution and other laws.

The legal system is majorly made up of five (5) different courts with differing jurisdictions and powers. In order of hierarchy from the highest, they are:

• Supreme Court
• Appeals Court
• High Court
• Circuit Court
• Magistrate/District Court

Generally, the top three highest courts are referred to as the Superior Courts, as they are creatures of the Constitution, whereas the last two courts are referred to as the Lower Courts, creatures of an Act of Parliament. As mentioned earlier, each of these courts have certain unique jurisdictions or powers whereas some jurisdictions such as appeal, is shared by a number of them.

Besides the five named courts above, there are other quasi-adjudication bodies which are recognized by law as having the power to decide on particular kinds of issues specific to those bodies or institutions. These bodies are however under the supervision of the courts, mostly the High Court, and the decisions or actions of these bodies are subject to the scrutiny of the courts where required and the courts can overturn, quash or vary their decisions. Ultimately, the Supreme Court is the final appellate court in almost all cases that appear before the courts.

As a common law jurisdiction, precedents are largely followed and applied in similar and relatable cases. As such, decisions of the Supreme Court are binding on all courts below it as well as decisions of the Court of Appeal are binding on the courts below it. Decisions of one High Court is only of persuasive effect on other High Courts and courts above it but are binding on the lower court where there is no similar decision(s) by the courts above it on the same issue. The Lower Courts are thus bound by the decisions of the courts above them and this brings some consistency and predictability within the judicial practice.

Matters relating to the interpretation of the Constitution are solely dealt with by the Supreme Court whereas matters which have got to do with the enforcement or breaches of Human Rights are dealt with solely by the High Court.

Criminal matters are handled by the District and Circuit Courts as well as the High Court, with different jurisdiction of crimes and punishment thresholds.

As a business community, majority of the issues that affect us that may come up would mostly be first dealt with by the High Court. There are High Courts across the country, mostly in the capital towns of the Regions and other major towns within regions. In Accra, there are a number of them dotted across the city to better serve justice. There also is the High Court Complex building in Accra which houses a good number of High Courts with some dedicated to particular areas of law to expedite justice delivery. The major divisions at the High Court Complex include commercial, land, divorce and matrimonial, probate and administration and general jurisdiction.

To facilitate the expeditious adjudication of commercial related disputes, the specialized commercial courts have unique rules that provide for pre-trial conferences, to encourage parties involved to try settlement where the Judge acts as a mediator to guide to parties to settlement so as to avoid going for trial, if the settlement works. This rule is meant to help resolve commercial matters quickly to save the time of business persons. It is only when this effort fails that the issue travels to trial.

The Ghanaian legal system embraces alternative dispute resolution (ADR) mechanisms. It has done this even before the 1992 Constitution and the 4^th republic. As far back as 1961 the Arbitration Act was enacted to regulate the conduct of Arbitration within the legal system. Given the growth and increasing relevance of alternative dispute resolution among businesses and in the international arena, Ghana in 2010 enacted the Alternative Dispute Resolution Act, 2010 (Act 798), modelled along the UNCITRAL rules to properly address other dispute resolution mechanisms and to create the enabling framework for domestic arbitration as well. The Act also recognizes and the courts facilitate court connected ADR, where the courts on their own direct certain matters to be resolved via mediation or other methods it deems fit under the circumstance. The Ghanaian courts have also assumed the position of upholding arbitration agreements and would insist that arbitration or other dispute resolution mechanisms agreed on between parties is carried out.

There are also a number of mediation, adjudication and arbitration centers established in the past years to facilitate the conduct of domestic arbitration as well as numerous mediation and adjudication cases.