“Reforming the law of intestate succession in a legally plural Ghana”

Abstract

There has been minimal compliance with Ghana’s Intestate Succession Act, 1985, (PNDC Law 111) especially by communities in rural areas whose lives are governed almost exclusively by customary law. This is because the state and customary legal systems have failed to reconcile their perceptions of law and legal responsibilities. Drawing on legal pluralism as a practical guiding framework for analyzing the relationship between states and customary legal systems, and focusing on the law of intestate succession, I argue that in order for legal reforms to be embraced, especially by rural dwellers, the state must adopt what may be termed, the mutual concession approach to legal reforms, a structured and principled discretionary approach that seeks to balance the valued interests of both legal systems, and which promises to be more agreeable to rural dwellers in ways that ensure compliance with state law.

Keywords:

• Intestate succession
• traditional family
• customary law
• mutual concession approach
• legal reforms

Acknowledgements

This paper is based on my PhD dissertation. In this regard, I would like to thank my supervisory team - Professors Wesley Pue, Karin Mickelson, Renisa Mawani, and Doug Harris - for their enlightening guidance.

Laws

Constitution of the Fourth Republic of Ghana, 1992 (Laws of Ghana (Rev. Ed. 2004), Vol. I, 140).

Head of Family (Accountability) Act, 1985 (PNDC Law 114) (Laws of Ghana (Rev. Ed. 2004) Vol. V, 551).

Intestate Succession Act, 1985 (PNDC Law 111) (Laws of Ghana (Rev. Ed. 2004), Vol. V, 1951).

Marriage of Mohammedans Ordinance, 1907 (Cap 129) Laws of the Gold Coast (1951 Rev). This is now part of the Marriages Act, 1884-1985 (CAP 127) (Laws of Ghana (Rev. Ed. 2004), Vol. V).

Marriage Ordinance, 1884 (Cap 127) Laws of the Gold Coast (1951 Rev). This is now part of the Marriages Act, 1884-1985 (CAP 127) ( Laws of Ghana (Rev. Ed. 2004), Vol. V).

Cases

Badu & another v. Kra, [1991] 1 GLR 563 - 566.

In Re Krah (Decd); Yankyeraah and others v. Osei-Tutu and another, [1989–90]1 GLR 638 - 670.

In Re Sackey (Decd); Ansaba and another v. Mbeah and another, [1992] 1 GLR 214 - 227.

In Re Wiredu (Decd); Osei v Addai, [1982–83] 1 GLR 501 - 509.

Neequaye & another v. Okoe, [1993–94] 1 GLR 538 - 548.

Re Sackitey (Decd); Sackitey and another v. Dzamioja, [1987–88] 2 GLR 434 - 443.

Notes

1 “State law” in this paper, refers to the laws passed by Parliament and signed into law by the President.

2 Before the passage of PNDCL 111, succession to intestate property, in most cases, was determined by the rules of the matrilineal and patrilineal family systems.

3 This section is repealed by s.19 of the Intestate Succession Act, 1985 (PNDC Law 111).

4 This section is repealed by s.19 of the Intestate Succession Act, 1985 (PNDC Law 111).

5 This view is attributed to only Gordon Woodman, and not to Bradford Morse.

6 The Criminal Code (Amendment) Act, 1998 (Act 554) s 314A criminalizes customary or ritual enslavement of human beings. It states that: (1) Whoever (a) sends to or receives at any place any person; or (b) participates in or is concerned in any ritual or customary activity in respect of any person with the purpose of subjecting that person to any form of ritual or customary servitude or any form of forced labour related to customary ritual commits an offence and shall be liable on conviction to imprisonment for a term not less than three years.

7 In view of the seemingly unlimited powers of the head of family in dealing with family property, the Head of Family (Accountability) Law, 1985 (PNDC Law 114) was passed to make the head of family accountable to the family for his management of family property. Kludze asserts that the old rule of customary law that the head of family was not accountable for family property held by him was actually judicial customary law based on a misinterpretation of a statement made by John Mensah Sarbah that “no junior member can claim an account from the head of family.” According to Kludze, under practiced customary law, the head of family has always been accountable for family property held or administered by him. See, AKP Kludze, 1987. “Accountability of the Head of Family in Ghana: A Statutory Solution in Search of a Problem” Journal of African Law 31:1–2, (Essays in Honour of A. N. Allott) 107 at 107–108.

8 In the absence of official figures on the cost of an average funeral, it is hard to tell whether the amounts stated are accurate.

9 This is a family member appointed by the customary family to administer the estate of the deceased for the benefit of the whole family, including himself or herself. He or she “steps into the shoes” of the deceased and ensures that the rights of the surviving spouse and children are honored. It should be noted that a customary successor is not the same as an executor, an heir or next of kin. A Customary Successor in Ghana is simply “a caretaker with a beneficial interest.” See, Nii Amaa Ollennu. 1968. “Family Law in Ghana.” In Le Droit De La Famille En Afrique Noire et À Madagascar, edited by Keba M’baye, 159–194 at 187. Paris: Editions G.P. Maisonneuve Et Larose 11.

10 As I read the report, I was struck by the fact that the facilitators of ritual servitude, especially the priests, were disturbed about the bad reputation of the practice. I realized that the facilitators were determined to protect the integrity of the customary legal system. First, one respondent (facilitator) insisted that there was a clear distinction between the practice of ritual servitude and voodoo and that conflating them had given the practice a “bad name.” (17–18). Other respondents were concerned about the “false” information being disseminated that the ‘captives’ were not given the opportunity to attend school, (16) that they were sexually abused, (19) or were confined in the shrines and not allowed to see family members. (23) The facilitators were particularly unimpressed about the information published by researchers with whom they had cooperated, and who had “twisted the facts” (24) for monetary gain. (29) According to the report, the functionaries expressed “grief” about this. (24) A chief and respondent indicated that he was not happy about the “dirty words” used by expatriates to describe the practice.