Human Rights and the Widow's Material Security: The Case of the "Intestate" Ghanaian Widow By

Over the years , especially since the 1 948 Universal Declaration on Human Rights was enunciated, many aspects of human life have been recognised as touching the essence of the dignity and welfare of life itself. That is why the more formal environment of "human rights" , namely, the liberal vision that human rights consist essentially in the enjoyment of civil and political rights, has been expanded and surpassed by the incorporation of "economic, social and cultural rights " into the framework of human rights j urisprudence and practice.

In Ghana, marriage can be contracted under custom, or under statute based on the English common law. However, since every Ghanaian belongs to a customary law system in which the rules of inheritance favour the wider family above the spouse, especially the widow, even where a statutory marriage is dissolved by the death of one spouse, the statutory rules goveming succession to mari tal property in the absence of a will are, in practice, invariably undermined by the deference given to the applicability of the personal (customary) law of the deceased. The prevalence of this phenomenon works to greatly disadvantage the widow in particular.
The article posits the discussion in the context of the global and regional (African) rights regimes. The treatment of the "marriage life" of women in these regimes is analyzed so as to indicate the extent to which they could be said to lay the juridical and "inspirational" framework in which states may be expected to take the necessary remedial actions for their own systems. The consideration of the "African" context of this matter is not by any means comprehensive because, by necessity, only a sprinkling of examples from a handful of African countries is possible in this paper. The discussion and analysis of the Ghanaian case wraps it up.

The Global Context
The Charter of the United Nations (UN Charter) recognises, in its preamble, the "dignity and worth of the human person", and importantly, the "equal rights of men and women". It is its aim to promote the observance and respect of this equality and worth without distinction between, inter aUa, the sexes. l The UN Charter bristles with provisions ob li ging member States to co-operate, as weil as take individual steps to ensure the realisation of these aims and objectives. Thus, the standards which are enunciated as elaboration of the United Nations' commitment to human rights observance become pointers to the specific steps member States are expected to take to meet their Charter obligations in this respect. The Universal Declara tion of Human Rights, 1948 (Universal Declaration), 2 becomes the point of departure in this exercise of elaboration. Setting out general, but fairly comprehensive principles, the Universal Declaration proclaims itself as a 2 490 "common standard of achievement for all peoples and all nations, to the end that every individual and organ of society, keeping this declaration constantly in mind, shall Charter of the United Nations, Art. 55 (c).
Gen. Assembl. Res. 217 A (III), 10 Dec., 1948. For text, see International Human Rights Instruments of the United Nations, 1948-1 982, UNIFO Publishers, New York" 1983, at p. 5. strive by teaching and education to promote respect for these rights and freedoms by progressive measures, national and international, to seeure their universal and effec tive recognition and observance . .. ,,3 It is thus clear that member States need not wait for every detail of what may be consid ered inequitable relations among their populations to be spelled out in an international instrument befo(e they take steps to rectify them. Besides, the specific circumstances of each society demand localised methods of identifying inequitable inter-personal relations, as weil as locale-specific and locale-relevant remedies for their reversal. 4 The basic jurisprudential assumption of international human rights law would therefore, perhaps arguably, be said to be the non-necessity of specific ap riori formulation of notions and manifestations of "human rights" in conventions, instruments, declarations, etc., before they could be observed in practice. Thus, the recognition of inherent human dignity, and the moral and legal obligation upon individuals and State authorities to respect that dignity in daily life, is transcendental to anY juridical postulates defining and codifying those rights, or for that matter, prescribing detailed and specific rules to secure their observance. However, the very historie al background to the adoption of the Universal Declaration, and indeed every single human rights instrument and their monitoring and implementing institutions, volubly bespeak the glaring absence of commitment to observe human rights around the world. 5 That is why it has always been argued that the Universal Declaration, for instance, has never inhered in legal authority and enforceability by itself. And that is why the rules of treaty law have applied to the signature and ratification of human rights conventions: the faculty to choose to be party to, or not, or to be party with reservations to specific rights provisions in these instruments, has applied with equal force to human rights instruments as to other international treaties. The former have ne ver been treated differently simply because they may be said to enunciate principles and philosophies that are universally cognisable as applicable to all societies. Thus, even if the obligation to observe and/or protect human rights is juridically character ised as a peremptory norm of international law from which no derogation is permitted, the specific content of observance as to specific postulates of the obligation in specific social 4 5 Id., preamble at para. 8. This platitude is more than amply evidenced in the contributions in K.E. Mahoney / P. Mahoney (eds.). supra note 4.
contexts remain largely indeterminable as a manifestation of that peremptory norm. So that if after over forty years the argument that the Universal Declaration is jus cogens can be sustained, 6 still the value of its peremptoriness can consist only in the extent to which its specific principles, as enunciated, expressly or impliedly inform the concrete measures that States (and individuals) adopt to effect changes to inequitable social and inter personal relations in law and in practice.
to point to. For indeed, the Marriage Convention is predicated upon Article 16 of the Universal Declaration. 9 Of particular import for our discussion is its recognition that "certain customs, ancient laws and practices relating to marriage and the family are inconsistent with the principles" set forth in the Uni ted Nations Charter and the Universal Declaration, and oblige States to take measures to abolish them. \0 In other words, the universal system obligates States, through these flexible and general principles, to secure the place of spouses and by inclusive implication, children, in a family law regime and practice whose purpose should be to provide against pre-existing and contingent inequi table incidents in the marriage relationship as they affect either party.
Provisions in other United Nations instruments underscore the above point, especially as it relates to women. The Declaration on the Elimination of Discrimination Against Women, for instance, notes that where women are not treated as equal with men, the welfare of the family, the rearing of children and the development of the State in all areas are undermined. 11 Article 6 of that Declaration therefore requires States to take steps to ensure that women have the right, inter alia, to acquire, dispose of and inherit property, "including property acquired during marriage". It is noteworthy that this Declaration makes no distinction as to wh ich of the spouses acquires the property which the woman can inherit, so long as the property was acquired during marriage. On the other hand, the provision argues against the commonplace assumption that women cannot independently acquire property during marriage, or that they cannot be held as legally entitled to inherit their husbands' property.
These standards are further underscored by Article 16 of the Convention on the Elimina tion of All Forrns of Discrimination Against Women. 12 The Convention demands also that legislative and other measures be adopted to "modify or abolish existing laws, customs and practices", as weil as social and cultural patterns of conduct which prejudice women, based as they are on the "idea of the inferiority or the superiority of either of the sexes or 13 on stereotyped roles for men and women". Preamble to the Declaration at paras. 5 & 6. See also Arts. 1-3. For text, see supra note 2 at pp. 103-104.
Id., Articles 2 (I), 5 (a). This provision affmns the evidence disclosed by the case law arising from national and international enforcement of global, regional and national human rights instruments, that women's interests are inadequate1y protected in many areas relative to the interests of men; and it demands that the situation should change: see Rebecca J. Cook, International Human Rights Law Concerning Women: Case Notes and Comments, (199 1) 23 Vanderbilt J. Trans. L., p. 779.
Thus far, it can be observed as fo lIows: firstly, that theoretically, these international instruments set forth the basic principles necessary to ensure that States act to remove the disparities between the circumstances that spouses find themselves in upon the death of one of them. It is common knowledge, however, that widows are more gravely disadvan taged than widowers in cases of intestacy.
Secondly, beyond setting forth the above principles, the global system hardly does much more. The Marriage Convention, for instance, does not require that States report on the concrete actions they may be taking to ensure the elimination, modification, reversal or otherwise, of customary laws and practices which, in the context of the family, work against women (or men). Each State is therefore left to go at its own pace in taking any such measures, if at all. More fundamentaIly, States are at liberty to accede, or decline to accede to the international instruments, and therefore to conform to them or not. But since individual nations' decisions an these matters are made under influences and considera tions founded in domestic economic, political, social, religious and other factors and pressures, the inspiration offered by the universally desirable standards set out in the international instruments becomes of secondary import when the decisions have to be made.
14 The Convention on the Elimination of All Forms of Discrimination Against Women provides for a Committee on the Elimination of Discrimination Against Women to consider national reports on the legislative, judicial, administrative and other measures adopted by States to implement the provisions of the Convention, and to make recommen dations and suggestions thereon. It can therefore be finnly said that while the global system is obviously committed on paper to alleviating the innumerable inequities to which women are subjected in their marital lives, there is an almost conscious unwillingness to provide fully for the practical measures that will initiate and sustain the realization of the results envisaged by the goals set out in the human rights instruments.

