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Still Sharing Something in Common
Reflections on Ghana's Legal history

By Andrew Otchie, Esq.

African Problems
In May 2012, the sudden and unforeseen passing away of my Father made it necessary for me to undertake a long overdue trip to Ghana, and experience its very different culture, traditions, and legal system. While many practising at the Bar of England & Wales may have had some experience in dealing with Ghanaians in this jurisdiction (and a Diaspora which has in many ways assimilated to British customs and routines) an experience of the way of life in West Africa can often come as something of a culture shock, even to those of African heritage. I found myself in the midst of the unfortunate, although all too common situation, of trying to administer the property of someone who had died without leaving a will, and the ensuing problems that can be further complicated by differing applications of common, and customary law.

Ghana boasts of itself as a beacon to other African countries, with a safe and stable democracy, growing economy, and reasonably progressive laws and institutions in place, such as its Commission on Human Rights and Administrative Justice (CHRAJ). The legal profession remains an attractive proposition for many graduates and with a sudden influx in the number of private institutions that offer University-level law courses, a greater number of Ghanaians than ever before are now able to take up law as a course of study. However, beneath the surface, there are apparent problems regarding access to justice for the poor and the tolerance of cultural practices that breach human rights. These problems are exacerbated by the acute silence of the legal profession. As the number of law graduates called to the Ghanaian Bar increases, very few dare to venture outside of the 3 main cities to practice, resulting in an imbalanced legal market.

The Ghanaian legal system is a direct product of its colonial past. Over a number of centuries, the British administrators of the country, then known as the Gold Coast, imported a constant flow of refined upper middle-class gentlemen, who would be the Judges to sit in the High Court, and even as the Chief Justices of the Supreme Court, to decide cases concerning land disputes between various tribes, complicated trade disputes between merchants, and what punishments ought to be imposed when heinous crimes had been committed. Consequently, equitable doctrines, as well as the main concepts in contract, tort, evidence, criminal law, and civil procedure, are the same as the law of England & Wales. However, in regard to property, family and constitutional law, there is an apparent deference to traditions and customs that have existed long before any Europeans had arrived.

The resulting interaction between the dual system of common and customary law led to differing methods by which a formal procedure can be achieved. For example, a willing couple may enter into a legal marriage, by declaring themselves bound to each other for richer, for poorer, for the rest of their lives (or until a legal divorce is granted by a Court), while on the other hand, a customary marriage may be founded upon an exchange of gifts, from the suitor to the Bride's family (dowry), although would not prevent the man from entering into other (polygamous) marriages if he so chooses. Many Ghanaian lawyers are keen to continue the links with their English legal heritage and hold in high regard the rational principles set in place by English law. Yet, traditional African beliefs and practices die hard, and often little can be achieved without the consent of tribal elders, chiefs, and heads of family.

The Golden Bar
Those admitted to the Ghana Bar are permitted to practise as both a Solicitor and Barrister, and because registration with the Ghana Bar Association is not obligatory, there is no accurate record of exactly how many lawyers there are in practice (the figure is thought to be around 2,500). Whilst some form of pupillage is required to be taken up by aspiring lawyers in Ghana, many of the same difficulties that are faced by law students in the United States arise for new Ghanaian lawyers. Specifically, there is a lack of paying jobs for new attorneys, and the cost of obtaining a legal education places a disproportionate burden on those who are not wealthy, and who cannot rely on family connections.

In recent times, a significant number of expatriate Ghanaian lawyers have returned in order to contribute expertise gained from time spent overseas. A "post-call" course at the Ghana School of Law enables qualified lawyers to do so after completing a 3-month course at a cost of £4,000. Increasingly, international law firms are forging alliances with small local firms in order to benefit from large-scale corporate transactions (in 2008, Vodafone acquired a 70% stake in state owned Ghana Telecom for $900,000,000). Lawyers who do not have any national, ethnic, or African heritage can also practice law in Ghana as long as they have 7 years post-qualification experience.

In 2010, Ghana benefitted from a tremendous inflow of capital as the country started to produce oil in commercial quantities. While this new dimension in its economy may have brought good prospects for lawyers (and especially those trained in the English law) novel legal and moral challenges now emerge, as the ever gloomy tales of corruption in public office surface and the apparent risks of burgeoning environmental damage transpire.

What we can learn
How then did these factors affect the quality of the legal advice and advocacy that I received in Ghana? The continuing similarities with our legal systems are apparent. Even after centuries go by, advising, drafting and advocacy will continue to be heavily influenced by the jurisdiction of England & Wales. While the relative unavailability of legal textbooks was depressing, I was lifted up by the fact that a number of eminent lawyers (educated in England) were the architect's of Ghana's struggle for independence from the British, which culminated in it achieving status as a Republic in 1960.This persistence and fiery spirit that aimed to establish a self-regulating and just society prevails in many lawyers unto this day.

Although separated by the vast Sahara desert and the deplorable history in which African slaves were once insurable cargo, so that their lives were capable of being disposed of without a crime having been committed under English law (Gregson v. Gilbert (1783) 3 Douglas 232, 99 E.R. 629), there is still much, through human experience, which the English and Ghanaians can say they hold in common. As we have celebrated the Diamond Jubilee of the Queen, and the 60th anniversary of Her role as Head of the Commonwealth (therewith the end of the British Empire), it is as useful as ever, to endeavor to preserve the links between our countries through an understanding of their legal systems.

Andrew Otchie is a practising barrister at 12 Old Square and is also qualified as a New York Attorney. He is the Membership Secretary of the Commonwealth-in-England Barristers' Association ("CEBA").

This article first appeared in Counsel Magazine -the Journal of the Bar of England & Wales

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This page contains a single entry from the blog posted on March 4, 2013 9:45 AM.

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