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Bennion The Constitutional Law of Ghana Chapter 1

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© F A R Bennion Website: francisbennion

Doc. No. 1962 .00 1. 003 The Constitutional Law of Ghana, Butterworths, 1962

Any footnotes are shown at the bottom of each page

For full version of abbreviations click ‘Abbreviations’ on FB’s website

CONSTITUTIONAL LAW OF GHANA

Francis Bennion

PART I - THE REPUBLICAN CONSTITUTION

CHAPTER 1

CONSTITUTIONAL EVOLUTION

The Republic of Ghana lies midway along the Guinea coast of West Africa, being bounded on

three sides by former French territories and on the south by the Atlantic Ocean. To the west lies the

Ivory Coast Republic, to the north the Voltaic Republic (formerly Upper Volta) and to the east the

Republic of Togo. The territories of Ghana consist of those formerly comprised in the Gold Coast

Colony, Ashanti, the Northern Territories of the Gold Coast, and Togoland under United Kingdom

Trusteeship. The name Ghana was adopted when, on 6th March, 1957, the country became

independent of British rule. The name was taken from the ancient negro empire of Ghana in the

South-Western Soudan, from which a proportion of the inhabitants of present-day Ghana are

believed to derive their ancestry. Ghana became a republic within the Commonwealth on 1st July,

1960.

Although the republican constitution contains a number of original features and represents a

clean break with the past, it inevitably perpetuates by way of organic development much of the

former constitutional system. It cannot therefore be understood without reference to the growth of

the institutions of government which took place during the years preceding the emergence of

Ghana as an independent republic. The purpose of the present chapter is to trace briefly the course

of this development, beginning with the assumption of jurisdiction by the British Crown in 1821. 1

The history of the four centuries preceding this event is one of great confusion and shifting of

populations, in which the tribal systems were being modified by wars and invasions among the

Africans themselves and also by the activities of traders from almost every European country. The

indigenous constitutional systems are a study in themselves and are beyond

1 For the earlier history, and the general background to the constitutional developments here discussed, see Claridge, A History of the

Gold Coast and Ashanti, London, 1915; Ward, A History of the Gold Coast, London, 1948; The Cambridge History of the British

Empire. For the later background see F. M. Bourret, Ghana—the Road to Independence, 1919 - 1957, London, 1960.

3

4 PART I.—The Republican Constitution

the scope of the present work. Our concern now is with a type

of constitutional law which, while it recognises indigenous

customs and has certain similarities with them, is in written

form and derives from institutions and modes of legislation

unknown to customary law. From this point of view the story

begins with the first attempts of the British to provide a

system of government in the Gold Coast. Before these were

made the British, like the Dutch, Danish and other Europeans,

were present merely as traders and missionaries. The British

administration, as it developed and as its boundaries were

gradually extended to the whole of the territory now known as

Ghana, had the effect of welding into one political unit

diverse ethnical groups who without its influence might well

have remained separate and would certainly not have been

subject to what is now the constitutional law of Ghana. The

account of constitutional development given here will be a

factual one, describing the changes that actually occurred

without going very deeply into the reasons for them, the

background conditions, or the controversies which have

surrounded them.

1. THE EARLY PERIOD OF BRITISH RULE, 1821 - 1874

From 1821 to 1874 the British possessions on the Gold

Coast were, apart from the period 1850 to 1866 (when they

were treated as a separate entity), under the control of the

Governor of Sierra Leone. His powers were, however, in

suspense from 1828 to 1843, when the administration was

carried on by a Committee of Merchants in London.

Before 1821 the government of the British trading forts and

settlements on the Gold Coast had been vested in the

Company of Merchants trading to Africa, as successors to the

Royal African Company of England. 1 The most important

forts were those at Cape Coast, Dixcove, Accra (Fort James)

and Anomabu, and these were kept up by the Crown after

1821. Other forts and settlements, such as those at Winneba,

Wida and Apollonia were then abandoned. 2 Interspersed with

the British forts there were at this time other fortified depots

belonging to the Dutch and the Danish, and used for the

protection of their trading activities on the Gold Coast. The

administration of the Company of Merchants

1 23 Geo. 2, c. 31; 25 Geo. 2. c. 40; 23 Geo. 3, c. 65.
2 Report from the Select Committee on Africa (Western Coast) 1865
(No. 412), p. 39.

