Women's rights and customary law

Over the last couple of weeks, I have been working my way through a fascinating book called Casebook on the Rights of Women in Ghana.  It was produced by the Ghana Literacy and Resource Foundation in conjunction with the British High Commission.  It is a collection of abstracts of cases dealing with the principal issues affecting women in Ghana and it interests me for two main reasons: firstly because it is (unsurprisingly) very informative on the state of women’s rights in Ghana, and secondly because it sheds light on how the court has responded to customary laws in an age of increasing human rights awareness.

A few examples on the state of women’s rights in Ghana: abortion is illegal here, except to preserve the life and health of the mother, or where the pregnancy was a result of incest or rape, or where there is a substantial risk that the child may be born with a significant abnormality.  These are potentially quite broad grounds, but safe abortions are apparently still quite difficult to obtain and unsafe abortions remain a serious problem.  This seems to be at least partly due to problems of perception: indeed, when I asked two Ghanaians at the law firm (both young and female) whether abortion was legal, one thought it was illegal unless the mother's life was at risk and the other simply didn't know.  Traditional practices such as FGM, early marriage, and widowhood rites have been criminalised, but enforcement is apparently “slow and piecemeal”.  Women’s rights to property after divorce seem to depend on whether the marriage was customary or by ordinance: if the latter, it will be governed by similar principles as in the UK but if the former, most traditions seem to dictate that, unless the wife has made a significant financial contribution, she will not be entitled to her husband’s property. 

Turning to the court’s reaction to customary laws: three cases from the book demonstrate the diverse approaches taken by the court to those customary laws which have become more difficult to justify in an era increasingly conscious of human rights.  

The first case, Tanar & Another v Akosua Koko [1974] 1 GLR 451 CA, considered the customary rite dipo: this was a Krobe ritual which had to be undergone by the girl on reaching the age of puberty and before becoming pregnant: if a girl became pregnant before dipo, she was liable to be ostracised, disowned by her parents, and banished from her home.  The court took a hands-off approach, Archer JA stating that “whether the custom should be abolished or not, is not for the courts to say.  If the Krobes wish to preserve this custom...it is a matter for the Krobes themselves.  In any case, I am indifferent”. 

The second case, Atomo v Trekpetey [1980] GLR 738, concerned an Osudoku custom whereby when a woman has been given in marriage to a fetish priest, all the children born to her during and after the lifetime of the fetish priest are considered the children of the fetish priest and not of their natural father.  The court took a much more robust approach in this instance, holding that there was no reasonable basis for the custom and it was in fact repugnant to natural justice, equity, and good conscience. 

The third case, Akorninga v Akawagre [1987-88] 2 GLR 562, CA, concerned a Frafra customary law whereby on the death of a husband, his successor or brother may take his widow as his wife, with her consent.  The respondent was arguing that the appellant was his wife under this law, even though the husband’s family had abandoned her at the time of his death, the appellant had married again, and the respondent only emerged to claim her 11 years later.  The court held, taking a different approach again, that his claim was wrong because contrary to Frafra customary law – as well as the general law of the land, as it sought to treat the appellant as a chattel. 

The issue of women's rights has therefore repeatedly forced the court to grapple with problematic customary laws - and women's rights illustrate the development in the court's response to such laws, from declaring that the custom was not their business, to roundly condemning it, to upholding it but criticising its application.