III. The African Regional Context
Perhaps the limited initiatives of a global approach to the alleviation of problems of this nature can be excused by the fact that the global instruments themselves intimate that the onus of effort in attending to them must rest upon national and other agencies. In Africa, so-ca!led peculiarities of human rights issues on the continent led to the adoption of the African Charter on Human and Peoples' Rights (African Charter) in 1981. These pecu liarities are said to stern from the economic, socia!, political and cultural characteristics of a continent which has been free from colonial rule for barely three decades now. 17 The African Charter declares itself as taking inspiration from the Universal Declaration, but does not consider that its principles should inevitably be interpreted in the light of all the other international instruments concluded pursuant to the Universal Declaration. This happens to be the case because, arnong other things, the African Charter accords supreme power to the working of national laws in human rights practice on the continent. These laws are allowed to determine the nature, scope and content of the various 'human rights' which individuals, groups, peoples and families can enjoy. 18 17 For an overview of these issues, see Rhoda Howard, supra note 14, Chps. In this context, the protection accorded families and women becomes a matter of some interest. The African Charter places due emphasis on the fact that civil and political rights must be enjoyed simultaneously with economic, social and cultural rights. Naturally then, the family which has a central place in the sociological and juridical conception of African societies is dec1ared to be the "natural unit and basis of society" to be protected by the State.
19 Additionally, every individual is under a duty to "preserve the harmonious development of the family", and to work for its "cohesion and respect"? O The African Charter thus obligates both State and citizen to enhance the status of the family, and to secure its place as the founding unit of society, This obligation takes heightened significance in light of the recognition that the family is the "custodian of morals and traditional values recognised by the community ". 21 These are the standards that the African Charter sets itself to protect, among other things, and which it says should fu rnish its interpreters with principles to draw upon. 22 As pointed out earlier, a central figure in the family is the woman. Her place in the Afri can family system, particularly regarding inheritance from her family or from her husband upon the latter's death, is largely inequitable vis-a-vis that of her male relatives and her husband. In light of this, it is debatable how much an African woman can expect to be much beuer treated in the family system under both the customary and statutory law regimes of the countries which are party to the African Charter, simply because of that Charter.
The provision under the African Charter regarding women says as folIows:

19
"The state shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman ... as stipulated in international dec1arations and conventions.,, 23 African Charter in 1992. Its constitution contains a Bill of Rights that reflects a comrnitment to liberal democratic proteetion of civil and political rights. So far, its Supreme Court has shown sensitivity to that objective, but it cannot be said how much the African Charter has contributed to this. For details, see Gino J. Naldi, Some Reflexions on the Namibian Bill ofRights, (1994)  Analysts looking at the extent of the proteetion accorded women under the African Charter are quick to point out that by referring to the applicability of other international rights instruments, the Charter makes African women the guaranteed beneficiaries of an exten sive array of rights -civil, political, socio-economic, etc. They argue that the provision ensures, or at least indicates that African governments are committed to eliminate such abuses against women as genital operations, female child betrothaI, and women's inability to acquire property' independent of their husbands? 4 Theoretically, that may be so. Indeed, in most African countries, constitutions and other statue:; provide for the equality of the sexes. Further, the majority of African States, -incIuding Ghana -have ratified the African Charter. But the contingent reality is that African States undertake, within the Charter system, to guarantee those rights to the extent that the modes employed to ensure their observance are consistent with, and draw upon the traditions and customs that exist within the societies of each State. This does not, by any means, indicate a commitment to let lie existing obnoxious customs and tradi tions. However, the overall context of the Charter guarantee of rights emphasises primary commitment to economic development. The State's assumption of an obligation to ensure the development of the family in Articles 18 and 29 is couched in the context. So that where it is possible to ignore customs which advantage men over women so as to ensure a peaceful climate for economic activity, the State is within its rights under the African Here was a dear case of a governrnent intentionally refusing to protect the stability of family life contrary to its obligation under the African Charter, and doing so in a way that discriminates against wornen. If this is possible in the seemingly innocuous area of family life, then it cannot be vouchsafed Indeed, under the Charter as a whole, a careful balance is maintained between the rights of individual tribes to their economic and cultural development on the one hand, and the overall authority of the State to pursue the same goal. As weil, the rights of minorities are subsumed to the overriding interests of the State, even though the rights of these minori ties are not, thereby, necessarily suppressed? 6 However, the important aspect of this arrangement is its clear statement that the main commitment of the States to the expected guaranteed observance of rights under the Charter lies more in ensuring national economic development, and if need be, by derogating from the rights of individuals, groups, etc? 7 In th e family context, the items that become the subject of inheritance are generally of important economic value. Among other things, they include land, other realty and cattle. In many African societies, women are not favoured to inherit these things from their husbands (and/or their fathers). It is thus obvious that protection for women within the regime of the law of the family is no more secure under the African Charter that it has been in the practice of the societies and States on the continent. African Charter, supra note 19, at Arts. 19-24.
It must be appreciated, however, that partly for reason of the economic difficulties that African States continue to face, they are forced to derogate from their citizens' basic socio-political and other rights in order to carry through the economic measures dictated to them by international economic institutions. For them, therefore, rights observance or lack thereof is correlated, justifiably andJor excusably, or not, to their having to juggle complicated socio-economic circumstances against their in-principle acceptance of the obligation to uphold such rights: see , E. blunt the edge of the inequity that women face under the customary system. Even though the African Charter has been in force since 1986, it has hardly influenced these two States to take the measures necessary to harmonise practice under their customary regimes with their relevant common law and statutory rules.
Thus, in Nigeria, even though a woman's relationship to her husband's family is govemed by the Marriage Act and customary law, in general most women's lives are govemed by customary laws and practices which subordinate [them]. For example in separation and divorce cases, women must introduce moral appeals to receive child support, despite the fact that the Act gives both parents child custody rights. Women generally are not concemed with legal proprietary rights or equitable entitlement to matrimonial property while married despite their substantial contribution towards the construction of the horne.
[Thus] problems arise when the man leaves, [because he can dispose of the property without considering the woman's input ... [and the difficulties she faces in seeking access to her interest or entitlement to the matrimonial property are graver when her husband dies] ? 9 The situation is not better in Uganda where "customary law is most often applied to matters of succession and inheritance to property". Practice under most of these laws is to the effect that the widow is treated as the property of the deceased to be inherited as the wife of a male relative. If she refuses, she may be forced to return to her horne. The deceased's horne is usually given to the heir, who evicts the widow from the house. The rest of the deceased's property is usually shared among the male relatives. It is unheard of in some areas for a woman to inherit land or cows, both major economic resources in Uganda. There is a fear that she may remarry and the land or cows will go to another clan. Thus, when a woman's husband dies, she is deprived of all her deceased 30 husband's property.
These customs operate even though the Uganda ludicature Act provides that only customs which are not repugnant to natural justice should have the force of law in the country? 1 Their continued operation is indicative of their overriding control and superior force in the family law regime, a force which African governments are slow to tackle for various reasons, including the political . This is why even where there are laws that entitle women to inherit their husbands' property either under will or upon intestacy, the inheritance does not accrue to the woman because, in practice, the customary rules which determine 30 Id., at p. 50.
succession overrule the statutory provisions. Even where a husband wills the property to his wife, customary successors and executors subject the will's dispositions to custom to determine its consistency with the latter. Conflicts and/or inconsistencies are resolved in favour of custom ?
2 It is important to note that the property in issue in these cases are not only personalties, but realties of proven economic value. A decisive intervention on the part of the State to enforce legislation seeking to seeure the rights of the woman against the customary inheri tors becomes an intervention of economiC consequence wh ich, in many cases, can lead to social commotion of a sort. Thus, the African Charter's leaning in favour of economic development as the primary right to be achieved does not encourage, let alone oblige State-parties to seriously pursue the rectification of these fundamental inequities affecting .
. h f' l 33 women as agamst men m t e ami y context. Appeal No. 70 of 1989, reported in 87 Intl Law Reports, p. 106), Pastory had inherited clan land under will. In 1988, she sold it to Kaizilege. Ephrahim, Pastory's nephew, sought a declaration that the sale was void because under their Haya customary law, Pastory could not seil clan land. lustice Mwalusanya held that he could not affirm the continued operation of the Haya customary rule which entitled men to inherit and seil clan land, but did not give the same rights to women from the same clan. In his view, such a rule amounts to sex discrimination and flies in the face of the Tanzanian Bill of Rights and the international conventions that outlaw discrimination against women, treaties to which Tanzania is signatory . Cf. contrary attitude of the Tanzanian Court of Appeal in similar rights issues: c.M. Peter, supra note 18, at pp. 142-149. It should be noted that the right in contest in the Ephrahim decision is not between a widow and her husband's family. But the principle it establishes portends weil for the situation in which a woman asserts a right of inheritance to her deceased husband's property, especially where statutory law supports her claim. This is so in Zimbabwe where incremental statutory remedies have provided against the deprivation imposed by custom upon widows as to their right to benefit from their deceased husbands' estates. The main difficulty -as in the case of Ghana, infra -is that the women and other entitled individuals are generally ignorant of these statutes and so do not avail themselves of their provisions: see Julie Steward, Who Gets the This result is incongruous with Article 75 of the Treaty Establishing the African Economic Community, lune 3, 1991, in (1991) 30 ILM, p. 1241. This treaty, aimed at ensuring that both Africa's men and women contribute their quotas to the continent's development, demands of member states in that Article to "formulate ... and establish appropriate policies and mechanisms for the full development of the African woman through the improvement of her economic, social and cultural conditions ... and to take measures necessary to ensure greater integration of women in development activities ... ". Seeing that African women's contribution to the continent's economic performance from their relatively handicapped position is immense, the failure of the States to seeure the women's access to economic resources out of political deference to inequitable customary rules would obstruct the realization of the economic objectives prioritized under this treaty and the African Charter.
By way of preliminary conclusion, it can be said as folIows: 1. That at both global and the African regional levels, the juridical principles demanding the proteetion of the material circumstances of a widow exist. These principles require decisive national action through the formulation and implementation of legislation to meet the obligation. The legislative and other measures taken in pursuit of this obj ec tive must undermine contrary customs, where necessary, especially in their enforce ment.
2. That generally in Africa, the inequities that widows endure 'are bound up with their pi ace as women in the social, juridical and economic contexts of their societies. These realities remain formidable and in many cases, entrenched in the conduct of societies so much so that African governments seem wary of disturbing the "hornet's nest" that they seem to be, presumably in favour of the peaceful pursuit of economic develop ment.
Nevertheless, it must be emphasised that the adoption and committed implementation of ameliorative national legislation remains the most hopeful means of breaking the resil ience of custom respecting this matter. Such legislation could make headway if its con tents seek a compromise between customary law, particularly as it affects women, and the desirable ends that the State may wish to achieve within the framework of its international rights obligations. Seeing that African societies are largely rural, and the majority of its population unlettered, massive education campaigns would have to be conducted to farnil iarise the peop1e with any such law. The institutional structures that this requires must also be provided. And, as a matter of tactic, flexibility must inform this process from the formulation of the legislation through to its implementation and enforcement. 34 Ghanaian law has moved in this direction over the years . The rest of this paper looks at how far this move could be said to have made improvements to the fortunes of, especially, an intestate Ghanaian widow.
34 Zimbabwe is taking these steps: see relevant references at note 32. IV.