6 PART I.—The Republican Constitution

by a President appointed by the Committee, assisted by a council of

merchants resident at Cape Coast Castle. An annual subsidy of £4,000 was

paid by the British Government. Although theoretically restricted to the

forts themselves, the powers thus vested in the Committee of Merchants

came to be used on a de facto basis in the neighbouring areas. This

development was largely due to the administrative and judicial abilities of

Captain George Maclean who was appointed President in 1830. By the

treaty with the Ashantis in 1831, under which they gave up any claim to

suzerainty over the coastal tribes, Maclean had secured the protection and

extension of trading activities and peace between Ashanti and the coastal

areas. 1 In the more settled conditions which then prevailed, British justice

came to be administered among the inhabitants of these areas in a manner

which, in the words of Maclean himself, " has had the happiest effect in

maintaining peace, encouraging agriculture and commerce, and promoting

the civilization of the natives ". 2 He went on to add in perhaps exaggerated

terms: " Let but the local government deny or cease to administer even-

handed justice to the population for a single day, and the whole country

would again become a scene of warfare, rapine and oppression." The British

Government declined, however, to regularise this de facto jurisdiction until

pressed to do so by a Parliamentary Select Committee which reported in

1842. This Committee recommended that the Government of the British

forts upon the Gold Coast be resumed by the Crown, and that all

dependance on the Government of Sierra Leone should cease, that the forts

abandoned in 1828 when the government was handed over to the

Committee of Merchants should be reoccupied as helpful in suppressing the

slave trade, and that the irregular judicial jurisdiction de facto exercised by

Maclean and the magistrates at the forts " should be better defined and

understood ". This latter aim was to be achieved by means of agreements

with the local chiefs and by the appointment of a judicial officer who, in

administering justice to the African population, should follow the principles,

while not being restricted to the technicalities, of English law and should be

allowed a large discretion. The Select Committee expressed the view that

the relationship of the chiefs and their peoples to the British Crown should

be:

1 For the text of the treaty see Sarbah, Fanti National Constitution,
London, 1906, p. 153. 2
Cited Sarbah, op. cit., p. 95.

