Political Considerations that Gave Birth to the 1907 Ordinance

The area that makes up modern Ghana was divided into three regionsFootnote ² under British rule: the Gold Coast in the south, the Northern Territories in the north, and the Ashanti in the middle. British colonial administration began in 1821 in the coastal areas and gradually expanded into the hinterland.

According to the 2021 census, about 6.1 million Muslims—19.9 percent of the population—live in Ghana.Footnote ³ Although Muslim presence in the hinterland can be traced back to as early as the fifteenth century (Clarke Reference Clarke1982; Weiss Reference Weiss2008), their arrival in large numbers to the coastal regions (Accra and its vicinity) began in the ninteenth century. Under colonial rule, Muslims from West African colonies (Nigeria, etc.) immigrated to the Gold Coast and lived in settlements called “zongos.” The British considered Muslims “more civilized” than indigenous pagan tribes (Weiss Reference Weiss2008, 230). As a result, they brought Muslims from nearby regions and enlisted them in the colonial military, police force, and bureaucracy. Regardless of their ethnic origins, these Muslim immigrants were widely referred to as “Hausa” by the colonial administration (Weiss Reference Weiss2008, 230). Even though, over the following decades, many local groups (Fanti, Ga, etc.) also converted to Islam, due to that religion’s initial association with the Hausa and their separate settlements (zongos), the colonial administration continued to view all Ghanaian Muslims as “aliens”Footnote ⁴ and their customs (i.e., Islamic law) as imports (Josiah-Aryeh Reference Josiah-Aryeh2015, 5–15). From this point of view, Islamic law was not part of the legal fauna in the Gold Coast,Footnote ⁵ but a nonnative normative system brought in by aliens (Anderson Reference Anderson1954). These views greatly informed the judicial policy toward Islamic law, especially during the early days of the British colonial rule—colonial authorities systematically refused to recognize and apply Islamic law. However, in the absence of state recognition, Islamic precepts and norms, especially concerning marriage, divorce, and succession, were amalgamated into African customary law and applied by native authorities in Muslim communities. This state of affairs remained unchanged until the enactment of the MMO in 1907.

The British colonial policy toward Islamic law suddenly changed in 1906–1907. The colonial administration introduced a bill to the Legislative Council to formally recognize the MFL in October 1906. The bill, which came to be known as the MMO, was passed in the Legislative Assembly on December 9, 1907. It provided for the registration of Muslim marriages and divorces and the application of Islamic inheritance rules to spouses whose marriage was duly registered under the ordinance.Footnote ⁶

Although the bill’s stated objective was to provide a system of registration for Muslim marriages and divorces, it is worth probing to understand why this sudden shift in policy had occurred at this particular time. During the parliamentary debates, the Attorney General (AG) explained that the bill was the outcome of questions concerning “the status of Mohammedans in the West African colonies generally.”Footnote ⁷ In other words, the political and geostrategic considerations had given rise to the bill. Some assembly members undoubtedly spelled out these considerations. For instance, Mensah Sarbah criticized the bill and warned the government against unnecessarily provoking the Muslim community and politicizing Muslim marriage by failing to obtain the community’s consent to the bill in consideration. Mr. Sarbah quoted extracts from a white paper by the Colonial Office (1907, 26) that discussed the rising dangers of “Mohammedanism” in Central Africa. He cautioned that given regional troubles, the government should obtain “full information concerning the customs and usages of Mohammedans in West Africa … so that any law … passed to regulate Mohammedan marriages may not create similar difficulties.”Footnote ⁸

Weiss (Reference Weiss2005, 74) argues that perceptions of the British administration in Accra toward local Muslims were shaped by developments in the broader West Africa region. In other words, policy toward Muslims in the Gold Coast was not independent of British experience (or that of other colonial powers) with Islam in the broader region of Bilad al-Sudan. During the first decade of the twentieth century, a revolutionary Islamist movement (Mahdism) swept through West Africa. In 1905–1907, Mahdist uprisings took place in French Niger and British Nigeria with overtly anticolonial tones. Mahdist agents also infiltrated the Northern Territories (Goody Reference Goody, Allen and Johnson1970). After the Indian mutiny in 1857 and the fall of Khartoum in 1885, British administrators considered Mahdism a severe problem (Weiss Reference Weiss2005, 78). Against this backdrop, the rising Mahdist threat in adjacent areas caused much anxiety among the colonial officials in Accra and led to the consolidation of colonial rule (Lovejoy and Hogendorn Reference Lovejoy and Hogendorn1990, 219). As a result, British policy in the Gold Coast and surrounding areas began to change—leading to gradual securitization of the question of Islam and Muslims—especially those who originally came from Nigeria (i.e., Hausa), as they were considered more likely to fall under Mahdism’s spell (Weiss Reference Weiss2005, 79).