The Widow's Right of Intestate Inheritance Und er Ghanaian Law
The discussion here traces the development of the Ghanaian widow's succession to her intestate husband's property under customary law as tempered by judicial intervention, through to the changes introduced under statute.

Th e Customary Law and the Courts
The pristine doctrine of customary law regarding the relation of spouses as to the acquisi tion of property in Ghana is that while it is the "domestic responsibility of a man's wife and children to assist hirn in carrying out the duties of his station in life" -such as farm ing and business, the proceeds of this joint effort ... and any property which the man acquires with such proceeds, are ... the individual property of the man. It is not the joint property of the man and the wife ... The right of the wife and the children is a right to maintenance 35 and support from the husband and father.
For this reason, when the man dies intestate, his self-acquired property becomes family property, i.e., the property of the wider family from which the man as an individual comes. The wife may not belong to that family. In the matrilineal societies of Ghana, the children do not inherit from that family. The more telling situation is that even if the wife belongs to that family, while she may have no right of succession to her husband's prop erty in general, she has no ascertainable entitlement to any share of his property, and certainly not to his real property.
36 Her only right is to be maintained by her husband's family. This right terminates when she is given in marriage to another member of the deceased husband's family, who then maintains her according to his own standard of life.
If she chooses not to be so married, her husband's family's responsibility for her mainte nance ceases at that point. Alternatively, that responsibility ceases also should the With changes in economic and social circumstances, Ghanaian courts have recognised that the foregoing, and other incidents of customary marriage, especially the legal conse quences attaching to the 'non-rights' of widows respecting their husbands' properties, cannot be held as remaining the same. This is because it has become common knowledge that in many cases, the contribution of the women to the acquisition of such properties goes far beyond their customary responsibility towards their husbands, even though the husbands happen to be invariably credited with sole acquisition of the properties in ques tion. The need to temper the structure of the customary rules with notions of equity became more urgent in view of the fact that Ghanaian customary law does not have a doctrine of survivorship. For this reason, even if a couple acquired joint property, and there is evidence to prove the same, the presumption of customary law, particularly in practice if not in law, is that the husband's share of the property belongs to hirn without reference to the wife, and therefore devolves upon his wider family? 8 The main reason for this result is the presumption that the husband would have made the larger contribu tion to the acquisition of the property -if not all the contribution -especially where the wife's contribution is not meticulously documented? 9 In that situation, a wife (with her children) easily loses her right to a house she jointly acquired with her deceased husband. The consolation customary law gives her is to recognize her right of residence in the house built by her husband for the rest of her life under the sufferance of the husband's family.
In the early days of the courts' intervention in this matter, the main variation they made regarding this misfortune that the widow faced was a decree allowing her to choose to live elsewhere and to sub-let her accommodation in her husband's house and receive the 37 Id., ibid.
38 See Sarkodie J., in Abebreseh v. Kaah and Others, (1976) 2 GLR, p. 46, at p. 55. In the absence of a 39 customary rule, the courts think that survivorship respecting matrimonial propeny could be presumed only with respect to househoId chattels. The presumption is that such chattels are the "joint propeny" of spouses with a right of "survivorship in the absence of any direct evidence as to who actually bought them". In other words, if it is known that it is the husband who bought them, the "interest of the widow and children should be limited to their use, and since This was likely to have been the result in Abebreseh v. Kaah and Others, supra note 38, but for the overwhelming evidence adduced by the wife, with corroboration from witnesses familiar with the process of the acquisition of the property in issue.
income accruing from it. 40 Since then, however, the courts have added to their equitable reliefs for the widow: they have recognised her, and her children's, right to a possessory interest in the husband's self-acquired real estate, their entitlement to its quiet enjoyment, and in the appropriate case, exclusive possession over and above the interests of the husband's family. The courts emphasised that this right of possession passes on to the descendants of the husband through his children with the wife (or wives) in question. As weil, they have recognised that household chattels such as fu rniture, refrigerator, kitchen utensils, etc., belong to the widow absolutely upon her husband's death intestate. 41 As pointed out above, the courts adopted this 'progressive revisionary' attitude towards the concrete manifestations of the customary law because of socio-economic changes, and their recognition of the contribution made by customary law wives to whatever wealth their husbands acquired. 42 But the important limitation to this piece-meal judicial inter- The courts did exercise, and still exercise this discretion in cases where husbands die intestate, but especially in settling property rights between divorced spouses. Generally , they proceed by ignoring the system of law (customary or statutory) under which the marriage was contracted pursuant to Section 41 of the Matrimonial Causes Act, 1971 (Act 367). But they justify the exercise of this equitable discretion on two grounds: first, where the wife paid the purchase price of the property in question, notwithstanding that legal title was conveyed solely in the name of the husband. In that case, the husband is held as trustee of the wife's property : see Bulley-Neequaye v. Acolatse (unreported), digested in (1969) Current Cases, p. 51; Quist v. Brown, (1974) 1 GLR, p. 1; Yeboa v. Yeboa, (1974) 2 GLR, p. 114;Reindorf v. Reindorf, (1974) 2 GLR, p. 38. Secondly, they look for cIear evidence that the wife made a financial contribution towards the purchase of the property, and irrespective of who holds legal title, the property is considered as jointly held between husband and wife: Quartey v. Armah, (1971) 2 GLR, p. 23 1. Indeed, the courts would even go behind a business registered in the husband's name to determine the wife's contribution to the initial capital, and her role in the generation of the profits and proceeds accruing from it: see the customary law marriage case of Domje v. Adu,  Ghana Law Reports Digest (GLRD), p. 77. Thus, when in Achiampong v. Achiampong, (1982-83) GLRD, p. 104, the divorced wife asked for a decIaration of entitlement in one particular house belonging to the husband, the Court of Appeal demanded that she establish her direct financial contribution, or show that she applied her income for the benefit of their children and themselves thereby a1lowing the husband to acquire the property in dispute, or prove that there existed an agreement entitling her to the interest she cIaimed. But the Courts are slow to accord beneficial financial value, and by implication, proprietary interest to the domestic services of the wife where those services freed the husband to acquire property. Tbe judicial attitude here is reminiscent of justice vention is that those widows who can afford to bring their cases to the courts are the only ones who may have any chances of overturning the destiny charted for them by customary law during their widowhood. And it should be emphasised that this marginal chance of benefitting from the equitable justice of the courts is not limited to only the illiterate customary widows. The death intestate of a husband exposes even the educated widows, who may have contracted monogamous marriages with their husbands under the English law-based statutes, to practically the same difficulties. This is largely because the signal influence of these statutes on family life is their observance more in the breach than compliance. To further complicate the matter, there is almost always a fairly close rela tionship between the individual spouses and their wider families, making the honouring of the man's family's pristine interest in the fortunes of 'their son' more probable when he dies. This is the context in which the large influence of custom must be appreciated. In it, the courts essentially become occasional commentators on a social dynamic whose nega tive influence on the lives of innumerable individuals they have not been able to do much about, in spite of their statutory power to the contrary. 