CHAP. 1.—Constitutional Evolution 7

" not the allegiance of subjects, to which we have no right to pretend,

and which it would entail an inconvenient responsibility to possess,

but the deference of weaker powers to a stronger and more

enlightened neighbour, whose protection and counsel they seek, and

to whom they are bound by certain definite obligations." 1

Resumption of Crown Government

The recommendations of the Select Committee were acted upon, and in

1843 the Crown resumed the government. It did not immediately follow

the advice to sever the dependency on Sierra Leone and for a further seven

years the Gold Coast settlements were under the control of the Governor of

Sierra Leone. A Lieutenant-Governor was appointed for the Gold Coast

and Maclean was made Judicial Assessor and Stipendiary Magistrate to

carry out, in exercise of his powers as a justice of the peace, the functions

suggested for a " judicial officer " by the Select Committee. 2

The civil establishment was completed by a chaplain, a surgeon, a

secretary to the Lieutenant-Governor, a clerk to the Judicial Assessor, and

the Commandant at Accra. 3 A Colonial Secretary was added in 1845. 4

British Settlements and Foreign Jurisdiction Acts

In 1843 two Acts were passed by the British Parliament which enabled

the administration of such territories as those on the Gold Coast to be

placed on a regular footing. The first of these Acts, the British Settlements

Act, 1843, 5 enabled Orders in Council to be made providing for the

establishment of laws, institutions and ordinances for the peace, order and

good government of " Her Majesty's subjects and others " within the settle-

ments on the African coast. The power thus given could be

1 Report from the Select Comtmttee on the West Coast of Africa, August,
1842, 2 pp. iv-vi.
The functions of the Judicial Assessor were exercised outside the forts
and settlements. " It is to be carefully noted that this external jurisdiction
was given distinct from the jurisdiction inside the forts, where Captain
Maclean and the other magistrates had the ordinary powers of magistrates ":
Brandford Griffith, A Note on the History of the British Courts in the Gold
Coast Colony, with a brief account of the Changes in the Constitution of the
Colony, 3 Accra, 1936, p. 13.
Dispatch from Lord Stanley to Lieut.-Governor Hill, 16th December,
1843, 1 given in Crooks, op. cit., p. 285.
5 Crooks, op. cit., p. 304.
6 & 7 Vict. c. 13; repealed and re-enacted by the British Settlements ct, 1887.

CHAP. 1.—Constitutional Evolution

9

Christiansborg, Augustaborg Fredensborg, Kongensteen and

Prindsensteen, together with various houses and plantations,

to the British Crown for a payment of £10,000.* In the same

year the forts and settlements on the Gold Coast once again

ceased to be dependencies of the Colony of Sierra Leone, the

British Government belatedly following the advice of the

Select Committee of 1842. This marked a considerable

constitutional advance, with the Gold Coast being given its

own Governor and both a Legislative Council and an

Executive Council. Thus institutions were set up which, over

a period of a hundred and ten years, were to evolve into the

President, National Assembly and Cabinet of today. The

change was effected by a Royal Charter dated 24th January,

1850, and made under the British Settlements Act, and which

revoked the letters patent of 17th October, 1821.

The Legislative Council

The Legislative Council consisted of the Governor and at

least two other persons designated by Royal Instructions or

warrants. By an exercise of the powers of delegation

conferred by the Act, the Legislative Council was required to

make:

" all such laws, institutions and ordinances as may from

time to time be necessary for the peace, order and good

government of our subjects and others within the said

present or future forts and settlements in the Gold Coast

"

subject to rules and regulations made by Order in Council

and to the right of the Crown to disallow any such ordinances

in whole or in part, and with a saving for the future exercise

of legislative power by Act of Parliament or Order in

Council.

Royal Instructions issued at the time of the appointment of

Governor Hill on 1st April, 1851, designated as members of

the Legislative Council in addition to the Governor, the

Judicial Assessor, the Collector of Customs and two

merchants. In 1853 the Collector of Customs was replaced

by the officer holding the post of Colonial Secretary. 2 The

Instructions continued by laying down rules for the conduct

of the Legislative Council. The Governor was to preside, and

the quorum was to be three. Standing Orders were to be

established. No law was

1 Convention signed 17th August, 1850, and presented to Parliament
in 1851. 2
Royal Instructions, 12th February, 1853.

10 PART I.—The Republican Constitution

to be passed or question debated unless proposed by the

Governor, though other matters might be recorded in the

minutes with a statement of reasons by the member

concerned. Ordinances were to be styled " Ordinances enacted

by the Governor of our Forts and Settlements on the Gold

Coast, with the Advice and Consent of the Legislative

Council thereof " and were to be drawn up " in a simple and

compendious form, avoiding, as far as may be, all prolixity

and tautology ". The Governor was required to withhold

assent to any Ordinance which was repugnant to any Act of

Parliament or to the Royal Charter or Royal Instructions, or

which interfered with Christian worship, diminished the

public revenue, authorised money to be raised by lotteries,

permitted divorce, provided for a gift to the Governor,

prejudiced private property, taxed the trade or shipping of the

United Kingdom in a manner from which other traders would

be exempt, or subjected persons not of European birth or

descent to disabilities which were not imposed on Europeans.

Apart from Ordinances for raising the annual financial

supplies or otherwise providing for matters where delay

would cause serious injury or inconvenience, no Ordinance

was to come into effect until the Royal pleasure had been

made known.

