19th century ghana.docx

The Bond of 1844 The historical foundation of the Ghana legal system may be traced to the Bond of 1844, a group of separate but connected treaties that the British signed with a confederation of Fante States under which the British promised protection to the Fante signatories in the event of aggress...

The Bond of 1844 The historical foundation of the Ghana legal system may be traced to the Bond of 1844, a group of separate but connected treaties that the British signed with a confederation of Fante States under which the British promised protection to the Fante signatories in the event of aggression from the Ashantis. The agreement extended British protection to the signatory states and gave Britain a degree of authority over them. In subsequent years, additional coastal and interior states signed the Bond, thereby legalising the imposition of British legal system over these states. The Bond provided as follows: i. "Whereas power and jurisdiction have been exercised for and on behalf of Her Majesty the Queen of Great Britain and Ireland, within divers countries and places adjacent to Her Majesty's forts and settlements on the Gold Coast; we, Chiefs of countries and places so referred to, adjacent to the said forts and settlements, do hereby acknowledge that power and jurisdiction, and declare that the first objects of law are the protection of individuals and of property. ii. Human sacrifices, and other barbarous customs, such as panyaring, are abominations, and contrary to law. iii. Murders, robberies, and other crimes and offences, will be tried and inquired of before the Queen's judicial officers and the Chiefs of the district, moulding the customs of the country to the general principles of British law. Done at Cape Coast before his Excellency the Lieutenant-Governor, on this 6th day of March, in the year of our Lord 1844." Before 1844, Captain MacLean, as Governor of the Settlements on the Gold Coast, was said to have been exercising an irregular jurisdiction over the territories outside the British forts on the coast, in the area earlier called "the Protectorate," and later termed "the Colony proper." This area, though freed from subservience to Ashanti by the Treaty of 1831, was not a British possession. This is supported by the following statement: "Indeed we had no legal jurisdiction in the country whatever. It had never been conquered or purchased by us, or ceded to us. The chiefs, it is true, had, on several occasions, sworn allegiance to the Crown of Great Britain; but, by this act, they only meant the military service of vassals to a superior [?]. Native laws and customs were never understood to be abrogated or affected by it." "... [the Judicial Authority in the forts] resides in the Governor and Council, who act as Magistrates, and whose instructions limit them to the administration of British law, and that, as far as natives are concerned, strictly and exclusively within the Forts themselves; but practically, and necessarily, and usefully, these directions having been disregarded, a kind of irregular jurisdiction has grown up, extending itself far beyond the limits of the Forts by the voluntary submission of the Natives themselves, whether Chiefs or Traders, to British Equity; and its decisions, wing to the moral influence, partly of our acknowledged power, and partly of the respect which has been inspired by the fairness with which it has been exercised by Captain MacLean and the Magistrates at the other Forts, have generally... been carried into effect without the interposition of force." In 1853, the British established the first Supreme Court within their forts and settlements on the Gold Coast. The court sat mainly at Cape Coast and its jurisdiction was similar to that exercised by the courts of Common Pleas, Queen's Bench and Exchequer in England and of the Admiralty over treasons, piracies, murders, conspiracies, and such other offences, of what nature or kind whatsoever committed upon the sea, or any haven, river, creek, or place where the Admiral or Admiralty have authority, power or jurisdiction, according to the common course of the laws of the realm of England and not otherwise. 2.3 SUPREME COURT ORDINANCE, 1876 In 1874, the British defeated the Ashanti, and established the British crown colony of the Gold Coast, incorporating the Fante states and the newly conquered Ashanti domains into one colony, despite strong opposition by a coalition of traditional rulers, including the Fante. As part of consolidating its victory, the Supreme Court Ordinance of 1876 was passed. It was titled "An Ordinance for the Constitution of a Supreme Court, and for other purposes relating to the Administration of Justice." The preamble to the Ordinance stated that: "whereas by Letters Patent under the Great Seal of the United Kingdom of Great Britain and Ireland, bearing the date 24th day of July, 1874, Her Majesty's Settlements on the Gold Coast and of Lagos were constituted arid erected into one Colony, under the title of the Gold Coast Colony; And whereas it is expedient to make provision for the administration of justice in the said colony." The Ordinance was therefore instrumental in establishing a Supreme Court "for the Gold Coast Colony and for the territories thereto near or adjacent, wherein Her Majesty may at any time before or after [4 April 1877] have acquired powers and jurisdiction." Thus, the modern Ghana legal system was established by this Ordinance which also prescribed the law and procedure to be used in the courts. The effect of the Ordinance was to create a dual system of laws, namely (1) the received English Law, that is English statutes of general application and the common law; and (2) the customary law and local legislation. 