Law, Culture and Women's Inheritance Rights in ... - Leitner Center

B. Constitutional and Statutory Law
Under the Provisional National Defense Council (“PNDC”) government, Ghana enacted the
1985 Intestate Succession Law, P.N.D.C. Law 111, and later included a provision in the 1992
Constitution that addressed property rights of spouses. This section describes these changes and
other domestic law provisions relevant to women's property rights and analyzes their relationship
to the customary law principles described above.
1. Article 22 of the 1992 Constitution
Article 22 of the Ghanaian Constitution (1992) addresses property rights of spouses during
marriage and upon death or dissolution of the marriage. It provides that:
(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse
whether or not the spouse died having made a will.
(2) Parliament shall, as soon as practicable after the coming into force of this Constitution,
enact legislation regulating the property rights of spouses.
(3) With a view to achieving the full realization of the rights referred to in clause (2) of this
article --
(a) Spouses shall have equal access to property jointly acquired during marriage;
(b) Assets which are jointly acquired during marriage shall be distributed equitably between
the spouses upon dissolution of the marriage. [FN145]
Pursuant to Article 22(1), upon the death of one spouse, the *286 surviving spouse can claim
a reasonable share of the estate, whether or not she was a beneficiary under a will. [FN146]
Thus, Article 22(1) goes beyond the context of intestate succession to permit--indeed to require-courts
to override a will to provide a reasonable share to a surviving spouse. Significantly, it
enshrines as a constitutional right a spouse's claim to a part of the estate, though the portion to
which she is entitled is subject to considerable judicial discretion. [FN147]
Article 22(2), which calls for Parliament to enact legislation addressing the property rights of
spouses, is potentially even more significant. Such legislation could specify in greater detail the
rights of surviving spouses as well as address the much broader problem of property rights
during marriage. To this end, Article 22 specifically directs Parliament to address the difficult
topic of jointly acquired property. Such a provision would have important implications for the
definition and distribution of so-called self-acquired property in the estate in cases in which the
widow has made substantial economic contributions to the acquisition of such property.
Unfortunately, the Ghanaian Parliament has thus far failed to fulfill the mandate of Article 22.
[FN148] Although it may be possible to rely on Article 22 directly to claim the substantive rights
provided for in Article 22(3), even without implementing legislation, no case has yet done so.
[FN149]
2. Domestic Statutory Law
Despite the requirement of Article 22 of the 1992 Constitution,*287 Law 111, enacted in
1985, remains the most significant legislation to address women's inheritance rights. According
to the Memorandum accompanying Law 111, the law was intended “to provide a uniform
intestate succession law that will be applicable throughout the country irrespective of the class of
the intestate and the type of marriage contracted by him or her.” [FN150] The Memorandum