Introduction

Evaluating the intricacies and complexities of societies requires a close examination of the cultural practices and rituals that shape the daily lives of their members, as well as the underlying belief systems that give these practices meaning. This is particularly relevant in Ghana, where enduring cultural traditions and deeply held beliefs continue to define social identity. Like many African nations, Ghana presents a unique blend of time-honoured practices alongside modern formal routines, each contributing its own significance to the social fabric. A compelling entry point for such analyses is the study of funerals and funeral rites, which traditionally serve both to escort the deceased into the afterlife and to celebrate their lives.[1]

Customary social structures in Ghana traditionally prioritise the collective over the individual. As a result, funerals, and their accompanying rites, are typically managed by the extended family of the deceased. In instances where the deceased held a leadership position, particularly in chieftaincy, the funeral process necessitates the endorsement and involvement of the relevant stool or subordinate chiefs, reflecting the person’s elevated status. Regardless of individual repute, however, the extended family usually retains primary authority over funeral arrangements, determining everything from timelines and individual roles to the selection of venues, specific rites, and the burial site.[2]

Contemporary Ghanaian funerals have evolved into elaborate, multifaceted events that reflect the tension between preserving cultural heritage and adapting to modern influences. Increasingly, however, Ghanaian society is embracing a more individualistic ethos, with nuclear families asserting greater autonomy and a growing expectation that personal directives should be respected. This evolving landscape calls for a judicial rethinking of the extended family’s overarching control over funeral decisions, urging courts to consider enforcing personal directives expressed by the deceased. Such reform would not only honour the autonomy of the individual and the nuclear family but also align Ghana’s legal framework with contemporary societal values.

Given this shift, this article argues for the recognition of advance directives as enforceable legal instruments in Ghana, asserting that such recognition would better protect the autonomy of both the nuclear family and the expressed wishes of the deceased. To contextualize the tension between customary law and modern values, Ghana’s legal framework, shaped by judicial precedents, provides critical insights. The following analysis of key cases illustrates how courts have historically navigated this balance.

Existing Jurisprudence

The present position of Ghana law is drawn out of multiple judicial decisions regarding the subject matter. Legislation is largely silent on the determination of which parties should be given primary responsibility over the conduct of the final funeral rites of a deceased individual. Thus, the determination has often been dependent on the dictates of customary law. Constitutionally, Article 11 of the 1992 Constitution[3] recognises, per Clauses 1, 2 and 3, customary law as included in the laws of Ghana. The Constitution defines customary law to be “the rules of law which by custom are applicable to particular communities in Ghana.”[4] Customary law is applicable and enforceable in a court of law to the extent that it does not conflict with the Constitution[5] or other written law.[6]

Thus, where the Constitution or statutory law fails to make provision for a particular matter, and the dispute before the courts is such that there exists a customary practice that would enable the court to resolve it, the court would often be willing to apply such customary practice. In furtherance of this point, one could consider the dictum of Twumasi JA in the case of The Republic v. The Judicial Committee of The Ga Traditional Council and Another; Ex-Parte: Nettey[7] where the learned Justice stated:

“It follows from leading cases therefore that customary law draws its nerve wire from the most ancient concepts of the rule of law, natural justice and fair trial and we must recognise that our customary law is especially tenacious of the truth and would leave no vestiges of doubt in its pursuit of the truth and it achieves this objective through the investigative process of calling witnesses and subjecting them to the rigours of cross-examination albeit in an informal manner not fettered by any technical rules of evidence as pertain in the common law practice. It is therefore in my view revulsive to customary law to say that it operates on arbitrariness and caprices.”

The learned Justice stated further:

“Contrary to what counsel may think of customary law, that it operates on no laid down principles such as cross-examination, customary law as indeed Griffith CJ said in Yirenkyi vrs. Akuffo [1905] 1 Ren p. 362 at p. 367:—“Generally consists of the performance of the reasonable in the special circumstances of the case”. Other cases have approved of and applied this famous dictum which to me is an eloquent testimony of the intrinsic wisdom in our customary law.” (Emphasis is mine)

This approach has worked fine in our pluralistic system with diverse tribes and ethnicities because, in truth, certain life processes have always been and still remain ubiquitous to all forms of human society. Organized communities universally establish customs and rituals to address pivotal aspects of life such as parentage, marriage, contracts, death, inheritance, and conflict resolution. These shared human experiences necessitate societal structures and frameworks to navigate them effectively. It is for this reason that both the Marriages Act[8] and the Children’s Act[9] both recognise customary forms of marriage and adoption respectively. This is also why the Intestate Succession Law[10] was passed, to consolidate all customary practices into a single process to be approved by courts, and to specifically abolish some of the unfair customary practices that existed prior.[11] A lot of other such matters have seen laws enacted that either incorporated existing customary practices or replaced them completely. Unfortunately, other than regarding the distribution and inheritance of deceased property, no such legislation exists for determining who is entitled to conduct the rites and affairs of a deceased person, thereby leaving it up to the courts to determine such disputes as and when they arise.