2.3.1 THE SUPREME COURT UNDER THE 1876 ORDINANCE The Supreme Court established by the 1876 Ordinance consisted of: a. A Court of Appeal or Full Court which could only be duly constituted by any two of the judges of the Supreme Court, one of whom must either be the Chief Justice or a person for the time being discharging the functions of the Chief Justice; b. The Divisional Court, which might be constituted by any one of the judges of the Supreme Court, authorised under section 6 of the Ordinance to exercise the original jurisdiction, civil or criminal, of the Supreme Court. The decision of the Full Court was to be reached by a majority decision in the absence of a unanimous decision; but no provision was made in the event of equality of votes. Thus, a recipe for uncertainty was created as amply demonstrated in the case of Bainyi v Dantsi where the court constituted by four judges reached a stalemate. Two justices answered the question before the court in the affirmative and the other two answered in the negative. The court had to decide whether the kings and chiefs of the Gold Coast could lawfully exercise judicial powers and functions vested in them by native law and custom (subject to the limitations imposed by the Native Prisons Ordinance) within the Colony, or was all jurisdiction of all kinds now vested in the Supreme Court to the exclusion of all other jurisdictions except in those cases to which the Native Jurisdiction Ordinance applied. Thus the question remained unresolved, a most unsatisfactory situation. However, the Ordinance gave a casting vote to the more senior of the two judges where the Divisional Court was so constituted. An appeal lay to the Full Court from a final judgment and decisions of the Divisional Court or judge where the claim determined exceeded £50 in value, and by leave of the judge making the order from all interlocutory orders and decisions. The Full Court was empowered under a residual power to entertain an application dealing with any suit or matter pending before it and to make orders t and give directions as the justice of the case warranted.34 Finally, any question of law arising in a criminal or civil trial may be reserved by the trial judge by way of case stated to be answered by the Full Court. 2.3.1.1 Jurisdiction of the Supreme Court. The Supreme Court was a superior court of record.36 Apart from the jurisdiction specifically given to it by the 1876 Ordinance and other Ordinances of the Gold Coast Legislature, the court was also allowed to exercise, within the limits and subject to the Ordinance, all the jurisdiction, powers and authorities vested in or capable of being exercised by the High Court of Justice in England, except the jurisdiction and powers of the High Court of Admiralty. This jurisdiction included all Her Majesty's civil and criminal jurisdiction which at the commencement of the Ordinance or at any time thereafter might be exercisable in the Territories, near or adjacent to the Gold Coast Colony. The court was also given the powers and authorities of the Lord Chancellor of England to appoint and control guardians of infants and their estates, and keepers of the persons and estate of idiots, lunatics and those of unsound mind unable to look after themselves. Jurisdiction in probate, divorce and matrimonial causes and proceedings was conferred to be exercised in conformity with the law and practice for the time being in force in England. Most importantly, section 14 of the Ordinance provided that: "The common law, the doctrines of equity, and the statutes of general application which were in force in England at the date when the Colony obtained a local legislature, that is to say, on the 24th day of July 1874, shall be in force within the jurisdiction of the Court." The body of English law thus introduced by this provision was made applicable "so far only as the limits of local jurisdiction and local circumstances permit, and subject to any existing or future Ordinances of the Colonial Legislature..." These provisions contributed in no small measure to the development not only of customary law but of the common law of Ghana. 2.4 SUBORDINATE COURTS UNDER THE 1876 ORDINANCE The Ordinance divided the country into judicial divisions, namely Eastern, Central and Western provinces. A divisional court sat in the capital of each province with a proviso that where necessary "several Divisional Courts may be held concurrently in the same province." Magistrates' courts were established, constituted principally by District Commissioners who were authorised to exercise judicial powers as ex officio commissioners of the Supreme Court. Magistrates and divisional courts exercised concurrent jurisdiction except that cases decided in the magistrates courts of a particular province went on appeal to the provincial divisional court. Magistrates could transfer a case which in their view was of sufficient gravity to the divisional court for trial. The Supreme Court Ordinance of 1876 abolished the position of judicial assessor. In 1878 the first Native Jurisdiction Ordinance was