As shown, while the legislative process that resulted in the enactment of the MMO was underway, the British policy toward Muslims in the colony transformed and was increasingly characterized by suspicion and security concerns. Against this background, the ordinance’s enactment probably had less to do with what Hiskett (Reference Hiskett1976, 132) calls administrative tidying up than with the fight for the hearts and minds of law-abiding Muslim subjects. Put another way, perhaps it was a politically expedient move by some colonial officials who may have come to view the MMO as a valuable tool in the ideological battle against Mahdism. They may have viewed recognition of “shari‘a” within the colony as a means of diminishing the appeal of Mahdism and rewarding the loyalty and acquiescence of, mainly, the Hausa Muslims on whom the colonial administration was overwhelmingly dependent for staffing the military and police force (Weiss Reference Weiss2008, 229–37).Footnote ⁹

Lamenting the 1907 Ordinance: The Colonial Narrative and the Beginning of Jurispathy

Although the British colonial policy in the juridical field “was full of variations, inconsistencies and reversals of course” (Goldman Reference Goldman2016, 586), the approach toward Islamic law was relatively consistent. Throughout the colonial period, British officials subscribed to the view that local Muslim communities had never possessed an “ancient civilization or organized system … based on the Koranic law” (Weiss Reference Weiss2008, 200). As a “foreign law,” it had no official standing anywhere in the colony (Weiss Reference Weiss2008, 215). As a result, they opposed the institutionalization of Islamic law and courts in any part of the Gold Coast. In the eyes of the colonial administrators, “shari‘a” was the custom of an alien people who came to the Gold Coast from elsewhere. This view of Islamic law did not change much, even after the enactment of the MMO in 1907. For example, a 1928 communique, issued in response to an (ultimately rejected) application by Hausas for recognition of Islamic tribunals, bluntly stated: “They have voluntarily come into the territory of another people … [they should] be subject to the laws of that territory even if their own law differs materially … ” (Hiskett Reference Hiskett1976, 130).

Most colonial officials remained skeptical of Islamic law and often behaved as if the 1907 ordinance did not exist (Hiskett Reference Hiskett1976). The colonial bureaucracy and judiciary essentially regarded the MMO as an administrative blunder and worked in tandem to let it lapse. Bureaucrats undermined the administrative machinery to register Muslim marriages/divorces, while the colonial judiciary denied the normative existence of Islamic law in a few cases that came before it.

The MMO required all “Mohammedan” marriages/divorces to be registered with the district commissioner’s office for legal validity. To register a marriage, the bridegroom, the bride’s wali (guardian), two witnesses, and the licensed “priest” (imam) had to report to the district commissioner’s office in person within one week of its celebration.Footnote ¹⁰ Divorces were to be registered in the same manner within one month.

The ordinance authorized the governor to grant licenses to “Mohammedan priests” to officiate marriages/divorces. Colonial records are patchy, so it is impossible to say how many licenses were issued to imams in each locality. But the available evidence suggests that they were simply insufficient (Weiss Reference Weiss2008, 272). The MMO provided for the announcement of licensed imams in the Government Gazette (GG). My survey of the GG archives indicates that only forty-nine imams were licensed from 1907 to 1957—an average of less than one imam per year for the entire country.Footnote ¹¹ Weiss (Reference Weiss2008, 272) blames this on the fact that colonial authorities placed restrictions on who could apply for a license from the government.

Moreover, most imams were not eager to apply. To obtain a license, they had to pay a one-pound fee but, in turn, would collect only five pence per registered marriage/divorce. To recuperate his cost, an imam had to officiate a minimum of twenty marriages/divorces. This did not make much financial sense for many imams since very few registered marriages/divorces occurred in their localities.Footnote ¹² As a result, many towns had no licensed imams.

Even worse, local authorities were unaware of the ordinance’s existence (Anderson Reference Anderson1954, 250). Most Muslims did not care about registering marriages under it, either. After all, a traditional marriage ceremony conducted by an ordinary imam or malam was already regarded as “valid” in the community’s eyes (Weiss Reference Weiss2008, 273). They did not need the approval of the colonial authority for the validity of their unions. Moreover, those few Muslims who wanted to register their marriages faced several hurdles. First, they had to locate a licensed imam, which was challenging. Second, they needed to find authorities who were knowledgeable about the ordinance and possessed the required registration forms. Many commentators note that most offices did not carry them and instead asked people to register under the Marriage Ordinance (MO) of 1884 (Anderson Reference Anderson1954; Hiskett Reference Hiskett1976; Weiss Reference Weiss2008). The biggest hurdle was logistical. As noted, to register a Muslim marriage, the groom, the bride’s wali, two witnesses, and the licensed imam had to go together to the district commissioner’s office within one week of celebrating the marriage. Given the cost and difficulty of getting all these people together and transporting them to the nearest town center in a very short time, the whole registration process was an ordeal. Acknowledging the logistical obstacles, the district commissioner of Bole noted in 1932 that “[t]he main Mohammedan centers … are respectively seventy, fifty and fifty-five miles from District Headquarters. The [imams] are in most cases far from young and to ask them after every marriage to proceed to headquarters within a week, for registration would … be considered a hardship and have the reverse effect to that intended by the ordinance” (Hiskett Reference Hiskett1976, 133).