As a minor starting point, it is worth noting that, at common law, it is said that the body of a deceased person cannot constitute property capable of being inherited.[12] There is however a duty to ensure that proper arrangements are made to arrange for the proper disposal of the body.[13] In Ghana, courts that have had to deal with such subject matter have also established certain legal positions. The most notable case in this regard is inarguably the case of Neequaye and Another v. Okoe[14] which was a dispute between the nuclear and extended families of the late Dr. C.R. Neequaye regarding his final funeral rites and final resting place. His nuclear family, represented by his widow and eldest daughter, argued that they have control of his burial because, according to Ga customary law, the nuclear family held primary responsibility for funeral arrangements. They further asserted that a corpse was akin to property under customary law, and as the main inheritors of the deceased’s estate according to the Intestate Succession Law (PNDCL 111), they should inherit and thus control the corpse and burial.  Finally, they claimed the deceased had explicitly expressed wishes to be laid in state at his home and buried in a specific cemetery, desires they believed they were entitled to fulfil.

Lutterodt J (as she then was) ruled in favour of the extended family, asserting that a corpse cannot legally be classified as property within the meaning of 18 of PNDCL 111 and thus, the corpse would not be covered by the provisions of PNDCL 111. She stated thus:

“I have also gone through PNDCL 111 which deals with, succession to the self-acquired property of a deceased intestate. The Law applies to property acquired by the deceased, it not being family property or stool property. By definition under this Law a corpse does not form part of those items described as property. Certainly a corpse is not an immovable property, eg land or buildings. It is not included nor intended to be included in the definition of household chattels under section 18 of PNDCL 111.”

Regarding the wishes of the deceased, the learned Justice found proof of such wishes to be insufficient. In fact, she even considered some of the evidence to be dubious and essentially treated the plaintiffs’ claims about the deceased’s intentions as unsubstantiated allegations. The learned Justice of the High Court thus relied on Ga customary practice to hold that the extended family be the ones with the authority to make the necessary determinations. In reaching this conclusion, the learned Justice stated:

“Since there is no statute law governing these matters they will be based purely on customary law. I did not intend to rely merely on the evidence of the second defendant witness to state the law. Acting under the powers conferred on me by section 50(1), (2) and (3) of the Courts Act, 1971 (Act 372) invited the office of the Ga Mantse to help me determine these issues.

After hearing the witness, I have come to the conclusion that the position of the law as at customary law is that the wife and children are not the persons entitled to collect the body of a Ga Mashie man from the mortuary. They are also not the persons entitled to name the place of wake-keeping nor place of burial.”

She did however state additionally:

“That is not to say that the nuclear family is of no importance, far from it. We need strong nuclear families to build strong nations. But what I am saying is that at law the wife and children have no inherent right to decide on those issues. Since customary law does what is reasonable I would think they must be consulted during the arrangements. Indeed, this is the time they need the compassion and sympathetic care of all concerned. Their wishes and views must be heard and considered but I am saying that the state of the law as we have it now, be it statute law or otherwise, does not vest in the spouse and children, particularly in the spouse, the rights sought for by the plaintiffs.”  (Emphasis is mine)

The case of Neequaye v. Okoe thus effectively established a position in Ghanaian law that, until statutory change is enacted, customary law would determine who has the authority to conduct the final rites of the deceased person. This precedent was tested in the case of Chijioke I. Kalu and Others v. Mrs. Florence N. Kalu and Others[15] which concerned the application of Nigerian Igbo customary law towards the determination of who has the authority to determine the burial rites of the deceased.

In this case, the defendants, the widow and daughter of the deceased, argued for the burial of the deceased in Ghana. They alleged that this was the wish of the deceased, which was why he moved from Nigeria to Ghana. Ackaah-Boafo J. (as he then was) was also not convinced by the evidence led by the Defendant to prove such intention. Of keynote is the fact that the court considered, among other things, the chiefly status of the deceased (a status which implies deep knowledge and dedication to custom) in holding that further proof of such wishes was required. Furthermore, the learned Justice asserted that even if the deceased had indeed intended to be buried in Ghana, such an intention would not have been decisive unless explicitly stated in his will. The learned judge stated:

“[56] Assuming that I am wrong with my analysis and therefore in error; based on the law that there is no property right in a dead body and also the personal law of the parties herein that in the absence of a written Will directing that a deceased does not want his affairs to be regulated by a system of customary law, all decisions are to be made by the family, I am fortified that the said dying wish should not be sacrosanct but subject to the approval of the family…” (Emphasis is mine)

It is important to note, however, that this dictum specifically pertained to Igbo customary law as established before the High Court Justice. Nonetheless, the ruling firmly underscores that a court, in recognizing the applicability of customary law and tradition, may disregard the personal wishes of the deceased. It is also important to note on the other hand that customary law only became relevant because the deceased had not set out his burial wishes in a will. Had such a will existed, the case may have taken a different trajectory, with the court potentially giving weight to the deceased’s express directions. The absence of a written will, however, left the matter to be determined by the established customs governing the burial of an Igbo man, as proven before the court.

