27TH NOVEMBER, 2024

THE SOURCES OF LAW IN GHANA IS PREDOMINANTELY STATUTORY BASED.

DISCUSS.
Sources of law refers to the origins of foundations from which laws derive their validity from.
They are the means or authorities through which legal rules and principles are established and
recognized by a society. These sources provide the framework for the legal system and guide
how laws are interpreted, applied, and enforced in a country.
Article 11(1) stipulates the sources of law in Ghana as the following;
11(1) the laws of Ghana shall comprise-
a. This constitution;
b. Enactment made by or under the authority of the parliament established by this
constitution;
c. Any Orders, Rules and Regulations made by any person or authority under a power
conferred by this Constitutions;
d. The existing law; and
e. The common law.
This essay seeks to this discuss the statement. The sources of law in Ghana is predominantly
statute based. But before I would like to discuss the sources of law in Ghana.
Before the ushering of the 1992 constitution there were three constitutions which had been
abrogated. However, the sources of law in Ghana as of now includes only the 1992 constitution
because article 11(a)i above specifies this constitution. The 1992 constitution is the highest law
of Ghana and hence the supreme law of the country. This is stipulated in article 1(2) of the 1992
constitution which reads-
“1(2) This Constitution shall be the supreme law of Ghana and any other law found to be
inconsistent with any provision of this Constitution shall, to the extent of the inconsistency be
void.”
This provision implies the supremacy of the 1992 constitution and also the fact that parliament is
subject to the constitution. Thus any enactment or act of parliament that is in contravention with
this constitution is subject to scrutiny by the supreme court and can be declared null and void.as
purported in the case of Mensima v attorney where the court held that regulation 3 and 21 of the
Manufacture and sale of spirits regulations 1962 (LI 239) was inconsistent with article 21 of the
1992 constitution because it made it mandatory for distillers to be a member of a distillery
cooperative before being able to obtain a license for the sale of akpeteshie thus undermining the
freedom of association under article 21 (1)(e) , and thus null and void.
Enactments made by parliament or simply put legislation or Acts of parliament is another source
of law in Ghana. Article 93(2) grants parliament the power to make laws.
93(2) subject to the provisions of this constitution, the legislative power of Ghana shall be
exercised in accordance with this constitution.
Parliament does not only create laws but also has the power to alter and repeal existing laws. The
parliament exercises it power through the legislative process in parliament as spelt out in Article
106 of the 1992 constitution by way of deliberating and suggesting amendments on a bill that is
introduced to parliament after it has been published in the gazette with an explanatory
memorandum detailing its purpose and the defects it seeks to proffer solutions to. Parliament
however in its dealings is not supreme. It is subject to the constitutions and thus must legislate in
pursuance with the provisions of the constitution JSC Aikins in the case of NPP v. Attorney
General (The 31st December case) said,
“in my view, even though parliament has the right to legislate, this right is not without limit and
the right to enact a law that June 4 and December 31should be declared public holidays cannot
be left to linger in the realm of public policy. Such legislation must be in the parameters of the
power conferred on the legislature and under article 1(2) of the constitution, 1992 any provision
of the constitution (supreme law) shall to the extent of such inconsistency be void.” Clearly
showing that the parliament must legislate within the parameters of the constitution. The
combined effect of article 2(1) and article 130 gives the supreme court the original jurisdiction to
scrutinize the laws made by parliament in order to ensure that they are in line with the
constitution.
2 (1) a person who alleges that –
a. An enactment or anything contained in or done, under the authority of that or any other
enactment; or
b. Any act or omission of any person; is inconsistent with, or is in contravention of a
provision of this constitution, may bring an action in the supreme court for a declaration
to that effect.
Parliament's legislative power is further limited in other respects. Its powers do not extend to the
making of a law to alter the decision or judgment of any court; nor may it create a law which
operates retroactively. Parliament has no power to legislate for the creation of a one-party state,
nor can it make laws relating to chieftaincy without having referred the draft to the National
House of Chiefs for advice. Finally, Parliament cannot make laws relating to financial and
budgetary matters "unless the Bill is introduced or the motion is introduced by, or on behalf of,
the President."
Subsidiary legislature or statutory instruments may be defined as instruments that ae made under
a power conferred by an act of parliament. They are normally made by a subordinate authority
such as the district assembly or a minister of state. There are three types of statutory instruments
namely executive instruments, legislative instrument and constitutional instruments. Legislative
instrument is a statutory instrument that is legislative in character and alters or determines the
law generally, an executive instrument is a statutory instrument that is of an administrative or or
of an executive character and is not an instrument of judicial or legislative character and applies
to only specific situations or cases. And a constitutional instrument is an instrument that is made
under a power conferred by a constitution.
The existing law shall comprise of the written and unwritten laws of Ghana as they existed
immediately before the coming into force of this constitution, and any Act, Decree, law or
statutory instrument issued or made before the date which is to come into force on or after the
date. this is stipulated by article 11(4) of the 1992 constitution.
The common law also may be defined as the rules generally known as the common law, the rules
generally known as the doctrines of equity and the rules of customary law including those
determined by the Superior courts of Judicature.
The sources of law in Ghana are predominated by statutes because statutes are basically acts of
parliament and are subject the constitution. Rather the 1992 constitution is the most predominant
source law in Ghana because it is where the validity of all other laws is founded. Article 1(2) of
the 1992 constitution states that,
“1(2) This Constitution shall be the supreme law of Ghana and any other law found to be
inconsistent with any provision of this Constitution shall, to the extent of the inconsistency be
void.”
Also the combined effect of article 2(1) and 130 of the 1992 constitution grants the Supreme
Court which is the custodian of the constitution, the power to declare any act of parliament
which is in contravention with or inconsistent with the 1992 constitution to be declared null and
void. This can be gleaned from the effect of Mensima v Attorney General supra and Ezuame
mann v Attorney General where the court contended that the mode of introduction of section 43
of act 1019 violates the latter and spirit of the constitution specifically article 106(2) and is
hereby declared null and void.
However, this has not always been the case as seen in Re Akoto and 7 others where the court
held that; “the court is in the opinion that the effect of article 20 of the 1960 constitution which
provides that for “the sovereign Parliament is that subject to the following qualifications,
Parliament can make any law it considers necessary.”
Also, there was parliamentary sovereignty (or supremacy) under the First Republican
Constitution of 1960. Thus article 20(2) and (6) of that Constitution provided: ◦ "20(2) So much
of the legislative power of the State as is not reserved by the Constitution to the people is
conferred on Parliament... ◦ (6) Apart from the limitations referred to in the preceding provisions
of this Article, the power of Parliament to make laws shall be under no limitation whatsoever."
However, this applied to then. The principle of constitutional supremacy under the Constitution,
1992 as opposed to the principle of parliamentary sovereignty under the Constitution, 1960 is
one of the distinctive developments of Ghana Constitutional Law. Thus, in his opinion in support
of the majority decision of the Supreme Court in New Patriotic Party v Attorney-General (31st
December Case)22 Aikins JSC said: ◦ "In my view, even though Parliament has the right to
legislate, this right is not without limit, and the right to enact a law that June 4 and December 31
should be declared public holidays cannot be left to linger in the realm of public policy. Such
legislation must be within the parameters of the power conferred on the legislature, and under
article 1(2) of the Constitution, 1992 any law found to be inconsistent with any provision of the
Constitution (the supreme law) shall, to the extent of such inconsistency, be void.
In conclusion, statutes or acts of parliaments are no the most predominant source of law but
rather the constitution is.