The Executive Council

The Royal Charter of 1850 authorised the Governor to

summon an Executive Council to assist him in the

administration of the government. The Royal Instructions of

1851 provided that, in addition to the Governor, the Executive

Council was to consist only of the Judicial Assessor and the

Collector of Customs, the latter being replaced in 1853 by the

Colonial Secretary. Where additional advice was needed on a

particular matter extraordinary members could be co-opted by

the Governor. Again, rules were laid down for the conduct of

the Executive Council. The Governor was to preside and the

quorum was to be three. Except in trivial matters the

executive powers of the Governor were only to be exercised

by the advice and consent of the Executive Council, unless

the case was one of emergency, or unless consultation might

cause material prejudice to the Crown. This rule was,

however, qualified by a provision which enabled the

Governor to act in disregard of the opposition of the

Executive Council provided the matter was reported to the

Secretary of State in London. As with the Legislative

Council, no matter could be discussed unless it had been

proposed by the Governor, although other members

12 PART I.—TJie Republican Constitution

2. That the meeting be recognized by Her Majesty's Govern-

ment as legally constituted, that it be called the Legislative

Assembly of native chiefs upon the Gold Coast, that it be

presided over, assembled, prorogued and adjourned by the

Governor, and that its enactments, when sanctioned and

approved of by the Governor, shall immediately become the

law of the country, subject to Her Majesty's approval, and "

be held binding upon the whole of the population being under

the protection of the British Government ". Having assumed

its law-making functions, the meeting went on to impose

upon the local inhabitants an annual poll tax of one shilling

sterling for the support of the Government. In consideration

of annual stipends to be paid by the Government, the chiefs

agreed to give " their cordial assistance and the full weight of

their authority " in supporting the measure. Taxes could be

sued for and obstruction was made an offence punishable by

imprisonment or fine, one half of any fine to be paid to the

local chief. The revenue was to be devoted to the public

good, the education of the people, the general improvement

and extension of the judicial system, and the improvement of

communications and medical services. The resolutions were

confirmed by the Governor. l

The poll tax was not a success. Until 1861, when it ceased

to be collected, the total gross yield was only £30,000, an

average of just over £3,000 a year, from which many

expenses had to be deducted. Nor did the Legislative

Assembly of native chiefs flourish; in fact it never met again. 2

Establishment of Supreme Court

By the Supreme Court Ordinance, a regular Ordinance

made in 1853 by the Governor with the advice and consent of

the Legislative Council, the Supreme Court of Her Majesty's

Forts and Settlements on the Gold Coast was established. It

was to be presided over by a Chief Justice, being an English,

Irish or Scottish barrister, and was given a civil and criminal

jurisdiction within the forts and settlements equivalent to that

of the Courts of Queen's Bench, Common Pleas and

Exchequer at Westminster. It was also given Admiralty

jurisdiction, but no jurisdiction in

1 Poll Tax Ordinance, 1852.
2 Clandge, op. cit., I, pp. 481, 495. A similar assembly met at Accra
shortly afterwards, which also imposed a poll tax; see the recital to the
Poll Tax Ordinance of 10th May, 1858.

CHAP. 1.—Constitutional Evolution 13

equity. 1 J. C. Fitzpatrick, the Judicial Assessor, was appointed by the

Ordinance as the first Chief Justice, holding both posts until his resignation

the following year. 2 Provision was made for an appeal to the Governor and

Legislative Council from decisions of the Judicial Assessor.

In 1856 the areas in the Gold Coast under British protection were given

formal recognition, under the name of the " protected territories ", by an

Order in Council made under the British Settlements and Foreign

Jurisdiction Acts. This provided somewhat obscurely that, in respect of

civil or criminal matters (including in particular bankruptcy and

insolvency) arising within the protected territories and in regard to which

there was a de facto British jurisdiction exercisable " without the co-

operation of any native chief or authority ", the Supreme Court and

magistrates were to have the same jurisdiction as if the matter had arisen

within one of the forts. Where the jurisdiction could only be exercised with

the co-operation of a native chief or authority, as in the trial of cases under

the Bond of 1844, it remained within the province of the Judicial Assessor.

