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Resource Connect ANGU V. ATTA
Constitutional law (111)
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Question:
Read the following excerpts very thoroughly and carry out the instruction which follows:
"In proceedings in which native law and custom may be material to the issue, the court was given power, if it thought it expedient to do so to "call one or more other persons, whom the Court shall consider specially qualified, to act as referees, and may hear and try such cause-or matter-wholly or partially-with the assistance of such referees; The provision went on to say that "the affirmation of any such law or custom by the said referees, upon being consulted by the Court, shall be evidence thereof, and the Court shall presume the correctness of such evidence." It is submitted that far from making native law and custom a matter which should be determined by the calling of evidence by parties, this provision put it within the power of the court to ascertain the content and nature of the customary law by calling on the assistance of the court's referees. A method not so different from what is the present position after legislation has wrested customary law from the status of evidence consigned to it by the Privy Council decision in Angu v. Attah."
A.N. Amissah, "The Supreme Court, One Hundred Years Ago", in p. 23 in W.C. Daniels & G. Woodman (Ed.), Essays in Ghanaian Law: Supreme Court Centenary Publication 1876 - 1976, (Ghana Publishing Corporation, 1976), 1, 23.
"African law in Africa was declared foreign law for the convenience of colonial administration which found the administration of justice cumbersome because of the vast variations in local and tribal customs. African law had to be proved by experts. But no law can be foreign in its land and country and African lawyers, particularly in the independent African States, must quickly find a way to reverse this judicial travesty.”
Osagyefo Dr. Kwame Nkrumah, at the Accra Conference of Legal Education and of the Ghana Law School on 4th January 1963
INSTRUCTION: Explain the context within which the statements were made; rely on applicable laws to suggest ways by which a Ghanaian lawyer may implement Dr. Kwame Nkrumah's command, and identify what (if any) you consider as a `challenge to implementing the command.
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COURSE NAME: CONSTITUTIONAL LAW II
TOPIC: EVOLUTION OF THE GHANA LEGAL SYSTEM (ANGU V. ATTA)
POWERED BY: Darlington A. Koranteng Telephone: (020) 928-9015 Email: atworkgh@gmail
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Answer:
The ruling in Angu V. Atta has for years vexed nationalists like Mensah Sarbah, Kwame Nkrumah, and many others by its supposedly inane treatment of our cherished customary laws as foreign law and treated the English law as rather being the common law in Ghana. Kwame Nkrumah regarded it as a judicial travesty as the English laws were rather guests of the indigenous customary law. It will be recalled that in Angu v. Atta the Privy Council had stated that <As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquired with the native customs until the particular custom have, by frequent proof in the courts become so notorious that the courts take judicial notice of them.= Mensah Sarbah had a different opinion on this as he stated, <It cannot, therefore, be correct to say, as has sometimes been said, that the native laws and customs are foreign matters which unless proved, cannot be recognized or noticed by a judge.= In this essay, we will discuss the very challenges that were encountered from the time of Mensah Sarbah, the Angu v Atta case, Nkrumah’s era and even now to acknowledge our customary law as law of the land and not foreign in the courts. And relying on applicable laws such as articles 11, 270, 271, and 272 of the 1992 constitution of Ghana and courts act, section 55, suggest ways by which a Ghanaian lawyer may implement Dr. Kwame Nkrumah's command of reversing this travesty. Ghanaian law was regarded as foreign and ought to be proven in the courts as a question of facts based on the decision in Angu v. Atta. Why was this so? I will dwell on three major challenges and these are; The Ghanaian customary law for years has been passed down orally and not codified. Second, the Ghanaian customary law is so diverse based on the heterogenic nature of the country. Also, some of our customary laws are outdated and, in the past, regarded as barbaric for which some people then and now have shown not to want it. An example was in 1863 when two refuges, one a slave and the other involving a prosperous Asante, Kwasi Gyan who had been accused of a crime against customary law and in search of justice ran to the British for protection. These separate situations led to a war between the Asantes and the British Having an orally passed down customary law brings up the question of uncertainty. There would be a high degree of uncertainty as the law would not be general knowledge within the system. It is assumed that legal personnel, lawyers, and judges should know the law but with the native customary law, because it is not codified, the law is unknown and dependent on witnesses or an expectation to come and prove the law. This could lead to the misinterpretation of that law, the unpredictability of the law as we don’t know the law, and the dangers of the law being obliterated as any misinterpretation can change the customary law and most likely rid the people of the true meaning and purpose of the law. In regards to obliteration, the law could also be lost in time if not
properly passed down. This makes it very difficult RESOURCE CONNECTto depend on.
POWERED BY: Darlington A. Koranteng Telephone: (020) 928-9015 Email: atworkgh@gmail
MATERIAL SHARING PLATFORM
MATERIAL SHARING PLATFORM
POWERED BY: Darlington A. Koranteng
Telephone: (020) 928-9015 Email: atworkgh@gmail
Resource Connect ANGU V. ATTA
Course: Constitutional law (111)
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