Besides subversive colonial practices that undermined the registration machinery, colonial judges also played a critical role in derailing the application of the MMO. Colonial judges, who were poorly trained and often appointed with nonmeritocratic considerations (Goldman Reference Goldman2016, 590), were not independent of the colonial bureaucracy but attached to it. Consequently, their preferences and worldviews were shaped by those of colonial administration. In this respect, the judiciary’s negligence and ignoranceFootnote ¹³ toward the MMO reflected the government’s deliberate policy to let the MMO fall into disuse. My survey of existing court decisions from the colonial era shows that British courts almost never recognized MFL claims based on the MMO. I came across only one decisionFootnote ¹⁴ in which an MMO-based divorce claim was brought to and eventually rejected by colonial courts. It seems that other scholars could not find much evidence of the application of the MMO by colonial courts, either. For instance, Ollennu (Reference Ollennu1966, 261), in his seminal study on succession law in Ghana, mentions only one (unreported) caseFootnote ¹⁵ where the West African Court of Appeal applied Islamic succession rules to the estate of a Fanti man who had registered his marriage in compliance with the MMO.

In short, both the colonial bureaucracy and judiciary acted in unison to derail the application of the MMO, hence preventing the normative recognition of Islamic law in the Gold Coast. Authorities were well aware of the bureaucratic hurdles and shortcomings of the ordinance. Yet they refused to fix them. According to Hiskett (Reference Hiskett1976, 132–34), in the 1930s, the colonial administration deliberately turned down opportunities to resuscitate the ordinance and give more support to the administration of Islamic law in the colony. Perhaps colonial officials lacked a genuine understanding of the practical challenges of requiring registration at district headquarters (Hiskett Reference Hiskett1976, 132–34). Or maybe some officials opposed the ordinance because they thought it undermined the powers of non-Muslim tribal authorities.Footnote ¹⁶ Both issues were probably factors in the weak implementation of the MMO. But the main reason was that both the colonial judiciary and bureaucracy viewed the ordinance as a mistake because it contradicted the long-held policy that Islamic law, being a foreign importation, had no official status in the colony or the surrounding areas. Hence, the British administration deliberately let it lapse and left the narrative of “alien” Islamic law for the modern Ghanaian state to inherit upon its independence in 1957.

Path-Dependent Bureaucratic Hurdles to Enforcement of the 1907 Ordinance

“In the area of religion-state relations,” Lerner (Reference Lerner2014, 391) writes, “political leaders of newly independent and still-fragile polities … [usually adopted] a conservative, rather than a revolutionary, approach to stabilize the political system and achieve other, more urgent … goals [of nation-building].” This was also the case in Ghana following the independence. The country’s founding father, Kwame Nkrumah, wanted to create a centralized state with a strong national identity. The new government banned all political activities based on religious or ethnic affiliation to avoid divisive, inflammatory conflicts. It also maintained the colonial status quo in religious matters, which entailed preserving the 1907 ordinance (Austin Reference Austin1966, 377).

To this day, the 1907 ordinance remains the law of the land. However, just like during the colonial period, in practice, the ordinance has again been let to lapse by the judiciary and derailed by bureaucratic hurdles that have effectively broken down the machinery to register Muslim marriages and divorces.

There are three types of valid marriage recognized by Ghanaian law: (1) customary marriage, (2) civil (or “Christian”)Footnote ¹⁷ marriage under the MO of 1884, and (3) Islamic marriage under the MMO. According to the Legal Resources Centre (LRC) (Atuguba Reference Atuguba2003), 95.9 percent of the Ghanaian Muslims surveyed said that the type of marriage they celebrated was Muslim marriage. 96.2 percent indicated that they had not registered their marriages. 80.2 percent were not familiar with registration requirements (Atuguba Reference Atuguba2003). Likewise, a 2015 report by the Ghana Statistical Service (GSS) found that no registration records of Mohammedan marriages existed and attributed this primarily to widespread lack of knowledge among the public and the failure of the government to provide effective institutions to facilitate registrations. “The findings reveal that the Mohammedan marriage has never taken effect due to the very short time frame (seven days) … within which it is to be registered; otherwise, it becomes void. Muslims are therefore compelled to register under the Christian [or customary] marriage … in spite of its conflict with their religious practice” (Ghana Statistical Service 2015, 25).

