WHO’S A CHILD AT LAW: A MUSE

child

In all aspects of life, there seem to be just too many criteria for distinguishing between humans – age, sex, colour, race, wealth, weight, nationality, religion, etc. Yet, two main criteria stand out. The first is sex/gender, where a person is either classified as male or female, and now possibly both or none. It even turns out that distinction based on gender applies, in some cultures, not only to humans and other animates but also to inanimates – la table, le weekend, l’orange, etc.

The second is age. A person may be classified as a child or an adult (for the purposes of this discussion, we shall sometimes conveniently refer to a ‘child’ as a ‘minor’ with its various conjugated forms, for example, minority, etc. In the same vein we shall refer to adulthood as ‘majority’).

Law and Age

The importance of age cannot be overemphasised, particularly, when it comes to the province of law. Law is so much interested in knowing whether a person falls within the domain of minority or of majority. Indeed, classification based on age comes with several incidents. It determines rights, duties, responsibilities, privileges, entitlements, etc.

With this obvious importance (of the distinction between majority and minority), one may readily expect that the law would state one single age to serve as the barrier between minority and majority for all purposes. The advantages of this well-founded desire are many and obvious – certainty, clarity, convenience, etc.

The Absolutist’s Assertion

There is a growing school of thought that the coming into force of the 1992 Constitution has put an end to the uncertainty concerning the age barrier between minority and majority. The proponents of this school of thought, which I’ll, for purposes of convenience refer to here as the “Absolutist”, build their proposition upon certain legally-plausible bases soon to be explained.

Musing Scope

I intend, through this muse, to test the validity of the Absolutist’s assertion. Also, I’ll attempt to reach certain conclusions which I think is germane to this matter. In doing this, I’ll limit myself to legislations and, rather, refrain from veering into the murky arena of case law. This is because, case law may, depending on the circumstances of a case, hold a person who is factually above minority to still be a minor. For example, in one case a court held that a 32 year old woman was a minor. She suffered severe physical and psychosocial disabilities from birth and was left out of her deceased father’s will.

Ghanaian Age

At common law, a person remains a minor until 21 years. This common law position became part of the laws of Ghana as inherited law from England by virtue of our antecedent colonial relationship. The continuous application of age 21 as the age of majority is therefore rooted in the Supreme Court Ordinance of 1876. By Section 14 of this Ordinance, the common law, the doctrines of equity and the statutes of general application which were in force in England on July 24, 1874, were to be in force in the Gold Coast. The age of majority in Ghana on July 24, 1874, was, thus, 21 years.

The effect of the foregoing is that until laws are made in Ghana to alter the age of minority for various purposes, the age of majority, especially for commercial contract purposes, will be 21 years or more.

The Absolutist’s Contention

The Absolutists contend, among others, that in all matters and for all purposes the age for majority is 18 years. So that a person who is 18 year or more has the capacity not only to enter into any legal contract but also to marry with or without parental consent. They often cite article 28(5) of the 1992 Constitution, which sets the age barrier for majority at 18 years. Also, the Absolutists rely on article 42 of the 1992 Constitution which also sets the age for voting at 18 year or more. Reliance is also made on legislation such as the Children’s Act 1998 (ACT 560). Section 1 of that Act states that a person who is below the age of 18 years is a child. Accordingly, a person who is above 18 years is an adult.

Other special legislations are marshalled in support of the position taken by the Absolutists. A typical example is Section 13(1) of the Wills Act, 1971 (Act 360) which makes a reasonable provision for a child of a deceased where a child is a person below the age of 18 years. The Absolutists, based on the above provisions and their likes, threaten the conclusion that it is only a person who is below 18 years who is a minor and that a person attains the age of majority for all purposes when he/she hits age 18.

A Scrutiny

It is worth subjecting the above position to a casual scrutiny at this stage. Article 28 of the 1992 Constitution, which forms the principal basis for the proposition of the absolutists, deals substantially with the right of the Child. Clause 5 of article 28 leaves us in no doubt that the Constitution intends the age of 18 to apply as a limit only for purposes of the subject matter of article 28, namely, the right of the child.

