INTRODUCTION 

For most individuals, childhood is that stage of life characterized by total dependency on others. Parents or guardians are relied on for the satisfaction of basic needs and to make decisions that may affect their child’s life indefinitely. This dependency relationship arises firstly because a child lacks the financial ability to provide for his own physical needs. Also, the mental capacities of children are relatively undeveloped, and they do not have the benefit of experience and hindsight to consider the long-term consequences of their decisions. 

 This reliance on their caregivers makes children vulnerable to abuse and neglect from both their primary carers and other predators in society. Considering that some of the threats to the interests of children come from cultural practices upheld in society, it is unsurprising to see that various attempts have been made internationally and locally to create a legal system that prioritizes the interest of children and protects them from abuse by placing legally enforceable obligations and liabilities on individuals and the entire society. 

The purpose of this article is to highlight some of the inroads that have been made in the Ghanaian legal space concerning the protection of children against some of these cultural practices. This would be done in four parts, the first part will define who a child is and the rights that status entitles a person to under the law. The second part will focus on the welfare principle required to be applied in matters relating to children and the next part will consider certain cultural practices which are incompatible with the welfare principle and finally whether they ought to be left to stand as they are. 

WHO IS A CHILD?

Under Ghanaian law, a person below the age of eighteen years is a child1. Apart from the fundamental human rights2 granted to all persons, there are some rights specifically provided for children in Ghana because of their unique stage in life. 

In recognition of the fact that children are immature and are still developing their sense of morality and rightness, the law grants them some immunity when their actions ought to attract criminal liability. Primarily, children under twelve years old are deemed incapable of committing a criminal offence3 because they are said to be unable to comprehend the consequences of their actions from a legal perspective. Although children above twelve years may be subjected to criminal proceedings they are not treated like adult offenders. In such criminal proceedings, the court with competent jurisdiction is required to apply the welfare principle4. This may for instance that the trial be expedited, and the sentence imposed not being mainly punitive 

Again, to ensure that each child has the care they need, the law provides that parents, so long as they have not legally renounced their rights and responsibilities5, have a natural right and obligation to care for and maintain their children. They are expected to cater to the physical, emotional, spiritual, moral, and social needs of the child to ensure their wholesome development6. Ultimately, caregivers can be held criminally liable when they fail to supply the necessaries of health and life required7

The nature of a parent’s duty is stated in law8 as inclusive of the duty to:

a) protect the child from neglect, discrimination, violence, abuse, exposure to physical and moral hazards and oppression;

 (b) provide good guidance, care, assistance, and maintenance for the child and assurance of the child’s survival and development. 

(c) ensure that in the temporary absence of a parent, the child shall be cared for by a competent person and that a child under eighteen months of age shall only be cared for by a person of fifteen years and above”

Although parents are primary caregivers, there are governmental institutions like Social Welfare that have been set up by parliament to uphold the interests of children9. Where necessary, caregivers of children are required to carry out their duties in cooperation with these institutions.  

The law prioritises the interests of children hence the development of principles like the “welfare principle”, and “best interest of the child” to serve as a guide when dealing with any matter concerning a child. 

GUIDING PRINCIPLES IN DEALING WITH CHILDREN

Generally, the welfare principle and the best interest of the child are used interchangeably10. They are however undefined in the statutes that provide for them so judicial interpretation and application of these principles are instrumental. 

In Odogwu v Odogwu,11 the welfare of the child is defined as “not the material provisions in the house – good clothes, food, air-conditioners, television, all gadgets normally associated with the middle class, – it is more of the happiness of the child and his psychological development.”.

The principle is also defined12 as  “everything that inures to the welfare of the child including the unhindered enjoyment of all the rights guaranteed to a child under Article 28 of the constitution and particularly the enjoyment of the rights which Section 6 (2) of Act 560 imposes on parents as a duty to provide for the child –the right to Life, Dignity, Respect, Leisure, Liberty, Health, Education and Shelter”.

The welfare principle must be applied by any court, person, institution, or body in any matter concerned with a child13. What the courts will consider in determining what the best interest of the child in a given matter is, according to Ayemoba v Ayemoba14 are “the relevant facts, relationships, claims, and wishes of parents, risk, choices, and other circumstances”. Additionally, Baffour v Anaman15 gives guidelines to consider when determining the best interest of a child. These factors include the age of the child; the need for continuity in the care and control of the child, as well as any other matter that will be of relevance. 

Going from the application of the welfare principle in various matrimonial and custody cases16 in Ghana, it is apparent that the courts will put the interest of the child over the interest of anyone, including their parents, in judicial matters. That notwithstanding, the welfare principle is meant to be applied in all matters relating to children17 therefore it can be said that the interpretation and effect given to this standard by the courts are suitable for the extra-judicial evaluation of certain practices and cultural norms that affect children negatively. 