Registration of marriages is conducted by officials at metropolitan, municipal, and district assemblies. The GSS study revealed that while officials at the assemblies had a fair understanding of customary and civil marriages, they generally had little or no knowledge of the procedures involved in Muslim marriages. This is precisely what I observed during my visits to metropolitan assemblies in Accra, Tamale, and Kumasi in May–July 2017. Surprisingly, my observations were almost identical to those of Anderson (Reference Anderson1954), who visited district commissioners’ offices in major cities in the early 1950s and found no official machinery to register Muslim marriages. When I inquired about registering Muslim marriages, all officials I encountered told me that Muslims could register only a civil or a customary marriage. They had no information about Muslim marriages. One official in Accra said to me that “there were practically no licensed imams in the country.” She probably assumed that I was a foreigner who wanted to marry a Ghanaian Muslim woman. She continued, “even if we allow you to register a Mohammedan marriage here in the office, you cannot find a licensed imam to officiate it.”Footnote ¹⁸

I heard similar comments from many other informants in Ghana. They all told me that there were no licensed imams. I could not find one in Kumasi or Tamale, but one afternoon in May 2017, I met one in Nima, near Accra. His name was Sheikh Abubakar Shuaib. Sheikh Shuaib proudly told me that he had been licensed as imam by Nana Akufo-Addo, the sitting president of Ghana, then the Attorney General and Minister of Justice. Sheikh Shuaib gave me a copy of his letter from Mr. Akufo-Addo, dated December 24, 2002. The MMO requires the publication of licensed imams’ names in the GG. Although I did not see Sheikh Shuaib’s name in the GG, the issue of the Gazette dated December 20, 2002, listed the mosque Sheikh Shuaib founded as a place of worship licensed to celebrate marriages.Footnote ¹⁹

Sheikh Shuaib also provided me with copies of some recent marriage certificates registered under the MMO. They carried the names and signatures of grooms, brides, the district commissioner, the licensed imam (Sheikh Shuaib himself), and witnesses. He also showed me official correspondence from courts and various ministries as evidence that the government officially recognized his certificates. He told me that he did not receive too many requests for “CAP 129 [MMO] marriages.” He said people who sought to register their marriages under CAP 129 were “educated, or rich people who traveled or had business abroad.”Footnote ²⁰

A few days later, I met with a Muslim official at the Ministry of Justice in Accra. When I told the official that I had met a licensed imam, she was amazed, as if I had discovered an extinct species. Unfortunately, Sheikh Shuaib passed away in March 2018. I am not sure if his species is now totally extinct or if a few others are still out there. But my experience confirms that the machinery for registering marriages under the MMO has long been broken. Like its colonial predecessor, the government is aware of this but does not repair it. The memorandum to the Intestate Succession Law in 1985 (PNDCL 111) was like an official confession by the government: “The MMO … is hardly ever enforced. Its registration provisions are probably not known to many Muslims … and even less common knowledge … to the legal profession.” PNDCL 111 repealed section 10 of the MMO, which authorized Islamic succession rules for people married under the ordinance and imposed a uniform succession law on all citizens regardless of religion or custom. Many commentators viewed this as the last nail in the coffin of the already dead ordinance. “This phenomenon appears to be deliberately but carefully planned to remove the [MMO] from the laws of Ghana … ” (Ammah and Alhassan Reference Ammah and Alhassan2013, 29).

The Exclusion of Nonnative Religions and the Judiciary’s Refusal to Recognize Their Normative Claims

As in the colonial period, postcolonial Ghanaian courts have worked in tandem with bureaucracy and collectively derailed the application of the MMO. They frequently refused to acknowledge the nomic existence of Islamic law. They have done so not because they serve as Hirschlian bulwarks of secularism against the expansion of Islamic law but because they have inherited the British colonial narrative about the MMO and continue to view it as foreign import or nonnative law. They have refused to engage with Islamic law in substantive terms. They exclude it from their purview by exploiting procedural loopholes and the lack of licensing and registration machinery in most parts of the country. They systematically refuse to recognize Islamic marriages and divorces (thereby succession claims) because they are not duly registered under the 1907 ordinance.