43 In the foregoing context, the most hopeful prospect for a widow benefitting from her deceased intestate husband under customary law would have been where the husband made an oral customary will, called semansiw. This will is, presumably, most common among the Akans, the dominant ethnic group in Ghana, which also happens to be predi monantly matrilineal. To be valid, the will must dis pose exclusively of the man's self acquired property, and be made in the presence of credible witnesses. These witnesses must hear the declaration and attest to its contents. It is also important for the validity of the will that it be made in contemplation of death. This does not mean that it has to be made only when the testator is about to breathe his last; it just has to be made as a last will and testament.
This oral will thus presents a JudiciaI-customarily' valid opportunity by which a husband could make adequate provision for his wife and children. Under Section 20 of the Matrimonial Causes Act, 1971 (Act 367), the courts are given the power and duty to order property rights to be changed in divorce cases where this seems necessary for justice to be achieved. So far, they have not used this power creatively, preferring to stick to the common law and equity principles relating to disputes over matrimonial property. With this history , there is even less hope that they would be bolder where the property dispute involves a widow and the family of her be disturbed by family members on any side, and proof of its existence makes it enforce able by the courts . 44 However, as pointed out above, the closeness between 'sons', expecially from the matri lineal ethnic groups, and the families they come from has more often than not meant that their inheritance matters are discussed with their family members rather than with their wives. As weil, the witnesses who are most likely to be credible when they testify to the dispositions made are usually the man's family members who, of course, informally or otherwise influence the content to those dispositions. In any case, given the context of Ghanaian family li fe and the influence of the mores of customary inheritance, these decla rations are not as common as would have been thought, nor are they always respected when made. 45 Clearly then, not even from the semansiw source in the customary law of inheritance does a widow have much hope of retaining the standard of living she and her intestate husband may have attained by their joint efforts. This is why the legislative changes introduced have been of signal importance in the effort to reshape the legal regime on intestate succession in Ghana. We examine this next.

Legislative Changes
The courts' limited efforts have, over the years, been aided by specific legislation aimed at alleviating the hardship imposed by customary law on widows especially. Apart from the epoch-making, socially-responsive Intestate Succession Law, 1985, Section 13 of the 44 First of a11, it must be noted that the customary law will as a personal juridical faculty andlor capacity does not seem to originate in the ancient past of the Ghanaian ethnic groups among whom it would seem to have become an institution of custom. More importantly, its current customary status and formal juridical standing, as weil as the incidents that validate its execution have been developed pre eminently by Ghana's modern courts basing themselves on the 'customary' indications of its 'primordial' existence and criteria of validity. In the process of their developing it, the judges have asserted its generalised applicability andlor application across the country. It is in cognizance of this that a legislation like the Intestate Succession Law, 1985, PNDC Law III (discussed below) assumes the form and content of astatute of general application aimed at the amelioration of a 'national' system of inequitable customary rules on testacy andlor intestacy. Wills Act, 1971, and a constitutional provision originating in 1979 and retained over the years have sought to address the issue under discussion. The latter two are discussed first.

a) Th e Wills Act, 1971
This Act is not, of course, meant to govem situations in whieh a husband died intestate.
That is why its Section 13, which is relevant to this discussion, is important in showing the effort then made by the State to ensure that the death of a husband does not result in the automatie destitution of his surviving wife. As weil, the provision is important since irrespective of whether a husband left a will, customary law inheritors are quiek to secure what they consider to be their due before an "outlandish" document, as it were, disinherits them. How then does the Act treat a widow?
Under Section 13 of the Wills Act, 1971 (Act 360), the courts are given power to make "reasonable provision " out of the estate of a spouse (testator) far his widow (and father, mother and child). To benefit under this provision, a widow has to make an application within three years of the grant of probate of the husband's will. Beyond this, the High Court has discretion to make such a provision only if it thinks that the testator did not make reasonable provison for the widow either "during his lifetime" or "by the will". lf this was so, the court has to be further convinced that should it fail to make such provison for her "needs", she would suffer "hardship".
This statute places obvious limitations on the chances of a widow recovering under it. For instance, if due to inability to afford it, ar far some other reason she is not able to beat the time limi tation on her right to apply, she has no further chance. On the other hand, should there be evidence that a wealthy husband made what the individual High Court judge may consider "reasonable provision" for her when he was alive, then it would not avail her even if she applies early. Far, however, disproportionate the provision made by her husband for her in his lifetime may be in relation to the whole of the estate he disposed under the will, she remains automatically disqualified far any further provision if she could be said to have been reasonably settled by hirn. This limitation is especially unfair to a wife who may have been instrumental in the weaIth build-up of her husband in impor tant, even if intangible ways. As aIready pointed out, it is not uncommon, especially in Ghana's matrilineal communities, that by the influence of the interests of a man's family, the nature of the dispositions he makes under his will are actuaIly discussed not with his wife, but with the principal members of his wider family. These are the people who become the administrators of his estate under customary law should he die intestate, and who, as already said, would naturally secure their customary interests, and probably mare, even if he made a will.
A further limitation is that once the court considers that the widow is not susceptible to material hardship in view of her circumstances, then, whatever the case, she is not entitled to any further provision out of her husband's estate beyond the dispositions in his will.

