Intercultural Conflict of Laws in Ghana: A Study of the Interaction of English Law and Customary Law

Abstract

The study of conflict of laws in a non-unified legal system is diverse and troubling, requiring eclectic investigation and research methods to avoid chaos. Therefore, it is expedient that one must draw heavily on daily experience rather than a-priori solutions because the study of intercultural conflict of laws is not at all clear cut.

A non-unified legal system is a single national state which by historical and constitutional circumstances is made up of more than one legal system. Examples of non-unified legal systems are:

1. A federal state with a written constitution based on the principle of political contrivance (U.S.A., Nigeria, Mexico, U.S.S.R., Canada and Australia).

2. A unitary state with an unwritten constitution (U.K.).

3. A unitary state with intercultural conflict of laws or internal conflict of laws (Ghana, Zambia, Liberia, Ethiopia and Sierra Leone, to mention just a few).

Private international law denotes that part of the private law of a sovereign country which deals with cases having a foreign element. "Internal conflicts law," "Intercultural conflicts law," and "Interstate conflicts law," are cognate terms used to explain the conflict of private laws within one national system; i.e., intra-national conflict of laws or interqentiel.

A perusal of the plural legal system of modern Ghana poses a problem of immense conflict, interaction, competition and the influence of the English common law. The hub of this thesis is to explore and analyze the co-existence of English law, Islamic law and other related major traditional laws, such as Akan, Fanti, Ga, Ewe, Hausa and Ga-Adangbe laws, and some of the consequences of their impact existence and nature. And, the legal methods by which these problems can be resolved by our courts, which simply means ex-hypothesi, that it would be highly necessary to study more carefully and closely the rules by which possible conflicts between one system of law and another can adequately be resolved within a single territorial jurisdiction.

The mere fact of the introduction of English common law into Ghana is neither a sufficient nor convincing justification for the problems of intercultural conflicts, because other factors such as the history, custom, language and personal relationships of the peoples of Ghana must also be taken into consideration. If the introduction of English law into Ghana was followed by a suppression of indigenous customs and laws, difficult problems of intercultural conflict of laws would not have arisen. The reason for these conflicts can be attributed to the fact that the English Crown retained the indigenous laws in force in parallel with the English law they introduced into Ghana in 1844.

It is instructive to note that when the transactions between individuals are confined to an indigenous group, no conflicts in the real sense of private international law arose. But transactions between persons of different ethnic groups within a single national system create internal conflict of laws (or intercultural conflicts). These customary laws operate as a kind of personal law which accompanies the individual beyond the limits of his own tribal jurisdiction. This view, then, militates against the "territorial" nature of modern law, the statutory rules that have been applied to indigenous law, the conflict of native law and common law, and the thorny problem of jurisdiction.

The Colonial policy of administration had the effect of increasing the legal options, and hence, created what can be loosely referred to as "dual system" of laws, or more appropriately described as a plural system. This administrative policy of allowing the co-existence of many systems of ·1aw within the same territorial jurisdiction paved the way for increasing occasions when it might be necessary for a judge to decide which law to apply in a given case; such as English law or customary law.

The parallel possibilities created by the English Crown gave rise to choice of law problems influenced by such factors as (a) ethnic origin, (b) religion, (c) the nature of the claim, relationship or transaction, and (d) the choice of remedy, thus, have potentially the following conflicts in Ghana:

1. English law versus customary law.

2. Customary law versus Islamic law.

3. English law versus customary law and Islamic law at the same time.

4. External conflict of laws, alitre private international law

(a) A conflict between Ghana common law and foreign system of customary law; e.g., Syrian law versus Ghana common law;(b) A conflict between a foreign law and Ghana customary law; e.g., German law and Ewe law. (c) conflict between Ghana customary law and foreign customary law--Zambia customary law and Ghana customary law.

This thesis comprises a series of related essays with a common theme. The introductory chapter, or essay, deals with a study of the major customary laws co-existing with English law within a single territorial system to give the reader some basic ideas about the plural legal system in Ghana. Chapter two analyzes real choice of law problems with the aim of determining the utility of the new American conflicts of law methodology to the Ghanaian conflicts situation. The object of this essay is to lay the foundation for a better understanding of American conflicts law techniques as a prelude to the resolution of the choice of law problems currently facing Ghanaian courts.

Chapter three is further concerned with the exploration of American conflicts law and that of Ghanaian conflicts law. But in this chapter attempt is made to lay bare the fact that Ghana is made up of legal systems, multiple in character, where two to five streams of laws are applied to the same set of people. The co-existence of these laws within the same national system presents novel problems with respect to the administration of justice. My approach in this chapter, therefore, is to develop a method of containing the numerous legal options available to litigating parties. Chapter four focuses on the most vexed subject in Ghana; i.e., intestate succession in Ghana.

The conclusion of this thesis will give the reader a thorough summary of all the four chapters and will also be structured to enunciate venerable choice of law rules as a means of resolving the problems of intercultural conflict of laws in Ghana. Thus, proving by analysis that American revolutionary conflicts methods would be feasible, and hence, to state more clearly that the occurrence of intercultural conflict of laws cannot be construed to transcend national boundaries and that jurisdiction selection rules be relegated to the bottom.

Subject Area

Law

Degree Date

1990

Document Type

Dissertation

Degree Name

S.J.D.

Department

Dedman School of Law

Advisor

Joseph J. Norton

Second Advisor

Werner Ebke

Third Advisor

Ellen S. Pryor

Fourth Advisor

Paul J. George

Fifth Advisor

Ndiva Kofele-Kale

Number of Pages

v, 389

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