On the point of chieftaincy, two other cases are also worth considering: Nsiah v Ameyaw II[16] and Nii Kpakpo Amaate II v. Daniel Sackey Quarcoopome And 3 Others.[17] In the Nsiah case, The Respondent, claiming to be the Chief of Effiduase and Acting President of the Asante Mampong Traditional Council, sued the Appellant, the family head of the deceased, seeking a declaration that as chief, he must be customarily informed of the sub-chief’s death before burial and funeral rites could proceed. The Appellant argued that the deceased had never recognized the Respondent as chief, and thus, there was no obligation to inform him. Before pleadings closed, the Respondent secured an injunction preventing the burial and funeral until he was notified. In upholding the decision of the trial court, the Court of Appeal stated that while notification was not an absolute requirement for burial, once a person held a chiefly position, their burial became a matter of customary significance, distinguishing royal burials from ordinary burials. The court emphasized that customary burial rites must be observed, and where a breach of custom occurred unintentionally, purification rites would be required. Thus, this case effectively established that where the deceased person is a chief, customary procedure would require notification of the necessary customary authorities. In Amaate II, Ackaah-Boafo J. (as he then was) ruled on a conflict between a chief and a family over funeral rights. The crux of this case was an injunction application filed by the chief to prevent the family from conducting the funeral of the deceased unless and without his participation. In dismissing the application, the court, despite recognising the authority of the chief over the funeral of his sub-chief as established in the Nsiah case above, the learned judge took the view that the personal relationship and animosity that existed between the deceased and the applicant would make it unreasonable for the applicant to conduct the funeral. The learned judge stated thus:

“[43] Now, having regard to the competing claims of the parties and given the affidavit evidence and facts of the case it can be discerned from the pleadings that all was not well between the deceased late Mankralo and the Plaintiff. From the evidence the deceased is the one who allegedly “kidnapped” the Plaintiff from Bawjiase to Obom and where he was stripped half-naked. Consequently, the deceased and others were convicted by a Court of competent jurisdiction for assaulting the Plaintiff as the Complainant and the star prosecution witness. The Defendants have confirmed the bad blood that existed between the deceased and the Plaintiff whilst he was alive and therefore accuse him of using the instant action as a transparent ruse to retaliate and embarrass him even after his death. To that extent sitting as a judge I should ask myself whether or not under the colour of custom, the burial and funeral of the deceased should be organized by the Plaintiff? To my mind the answer is No. Granting the Applicant’s wish would amount to giving him the right to organize the funeral of his adversary. To my mind that would not be in accordance with good conscience and common sense.” (Emphasis is mine)

In departing from the decision in the Nsiah case, the learned Justice stated:

[45] In the opinion of the court whilst the case of NSIAH v. AMEYAW II SUPRA unequivocally states and recognizes that rites are performed for those who hold chiefly positions upon their demise, I do not understand their Lordships to say that the funeral and burial should be organized by the sitting Chief. He is to be informed by the family and he is to be allowed to perform customary rites.

These authorities seem to give credence to the expression “the family owns the body” in Ghanaian jurisprudence. However, this customary principle faces challenges in light of modern societal developments. The rise of the nuclear family, evolving socio-legal values, and Ghana’s pluralistic legal system have led to disputes over the deceased’s body between extended and nuclear families. Arguments have been put forward for a legal framework that places further importance on the nuclear family and its preferences to reflect contemporary societal dynamics.[18] Such an approach is not wholly unreasonable considering how more and more people are leaving the country to start families abroad, with some even cutting ties with their extended families altogether. This would also go a long way to prevent situations where extended family members frustrate the nuclear family with exorbitant fees and unreasonable practices.

Personal Wishes of the Deceased

The courts’ reluctance to honour unproven wishes, as in Kalu v. Kalu, underscores a systemic gap. By contrast, advance directives could resolve this ambiguity by providing clear evidence of intent.  The authorities have yet to provide a definitive pronouncement on the effect of the written wishes of the deceased on how such arrangements are to be carried out. It is submitted that if it can be demonstrated that the deceased did not wish for their affairs to be managed under customary law, or specifically by their extended family, the courts should honour such preferences.