passed, to control native authorities in the Protectorate; but it was allowed to lapse. In 1883 it was repealed and replaced by another Native Jurisdiction Ordinance, based on the recommendations of Chalmers, a former judicial assessor. But unfortunately the Ordinance only applied to those head-chiefs to whom it was extended by Proclamation; in these districts the chief was authorised to form native tribunals in accordance with customary law, and given a limited criminal and civil jurisdiction, to the exclusion of any other native tribunals. Section 29 gave power to suspend chiefs who abused their power, etc. Appeals went to a commissioner's court. In areas to which the Ordinance was not extended the native tribunals functioned as before. Allott has stated that the Ordinance had many defects such as (1) it gave the same powers to a head-chief and a village headman; (2) it provided no machinery for the enforcement of the tribunal's orders; (3) there was no administrative control of the tribunals; and (4) the decisions of native courts were not recognised as res judicata in the English courts. The overall effect of the regulation of the native tribunals was to create a rigid dichotomy between the British and customary courts. 2.5 POST-1876 DEVELOPMENTS A number of significant developments in the legal system took place after the enactment of the. Supreme Court Ordinance. As stated above, the Native Jurisdiction Ordinance was passed in 1878 to facilitate and regulate the exercise in the protected territories of certain powers and jurisdiction by native authorities. It was repealed and replaced by another Ordinance in 1883. Under the 1883 Ordinance the native courts had jurisdiction over natives but not over Europeans. Jurisdiction may be exercised over a non-native by consent in writing. The 1883 Ordinance was amended in 1910 by which various grades of native courts were established. In 1943, there was a reorganisation of the native courts and by 1949 there were four-grades of native courts in the Gold Coast.51 The Local Courts Act, 195852 transformed the four grades of native courts into one native court with jurisdiction, to administer mainly customary law. The courts were presided over by local magistrates instead of traditional rulers but provision was made for the appointment of assessors in land matters and matters in which the magistrate may think difficulty may be encountered in the application of the customary law. Under the Courts Act, 1960, the local courts were at the bottom of the courts hierarchy and appeals in civil cases (except land matters) from these courts went to the magistrates' court and then to the High Court. Jurisdiction was extended to cover all persons except that they had no jurisdiction in any course or matter in which the government or any public officer acting in his official capacity was a party. The Courts Act, 1971 created a unified court system consisting of (1) the superior courts of judicature made up of the Supreme Court, the Court of Appeal and the High Court of Justice; and (2) inferior courts made up of the Circuit Court, District Court Grades I and II and Juvenile Court and such other traditional courts as might be established by law. In 1972, this system was varied by the Courts (Amendment) Decree, 1972. The full bench of the Court of Appeal was created to replace the Supreme Court at the apex of the integrated court system. In 1979 the unified court system, as it operated under the 1971 Act, was reinstated. Article 114(5) of the 1979 Constitution defined the judiciary as consisting of the superior and inferior courts with the Supreme Court, being the final court of appeal. In 1981 a dual court system was created comprising (a) the regular courts, being all the courts in existence immediately before 31 December 1981, namely the superior and inferior courts established under article 114(5) of the then suspended 1979 Constitution: and (b) a system of public tribunals consisting of the National, Regional. District and Community Public Tribunals. The Public Tribunals operated independently from the regular courts and had jurisdiction to try offences specified by law. The dual system of courts was abolished by the 1992 Constitution and an integrated system restored once again. The historical foundation of the legal system reflects the country's colonial heritage. Since independence, tremendous strides have been made to modernise the legal system as will be seen from some of the chapters in this book. The challenge facing Ghana today is to try and adapt the legal system to meet the complex socioeconomic circumstances facing the country. In doing so, there is a need to constantly appraise the legal heritage in order to transform it to serve the peculiar needs of the country always bearing in mind that the system will only be effective and attract the respect of the citizenry if it reflects their aspirations and their sense of justice. In this regard, the courts have a very important role to play. In the words of an American judge: "...it is the courts and not the legislature that our citizens primarily feel the keen, cutting edge of the law. If they have respect for the work of the courts, their respect for law will survive the shortcomings of every other branch of government: but if they lose their respect for the work of the courts, their respect for law and order will vanish with it to the great detriment of society."