Whether or not the annual ban on noise-making within the Ga State is a lawful ban has been an unending debate. In 2019, I published an article on the ban on noise-making per this link, Yearly Ban On Noise Making By The Ga Traditional Council: Must The Churches And The Mosques Comply Willingly? and I argued quintessentially that the ban has certain social benefits so believers of the other religions in Ghana especially within the Ga State should adhere to the bans without being coerced to do so. This year, the ban is currently in force from May 4 to June 4, 2026 and it is a sacred period for the Ga State just as Christmas and Easter are sacred for the Christian Community, and Eid-ul-Fitr and Eid-ul-Adha are sacred for the Islamic Community within the Ga State.
In this piece, I seek to re-echo that submission but with more focus on the legality or otherwise of the ban. I will argue that the ban is backed by customary law but its enforcement under the criminal law will not be tenable especially with regard to punishment for any breaches of it. I will emphasize that it must be obeyed because both the Constitution, 1992 and the Land Act, 2020 (Act 1036) as well as case law support the ban impliedly. I will then offer concluding remarks to drawn the curtain on my submissions. The reader is encouraged to write a rejoinder if there are opposing views or or drop such comments beneath the article here online.
Legal Backing for the Ban on Noise-Making in Ga State
Article 11 of the 1992 Constitution provides for the sources of the municipal (domestic) laws of Ghana and Article 11 (1) specifically provides that the laws of Ghana comprise but not limited to the common law and Article 11 (2) states, “The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature. Article 11 (3) stats that Customary law” means the rules of law, which by custom are applicable to particular communities in Ghana”.
Whereas Article 21(1)(c) of the Constitution, 1992 states that all persons shall have the right to freedom to practice any religion and to manifest such practices, Article 26 (1) (2) also provides, “Every person is entitled to enjoy, practice, profess, maintain and promote any culture, language, tradition or religion subject to the provisions of this Constitution. All customary practices which dehumanize or are injurious to the physical and mental well-being of a person are prohibited”.
As part of its bye laws which take root from Article 11(1) (c) of the 1992 Constitution, the Accra Metropolitan Assembly (AMA) enforces the Ga State’s annual ban on noise-making. In fact, the Mayor of Accra Hon. Michael Kpakpo Allotey has been quoted to have said, “the ban formed part of the customary practices of the Ga State and must be respected by all persons living and working within the affected communities so residents, religious bodies, traditional groups and the general public should fully comply with the ban on drumming and noise-making, which has taken effect in the Ga State”.
It is evident from the foregoing constitutional provisions and the bye-law perspective that the annual ban on noise-making declared by the Ga State prior to the Homowo celebrations is a lawful ban and it does not dehumanize anyone, neither is it injurious to the physical and mental well-being of any persons so per Article 26 of the Constitution, it cannot be prohibited. However, the Ga Traditional Council must ensure that the ban is not enforced by guards who may take the law into their own hands as that will transcend into the arena of criminal justice.
It is even more interesting to note that Rev. Fr. Boni-Lamptey has currently invoked the Supreme Court’s exclusive original jurisdiction under Articles 2(1) and 130 (1) (b) of the 1992 Constitution for a determination regarding the ban. I cannot wait enough for that judgment by the Supreme Court because it will bring finality to the legality of the ban and all persons must obey the direction of the Court in this regard because failure to do so will amount to commitment of high crime [Article 2(4)] of the 1992 Constitution. Mindful of the sub judice rule and the punishment for contempt under Article 19 (12) of the Constitution, 1992, I do not wish to comment any further on the Rev. Fr. Boni-Lamptey pending case.
Allodial Title to Ga Lands and obedience to jurisdictional and cultural rights
At customary law including those determined by the Superior Court of Judicature per Article 11 (2) of the Constitution, 1992 as seen in the cases of Ohimen v. Adjei and Another [2 WALR 275, 1957], James Town (Alata) Stool and Another v Sempe Stool and Another [1989-90] 2 GLR 393, Agbloe v. Sappor (1947) 12 WACA 187, Allotey v. Abrahams (1957) 3 WALR 280, Nyaasemhwe & Another v. Afibiyesan [1977] 1 G.L.R. 27 and many other similar cases as well as Sections 2 (a) (b) and 81 of the Land Act, 2020 (Act 1036), the highest or ultimate or paramount or supreme registrable interest in land in Ghana is the allodial title and the allodial title is held by the State or a community or a Stool or a Skin or Clan or Family or an individual.
