‘Dr Kwame Nkrumah: Of the Separation Thesis and the Raison D’être for the Institution of Legal Education in Ghana’ by Abudu dan Sokoto II.

Irregardless of the separation thesis (a major motif of legal positivism) and similar overgeneralised arguments made about law, this short essay is a testament to the symbiotic relationship between law and morality in Ghana. So, even if the separation thesis holds true in other jurisdictions, in Ghana, the law flows from morality.

Dr Kwame Nkrumah quoted with approval Ibn Khaldun who argued that the importance of law depends on its ability to capture the will of the people. Lawyers, Kwame Nkrumah pointed out, must grasp the spirit of domestic laws, the principles that guide the state, and the reasons why laws are enacted in the first place.

To Dr Nkrumah, as law does not operate in a vacuum, its importance is only measured in relation to its utility to the people. For this reason, law that is appropriate to the Ghanaian context and not distant from the aspirations of the Ghanaian people should be welcomed and taught.

The foregoing statements of Nkrumah point to a sociological view of the law. Such a view takes the law to be a reflection of what happens in the society. The law should contain the moral aspirations of the people. The validity of the law will then depend on its usefulness to the people and as such the law should respect the way of life––e.g. values, beliefs and morality––of the people. Sociological jurists, like Roscoe Pound, argue that law should be tailored to a social end; an end that will further the welfare of the people. This welfare is a key feature of the Ghanaian ethical system.

The community will never be well served if its laws do not take into account its way of life––its moral and religious aspirations. Religion permeates every aspect of the Ghanaian life and scholars such as Opoku and Sarpong have argued that religion is the source of Ghanaian morality. Consequently, the success of the law can be measured by this consideration: that the religious (or moral) aspirations of the people are factored into the making of law.

Where society is the originator of the moral code—as Gyekye and Wiredu argue— it logically follows therefore, that, when the society makes laws, such laws will invariably have much moral content. So, when there is a delegation of such authority to make laws, the legislator’s limits will be thus delineated by the society such that the laws made will not be contrary to what the society would have made nor be contrary to those mores created by the society.

Dr Kwame Nkrumah made these remarks at the formal opening of the Accra Conference on Legal Education and of the Ghana School of Law, 4th January, 1962. It can be reasonably argued that the failure of law being tuned to the realisation of the aims of the society, of capturing the moral and religious ideals of the people for whom the law was made, would mean failure of legal education in Ghana. The purpose of this legal education in Ghana was pronounced by the then president Dr Nkrumah in his speech at the opening ceremony. When such reasons for founding a law school and establishing a law faculty at the University are disregarded then the failure to achieve such goals would mean failure of legal education.

The searching questions which therefore arise are these:

1. Has legal education achieved the purpose for which it was instituted in 1962?

2. If not, how close is it in achieving that purpose?

3. What is the preoccupation of the law?

4. Is it the promotion of the welfare and aspirations (moral and religious) of the sovereign people?