Consequently, section 1 of the Children’s Act, 1998 (ACT 560) is just a reproduction of the position in article 28(5), since the two provisions deal with the same subject matter – the right of the child. Further, article 42 of the 1992 Constitution maintains 18 years as the age for majority, but for the purposes of voting rights only. Also, for the purposes of ‘reasonable provision’ under section 13(1) of the Wills Act 1971 (Act 360) it may not be far-fetched to state that a person is a child if he/she is under 18 years.

The instances mentioned here ought and must be read in context. Reading them in context, one will but agree that these provisions are not intended to serve as a one-stop shop for the determination of majority or minority in Ghana. We so submit.

There is, however, evidence that the 18 years age barrier, as it were, is not maintained throughout the 1992 Constitution. Thus in article 94(1)(a) a person does not have the capacity to become a Member of Parliament if he is below the age of 21 years. In the case of article 94(1)(a), could one be justified in holding that age 21 is an absolute age for determining whether a person is a minor or not for all purposes? We think, as in the cases of articles 28(5) and 42 of the 1992, that article 94(1)(a) is not applicable beyond the limit of its purpose i.e. a person’s qualification as Member of Parliament.

Sex Age

A further study of other legislations will offer additional evidence in support of the hypothesis that there is no one single conclusive age for the determination of majority in Ghana. Thus, Section 97 of the Criminal Offences Act, 1960 (Act 29), if read together with section 101 of the same Act, makes it quite clear that a girl who is below 16 years does not have the capacity to consent to sex.

Marriage Age

Further, the Marriages Act 1884 – 1985 (CAP 127) under Section 59, denies a person (male or female) who is not 21 years or more the capacity to give consent to his/her own marriage. This is so notwithstanding the fact that Section 13(2) of Act 560 provides that a person who is 18 years or more may marry but only with a parental consent (where parental consent includes the consent of persons standing in loco parentis).

Commerce Age

It must, however, be loudly noted that Section 59 seems to discharge the requirement of parental consent in a marriage involving a divorced person or a widow/widower who is below age 21.

With respect to commercial contracts, we submit that the common law age barrier of 21 years (explained above) will apply in Ghana today. This submission is supported by the fact that the Contract Act, 1960 (Act 25) which seeks to alter various  common law principles of contract (including the capacity of persons to enter into contract) left the common law age barrier at 21  years (See: Dowuona-Hammond, Towards A Uniform Age Of Majority  In Ghana: Rethinking The Contractual Capacity Of Minors. UGLJ Vol. XX, 62 at 62).

Conclusion

In the light of the above, we respectfully conclude as follows:

  1. That there is no single all-purpose age for determining majority in Ghana. The corollary of this is that there exist different ages for majority for different purposes.
  2. That very enticing and cogent arguments exist for the proposition that age 18 is the ‘one-stop shop’ age for attaining majority in Ghana. However, until an express statement of law is made either by Parliament or by the judiciary (particularly the Supreme Court), conclusion (1) above will remain a more compelling position of the law.

We’re even more comforted in our conclusions by the statement of Elizabeth S. Scott, in her work “The Legal Construction of Adolescence”, in 29 Hofstra L. Rev. 547, at pages 547 to 548. There, the learned writer states:

“…the legal regulation of children is extremely complex. Thus, the question, “What is a child?” is readily answered by policy makers, but the answer to the question, “When does childhood end?” is different in different policy contexts. This variation makes it very difficult to discern a coherent image of legal childhood. Youths who are in elementary school may be deemed adults for purposes of assigning criminal responsibility and punishment, while seniors in high school cannot vote and most college students are legally prohibited from drinking. … by shifting the boundary and extending adult rights and duties at different ages for different purposes, lawmakers accomplish the transition from childhood to adulthood gradually …”

*** I published this article as a Facebook Note 5 years ago in November, 2010. It’s still a draft and should be treated as such.