b) Constitutional Provisions
The time aspect of the limitations under the Wills Act was effectively removed by Article 32 (2) of the Constitution of the Republic of Ghana, 1979. That constitutional provision was retained under Section 24 of the Provisional National Defence Council (Establish ment) Proclamation, 1981, the "legitimation Constitution" of the military govemment that ended the Third Republic operating under the 1979 Constitution. The provision requires that "no spouse may be deprived of a reasonable provision out of the estate of a spouse whether the estate be testate of intestate" .
It should be observed that, in practice, Ghanai an courts cannot and do not look at succes sion to deceased husbands' properties only in the context of a family consisting of a husband, wife and children. The wider family always pursues its interests, especially where the property in question is reasonably substantial. Thus, even though the provision referred to above guarantees the right of a widow to apply to a court for reasonable provi sion out of her husband's estate at any time, nothing else is particularly guaranteed. Where it is a case of intestacy, the husband's wider family's interest is secured by customary law, one of Ghana's constitutionally-recognised sources of law, wh ich the courts are seized to consider and apply. Where it is a case of testacy and the wife considers herself inade quately provided for, the court's discretion in what the final outcome of her application for "reasonable provision" may be cannot be lightly discounted; the exercise of that discretion cannot necessarily be expected to favour a widow over her husband's family. 46 That is why it inspires little confidence that the current operative Constitution of the Republic of Ghana, 1992, retains this provision. In Article 22 (1), the Constitution provides as fo lIows: 46 508 These observations are amply validated by the courts' handling of property settlement upon divorce, and in situations in which husbands died intestate: supra notes 40-43 and accompanying text. Clearly, apart from the time element, the constitutional provisions hardly guarantee any better chan ces of inheritance for a widow than did Section 13 of Act 360. Indeed, a wife who could not prove susceptibility to hardship if a court did not revise the provisions made for her in her husband's will would hardly persuade a judge that she was not reasonably settled by hirn. She would not be able to do the same if a judge is convinced that she would be served weil enough by what customary administrators may have allotted her out of her husband's estate.
a spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse dies having made a wil1. 47 Prior to the coming into force of the 1992 Constitution, the then military government enacted the Provisional National Defence Council Law 111 (as amended) to unify or integrate legislation governing intestate inheritance irrespective of the system of law under which ,the marriage in question is contracted. Until changes or improvements are made to it, its innovative provisions govern intestate property inheritance in Ghana. We turn now to this law.

c) The Intestate Succession Law, 1985
In view of the limitations of the intestacy law as discussed, the Intestate Succession Law, 1985 (Provisional National Defence Council (PNDC) Law 111) could be said to have made a number of definite advances to the fortunes of a widow whose husband died intes tate or partly intestate. By virtue of its Section 1 (1), Law 111 applies to all marriages contracted under any valid system of law in Ghana -statutory or customary. The Law's concern is the prospects of the material survival of the nuclear family of spouses and children, whenever one of the spouses dies. For this reason, it seeks to balance the inter ests of the wider customary law farnily, in preactice especially that of a husband, against the interests of his widow and children in the matter of succession to the property he may have left, or will leave at his death. To do this, Law 111 provides for two kinds of entitlements to the deceased spouses's (husband's) estate: absolute and residuary.
47 Articles 22 (2) & (3) add provisions regarding spousal property rights during marriage and at its dissolution as fo lIows:

22
(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses. 22 (3) With a view to achieving the full realisation of the rights referred to in c1ause (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.
Respecting the main subject -matter of this discussion, and property rights issues between living spouses, it is dear that until Parliament exercises its constitutional power to ground these matters in substantive legal mies that give definite parameters of decision-making to the courts, the unsatisfactory state of the law as discussed so far would remain the same. For, as shown in this discussion, issues relating to joint property acquisition and equitable distribution of the same are not easy to settle in Ghana's pluralistic legal system.

aa) Absolute Entitlement
First, the Law provides that where an intestate is survived by a spouse -in our case a widow -or child, or both, the spouse and/or child "shall be entitled absolutely to the household chattels of the intestate". These chattels include jewellery, clothes, fumiture and fumishings, kitchen and laundry equipment, simple agricuItural and hunting equip ment, books, motor vehicles other than vehicles wholly used for commercial purposes, and household livestock. 48 The widow and/or surviving child is or are also entitled to the house, should the estate in question include only one house. Where there is more than one house, she (and the child where applicable) is entitled to choose whichever one of the 49 houses she may want.
The foregoing provisions secure for the Ghanaian widow (and her child or children) the basic essentials they would need in the circumstances. Indeed, by these provisions, Law 111 would seem to ensure that virtually all the estate that most Ghanaian couples would have been able to acquire during the most productive and demanding years of their lives and marriage goes to the surviving spouse (most commonly widows) and the children of the marriage and/or household. 5o