The Governor was given power to regulate by Ordinance the exercise of

this jurisdiction, provided that equitable regard was paid to local customs;

and rules were laid down for the administration of estates of deceased

persons within the protected territories. In the same year the Chief Justice

and the officer commanding the newly-created Gold Coast Corps were

made members of the Legislative Council, the membership being

completed by the Colonial Secretary. The same persons also formed the

Executive Council. 3

First Attempt at Municipal Government

Sir Benjamin Pine made the first attempt to introduce municipal

government into the Gold Coast with an Ordinance passed on 10th May,

1858. This provided for the creation of municipalities governed by an

elected council headed by a mayor and having power to levy a rate in

substitution for the poll tax. The council was given powers in relation to

highways and markets and the creation of a police force, while the mayor

was required to hold a

1 This omission was remedied by an Ordinance passed on 3rd February.
1857. 2
The two posts continued to be held by the same person, and by 1865
had ceased to be distinct'. 3 Brandford Griffith, op. at., p. 15.
Royal Instructions, 28th October, 1856.

CHAP. 1.—Constitutional

Evolution

15

should only be retained " while the chiefs may be as speedily

as possible made to do without it ", and that in the meantime

the Gold Coast together with Lagos and Gambia should be

reunited under Sierra Leone, the development of the

steamship having greatly increased the speed of

communications since the previous Committee had advised

against such a union in 1842. All further extension of

territory or assumption of government in West Africa "

should be peremptorily prohibited and carefully prevented "l

The recommendations were soon acted upon. By a Com-

mission dated 19th February, 1866, the Charter of 1850 was

revoked and the Gold Coast, together with Sierra Leone,

Lagos and the Gambia, were united under " the Government

of our West Africa Settlements ". The existing Gold Coast

Ordinances were however preserved, as also was the

Legislative Council, although the Executive Council ceased

to exist. The permanent members of the Legislative Council

were to be the Administrator of the Government (who

replaced the Governor), the collector of customs (who

performed the duties of the Colonial Secretary) and the

officer acting as magistrate. 2 The Supreme Court was also

abolished in 1866 and replaced by " the Court of Civil and

Criminal Justice " presided over by a chief magistrate. 3 The

Order in Council of 1856 remained unrevoked and the

Judicial Assessor and other magistrates continued to exercise

jurisdiction outside the forts. However, the policy of

restricting the extension of British territory led to a sharp

rebuke from the Colonial Office when, in September, 1865, a

notice was issued by the local Administration stating that all

territory within a cannon shot (or five miles) of each fort

belonged exclusively to Great Britain. 4

Departure of the Dutch

Difficulty continued to be caused to the British

administration by the existence on the Gold Coast of Dutch

forts and settlements intermingled with those of the British.

Since the Dutch declined to co-operate in the imposition of

customs duties this led in particular to the practical

impossibility of raising customs

1 The 1865 Report, p. xv. A frown was directed at the Judicial Assessor of the
time: " The judicial assessor does not fulfil the first intention of the office, assisting
the chiefs in administering justice, but supersedes their authority by decisions
according to his own sole judgment." 2
3 Royal Instructions, 20th February, 1866, para. 21.
4 Gold Coast Ordinance No. 7 of 1866.
Cited Crooks, op. tit., pp. 371, 374.

16 PART I.—The Republican Constitution

revenue, which otherwise would have been the most

convenient and productive form of taxation. In 1860 the

Dutch agreed to an exchange which would have transferred

their territories east of Cape Coast to the British, and the

British territories west of Cape Coast to the Dutch. Objections

raised by the local population under British protection in the

west to transferring their allegiance to the Dutch led to the

abandonment of the scheme. It was however revived and

carried through by a Convention signed on 5th March, 1867.

The transfers took place, but gave rise to much unrest and to

the formation of the Fanti Confederation in an attempt to

preserve the unity and security of the coastal tribes. The

Constitution of the Confederation, which was drawn up at

Mankesim in October and November, 1871, provided an

ambitious scheme for mutual defence and the development of

communications, education and other services. Legislative

powers (including powers of taxation) were also included.

