Custom and law collide in Ghanaian law reform
In Ghana, citizens and lawmakers were weighing two legislative measures that would, respectively, alter spousal intestate succession and property rights in that country. Half a world away, 11 Duke Law students devoted a spring-semester seminar to consideration of the legal, constitutional, and social provenance and implications of the same two bills, which have sparked considerable debate among Ghanaians.
Over their March study break, students in Integrating Legal Frameworks and their professors, Duke Law Professor Kathryn Webb Bradley and Divinity Professor Esther Acolatse, immersed themselves in field research in the West African nation. In the eastern city of Ho and the capital, Accra, they met with an array of stakeholders in the legislative process, such as parliamentarians, grassroots women’s rights advocates, traditional and religious leaders, lawyers, jurists, and scholars. Partnering with lawyer and activist Hilary Gbedemah at the Law Institute in Accra, they are now working collaboratively on materials for use by Ghanaian advocates pushing for the bills’ passage and by judges who will eventually be charged with the laws’ interpretation and implementation.
Their meetings helped clarify nuances of language and intention behind specific legislative provisions as well as the resistance the bills have generated in certain quarters in spite of their constitutional and legal underpinnings; the 1992 Ghanaian constitution, based, in part, on the U.S. Constitution, instructs parliament to implement laws giving spouses equal property rights and international treaties impose similar obligations.
“It was really helpful to talk to judges, church leaders, NGOs, and the parliamentarians about what is expected in a Ghanaian family and how that relates to what the bills are proposing to do,” said Ben Kastan ’12. “Traditionally in the Ghanaian family system, your property goes back to your family [of origin] when you die, not to your spouse. That was changed by law some years ago, but the practice still shapes expectations to some extent. That mindset ─ that property primarily belongs to your family and not your spouse ─ is an insight that we heard time and time again.”
Ebosetale Okojie ’13 focused her earlier research on a particularly contentious aspect of expansions in spousal property rights ─ the extension of property rights to women in “cohabitation” relationships and the recognition of non-monetary contributions of women to the acquisition of family property and wealth. She said their discussions pointed out the necessity for setting American cultural biases aside.
“We view marriage as a partnership and on that basis we value women’s contributions as caretakers and homemakers. Ghanaian society views marriage as a unit where the men and women play roles,” said Okojie, recalling how one lawmaker framed his opposition to the bills. “The man plays the role of the provider ─ he provides everything that is necessary. The woman plays the role of the caretaker. The wealth of the family is always attributed to the husband, even if she has a successful business. You have to look at it from that paradigm, that ‘This is your job as a wife; I don’t know why you should be awarded part of my property because [caretaking] is your role.’”
Students found references to cohabitation in the bills to be particularly controversial among stakeholders in Ghana, which has a strong customary law tradition and which recognizes three forms of marriage ─ ordinance marriage, customary marriage, and Islamic marriage. Although statutory ordinance marriages are monogamous, polygamy is widely practiced; many first wives object to sharing marital property with subsequent wives or girlfriends. And there are other concerns.
“Even within the coalition that’s pushing for the bills there is a lot of controversy as to whether the cohabitation provision will undermine marriage,” observed Karen Gift ’12 of the provision which pertains to couples who have lived together for five years and have started, but not completed formal or customary marriage rituals. “But it is not ‘cohabitation’ as we often understand it here; rather, it is something akin to common law marriage. It was designed to protect the rights of those people who are in long-term relationships in which they hold themselves out to society as husband and wife.” The students’ fact sheets and judicial briefs seek to clarify misconceptions in this regard.
“Before our trip, I had looked at this law more in isolation,” said Gift. “I hadn’t considered the extent to which even the bills’ proponents had concerns about particular components or disagreements about their interpretation. It was very helpful to talk with them.”
For Emily May ’12, who researched the passage and provisions of Ghana’s 2007 anti-domestic violence law, a meeting with its author and members of his coalition was instructive.