Ghana was founded as a secular state. This characteristic of state was expressed in different wordings in the 1957, 1969, 1979, and current 1992 constitutions (Dovlo Reference Dovlo2005, 634). The colonial administration distinguished between “traditional” and “modern” religions in Ghana (Meyer Reference Meyer, Bender and Taves2012, 90). The former category consisted of traditional African religions that the British derogatorily called “fetishism.” The latter included Christianity and Islam (Kallinen Reference Kallinen2014). These categories survived into the postcolonial era. In the early days of independence, however, thanks to rising nationalism and anticolonialism, political leaders “espoused a markedly critical attitude toward Christianity, which was dismissed as the ‘white man’s religion,’ colonizing Africans’ minds” (Meyer Reference Meyer, Bender and Taves2012, 90), while exalting native religions. Native religions were considered part of the national heritage and integrated into official ceremonies. Although not considered a native religion, Islam was viewed, due to its non-Western origins, as a diplomatic and cultural asset (Weiss Reference Weiss2008, 323; Dumbe Reference Dumbe2013, 13–28). Against this backdrop, the Ghanaian secular state disassociated itself from Islam and Christianity. At the same time, traditional religions were elevated in political and judicial fields by incorporating customary laws and native institutions (i.e., chieftaincy) into the public administration. As shown below, the postcolonial state’s differentiated approach to native vs. nonnative religions also extended into Ghanaian courtrooms.

The global secularist trends that Hirschl (Reference Hirschl, Kapiszewski, Silverstein and Robert2013) describes in relation to the jurisprudence of many national high courts never occurred in Ghana. Until recently, the Ghanaian Supreme Court did not even bother to define what secularism entailed in terms of the constitution. In Bomfeh v. Attorney-General (2019), the court observed that the government’s support for constructing a national cathedral in Accra or setting up a Hajj Board did not amount to “excessive entanglement” of the state in religion. In contrast, justices interpreted the government’s support for the projects as an innocent attempt to foster national unity. They unanimously stated that the constitution, while secular in nature, did not “prohibit the government from supporting, assisting or cooperating with religious groups.” They declared that secularism in the context of the constitution “must be understood to allow, and even encourage state recognition and accommodation of religion and religious identity.” From this point of view, Ghanaian secularism does not erect a wall of separation. Instead, like its Indian counterpart, it maintains a principled distance that allows a disconnection between religion and state at the institutional level while not making a “fetish” of it at the policy level (Bhargava Reference Bhargava2013). Yet, at the level of the law, the Ghanaian judiciary distinguishes the traditional religion on the one hand and Christianity and Islam on the other.

Ghana has a dualistic legal system in which customary law is recognized as one of the primary sources of law under the constitution. Customary law contains practices and elements of traditional African religions. It means that when courts apply the customary law of native communities, they also recognize the nomic existence of traditional religions. For instance, in Boampong v. Aboagye (1980), the Supreme Court approved the application of native religious rituals and rules to a destoolment (removal of a chief) dispute between traditional authorities and invoked elements of native religion:

In other words, the judiciary recognized the nomic claims of native religions, especially when their elements were linked to customary law.

However, in cases dealing with nonnative religions (Christianity, Islam), the courts have systematically refused to recognize claims based on religious law. For instance, in Akyeampong v. Marshall (1959), a widow applied to the court to succeed to her deceased husband’s estate. She based her claim on the rules of the Presbyterian Church, to which both she and her late husband had belonged. These rules stipulated that a widow was entitled to one-third of her deceased husband’s property. The Divisional Court rejected the application, stating that the church’s rules were “not part of the law of the land” (Ollennu Reference Ollennu1966, 95–97). Instead, it distributed the deceased’s estate according to the husband’s personal law (i.e., the customary law of his tribe), which did not allow a widow to succeed to her deceased husband’s intestate property (Bankas Reference Bankas1992, 436). As said earlier, customary law is imbued with elements of traditional religion. In this respect, the court’s rejection of the succession rules of the church was not a secular reflex. It simply privileged one form of religiously inspired law over another. At the time, intestate succession in Ghana was regulated by the deceased’s personal law. As Kludze (Reference Kludze1988, 278–79) argues, the court could have expanded the meaning of “personal law” and allowed the devolution of the property according to the church’s rules, but the justices chose not to do so.

One can argue that the justices in Akyeampong v. Marshall were correct in dismissing the church rules, as there was no legislation authorizing their application by Ghanaian courts. In the case of Islamic law, however, such legislation exists: the MMO of 1907, allowing courts to recognize and regulate the consequences of MFL. Still, the Ghanaian judiciary has been equally dismissive of claims based on Islamic law. They have systematically refused to acknowledge the nomic existence of Islamic law or engage with it in substantive terms. As a result, most MFL claims have been rejected on procedural grounds due to failure to register Muslim marriages per the 1907 ordinance.