Critically, even though a corpse is not legally inheritable, and is thus not covered by PNDCL 111 or the Wills Act, 1971 (Act 360), it is submitted that it is inherently abhorrent and against good conscience for the wishes of a person following his death to be overridden by a custom that he has explicitly refused to adhere to. Just as Section 54 of the Court Act, 1993 (Act 459)[19] specifies the personal law of the deceased as the applicable law to the devolution of the estate, so too should personal law determine the applicable rules regarding authority over the burial of the deceased.

In the view of the present author, customary law should only be applicable where the intentions of the deceased cannot be proven, with sufficient cognisance, of course, of the higher standard of proof where a person makes an allegation regarding a person who is deceased and unable to refute such allegation.[20] Thus, where a person prepares a Will or some other advance directives regarding such processes, or if the intentions of the deceased can be proven by some other means, then their wishes should be sacrosanct. This should apply regardless of chiefly status.

Conclusion

In summary, Ghanaian jurisprudence regarding burial rites navigates a complex terrain, balancing customary law, which traditionally grants authority to the extended family, with the evolving realities of modern Ghanaian society. Cases like Neequaye v. Okoe and Kalu v. Kalu underscore the judiciary’s current deference to customary practices in the absence of statutory law, even when faced with competing claims from nuclear families and the alleged wishes of the deceased. This legal stance, while rooted in the recognition of customary law within Ghana’s pluralistic system, creates a tension with contemporary values that increasingly prioritize individual autonomy and the nuclear family unit.

To reconcile these competing values, legal reform, whether by statute or judicial pronouncement, is desirable. Recognizing advance directives concerning burial rites as legally enforceable instruments would represent a crucial step forward. Such reform would not only honour the autonomy of individuals and nuclear families in deeply personal decisions but also ensure that Ghana’s legal framework evolves to reflect modern societal values. By giving legal weight to the expressed wishes of the deceased, Ghana can create a more equitable and contemporary approach to burial rites, balancing respect for cultural heritage with the fundamental rights of individuals in a changing society.

 

[1] Alice Boateng and Linda Anngela-Cole, ‘Socio‐Economic Transformation of Akan Funeral Rites in Ghana: The Changing Process’ (2012) 65 Omega 281 doi:10.2190/OM.65.4.c Accessible from < https://www.researchgate.net/publication/232763888_Socio-Economic_Transformation_of_Akan_Funeral_Rites_in_Ghana_The_Changing_Process> Accessed 24 February 2025

[2] Edna Agnes Boakye, ‘A Corpse Cannot Be Inherited, It Belongs to the Wider Family – Legal Practitioner’ (Citi Newsroom, 25 July 2023). Accessible from < https://citinewsroom.com/2023/07/a-corpse-cannot-be-inherited-it-belongs-to-the-wider-family-legal-practitioner/> Accessed 02 March 2025

[3] Fourth Republican Constitution of Ghana, 1992

[4] Ibid, Clause 3

[5] See for example, Article 26(2) of the 1992 Constitution which prohibits all customary practices that “dehumanise or are injurious to the physical and mental well-being of a person”

[6] See for example Section 14 of the Children’s Act, 1998 (Act 560) as amended by the Children’s (Amendment) Act, 2016 (Act 937) which outlaws forced marriages of children and marriage of children below the age of 18 years.

[7] The Republic v. The Judicial Committee of The Ga Traditional Council, Adjiy Tetteh Ex-Parte: Nettey (2000) JELR 66951 (CA)

[8] Marriages Act, 1884-1985, (CAP 127)

[9] note 6

[10] Intestate Succession Law, 1985 (PNDCL 111)

[11] Ibid, Section16A

[12] Except where the body or its parts have acquired different attributes through the application of skill such as dissection or preservation techniques (R v Kelly [1999] QB 621)

[13] See Williams v. Williams (1881) 20 Ch. 659; Rees v. Hughes [1946] K.B. 517

[14] Neequaye And Another v. Okoe [1993-94] 1 GLR 538

[15] Chijioke I. Kalu and Others v. Mrs. Florence N. Kalu and Others (2017) JELR 69826 (HC)

[16] Nsiah v Ameyaw II [1994-95] 2 GBR 583 – 592 CA

[17] Nii Kpakpo Amaate II V. Daniel Sackey Quarcoopome And 3 Others (2018) JELR 63735 (HC)

[18] Ama F Hammond and Prosper Batariwah, ‘A New Legal Framework for the “Ownership” of a Deceased Person in a Legally Plural Ghana’ (2023) 10(2) Journal of Comparative Law in Africa 40.

[19] As amended

[20] See Grace Asantewaah v. Mark Amankwah Addo [2008] 1 GMJ 209 @ page 212 where it was held that “where an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be thoroughly sifted and the mind of the judge who hears it ought to be first of all, in a state of suspicion. The evidence adduced by both parties would be considered in that light”