Jan 25, 2016
Legal Pluralism in Ghana
Legal pluralism is the existence of multiple legal systems within one (human) population and/or geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems (cf. customary law). When these systems developed, the idea was that certain issues (e.g., commercial transactions) would be covered by colonial law, while other issues (e.g., family and marriage) would be covered by traditional law. Over time, these distinctions tended to break down and individuals would choose to bring their legal claims under the system that they thought would offer them the best advantage.
Legal pluralism also occurs when different laws govern different groups within a country.
The patterns of inheritance and succession, particularly under intestate estate under customary law in Ghana, for example, have almost as many variations as there are ethnic groups in the country, and many of the variations are discriminatory in practice. Property inheritance rights among patrilineal and matrilineal lineage groups in Ghana have to a great extent encouraged men to have more inheritance rights than women. The law of succession and inheritance reflects Ghana's plural legal system. Indigenous customary law developed rules of inheritance for intestacy through the traditional canon of descent, as adapted over the years to changes in the society and the rule of natural justice as applied by the courts.
Although women in Ghana cultivate forty percent of all land, they are far less likely than men to exercise control over their land as independent farmers or farm managers. Often they do not control the proceeds from the land and lack the ability to dispose of it through sale or inheritance. On average, women farmers cultivate plots that are about half the size of those cultivated by men. The literacy rate for women in Ghana is 38.5%; for men it is 60.8%. Over one-third of married women in Ghana are in formally polygynous marriages, though polyandry is nonexistent. Marital rape is not a crime in Ghana. Only one shelter exists for battered women in the entire country. These conditions persist despite Ghana's commitments under international law to secure equality for women.
Inheritance rights are a critical issue for Ghanaian women because traditionally in Ghana, as in many African countries, widows had no right to inherit property from their husband's estate even when the property was acquired during the marriage. As a result, women were often left destitute and homeless upon the death of their spouse.
For reasons ranging from history to culture, the average Ghanaian is today subject to at least two distinct, and sometimes conflicting, legal systems. Customary law usually regulates family and allied relations, while statutory law regulates other aspects of life. There is no denying the fact that some aspects of customary law and practices are discriminatory and harmful. The competing values of these plural legal systems more often than not result in denial of rights, and, ultimately, access to justice is adversely affected.
In developing African societies in particular, the legal dimension of property inheritance, for example, is a complicated one. This is because different legal traditions, both formal and informal, on inheritance issues, coexist (see also Manuh 1988). In Ghana, both the state and indigenous legal institutions operate, and each tries in some ways to influence the effectiveness of the other. For example, the state approves indigenous laws on marriage, land transactions and arbitration on certain matters. Where there appears to be a misunderstanding is when it comes to matters pertaining to indigenous inheritance after death. The reality of legal pluralism seems an undisputed phenomenon. The struggle to balance the concerns of cultural groups and the equality rights of individual group members stems from the recognition that people may value their affiliations with both the state and the local community. Contemporary plural legal systems present an opportunity to explore how individuals reconcile multiscalar relationships with both the state legal system and more localized, community-based legal systems. That is the focus of this research area.