A New Legal Framework for the “Ownership” of a Deceased Person in a Legally Plural Ghana
Authors: Ama F. Hammond and Prosper Batariwah
Affiliations: BA (Cape Coast); LLB (Ghana); LLM (Harvard); PhD (Uni. British Columbia); Senior Lecturer, University of Ghana School of Law; LB (Ghana); Barrister-at-Law; Graduate and Teaching Assistant, University of Ghana School of Law
Source: Journal of Comparative Law in Africa, Volume 10 Issue 2, p. 40 – 76
Any funeral in Ghana is a family business. Families hold elaborate ceremonies to mark the death of their deceased family members. Strict fulfilment of the duty to bury is said to ensure the seamless transition of the deceased from this life to the next. In Ghana, the extended family of the deceased has custody and control over the dead body for the purpose of burial. However, the heterogeneous nature of modern Ghanaian society, the rise of the nuclear family, and modern socio-legal values have increased disputes over the dead body, often between the extended family and the nuclear family. Against the background of Ghana’s pluralistic legal system, we investigate the context in which such disputes take place and how the legal system responds. We draw on field interviews to critically compare the living customary law with Ghanaian common law, judicial customary law, statutory law, and the experience of other jurisdictions. We note that the customary law principle of being owned by one’s extended family is well established, usually overriding other systems of law. Nonetheless, we argue, drawing on the experiences of other African countries, that the nuclear family should be given greater opportunities to participate in decisions relating to the burial of the deceased. We propose a framework that reflects the needs and aspirations of both kinds of families.