Kumasi -- The much-touted Intestate Succession Law, PNDC Law 111 of 1985, has come under sharp criticism because it has drastically reduced the practical utility of the Mohammedans marriage Ordinance (CAP 129).
The legislation (CAP 129), which regulates Islamic marriages and divorces in Ghana, provides that every Moslem marriage and divorce be registered and “ this provision is mandatory,” Mr. Mohammed Abbas, a social worker in Kumasi has pointed out.
So far as CAP 129 is concerned, any Islamic marriage or divorce is not regarded as such, unless it has been registered in accordance with the provisions of the legislation.
The potency of this legislation seems to be greatly affected with the passage of Law 111, which provides that a surviving spouse be adequately compensated for his services to the deceased spouse.
But Abbas, of USAID’s Partners for Health Reforms Plus (PHRplus) project in Kumasi, noted that the law has come to repeal section of CAP 129, which allows for a property of a deceased person whose marriage or divorce is registered under the legislation to be passed on in accordance with Islamic law and said that the plural legal system regarding Moslem marriage is unfavourable.
Explaining how the plural legal system had come as a challenge in Moslem marriages, Abbas said before Law 111 was enacted, the only way a Moslem could have Islamic law to apply as his personal law in matters of inheritance to property was to get married under CAP 129.
This was so because the courts held in Kwakye Versus Tuba that religious law cannot be the personal law of any Ghanaian, unless a statute provided it for.
Currently, he said, the Moslem cannot under any circumstance have Islamic law as a personal law with regard to inheritance to his property.
By the provisions of Law 111, the residue of the property of the instestate cannot devolve under Islamic law, since it states that Islamic law cannot be customary and personal law of a Ghanaian.
With Law 111 in force, any Moslem who wished to have Islamic law apply to the transfer of his property had to make a will to that effect at great cost (hiring of a lawyer and risk of having it tampered with).
“One would even have to periodically update the will which in itself is cumbersome and expensive,” Abbas observed.
According to him, the millions of marriages and divorces that have been celebrated or performed in Ghana in accordance with Islamic procedure and rites are not valid, because they are not registered under CAP 129, since the legislation which dealt with the devolution of property of a Moslem who died intestate has been repealed by Law 111.
He noted that CAP 129 is hardly enforced because many Moslems do probably not know its registration provisions.
Abbas has, therefore, called on Moslems to agitate for the rectification of the Law 111 because it is discriminatory.