bb) Residuary Entitlement
Beyond the foregoing absolute entitlements, the Law regards whatever may remain as falling into a residual category. It is from this lot that surviving parent(s) and the wider family are entitled to specified interests. There are three situations respecting inheritance provide for a surviving spouse and dependent children. However, the definition of "child" in the Memorandum and in Section 18 of the Law lumps together non-dependent and dependent children. Further, the c1ass of such children inc1ude those that the deceased husband may have had from (an)other womanlwomen. In practice, such a situation may limit the portion that the widow could enjoy, especially from a small estate where the older, non-dependent children may insist on their share as a matter of due entitlement, or as a form of revenge for reason that the widow in question may be seen as having displaced their mother, or for any other reason, even if they could do without their share from the estate. and the remainder of the residue is distributed in accordance with customary law. But should there be no surviving parent, the 25 % of the residue remaining outside the entitlement of the widow and children devolves under customary law. 51 As a matter of customary law, children in patrilineal lineages should benefit from the distribution of the part of the residual estate that devolves under that law. However, it is easily foreseeable that the head and members of their fathers' families could argue that such children would have had enough from their absolute entitIement (with their mother) to the initial part of the estate, and from their share (with their mother) in the residue to make it indulgent for them to seek more at the expense of other family members. In the matrilineal communities, the prospects of any such extra benefit for the children does not arise. This is because, in those communities, children inherit through their mother's family, not their father's. 52 In the circumstances, therefore, the statutorily-mandated absolute and residual portions secured to the widow (and children) would be their only inheritance if Law 111 is applied.
In comparison to the widow's (and children's) inheritance prospects under customary law alone as discussed above, Law 111 's provisions on their absolute and residuary entitle ments constitute a major 'rescue work' done for her benefit (with her child or children). In practical terms, it is quite obvious that where these provisions are reasonably weil observed, the widow (and her children) would have enough by virtue of their guaranteed entitlements . Thus, it would probably make little or no material difference to their cir cumstances that (a) surviving parents(s) is/are allotted (b) portion(s) of the residue of the estate . 53 It would be the same if they receive nothing from the residue that devolves under customary law.
The second situation under residual inheritance arises where the survlvmg spouse -widow -has no child. In this case, she receives 50 % of the residue; 25 % goes to a 51 Law 111, Section 5. 53 As to (a ) parent(s), entitlement to a share in their intestate child's property, it is imperative for any custom-revising statute like Law 111 to consider it as a necessary and beneficent variation on the otherwise absolute entitlement of widows and children to their husbands'ffathers' property. This arises from the fact that even in our increasingly individuated world, the very foundation of the Ghanaian family structure is the interlocking relationship of dependence by children upon parents, and vice versa.
surviving parent and the rest falls for distribution under customary law. Where there is no surviving parent, the parent's residual portion devolves under customary. 54 Thirdly, where the residue of the estate is smalI, the smallness being periodically deter On the face of it, Law 111, as amended, could secure the material welfare of an 'intestate' Ghanaian widow. There are two main reasons for this. The first is that the Law applies in both statutory courts and in claims before chiefs or family heads. 56 It its provisions are reasonably enforced in either forum, a widow would receive her just due from her intes tate husband's estate.
The second reason arises from the widow's security of occupation of matrimonial horne under the amendment to Law 111, the Intestate Succession (Amendment) Law, 1991 54 Law 111, Section 6.
55 Id., Sections 12 & 13. More generally on these mies of distribution, see w.c. Ekow Daniels, supra note 50, at pp. 96-99. The mies now incorporated under both the absolute and residuary entitlement provisions of Law 111 have had socio-historical and un-enacted legislative antecedents dating back to 1938. The early effort focused on extending Section 48 of the Marriage Ordinance, 1884, Cap. 127 as amended, to the distribution of the estate of all Ghanaians, whether married under customary law or statute. It was later thought that the provision in the Ordinance was inadequate to deal with the inequity inherent in the customary mies regarding a widow's non-inheritance of her husband. For, under Section 48, a third of the estate devolved under customary law, and the rest went to the surviving spouse (widow) and child(ren) of the Ordinance marriage. The problem was that the applicable English mies incorporated by Section 48 created a maze of cumbersome and complex fo rmulae for distributing the estate such that the portions of realty and personalty that would fall to widow and children were, for the most part, virtually unviable in the context of inheritance involving a wife or wives and all the children acknowledged by the father as coming from within or outside bis customary conjugal bond(s): see N.A. Ollennu, supra note 52, at pp. 247-252; K. Bentsi-Enchill, Ghana Land Law : An Exposition, Analysis and Critique, London 1964, pp. 173-188 passim; Kwame Opoku, supra note 38, at pp. 75-78. However, the principle of merit established by the Ordinance provision and the moves made to make it a mle of general application is that, it is imperative for the State to intervene in custom to secure widows and children especially, against their loss of access to and enjoyment of their husbands' and fathers' self-acquired property. This is what Law 1II has, on the whole, done far better than Section 84 of the 1884 Ordinance for both intestate statutory and customary widows and children. For an analysis of the socio-historical evolution leading to the mies in Law 111, see w.c. Ekow Daniels, supra note 50, pp. 94-95 ;A.K.P. Kludze, supra note 44, pp. 247-
(PNDC Law 264) . This amendment prohibits the practice whereby a husband's family members ej ect his widow(s) and children from the matrimonial horne and remove as much of the estate as they can as soon as he is dead. Under Law 264, such ej ection and removal of property cannot be done before the distribution of the estate, wh ether the husband died testate or intestate.
Law 264 makes it clear that the matrimonial horne could be one of many. First, it could be the deceased husband's family house if he and the widow (and/or child) were living there at the time of this death. With respect to this premise, ej ection of the wi d ow (and/or child) would be unlawful if it is carried out earlier than six month after the husband's death. Second, the matrimonial horne could also be the self-acquired property of the husband wh ich he and the widow (and/or child) were living in at the time of his death, or any other of his self-acquired properties occupied by the widow (or child) at his death. Any ej ection of the widow from any of the latter is unlawful ab initio and for all time. 57 In other words, where a husband has more than one self-acquired house, and whether he and the widow lived together in the same one or not, no person is entitled to ej ect the woman from any of these properties before they are distributed. Similarly, where the man has houses enough for his child(ren) to occupy separately from hirn and his widow, while at the same time he and the widow may be living together in one of his houses, or in separate houses belong ing to hirn, all such houses together fall for distribution as part of his estate under the category of matrimonial hornes, and ej ection of the widow and/or child(ren) from any of h . h'b' d 58 t em IS pro I Ite .
The penalty for a conviction of unlawful ej ection of a spouse (widow) or child, or for removal, destruction or other unlawful interference with the enjoyment of any part of the deceased's property to which they are entitled, is a fairly heavy fine or a maximum of a year's imprisonment. The courts can also order the reinstatement of, or reimbursement to the widow (or child) thus ej ected or deprived. 59 57 Intestate Succession (Amendment) Law, 1991 (PNDC Law 264), Section 1 (I). Cf. treatment of widow and/or child under customary practice as tempered by the courts, supra notes 35-41 and accompanying text. Law 264, Section 2. The maximum fine prescribed under this seetion is no more than US$ 500 at current exchange rates. In real Ghanaian economic terms, however, it is a fairly heavy imposition. But more than the penalties is the fact that for the first time, the Ghanaian government commits its machinery to ensure that widows (and children) are not left without remedy should unscrupulous family members seek to wield their customary authority to deprive them of their lawful inheritance. Cf. infra note 69.