The Lack of Harmonization: The Growing Divergence of Legal Meanings between State and Nomic Groups

If a court kills the divergent legal meanings of nomic communities after the substantive engagement, this could lead to two possible outcomes. In some instances, the dignified killing may create tensions and bring about further polarization of legal meanings of the state and nomic communities (as in the case of the Indian Supreme Court’s Shah Bano rulingFootnote ⁴⁶ or the Israeli High Court of Justice’s rulings on the question of “who is a Jew”Footnote ⁴⁷ ). In most other cases, however, as experiences of many pluri-legal societies suggest, dignified jurispathy facilitates the harmonization of legal meanings of the state and nomic groups (Sezgin Reference Sezgin2018).

Dignified jurispathy often creates favorable conditions for the emergence of internal actors who challenge the dominant legal meaning within their nomic groups and offer rival meanings. For example, reformist judges, clerics, and human/women’s rights activists who want to avoid future confrontations with state law and bring about internal reform often engage in the creation of new legal meanings by directly drawing on the courts’ judgments and integrating the legal principles therein into their communities’ value systems (e.g., the Israeli Shari‘a Court of Appeals’ adaptation of the principle of the best interest of the child and relaxation of maintenance rules to increase payouts to wives—which occurred in response to Israeli civil courts’ dignified killing of shari‘a court decisionsFootnote ⁴⁸ ). In other words, thanks to this feedback loop, when courts recognize the nomic existence of other laws (religious, customary, etc.) and engage with them in substantive terms, they tend to play a constructive role in the normative evolution of the nonstate groups’ legal meanings. Over time, the legal meanings could harmonize and share enough common traits that the intensity of normative conflict between the state and nomic community may considerably decrease.

Put this way, if courts refuse to engage with nomic groups’ legal meanings in substantive terms and habitually resort to procedural tools to destroy them (i.e., undignified killing), they will fail to provide valuable feedback and miss an opportunity to influence the future development of nomic communities and their legal meanings. In many jurisdictions from Malaysia to Morocco, civil courts’ substantive engagement with religious law–based claims has led to their moderation, as reform-minded groups have been able to harmonize their religious meanings with human/women’s rights and associated norms and values (Shachar Reference Shachar2008; Hirschl Reference Hirschl2010; Moustafa Reference Moustafa2018; Sezgin Reference Sezgin2018). In the absence of harmonization, legal meanings of the state and nomic groups will grow further apart. That is to say, undignified jurispathy has a high opportunity cost for the state and also for groups within the nomic community whose interest is directly threatened by the lack of harmonization (e.g., women, children, etc.). This is something we observe in the Ghanaian case. Over the last three decades, a divergence of opinions about human and women’s rights seems to have occurred between the legal meaning of the state and various nomic groups within the Muslim community.

Since the restoration of democratic rule in 1992, the Ghanaian judiciary has become an active defender of human and women’s rights and shown a growing willingness to hold domestic law and institutions to international standardsFootnote ⁴⁹ (Ben Reference Ben2001; Buamah Reference Buamah2018). However, the judiciary has not been willing to extend its new human rights jurisprudence to the cases that dealt with Islamic law. In other words, courts have not been interested in harmonizing their legal meaning with those of Muslim groups. As a result, the state law and Muslim law grew further apart—most strikingly in their respective approaches to human and women’s rights questions. During my field research, I observed this growing divergence in person, especially about domestic violence issues.

The Domestic Violence Act of 2007 provides a broad definition of domestic violence and calls for imprisonment of offenders for up to two years. However, several of my interviewees reported that some nomic groups did not view domestic violence as a criminal matter and advocated for resolution of the matter within the group without the involvement of police or state agencies. For instance, Asma, a Muslim woman who was a victim of domestic violence, had sought the help of a local imam to intervene to stop her husband from abusing her. The imam reportedly told her: “According to Quran, your husband has a right and duty to discipline you.”Footnote ⁵⁰ When Asma asked if she should have reported her husband to the police, the imam allegedly said: “You should avoid involving the police. This is an Islamic matter, not a matter for the state.”Footnote ⁵¹ Asma was upset with how the imam handled her case but also disenchanted with the promise of equal rights and protection under the state law. “This is how Muslim women are treated in this country. I am trapped. Where is the equality or democracy that everybody speaks of?” A similar sense of frustration was shared by nearly half of the women who sought the assistance of traditional and religious authorities for domestic violence issues and property disputes. Many reported that they felt betrayed by the state and its “empty promises of equality” and freedom. It looks like the burgeoning gap between legal meanings of the state and Muslim groups has weakened some Muslim citizens’ trust in democratic institutions and the promise of equal citizenship and left them with a more profound sense of victimization.

