Tonny Nyarko
Abstract
“Ghana will look to you to serve her with humility, honesty, integrity and loyalty. We do not expect you to regard yourselves as a privileged class, engaged in a selfish scramble to acquire wealth and influence. We expect you to identity yourselves fully with the people and with their hopes and aspirations, and apply your knowledge and energies fully for their welfare and progress. You must not, in your profession, limit yourselves to the law courts only. As lawyers of the new Africa, you must be ever ready to assist the ordinary men and women the farmers, the workers and the market women, in the towns and villages, in their everyday legal problems by providing sound advice, whenever they need it. You must remember at all times that law does not operate in a vacuum. Its value and significance must be related to its impact and the overall importance of the people and the state”.1 This message from Dr Kwame Nkrumah reminds us, as lawyers, judges and students of the law (Jurisprudence and Constitutional law), the value and significance of a modern legal order that illuminate the history and legal structures that existed before in our history. In a matching fashion, in Tuffuor v. Attorney-General2, court of appeal, sitting as the Supreme Court, Sowah JSC stated; “…a written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people's search for progress. It contains within it their aspirations and their hopes for a better and fuller life… We think it is pertinent at this stage for the court to make a very brief excursion into the judicial history of this country's. Such an excursion should illuminate our path and, at the same time, act as a beacon towards the understanding of the judicial structure as it existed before the end of the decade (the emphasis is mine).3 These statements from Justice Sowah and Osagyefo Dr Kwame Nkrumah, submit the existence of a legal order from our understanding of the history, aspirations and hopes of the Africa (Ghana) that existed from the pre-colonisation era to the annexation periods; that the modern constitutional theorist, constitutions and constitutionalism perhaps must conform to. However, the existence of an African legal system may not go without distortions and myths from the Western Jurisprudence. The African Legal Jurisprudence has been clothed in the garments of myths and distortions as an era of darkness analogous to the Annular Eclipse of the sun4. Thus, the history of the Western in Africa has created a region of “ring or an annulus of dominance” surrounding the “dark disk”5 of the African History. In spite of these falsifications, the entrenched prejudices and disingenuous conclusions about African system of law in the western literature, Africa has had its own laws, customs, beliefs and values that resonate with the people’s aspirations. The challenge however, is to get our Constitutions, constitutional theorist, and legal interpreters to a revolution of the mindset from the colonial culture of undermining African law, to accepting the new reality that it is now an independent source of law with its own unique value system.