bb) Diffi culties
The foregoing beneficial potential of the Law is, at the moment, quite seriously under mined by a number of difficulties obstructing its efficacy.
The first difficulty can be stated as fo lIows: that the Law's persuasiveness in matters of succession to property in civil tribunals under the jurisdiction of chiefs andlor family heads depends upon the acceptance of its precepts by these traditional authorities. As it is, Law 111 as amended undermines, particularly for family heads, a fairly rich source of their own sustenance. As a matter of fact, the large majority of intestate settlements are done under their authority and supervision. So that the fortunes of a widow in any particu lar case is largely dependent upon the appreciative understanding by the family official of the new legal regime, and more than that, his generous disposition towards the widow's circumstances. The probability that a widow could sue to enforce her statutory rights is not in doubt; but that again depends on a number of factors, including wh ether she knows she has any entitlement to her husband's estate guaranteed by statute, and wh ether she has placed herself in a position to assert her rights under the Law. Under Section 15 of Law 112 as amended, the provisions of Law 111 as amended, apply to unregistered customary marriages provided that there is oral or documentary evidence satisfactory to a court or tribunal that a valid customary law marriage had been contracted between the deceased and the widow. Otherwise, following its celebration, such a marriage may be registered within a period specified under regulation by the Justice 60 For a discussion of the issue at a broader level, see Akua Kuenyehia, Fostering Rights Awareness Arnong Wornen -The Ghanaian Experience, (1991) 2 ASCIL, p. 73.
Minister. In other words, there is no obligation to register a customary law marriage as a prerequisite for invoking the applicability of Law 111. 61 In light of the "mi schief' sought to be remedied by the Law, the non-mandatory registra tion provision seems realistic since marriage registries are largely inaccessible to most Ghanaians, especially the rural folk. 62 Thus, implicit in the combined legal regime created by Laws 111 & 112 as amended, is the fact that it will be quite a while before it becomes sufficiently known, and before facilities are provided for its implementation. In fact, the lustiGe Minister is, accordingly, given the discretion to "generally make provision ru n der legislative instrument] for the fu ll implementation" of the provisions of the b· d . 63 com me regime.
It must be pointed out then that since knowledge of the tenets of the regime is fundamen tal to its efficacy, this statutorily-sanctioned 'delayed and gradual' dissemination, or as it were, 'implementation at large', becomes the definition of the lack of public awareness underlying its current inefficacy. For all this time that the regime has been in place, the State has barely educated the public, especially the unlettered customary law wives and family heads, as to their obligations and rights under Laws 111 & 112 as amended. Con sequently (and for reason of the other factors pointed out next), these Laws have not had the beneficial impact they were passed to bring about.  More than this, even over a year after the promulgation of Law 112, marriage registration forms were not available for use: see The Mirror, II Jan., 1986. And then, there has been the issue of high registration fees which has been literally "debarring" people from going through the process: the People's Daily Graphie, 23 April, 1987. 63 Law 263, Seetion 6 (d).
64 It is ironie, but unnervingly consistent with national historical performance that educating the population to register their marriages is an Achilles' heel in the application and enforcement of Ghanaian family law. For instance, the application of Mohanunedan law to regulate an intestate The third and probably most formidable problem obstructing the beneficial impact of the spousal property inheritance regime pivoted around Law 111 relates to the social status of the Ghanaian woman. In general, these women are contextually and socially less able to assert their rights and interests that are the men. Their place in society has evolved as one under an institutional system dominated by ideas and philosophies that give the leading role to men, whose interests are concomitantly better catered to. For instance, regarding the registration of customary marriages, Law 112 as amended authorises either spouse to have the marriage registered. However, any such registration would not be legally complete and valid without the signatures or thumbprints of both spouses. As weil, since customary law marriages are potentially polygynous, Law 112 requires disclosure of other existing marriages where applicable. 65 This gives the husband two opportunities by which to block the registration of a customary law marriage: first, a man who is unwilling to disclose to public authority the number of wives he has would discourage the registration as a matter of personal interest. Second, even where the marriage in question is the only one a man has, and intends to contract, he can block its registration by withholding his signature or thumbprint, a thing a wife is far less likely to do if her husband wished to register their marriage. Given this situation, the woman's independent statutory right to Ghanaian Muslim' s estate was, until the advent of Law 111, dependent upon the registration of such a marriage under the nineteenth century Marriage of Mohammedans Ordinance, Cap. 129. Unlike marriages under the Marriage Ordinance, 1884, Cap. 127 which, when contracted are also simultaneously registered in virtue of the record of them kept by the State, the potentially polygynous Moharnmedan marriages were hardly, if ever, registered. By 1976, it had become sage to concIude that "the provision for the registration of Muslim marriages is ... a dead letter. Officers expected to carry out the registration ... probably do not know of its existence. Those who contract such marriages do not know of [the registration requirement). One cannot remember when the last Muslim marriage was registered, or how many have been registered in the country since the enactrnent of the [Moharnmedans) Ordinance": A.K.P. Kludze, supra note 44, at p. 25 1. See also Ekow Daniels, supra note 50, at p. 100. This historical national remissness has not been the change that should have been induced by the inheritance regime advented under Law 111. According to information obtained from FIDA-GHANA (a women' s rights advocacy organization) in August 1994, knowledge ofLaws 111 & 112 has spread more by word of mouth than by any other means; that individuals who are aware of the laws let the women who have lost their husbands and are having a hard time with the latters' families know that they could be helped under the laws. The women then contact FIDA and other free legal aid institutions for assistance. More unfortunately, according to the same source, some of the women assume that registration of their customary law marriages under Law 112 confers upon them the status of "modern or civilized wives", the kind of social status implicitly accorded women who, since colonial times, marry under the Marriage Ordinance, 1884 (see also Kludze, supra note 44, at p. 244). This assumption not on l y becIouds thc< legal distinction between customary law and Ordinance marr iages. It also shows that un-informed customary law wives may register their marriages for the wrong reason(s), and would not seek help under Law 111 when they need it, notwithstanding their having unquestionable loei standi to do so whether their marriages are registered or not. In light of this, the suggestion that Ghanaian lawyers (and other legal and non-legal public interest groups) should add to their traditional consultancy roles the task of systematically educating the women as to their obligations and rights under the Law is cIearly justified: Akua Kuenyehia, supra note 60, passim. register her customary law marriage is actually made dependent on her husband's consent to the registration.
To put this obstacle in perspective, it must be pointed out as fo lIows: first, that under Section 3 of Law 112 the application for registration of a customary law marriage must be accompanied by a statutory declaration stating, inter alia, the names of the spouses and affirming that the marriage is valid under the applicable customary system. This declara tion must be supported by both spouses' parents or persons standing in loco parentis to them, unless no such persons are alive at the time of the application for registration, a circumstance that would be extremely rare in an extended family-based society like Ghana where virtually every imaginable, rightly-related kin could legitimately act in loco paren tis to spouses.
Second, it should be clear that no Ghanaian parent or relative would ordinarily swear to a false affidavit if no marriage took place. Therefore, a declaration from the parents or persons in loco parentis to either spouse is, and should be sufficient evidence of the cele bration and validity of a customary law marriage, and so entitle either spouse to have it registered without the necessity for his or her partner's assent. As it is, the assent require ment means that a woman whose husband is opposed to the registration of their marriage would be reluctant to face registration officials' questions as to why her husband would not assent to the registration, and more painfully, as to whether there was in fact a marriage at all.
In the alternative, assuming that the requirement for the other spouse's assent were removed or waived under authority from the lustice Minister, 66 it is still foreseeable that a husband would, either for personal reasons, or under the influence of his wider family in view of the implications of registration for their interests in his estate, oppose registration. Consequently, he would take whatever steps he might to ensure that his wife respects his dis agreement with having to comply with the procedure. That he would succeed in having his was is guaranteed by the statute: Section 3 (2) of Law 112 intimates that the support ing affidavit of his parents or persons in loco parentis to hirn is indispensable for regis tration. This requirement gives hirn with his family the authority to be suitably unco operative, and so frustrate his wife's effort to facilitate proof of their marriage for purposes of Law 111. This is the crux of the woman's social powerlessness and her subservient legal position in this matter vis-a-vis the contingent personal or family-influenced deci sions of her husband.
Clearly then, this otherwise socially bold and laudable legislative effort aimed at facilitat ing proof of customary law marriages so as to protect intestate widows' entitlement to a
reasonable portion of their deceased husbands' estates comes rather short. Consequently, the unfavourable 'inheritance' experience of widows at the hands of customary law is, in practice, left largely intacl. The remedy that satisfactory oral evidence of a valid custom ary law marriage, having been contracted between a deceased intestate husband and a widow would bring the latter within the benefit of Law 111, 67 is obviously available only when proceedings are instituted either in court or before chiefs or family heads. But it is common knowledge that in Ghana people are slow to seek court remedies in all kinds of matters, and widows are particularly loathe to being at loggerheads with their husbands' families, more so when a head of family or perhaps a chief with interests which, on the right occasion, would be similar to those in issue before hirn, sits in judgment: a pseudo case of nemo judex in causa sua, or ar eal one?
Notwithstanding this 'litigation inertia', it cannot be lightly discounted that the juridical consciousness necessary to galvanise an individual to pursue and assert legal entitlements derives from the dominant legal consciousness in which society is steeped. It has been shown in the preceding discussion that as far as the legal regulation of the incidents of marriage in Ghana is concerned, the deterrninant system of legal consciousness is the customary law as society has come to know it, largely irrespective and independent of legislative, and the disproportionately small instance of judicial intervention. 68 67 See supra note 61 and accompanying text.
68 For earlier assessments of the prospects of the efficacy of law 111 in the light of the property rights of widows under Ghanaian law in general, see E. V. O. Dankwa, supra note 44, passim; Akua Kuenyehia, supra note 35, passim; also Kwame Opoku, supra note 38, passim. The inadequacies and inefficacy of statutory emendations to Ghana's family law have, over the years, been sharpened by the legal complications arising from inter-tribal marriages that demand the application of conflicting customary legal rules, a problem of internal conflicts of laws. The rules that exist for resolving these have also been inadequate, and as usual, the women lose out a lot. In view of this, and probably to get the courts to be more active in heading off this long-standing spousal inequity, Ernest Bankas, supra note 43, at pp. 447-464 , suggests that Ghanaian courts should adopt Currie's "governmental interest analysis" theory. in combination with William Baxter's "comparative irnpairrnent rnethodology" when they are faced with cases turning on inheritance upon intestacy. Those two theories, he says, would combine to enable thern to apply the customary law rules with which the surviving c1aimant is more c10sely associated and whose application to the inheritance marter in issue would be of greater advantage to the party and to the development of a sound conflicts jurisprudence. This suggestion may be of some advantage, especially in overcoming the constrained jurisprudence underlying Ghana's statutory law relating to the resolution of internal conflicts in the family law area. However, I think that in view of the problems that widows face in seeking judicial help to deterrnine their rights to matrimonial property, Law 111, notwithstanding the difficulties in the way of its efficacy, has greater practical and contingent utility and relevance to the immediate and long-term concems related to the widows' (and children's) inheritance upon intestacy, than a refurbishing of internal Ghanaian conflicts jurisprudence by theoretical embellishment. Clearly, Ernest Bankas' fai lure to consider Law 1II regarding its relationship to his suggestion leaves the suggestion somewhat outdated, more so when the occasions on which the courts may be called upon to try out the approach he suggests would be so far between as to be irrelevant to the lives of the innumerable Ghanaians who have to contend with the vissicitudes of marital and family life in the meantime.
Therefore, whatever merits these legislative changes have will, for most Ghanaian men and women, be pitched against the dominant customary law of the family with all its demerits. From what has been said so far, it is dear that for the women, the uphill task of trying to secure entitlement to a fair portion of their intestate husbands' requires more than socially-responsive legislation to guarantee it. 69 v.