As said, the postcolonial Ghanaian judiciary has been systematically brushing away Islamic law claims on procedural grounds. By doing so, it denies itself an opportunity to engage with Islamic law in a meaningful and respectful manner and give reform-minded elements in the Muslim community feedback to harmonize their legal meanings with those of the state. As shown below, when the courts try to engage with Islamic law claims in a dignified manner, nomic groups take note of it, and some actors even show a willingness to redefine their legal meanings accordingly. In other words, the limited evidence suggests that the feedback loop works.

To this date, there has been only one case in which the Ghanaian judiciary has come very close to recognizing the existence of Islamic law through substantive treatment of the normative claims at stake. In Giwah v. Ladi (2010), the plaintiff contested a ruling by the Islamic Judicial Committee (IJC) at the Office of Chief Imam, which distributed a deceased Muslim woman’s estate according to Islamic law, explicitly citing verse 4:11Footnote ⁵² of the Quran. As the court of original jurisdiction, the High Court, without dodging the issue on procedural grounds, stated that the IJC should have applied PNDCL 111 instead of Islamic law to the distribution of the estate, thereby setting aside the Islamic ruling. But the High Court then did something entirely unexpected and examined at considerable length Islamic inheritance law as stated in the Quran. It judged that the ICJ ruling had misinterpreted verse 4:11. It also ruled that the ICJ’s decision violated the 1992 Constitution’s clauses concerning equality before the law (Article 17/1) and nondiscrimination (Article 17/2). The High Court’s decision was later upheld by the Court of AppealFootnote ⁵³ and the Supreme Court.Footnote ⁵⁴

Giwah v. Ladi (2010) was unprecedented. For the first time, superior courts engaged with Islamic law in substantive terms and challenged its commitment to the constitutional principles of gender equality and nondiscrimination. Although some officials at the Office of Chief Imam resented the ruling that set aside their jurisdiction,Footnote ⁵⁵ the official response was relatively positive: “The Chief Imam understands the democratic dispensation and believes that the law of the land (Constitution) overrides all other laws in the country.”Footnote ⁵⁶ When I asked the legal advisor at the Office of the Chief Imam about the case, he reiterated the supremacy of the constitution over his nomic group’s legal meaning. He added that he did not see a contradiction between the two because human rights and “gender justice [were] the pillars of Islam.”Footnote ⁵⁷ Some Muslim women’s rights activists that I interviewedFootnote ⁵⁸ supported the court’s ruling in Giwah v. Ladi. They told me that they had welcomed gender-sensitive reinterpretation of Islamic inheritance rules. This was a clear sign that some nomic groups within the Muslim community were willing to work with the state courts. They were willing to recognize the state’s law as the supreme law and harmonize their legal meanings accordingly if/when courts acknowledge the nomic existence of Islamic law and engage with it substantively.

Procedural Injustice, Political Exclusion, and Silencing Moderate Voices within the Muslim Community

State courts’ consistent denial of MFL claims on procedural grounds and the government’s refusal to fix the broken machinery also contribute to the growing sense of procedural injustice among Ghanaian Muslims and undermine their commitment to the rule of law. Procedural justice theory suggests that courts’ legitimacy depends on the perceived fairness and trustworthiness of their procedures and their ability to treat people with dignity and allow them to voice their grievances (Tyler Reference Tyler2003). In turn, the belief in legitimacy of legal institutions increases compliance with laws and cooperation with legal authorities (Tyler Reference Tyler1990). It is also reported that among socially excluded minorities, perceptions of procedural fairness lead to an increased sense of social inclusion and greater identification with the values and institutions of the political community (Murphy, Cherney, and Teston Reference Murphy, Cherney and Teston2019). Put another way, when people believe that courts regularly use procedural excuses to deny their claims and suppress their voices because they are members of a particular cultural community, their trust in legal authorities weakens. They become less willing to comply with the law and risk becoming more marginalized politically.

There are no representative studies that survey Ghanaian Muslims’ attitudes toward legal authorities or the state in general. However, nearly three-quarters of my interviewees said they did not trust the courts—especially regarding family and property matters. One taxi driver said: “Courts are not for Muslims. I am a Muslim. They do not represent us. They do not accept our law. My law is shari‘a.”Footnote ⁵⁹ Likewise, a university student remarked: “We, Muslims in Ghana, do not have a state of our own. The Christian majority owns the state and courts … [which] have no respect for our culture … Why should we obey their law?”Footnote ⁶⁰ Tyler (Reference Tyler2003, 286) states that individuals’ perception of legitimacy is “rooted in the judgment that … the courts are acting fairly.” If courts are perceived to act unfairly, their legitimacy erodes, making individuals less willing to comply with the law. In this respect, one can claim that this is precisely what is happening among some of my Ghanaian informants. The perceived injustice seems to undermine their trust in the judiciary and erode their commitment to the rule of law.

