Religion in the Public Sphere: Challenges and Opportunities in Ghanaian Lawmaking, 1989-2004

I. INTRODUCTION The word "secularism" suggests that political and religious realms are essentially on parallel tracks and that the two words cannot be uttered in one breath. In Ghana, however, religion and politics have been inextricably linked since pre-colonial times.1 Though Ghana was conceived as a secular state, Christianity became the primary religion during the era of colonial rule, and English common law (with its Judeo-Christian foundations) underpinned many new laws that have guided the State since that period.2 In past decades, four Ghanaian laws have highlighted a clash of religion, culture, and politics in the area of religious liberty in Ghana. This Article analyzes these four laws and concludes that although the laws have created some challenges, they have also generated opportunities for dialogue between religion, customs, and tradition on the one hand, and lawmaking in Ghana on the other. When religious and political bodies engage in this dialogue, laws can be created to enhance human rights that harmonize with religious and cultural values rather than collide with them. Such dialogue is also helpful as legislators involve civil society in the legislative process through adequate consultation. The first law, the Intestate Succession Law of 1985, was meant to reflect Ghana's adherence to human rights norms3 by addressing the problems that existed in the sphere of marriage and marital succession.4 By granting spouses specific rights in each other's property,5 the law significantly changed the system of land and property distribution that was in place prior to 1985, when Ghanaian law did not recognize the rights of widows to marital succession.6 The second law, the Religious Bodies Registration Law of 1989, prescribed a necessary registration procedure for all religious organizations, including the old churches established by the missionaries.7 The Ghanaian Parliament passed the third law, the Criminal Code (Amendment) Act of 1998 in order to protect the rights of women and children by banning religious servitude.8 The fourth law, the Draft Domestic Violence Bill, is now in public debate. The proposed bill is a public initiative designed to respond to the continuous problem of spousal and child abuse9 and is meant to protect these vulnerable persons against domestic violence through the issuance of protective orders.10 While these four laws have created some conflict, they have also created important interactions between religion and politics in Ghana. They demonstrate the involvement of politics in the religious sphere and add to the dialogue that will lead to maintaining religious freedom while adequately reforming customs that violate human rights. Since this dialogue has come about primarily in reaction to the laws after their passage, I recommend that dialogue that critically interrogates cultural values take place within communities before such laws are passed. Part II of this Article provides a brief overview of the relationship between religion and politics in Ghana. Part III discusses the four laws in greater detail and analyzes the challenges generated by each law, namely, the public reactions of religious constituencies that view the laws as limiting their religious freedom. Part IV provides a comparative analysis of how the four laws reveal patterns and trends that challenge traditional notions of custom and religion in the lawmaking sphere while providing a vehicle to effectuate change and improve human rights. Finally, Part V offers a brief conclusion. II. A BRIEF OVERVIEW OF POLITICS AND RELIGION IN GHANA Traditional African societies provide examples of how religion and politics blend. As Hans Haselbarth asserts, "It belongs to African tradition that we cannot easily distinguish between the secular and religious realm, not even in politics."11 Following this tradition, religion and politics have been married in the antiquity of the traditional state and leadership in Ghana, and attempts to put them asunder have been resisted. …