REVIEWING SOME CULTURAL PRACTICES AGAINST THE WELFARE PRINCIPLE 

Every society is marked by certain practices which have long been practised by various generations of people who belong to that particular society. These practices are what is referred to as custom or culture. The long history of obedience has given these practices the force of law amongst its practitioners and in some jurisdictions, these cultural practices are recognized as part of the legal normative framework

Ghana is one of such countries that recognize customary law18 as a source of law. Customary law is defined as the rules of law by which customs are applicable to particular communities in Ghana. All persons are guaranteed the right to enjoy, practice, profess, maintain, and promote any culture so long as it does not dehumanise or injure the physical and mental well-being of another19. Therefore, like all other sources of law, customary law must be consistent with the Constitution to be valid20

Where a customary practice fails to meet this requirement it may be denounced by a judicial pronouncement. Thus, a custom may be abolished when the Supreme Court declares it inconsistent with the Constitution21. One ground on which such a declaration may be made is where it is shown that the practice interferes with the enjoyment of other constitutionally guaranteed rights.  Alternatively or in addition to such a declaration, Statutes may be passed to prohibit the practice of abhorrent cultural practices. A case in point is the abolishment of Female Genital Mutilation (FGM) by criminalizing it22. FGM refers to the removal of some part of the clitoris of a woman and is prevalently practiced in the Northern part of Ghana. It is said to promote chastity in women by decreasing their sexual desires.

Another undesirable cultural practice that has been addressed by legislation is child or early marriage. Typically, this union is between a young female and an older man and the arguments made in support of these types of marriages are to the effect that it is a mechanism to promote chastity, prevent premarital sex and pregnancies out of wedlock23. Also, because the marriage brings honour and respect to the bride and her family24 within the societies that practise it, parents are motivated to engage in it. 

Along with the express criminalization of child marriages25, there are various provisions in different other enactments that when examined collectively buttress the fact that these sorts of marriages are not sanctioned in our jurisdiction. 

The Matrimonial Causes Act first of all makes marriage to a person who has not attained eighteen years void26. Therefore, by law, a child lacks the capacity to marry because of this age requirement and any such marriage can be annulled27 whether or not there was a purported consent by the child. Again, a child also has the right to refuse a betrothal or marriage28 and anyone who tries to force a child may be prosecuted29. Similar provisions against marriages under compulsion and their legal effect are also included in the criminal laws30.

Also, there have been statutory inroads in the Criminal code made to protect children from being preyed on sexually by creating offenses such as rape31, defilement of a child under sixteen years of age32, incest33 to provide punishment for persons who engage in sexual activities with children with or without their consent.

THE WAY FORWARD 

Culture is said to evolve in response to the changing perspective of the people it relates to. Thus, it is difficult to reconcile the practice of cultural norms that do not serve the interest of the current generation. It has been said that where the rightness and validity of long-held customs are questioned they ought to be discarded or give way to new ones34.

Therefore, in Attah v. Esson35 customary law is described as the embodiment of the rules of conduct of the people at a particular time. These rules are said to represent what is reasonable in any given situation in society. Therefore, customary law must develop and change with the changing times. 

In our current phase of social development, values such as education36, right of opinion37, and protection from cultural practices that dehumanise or injure the physical and mental well-being of a child are of great importance to the society thus it would be unreasonable to uphold or sanction cultural practices that interfere with the enjoyment of these rights. 

Fortunately, the courts, in various instances where they exercised their powers to determine the validity of customary practices, have made it clear that they are reluctant to uphold customs that are impediments to the objectives of national aspirations38.  In the same breath, they have reaffirmed the right of citizens under the existing law to refuse to submit to the said customary practices.

Therefore, where an action is brought for that purpose, the courts ought to make a declaration of the unconstitutionality of such cultural practices along with orders to take any child affected by the same out of the custody of their primary caregivers where it is shown that they are not acting in the best interest of their children39

CONCLUSION

The vulnerability of children makes it imperative that the legal system robustly deals with threats to the enjoyment of their fundamental human rights. Society must ensure that all such threats are dealt with and not compromise on the interest of children even in the face of culture. 