The British administration, which had not been consulted,

reacted unfavourably, and the scheme came to nothing. 1

The unrest following the exchange of territory having

convinced the Dutch that their position had become

untenable, a Convention was signed at the Hague on 25th

February, 1871, whereby the King of the Netherlands

transferred to the British Crown " all the rights of sovereignty,

jurisdiction and property which he possesses on the Coast of

Guinea ". 2 No payment was made for the territorial

possessions, but a fair price was paid for the Dutch stores and

other movables. 3 This new acquisition of territory conflicted

with the policy, still in force, of not extending British power

on the Gold Coast. In their instructions to the Governor of

Sierra Leone, who arrived to carry out the transfer in April,

1872, the British Government stated that their objects in

negotiating the treaty were " not the acquisition of territory or

the extension of British power, but the maintenance of tran-

quillity and the promotion of peaceful commerce on the Coast

".* It was ironical that the inclusion in the treaty of Elmina, to

which

1 See Claridge, op. cit., I, Ch. 32; for text of the Constitution see Sarbah,
Fanti National Constitution, London, 1906, pp. 199 - 209; see also Casely
Hayford, 2 Gold Coast Native Institutions, London, 1903, pp. 182-193.
The Dutch territories included the castle and fort at Elmina and forts
at Axim, Dixcove, Sekondi, Shama and Butri—Claridge, op. cit., I, 630.
For text of the treaty see Crooks, 3 op. cit., p. 393.
The Dutch received in return certain concessions in the island of
Sumatra. 4
Cited Claridge, op. cit., I, p. 627.

18 PART I.—The Republican Constitution

variation the terms of the Charter of 1850 The powers of the

Legislative Council now, however, derived not merely from

the Charter, but also from the Colonial Laws Validity Act,

1865. This provided that no law made by the legislature of a

colony should be void or inoperative on the ground of

repugnancy to the common law or to any Act of the Imperial

Parliament which did not apply to the colony by express

words or necessary intendment. The Act also made it clear

that Royal Instructions to the Governor could not fetter his

power to assent to legislation, and gave to the colonial

legislature full power within its jurisdiction to alter the

constitution of the legislature and to establish, reconstitute

and abolish courts of justice.

The new Charter was proclaimed at Government House,

Cape Coast, on 11th September, 1874, and on that day the

former Administrator, George Strahan, assumed office as

Governor and Commander-in-Chief. 2 On 19th March, 1877,

the seat of Government was moved from Cape Coast to

Accra, where it has remained. 3 This move had been decided

on as far back as 1851, when Governor Hill obtained Lord

Grey's permission for it on a number of grounds. These

included the more central position of Accra in the British

protectorate as it then existed, the need to develop in the

eastern areas educational, judicial and other facilities (which

could be better done under the eye of the Governor), the need

to subdue the tribes in the Accra region, and the superiority of

Accra over Cape Coast "in a sanitary point of view ". 4

The first two Ordinances made by the new colony

prohibited slave-trading and declared all persons then held in

slavery to be free. This applied both to slaves held in captivity

by slave dealers and also to those treated as slaves under

customary law, though in the latter case freedom was only

conferred on persons born after 5th November, 1874. 5

Re-establishment of Supreme Court

The Supreme Court of the Gold Coast was re-established by

1 See pp. 8 et seq. ante.
2 Despatch by Governor Strahan to the Earl of Carnavon, 11th
September, 1874 (Ghana National Archives, Accra). 3
4 Gold Coast Gazette, 31st March, 1877 (notice dated 8th March).
Despatch of 26th November, 1851 (Ghana National Archives, Accra).
Governor Hill remarked that Cape Coast was originally chosen only because
the Governor's personal accommodation was better there. 6
Gold Coast Slave-dealing Abolition Ordinance, 1874 (No. I); Gold Coast
Emancipation Ordinance, 1874 (No. 2).

