Dear Mirror Attorney: Can a widow who is not in love with her late husband's brother be made to marry him or the deceased husband's traditional successor?
Winneba, Kuukua
Hello, Kuukua Customary law is the result of long-standing social norms that have become codified over time in a certain society.
According to the Constitution, certain customs that have been recognized as legitimate practices are incorporated into Ghanaian law and are given legal effect by the courts. One of these customary customs is the passing of a person's estate, which we see in many different groups.
Regardless of the beliefs or traditions that were followed by groups in the past, some of these customs have been improved to fit current societal norms and unified by legislation, making them now relevant to the entire nation.
The Intestate Succession Act of 1985, PNDC Act 111, is one piece of legislation that has changed prevailing customs and harmonized intestacy laws across the nation.
Unless a custom or practice is against a statutory legislation requirement, against natural justice, equity, or moral conscience, courts have generally been extremely hesitant to substitute their judgment for what traditions and practices of communities should or should not be respected.
As a result, according to Krobo tradition, a girl who enters puberty must go through a ritual called dip before getting pregnant, as was the case in Tanor v. Akosua Korkor [1974] GLR 451.
She was not only shunned if she became pregnant before this ritual, but she also risked being exiled from her house and having her parents reject her.
Due to this tradition, Korkor was exiled from Kroboland and taken in by a guy from Akim Abuakwah. Court proceedings about Korkor's inheritance following the man's death resulted, and during the proceedings, Korkor's solicitor requested that the court denounce the Krobos' severe and unethical ritual.
According to the Court of Appeal, it is out of date to expel a young girl from her home and require her parents to disown and disinherit her.
Yet, the Krobos themselves, not the judges, should decide whether or not to abolish the custom.
In the case of Re Kofi Antubam (Decd. ); Quaico v. Fosu [1965] GLR 138, Archer J (as he was then) had to decide whether a customary successor might wed the widow of a deceased family member. After a survey of the etiquette and legal writing, authors like Sarbah, and Archer J, held the following:
"I want to emphasize that several ideas, precepts, and circumstances that were in place when Sarbah published his book are no longer in place.
For instance, the heir must marry the deceased's widows and raise the children as though they were his own offspring. In other words, the children and widows are inherited by the successor just like inheritable chattels would be. Women now have the same position as males, with the freedom to choose their own suitors or consorts for marriage and even to fight for the support of their young children after their spouses pass away.
We live in a time of rights, individual independence, and female liberation. Every people have the right to self-determination, according to the Constitution.
If we were to compare such practices to the 1992 Constitution, we would see that the idea or notion that the successor of a deceased who died intestate must maintain the children of the deceased as if they were his own children and also marry or inherit the widows as if they were "inheritable chattels" no longer holds sway.
Several of these traditional customs, meanwhile, are still followed by some groups. According to Archer J, customary law cannot stay static while other facets of the law are constantly changing if it is to continue serving as the best complement to statute law and the common law.
Customs that appear to be contrary to natural justice, equity, and good conscience must be progressively adjusted by the communities by the pace of social, commercial, and industrial advancement.
We need forward-thinking leaders in the communities to continuously examine this and suggest necessary revisions to harmful traditions and behaviors. In cases when this is unsuccessful, the legislature will step in to stop the behavior and force the reforms on the populace.
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