  1. ARTICLE 28 OF THE 1992 CONSTITUTION AND SECTION 1 OF THE CHILDREN’S ACT,1998 ↩︎
  2. CHAPTER FIVE OF THE 1992 CONSTITUTION OF GHANA ↩︎
  3. SECTION 26 OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) ↩︎
  4. SECTIONS 1 AND 2 OF THE JUVENILE JUSTICE ACT, 2003 (ACT 653) ↩︎
  5. ARTICLE 28, SECTIONS 71 AND 96 OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29)  make the exposure of a child to danger and the abandonment of an infant misdemeanours respectively. Also see R v Friend as applied in R v Instan ↩︎
  6. Koomson, P. A. (2018b, March 12). The Children’s Act, 1998 (Act 560) of Ghana in retrospects. Academia.edu.https://www.academia.edu/36145559/THE_CHILDRENS_ACT_1998_ACT_560_OF_GHANA_IN_RETROSPECTS, AND ARTICLE 28 ↩︎
  7. SECTION 77, 78 AND 79 OF ACT 29 ↩︎
  8. SECTION 6 OF THE CHILDREN’S ACT, 1998 ↩︎
  9. ARTICLE 28 (1) (C) OF THE 1992 CONSTITUTION ↩︎
  10. SECTION 1998 OF THE CHILDREN’S ACT, 1998, THE JUVENILE JUSTICE ACT, 2003, ARTICLE 28 OF THE 1992 CONSTITUTION ↩︎
  11. ODOGWU V. ODOGWU (1992) JELR 43170 (SC) ↩︎
  12. JOSEPHINE SOKROE OF TARKWA (SUING AS ADMINISTRATOR OF THE ESTATE OF THE LATE HAYFORD WOGBE V. ANTHONY KOFI ASSMAH (2013) JELR 65612 (HC) ↩︎
  13. SECTION 1 OF THE CHILDREN’S ACT, 1998 (ACT 560) ↩︎
  14. AYEMOBA v. AYEMOBA (2018) JELR 38483 (CA) ↩︎
  15. MICHAEL KYEI BAFFOUR V. GLORIA CARLIS ANAMAN (2018) JELR 63966 (CA) ↩︎
  16. PETER ADJEI  v. MARGARET ADJEI (2019) JELR 91841 (CA) ↩︎
  17.  SECTION 2 OF THE JUVENILE JUSTICE ACT, 2003 (ACT 653) AND SECTION 2 ACT 560 ↩︎
  18. ARTICLE 11 OF THE 1992 CONSTITUTION ↩︎
  19. ARTICLE 26 OF THE 1992 CONSTITUTION ↩︎
  20. ARTICLE 1(2) AND MENSIMA AND OTHERS v. ATTORNEY-GENERAL AND OTHERS JELR 85265 (SC) ↩︎
  21. ARTICLE 1(2) AND MENSIMA AND OTHERS v. ATTORNEY-GENERAL AND OTHERS JELR 85265 (SC) ↩︎
  22. SECTION 69A OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) ↩︎
  23. Ahonsi B;Fuseini K;Nai D;Goldson E;Owusu S;Ndifuna I;Humes I;Tapsoba PL; (n.d.). Child marriage in Ghana: Evidence from a multi-method study. BMC women’s health. https://pubmed.ncbi.nlm.nih.gov/31690301/  ↩︎
  24. Owusu, S. (2023, July 2). Child marriage in Ghana: Evidence from a multi-method study. BMC Women’s Health. https://www.academia.edu/104146895/Child_marriage_in_Ghana_evidence_from_a_multi_method_study?sm=b ↩︎
  25. SECTIONS 14 AND 15 OF THE CHILDREN’S ACT, AND GYAN V GYAN (2023) ↩︎
  26.  SECTION 13(2) OF THE MATRIMONIAL CAUSES ACT, 1971 (ACT 367) ↩︎
  27. ASAMOAH GYAN v. GIFTY GYAN (2023) JELR 111286 (CA) ↩︎
  28. SECTION 14 OF THE CHILDREN’S ACT, 1998 (ACT 560) ↩︎
  29. SECTION 15 OF THE CHILDREN’S ACT, 1998 (ACT 560) ↩︎
  30. SECTIONS 109 AND 100 OF ACT 29 ↩︎
  31. SECTION 98 OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) ↩︎
  32. SECTION 101 OF ACT 29 ↩︎
  33. SECTION 105 OF ACT 29 ↩︎
  34. HAMMOND V. ODOI AND ANOTHER (1982) JELR 66553 (SC) IN AHEVI V. AKOTO IV (1992) JELR 64889 (HC) ↩︎
  35. ATTAH AND OTHERS V. ESSON (1975) JELR 69187 (CA) ↩︎
  36. SECTION 8 OF ACT 560 ↩︎
  37. SECTION 11 OF ACT 560 ↩︎
  38. AHEVI V. AKOTO IV (1992) JELR 64889 (HC) ↩︎
  39. SECTION 5 OF ACT 560, JOSEPHINE SOKROE OF TARKWA (SUING AS ADMINISTRATOR OF THE ESTATE OF THE LATE HAYFORD WOGBE V. ANTHONY KOFI ASSMAH (2013) JELR 65612 (HC) ↩︎
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