Under Act 1036, therefore, other interests in land are derivatives of the allodial title hence holders of other interests in land such as common law freehold, customary law freehold, usufructuary interest, leasehold interest and customary tenancy are subject to the jurisdictional and cultural rights of the allodial title holder.
I dare submit that other land title holders within the Ga State are by law subject to the customary or religious traditions of the Ga State so far as such customs and traditions of the Ga State are not inconsistent with the Constitution, 1992.
Traditional councils and allodial titleholders within the Ga State, therefore, reserve the cultural right to enforce community-wide bans (e.g., the ban on noise-making before the Homowo festival in the Ga State, or specific farming restrictions).
Whether or not a person who breaches the ban on noise-making can be prosecuted?
Per Article 19 (5) (11) of the Constitution 1992, the occurrence of crime requires a prohibited physical act and a guilty mind and such a prohibited act and the punishment for it should have been defined in a written law already in force prior to the commitment of the offence, provided that the offender is not doli incapax (incapable of committing crime).
Essentially, the law must not be the one that is newer than the act and the law must not take retrospective punitive effect. Clauses 5 and 11 of Article 19 of the Constitution, 1992 jointly provide, “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law. A person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence”. This is called the principle of legality.
As it stands now, I do not know any written law in force that criminalizes the breach of the ban on noise-making declared by the Ga State and a punishment defined for it. More so, the declaration of the ban comes under customary law as shown in my earlier submissions.
Customary law is an aspect of the common law of Ghana under Article 11 (2) of the Constitution, 1992 cited ut supra. As such, customary law is not criminal law. Accordingly, Section 8 of the Criminal Offences Act ,1960 (Act 29) excludes common law from criminal law and provides unambiguously, “A person is not liable to punishment by the common law for an act”. This statutory provision was upheld in the cases of Glah and Another v. The Republic [1989/1992 and Debrah v The Republic [1991] 2 GLR 517 with the poignant assertion that irrespective of how immoral, reprehensible and customarily sinful an act may be, it is not punishable under criminal law unless a written law in force criminalizes/prohibits the act and defines punishment for it.
In the case of Debrah, for example where the High Court considered whether or not a breach of local custom or palace protocol automatically translates to the criminal offense of insulting a chief under statutory law, the Court held inter alia that “It was a fundamental right of every citizen that he could not be punished for any offence which had not been directly set out and the punishment thereon equally laid down in the relevant statutory instrument. That was implied by Section 8 of Act 29 to the effect that no person should be made liable to punishment by the common law for any act. Hence for any customary offence to be punishable, steps must be taken to have such offences and their punishment clearly spelt out in relevant statutory instrument. This was to ensure that individuals were not subjected to capricious and sometimes outmoded, unintelligible and undefined offences alleged to be against custom. The individual was entitled to know before hand what the offence was and the punishment for it”.
In conclusion, I have with the aid of constitutional and statutory provisions as well as decided cases, discussed the legality of the annual ban on noise-making declared by the Ga State prior to every Homowo Festival Celebration and how the AMA enforces the ban as an integral part of its bye-laws. I have argued with the support of relevant legal authorities that the ban falls squarely under customary law so it is not an unlawful ban and it is not inconsistent with the Constitution, 1992 because it does not fly in the face of Article 26 which prohibits dehumanizing and injurious cultural practices.
I have equally submitted that so long as Stools or Sub-Stools or Families of the Ga State in general hold the allodial title to the Ga State lands, other registrable interest holders in land within the Ga State are subject to the jurisdictional and cultural interests of the Ga State. This is supported by Act 1036.
Be that as it may, a breach of the customary ban on noise-making by the Ga State will not amount to a criminal offence and therefore punishable. This is because both the Constitution, 1992 and Section 8 of Act 29 jointly prohibit punishment based on customary law and this as shown was upheld in Glah v. The Republic and Debrah v The Republic. Accordingly, the Attorney-General and for that matter the Police cannot arraign a person who goes contrary to such traditional bans on noise-making within the Ga State or in any other traditional area. However, our customary laws must be obeyed to forestall anarchy in society. I encourage believers in the other religions to obey the ban because the ban is supported by customary law which has its foundational under Article 11 of the Constitution, 1992. Every religion in Ghana is subject to and must be practiced in accordance with the Constitution.
~Asante Sana~
Philip Afeti Korto
Hospital Administrator
[email protected]