Murphy, Cherney, and Teston (Reference Murphy, Cherney and Teston2019) report a positive correlation between procedural injustice and social exclusion among religious minorities. Similarly, Renström, Bäck, and Knapton (Reference Renström, Bäck and Knapton2020) found that socially excluded individuals were more prone to identify with extremist groups and resort to political violence. That is to say, the Ghanaian courts’ systematic denial of Islamic law and the perceived procedural injustice could contribute to the sense of social exclusion and even radicalization among some Ghanaian Muslims. In recent years, pointing to the growing influence of Ahlu Sunnah Wal Jama’a (ASWAJ—a homegrown Salafi/Wahhabi movement with strong Saudi/Egyptian connections), some scholars have warned about the increasing danger of Islamic radicalization in Ghana (Aning and Abdallah Reference Aning and Abdallah2013; Iddrisu Reference Iddrisu2013; Dumbe Reference Dumbe2019). I cannot say whether Islamic radicalism is rising or whether radicalization directly correlates with procedural injustice. Still, during my field research, I encountered several enthusiastic supporters of ISIS (Daesh) who loudly criticized the Ghanaian court’s handling of “shari‘a” cases. One individual who helped arrange my meetings at a local shari‘a court said: “I am proud of Daesh and Khalifa al-Baghdadi … I would like to see shari‘a fully implemented in Ghana.”Footnote ⁶¹ Another person who reportedly had friends who had traveled to Syria to join Daesh was very angry that Ghanaian courts did not recognize Islamic law. When I asked him about their dismissal of Islamic marriages, in particular, he said: “Shari‘a is the law of the God … When courts [do not recognize it], they disrespect Muslims. A state that disrespects Islam is [a] state of kufr [disbelief]. It is OK to make jihad [against such a state].”Footnote ⁶²

Although radicalization may be an indirect outcome of perceived procedural injustice, most Muslims do not respond to the courts’ undignified killing by adopting extremist views. Instead, they turn to religion-based ADR forums.Footnote ⁶³ The Muslim community in Ghana is deeply divided along ethnic, tribal, and sectarian lines (Pellow Reference Pellow1985; Weiss Reference Weiss2008, 348). This plurality has given rise to several ADR forums with competing narratives and legal meanings. Some of these organizations include the aforementioned IJC at the Office of the National Chief Imam, the Islamic Research and Reformation Center (IRRC), the Ghana Muslim Mission (GMM), and the Arbitration and Complaints Section (ACS) at ASWAJ.Footnote ⁶⁴

There is considerable divergence of legal meanings across these forums. For instance, when I inquired about the minimum age for marriage for a woman, an imam in Accra who was affiliated with ASWAJ told me: “According to shari‘a, as soon as a girl reaches puberty, she can marry. This could be nine, ten, eleven, or twelve.”Footnote ⁶⁵ I heard a similar comment also from a malam affiliated with the Tijaniyya movement—the predominant Sufi order to which the National Chief Imam also belongs.Footnote ⁶⁶ A representative of the GMM, on the other hand, told me that they would not allow anyone under eighteen to marry because a child would not have the mental and physical maturity required for a happy marital life.Footnote ⁶⁷ I also observed a similar diversity of communal legal meanings regarding spousal duties and what it meant to be a “good” husband/wife or even a “good” Muslim. However, legal meanings that I would call “friendlier to women’s or children’s rights” were often a minority opinion.

A young women’s rights activist, Rafatu Idris,Footnote ⁶⁸ a volunteer at a local Muslim organization in Accra, told me “You cannot expect malams or imams to start treating women with respect or granting them equal rights. This is not going to happen overnight. Someone needs to push them … I think the state has a responsibility … [The state] has to set an example.” I think this young women’s rights activist was correct to point to the state’s role—especially that of the courts—to pressure traditional authorities within the Muslim community to respect the constitutional rights and integrate them into their rulings. As scholars have shown, communal authorities are more likely to undertake self-reform or adjust their legal meanings when there is a direct competition between state and communal courts (Shachar Reference Shachar2001; Sezgin Reference Sezgin2018; Hleihel, Shahar, and Yefet forthcoming). The environment of competition empowers proreform groups and helps them mobilize for bottom-up change. However, the unwillingness of the Ghanian courts to hold religious authorities to constitutional standards and their failure to create conditions for jurisdictional competition have allowed conservative voices to grow stronger and pushed groups with “moderate” or “women-friendly” meanings to margins of the Muslim normative community.