Conclusion: The Human Rights Perspective
In human rights terms, an 'in testate' Ghanaian widow's prospects of being materially secure is only marginally dependent upon the national laws which make provision for her in that respect. This is so even when, as discussed above, Law 112 is amended again to authorise her to register her customary law marriage with supporting affidavit from only her parents or relatives, and without having to secure her husband's signature or thumb print. The true guarantee of her rights to the benefits she is potentially entitled to under Law 111, it has been shown, depends significantly upon her awareness of her rights under the legislation. Once she knows it, she would do her best to make sure that neither her husband's neglect or opposition, andJor that of his family, makes her an unwitting destitute in widowhood. Of course, the readiness of her husband to co-operate with her in bringing herself within the law, or failing this, and the willingness of her intestate husband's family to settle her in accordance with her statutory entitlement are also important guarantees of her right in this matter. lust like herself, her husband (whether formally educated or not) 69 It must be noted that even in those cases where customary law marriages have been properly registered, widows have to put up fights to ensure that their inheritance is not taken away by intermeddlers from their husbands' families acting ilIegally. In In Re: Isaac Nkansa Apau (Deceased), (unreported) Civil Appeal No. 93/90, 17 May, 1993, the brother of the deceased sold two of the deceased's cars to meet a pressing family commitrnent prior to the distribution of the deceased's estate. The Court of Appeal where the case ended, found that the cars would have gone "absolutely" to the widow and children under Section 3 of Law 111. Had the widow not pursued the matter thus far, she and her children would have been deprived of their inheritance without remedy. The Court of Appeal took the opportunity to observe that unless such intermeddlers are timeously brought to book, Law 111 would be undermined till it ceases to have any effect. This case is typical of the situation the women face, and symbolises the cost to society resulting from the failure of the State to ensure knowledge and respect for the laws it passes for the benefit of its citizens. and his family need to know what changes the statute has made to the customary law of spousal inheritance.
It is the postulate of rights jurisprudence that education and other facilities be available so that legal advantages such as those provided in Ghana's Intestate Succession Law may not be lost upon those who need them. But it is tri te that the reality is a far cry from the postu late, as has been shown to be the case in Ghana in this matter. Unfortunately, that is the case for most women in most developing countries, not only in marital circumstances, but in practically all facets of life where the pursuits of their rights to basic dignity and personal security seems to be on an eternal collision course with social institutions that refuse to assimilate beneficial changes in social and legal mores, or even admit marginal emendations to their adverse features? O The solution or the alleviation of inequities of the sort discussed here rests more at the grassroots level. In the marital context, that grassroots is defined by the 'society of the two spouses'. The singularly weighty factor here is the attitude of the spouses, and respecting the Ghanaian intestate succession issue, that of the husband. A Ghanaian husband would settle his wife und er will, or under the regime of Law 111 if he wants to. What he needs is to overcome the long-standing socio-cultural and psychological orientation that teils hirn that his wife's right to his material provision comes second to his extended family's because she may or does not belong to that family. And then, in dispensing his material possessions, to maintain a balance between his commitment to his extended family, and his more irrevocably prior obligation to his own family of wife (or wives) and children. The State's role to help through with this process of psycho-cultural reorientation and personal priority reorganization on the part of a Ghanaian husband consists in helping hirn see how easy the regime of Laws 111 & 112 have made his task.
The Ghanaian State's failure to make noticeable headway in this area since 1985 under scores one matter of importance: that in reality, the marital complementarity of spouses (and in prior contemplation, the social equality of male and female) is not accorded its due respect and legal protection. This is how the openly expressed or implicit social subser vience of the female's interests to that of the male is entrenched. In this context, legisla tion such as exists to regulate spousal inheritance in Ghana is of limited value to the female. This is because the male partner who wields the greater influence within the conjugal bond is more likely to decide when, and how, the female partner takes advantage of such laws. Clearly, this defeats the results expected to be secured by legislation such as Law 111. In conclusion, it must be said plainly that as a matter of human rights observance, the probability of the Ghanaian widow's material security coming from the estate she worked with her deceased husband to acquire largely remains a tenuous proposition of social and legal reality to the extent that customary law reigns superior to govemment legislation in the regulation of this aspect of the family law. Of course, this is not an irreversible situa tion: The State's failur � to undertake the tasks mandated by its own laws leaves the field open for individuals and the various women's and other social organizations in Ghana to step in. In any case, no govemment anywhere succeeds in the implementation of any social legislation all by the efforts of its agencies. Laws 111 & 112 give all Ghanaians the chance to see to it that our widows and children have memories of fathers who ensured their basic survival even from beyond.
group of people who, because they had benefited from running the party and state, became accountable only to themselves; they were unresponsive to the wishes of the people.
The Nyalali Commission, as it has come to be known, made over one hundred and four teen recommendations to the government to guide the transition and to facilitate the func tioning of a widely accepted democratic regime. Some recommendations were taken up quickly, but very many others were not and, by deciding not to issue a White Pater on the report, the government has purposely tried to styrnie discussion on the recommendations. The paper argues that it is understandable that the state would like to avoid chaos by managing the transition tightly. However, this management seems to be influenced too much by partisan interests, to the extent that a very good opportunity is being missed to put a broadly-accepted and working democratic regime in place.
Human Rights and the Widow's Material Security: The Case of the "Intestate" Ghanaian Widow

By David M. Dzidzornu
Essentially, the predominant customary system of inheritance in Ghana disentitles a widow to any viable or appreciable interest in her intestate husband's estate. This is so notwithstanding that the wife (or wives) in question would have made undeniably substantial contributions to the property ascribed to the husband as his self-acquired estate. To a large extent, the Ghanaian widow's (non-)inheritance situation reflects the experience of wives in many other African societies. In human rights terms, there exist global and African (regional) principles that philosophically censure this state of affairs . The influence of those principles on the phenomenon is, however, largely notional . Thus, the piecemeal changes that have been made to Ghana's inheritance law regime, eventually culminating in the passage of the Intestate Succession Law, 1985 (PNDC Law 111), have been impelled by national agitation against an inequitable customary inheritance institu tion that has for decades lagged behind socio-economic changes in the country. With minimal emendations in procedure and substance, the legislative regime introduced by Ghana's Law 111 should be a fair balance between the legitimate interests of families in the fortunes of their sons, and the prior obligations of these sons to ensure the material welfare of their widows (and dependent children).