CHAP. 1.—Constitutional Evolution 19

the Supreme Court Ordinance, 1876, which constituted it the Supreme

Court of Judicature for the Gold Coast Colony " and for the Territories

thereto near or adjacent wherein Her Majesty may at any time before or

after the commencement of this Ordinance have acquired powers and

jurisdiction ". The court consisted of the Chief Justice and not more than

four puisne judges, and it was provided that the Full Court (which was to

consist of the Chief Justice and one or two puisne judges) should be a court

of appeal with sittings in Accra and Lagos. A Divisional Court of the

Supreme Court was required to sit in each of the three Provinces into

which the area of jurisdiction was divided. 1 The Supreme Court was given

the same jurisdiction, except for the Admiralty jurisdiction, as the recently-

created High Court of Justice in England, and was also authorised to

exercise the Lord Chancellor's powers of guardianship of infants and

lunatics. The Ordinance further provided that district commissioners were

to be ex officio Commissioners of the Supreme Court, each Commissioner

exercising the powers of a judge of the Supreme Court within his own

district as well as those of a bench of magistrates. A notable provision was

the duty imposed on the court to promote reconciliation of differences

among persons over whom it had jurisdiction, and to " encourage and

facilitate the settlement in an amicable way, and without recourse to

litigation, of matters in difference between them ". This duty extended not

only to civil disputes but criminal matters " not amounting to felony and

not aggravated in degree ". The Ordinance abolished the post of Judicial

Assessor and transferred to the Supreme Court the jurisdiction formerly

exercised by him in the Protectorate. 2 The Petitions of Right Ordinance,

1877 (No. 12) enabled claims against the Government to be pursued in the

Supreme Court. Provision for appeals from the Supreme Court to the Privy

Council was contained in an Order in Council also made in 1877. The

administration of justice in the native tribunals was regulated by the Gold

Coast Native Jurisdiction Ordinance, 1883 (No. 5) (which replaced No. 8

of 1878). This Ordinance constituted native tribunals in the areas to which

it was applied by proclamation. The tribunals consisted of the head chiefs

of

1 The Provinces came to be treated as established for general purposes,
and not merely for those of the Supreme Court. 2
For the application by the Ordinance of the rules of English law, and
the difficulties which arose over the relationship between them and local
customary law, see Chap. 10, post.

CHAP. 1.—Constitutional Evolution 21

an annual value of £2 or more, but where the number of candidates was

insufficient the Governor could nominate qualified electors to make up the

number. The council was given various detailed functions and the general

function of doing " such acts as may be necessary for the conservancy of

the town and the preservation of the public health therein ". Power was

conferred to levy a house rate up to five per cent, of the annual value.

Persons using vehicles within the town limits were required to take out a

wheel licence on payment of an annual fee ranging from five shillings to

two pounds. Other sources of revenue included licences for spirits, auction

sales and dogs, and fines for various criminal offences.

Concessions Ordinance

Towards the end of the nineteenth century efforts were made by the

Gold Coast Government to deal with the growing problem of the

indiscriminate granting of land concessions to expatriates. An attempt in

1894 to do this by vesting all waste lands, forests and minerals in the

Crown aroused great opposition and was dropped. Even the less extreme

Public Lands Bill proved unacceptable, and indeed brought about the

formation of the Gold Coast Aborigines' Rights Protection Society, so the

Government contented themselves with the passage in 1900 of the

Concessions Ordinance (No. 14). This required details of all concessions

to be notified to the Supreme Court and published in the Gazette. Without

the leave of the court, no proceedings could be taken to enforce the

concession unless it had been certified as valid by the court, which had

power to modify its terms. In relation to mining, timber, rubber and other

products of the soil, the area of land which could be granted to any one

person or company was strictly limited. Expatriates could not engage in

mining without a licence issued by the Governor. A five per cent, duty was

imposed on all profits made from concessions. 1

Constitutional Adjustments

In 1886 a charter was granted to the Royal Niger Company, which took

over the administration of the British colony at Lagos. Letters Patent were

accordingly issued by which, on 13th January, 1886, Lagos ceased to form

part of the Gold Coast Colony. In

1 For criticisms of the effectiveness of the Concessions Ordinance (which in a
modified form is still in force) see Lord Hailev, An African Survey (1938 Edn.), p.
777.