“There were two main takeaways,” she said. “The struggle to pass these bills mirrors the struggle to pass domestic violence legislation in many ways. That effort also pertained to women’s rights and met resistance from people who had more traditional views. It was a big struggle, so it was helpful to ask, ‘How did you do this? What did you say in your meetings? How did you form your coalition?’
“Also, the domestic violence law itself addresses economic abuse, or economic domestic violence,” said May. “We wanted to explore this idea of economic domestic violence as a potential hook for the new laws. They already recognized that this is a problem and this is related.”
Bradley said she was delighted by the high level of engagement the research trip afforded her students, and the insight and energy they displayed with their inquiries. “Nobody hung back,” she said. “Everybody was contributing across the board and asking very thoughtful questions that moved the dialogue along.” Most importantly, their field research showed her students how law actually plays out in people’s lives and across cultures which were key goals for the seminar.
“This isn’t just about the law,” she said. “It’s not just about a constitution or statute or a constitution that has a treaty obligation superimposed on it,” she said. “What does having a statute mean when you take it to the village level? If the statute conveys a right that you’ve never had before, what do they do with it now? And if you have a statute that sounds really good, how do you get it implemented in a way that actually makes a difference for people? What happens if it doesn’t? What is the effect on women who can’t inherit property from their husbands because of the way the customary law is set up?”
Individual students said long-term lessons from their in-class collaborations included teamwork and the ability to distill and communicate complex legal concepts in an easily understood and straightforward manner. For Okojie, a JD/LLM candidate who aspires to a career as a public defender, her field work emphasized an important element of advocacy.
“It really stressed the importance of listening to people and the importance of understanding their point of view ─ starting with their paradigm. You can’t really understand their point of view if you are starting from your own view of how the world works and what’s right and what’s wrong. You have to take yourself out of it.” A Nigerian-American, Okojie also is excited about seeing Ghana’s regional leadership in trying to expand spousal and intestate property rights.
Also pursuing a JD/LLM, Kastan called the seminar a “great capstone” to his dual degree. “I found the international family law issues particularly interesting when I took Professor Bradley’s family law course last year,” said Kastan, who also worked on domestic violence issues during a 2L externship in the office of the Wake County public defender and hopes to land a prosecutorial position following his bar passage. The seminar offered a way to explore those issues more deeply and to meet people engaged in legal development work. “It was a great way to combine the domestic law studies I’ve done with my comparative law studies.”
Gift, who worked on international human trafficking issues during her 1L and 2L summers, reflected on the way her field work built on knowledge and experience gained from two other Duke Law seminars: one that engaged students in crafting anti-domestic violence provisions for Haitian law reform efforts, and another, Human Rights Advocacy, which had a clinical component.
“It was a great capstone experience to have the opportunity to integrate what I had learned through the Haiti seminar, for example, where we looked at how international agreements to which a country is party could be used to promote statutory change in that country,” said Gift, who will join Simpson Thacher as a litigation associate after graduation. “The Human Rights Advocacy course highlighted client interaction and a host of questions: Who is the client? You have multiple stakeholders who are broadly in agreement. But who do you take the lead from? And how do you reconcile instances when, for example, you are working on behalf of these NGO organizations ─ you’re assisting them. At the same time, you’re speaking to broader principles of human rights.” Gift hopes to be involved with international law reform and human rights on a pro bono basis in the future.
May praised Duke Law’s recent collaborative seminars in international human rights with field work components; the seminar on spousal property rights in Ghana follows earlier ones on indigenous land rights in Brazil and housing rights in East Jerusalem.
“I just think this is one of the many ways that Duke is a unique, nurturing place,” she said. “I love that this is the kind of place where professors really go beyond teaching in a classroom. It was so much extra work for Professor Bradley to take this on and it was incredible of her. And she’s been wonderfully accessible and helpful and warm, as has Professor Acolatse.
“And I love that this is a place where you interact with all kinds of students,” she added. “I didn’t know most of my classmates prior to this seminar, and now we’re good friends. And I think the close relationships with professors you can have here and the close relationships with diverse students you can have here is incredible.”