The Future of Tradition: Customary Law, Common Law and Legal Pluralism

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In communities governed by customary law, rights and responsibilities are largely determined based on gender, kinship, age, and birth order. Ghana has a pluralist legal system, inherited from its colonial past, which consists of both formal or state law and customary laws.

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The Constitution formally recognizes this pluralist legal system, identifying the sources of law in Ghana as the Constitution, enactments of Parliament, rules and regulations made under a power conferred by the Constitution, laws in existence immediately before the coming into force of the Constitution, and common law, which includes rules of customary law. The Constitution authorizes formal courts to apply both statutory and customary law in resolving disputes.

The Future of Tradition by Leon Shaskolsky Sheleff (ebook)

The Chieftaincy Act of established institutions and procedures for defining and interpreting rules of customary law, which were further confirmed in the Constitution. The Ashanti are the largest sub-group among the Akan, the largest ethnic group in Ghana. The Kumasi Traditional Council, which has statutory authority, [33] has jurisdiction to hear and determine all matters affecting chieftaincy in the Kumasi Metropolitan Area as well as portions of the Ashanti and Brong Ahafo Regions. The public is afforded limited access to these records.

Below these three tribunals, paramount chiefs and queen mothers have authority over tribunals in the smaller towns and villages within the Ashanti region. The ILDA Clinic at Fordham Law School promotes a human-rights based approach to development, giving students the opportunity to create and implement projects that foster development by advancing human rights. It was proposed that published decisions could be used by traditional leaders to assure greater uniformity, by lawyers and judges in formal courts to understand and apply customary law, and by the general population to understand what the local laws are and how they will be applied.

In order to determine the best method for recording and publishing the decisions of the Ashanti traditional courts, students from Fordham Law School and KNUST researched the customary laws and structures in Ghana and the recording and codification of customary law efforts in other African countries. This research culminated in a week long fact-finding mission, during which students and faculty interviewed a number of traditional leaders, state officials and legal practitioners in Ghana.

Based on this research, the ACL Project team proposed to record the decisions of the Asanteman Council, the Kumasi Traditional Council and the Asantehemaa Court and upload them to an online database where they could be easily accessed by the public and all interested parties.

Promoting Rule of Law in Customary Tribunals in Ghana

The ACL Project developed a prototype for recording the decisions, which was based on the format used by South Africa in recording traditional court cases. Each case was assigned key terms that identified its content. A database was created with a search function where the decisions could be uploaded and then easily retrieved based on their content, date of the decision and names of the parties. The ACL Project then adopted the Kenyan model of using law students to record and publish court decisions. When the tribunals were not in session, the students reviewed and formatted older decisions contained in the archives.

The website hosting the database was launched in To date, the database contains the summaries of 31 of the cases that have come before the highest Ashanti customary tribunals since The vast majority of the cases included in this database address disputes over customary land and chieftaincy.

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While a positive step, the volume of decisions that have been transcribed has lagged behind the numbers the ACL Project team originally envisioned. And there has not yet been analysis of the extent to which the recorded decisions have been relied upon or used in active matters before lower customary tribunals, state courts or accessed by any other interested parties. The project has also highlighted some practical challenges that arise when changes are proposed to established traditional systems.

Much of the initiative for the ACL Project has been driven by entities outside the customary system, in particular by law schools in the United States and Ghana. As with many human-rights-based initiatives, there is persistent competition for scarce resources. While the ACL project is not overwhelmingly costly, it still requires dedicated personnel to provide access to the tribunals and videotapes of the proceedings, as well as to maintain the recording process and ensure accurate transcription and indexing.

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