22 PART I.—The Republican Constitution

the following year an Order in Council was made under the

Foreign Jurisdiction Act empowering the Gold Coast

Legislative Council to legislate for territories adjoining the

Colony which had been brought under British protection. 1

The first African member of the Legislative Council, John

Sarbah, was appointed in 1888.

By Royal Instructions issued on 11th March, 1895, it was

provided that apart from the Governor the Executive Council

should consist of the Lieutenant-Governor of the Colony (if

any), the senior officer in command of regular troops in the

Colony, and the Colonial Secretary, Attorney-General and

Treasurer, together with such additional persons as might be

appointed by royal authority. The ex officio members of the

Legislative Council were the same as for the Executive

Council, with the addition of the Chief Justice. 2 Provision was

made for the royal appointment of additional persons holding

offices in the Colony, who, together with the ex officio

members, were to be styled " official members ". In addition

provision was made for the royal appointment of persons not

holding offices, who were to be styled " unofficial members

".

Relations with Ashanti

The time was now drawing near for the British Government

to take a decisive step in the acquisition of territory. The

defeat of the Ashantis in 1874 had caused a temporary break-

up of the Ashanti Confederacy. It was largely a military

union, and military defeat robbed it of its main purpose.

However, the British still preferred to pursue a policy of non-

intervention and within a few years most of the states which

had thrown off allegiance to the Asantehene had rejoined the

Confederacy. While favouring non-intervention, the British

were prepared to extend their protection to those who wanted

it, and a number of tribes from Ashanti were brought within

the Colony, either by extension of its still undefined

boundaries or through the emigration of the people's

concerned. Things might have continued in this indecisive

fashion it the Colony had not been threatened with

encirclement by other European powers. On the Ivory Coast

the French were extending their influence inland following

the treaty with Gyaman

1 Order in Council of 29th December, 1887.
2 The Chief Justice ceased to be a member of the Legislative Council in
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Bennion The Constitutional Law of Ghana Chapter 1

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© F A R Bennion Website: www.francisbennion.com
Doc. No. 1962.001.003 The Constitutional Law of Ghana, Butterworths, 1962
Any footnotes are shown at the bottom of each page
For full version of abbreviations click ‘Abbreviations’ on FB’s website
CONSTITUTIONAL LAW OF GHANA
Francis Bennion
PART I - THE REPUBLICAN CONSTITUTION
CHAPTER 1
CONSTITUTIONAL EVOLUTION
The Republic of Ghana lies midway along the Guinea coast of West Africa, being bounded on
three sides by former French territories and on the south by the Atlantic Ocean. To the west lies the
Ivory Coast Republic, to the north the Voltaic Republic (formerly Upper Volta) and to the east the
Republic of Togo. The territories of Ghana consist of those formerly comprised in the Gold Coast
Colony, Ashanti, the Northern Territories of the Gold Coast, and Togoland under United Kingdom
Trusteeship. The name Ghana was adopted when, on 6th March, 1957, the country became
independent of British rule. The name was taken from the ancient negro empire of Ghana in the
South-Western Soudan, from which a proportion of the inhabitants of present-day Ghana are
believed to derive their ancestry. Ghana became a republic within the Commonwealth on 1st July,
1960.
Although the republican constitution contains a number of original features and represents a
clean break with the past, it inevitably perpetuates by way of organic development much of the
former constitutional system. It cannot therefore be understood without reference to the growth of
the institutions of government which took place during the years preceding the emergence of
Ghana as an independent republic. The purpose of the present chapter is to trace briefly the course
of this development, beginning with the assumption of jurisdiction by the British Crown in 1821.1
The history of the four centuries preceding this event is one of great confusion and shifting of
populations, in which the tribal systems were being modified by wars and invasions among the
Africans themselves and also by the activities of traders from almost every European country. The
indigenous constitutional systems are a study in themselves and are beyond
1 For the earlier history, and the general background to the constitutional developments here discussed, see Claridge, A History of the
Gold Coast and Ashanti, London, 1915; Ward, A History of the Gold Coast, London, 1948; The Cambridge History of the British
Empire. For the later background see F. M. Bourret, Ghana—the Road to Independence, 1919-1957, London, 1960.
3

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