The rise of digital assets has introduced a novel way to store, transfer, and invest wealth, offering distinct advantages over traditional financial systems. These assets operate on decentralised networks, enabling peer to peer transactions without the need for intermediaries such as banks. What once sounded like a niche interest for tech enthusiasts has now become a central issue for regulators, businesses, and ordinary citizens.
Walk into any café in Accra, sit through a university study group, or join a forum of young entrepreneurs, and you will hear talk of Bitcoin, NFTs, or crypto trading. Digital assets are redefining money, ownership, and even contracts. But they also pose uncomfortable questions for the law. What exactly are these things? Are they property? Are they money? And when disputes arise, how should courts deal with them?
What are Digital Assets?
At the simplest level, digital assets are items of value that exist purely in electronic form. They include cryptocurrencies like Bitcoin and Ethereum, stablecoins such as USDT, non fungible tokens (NFTs), and tokenised versions of real world assets. Unlike cash or land, you cannot touch them. They exist on blockchains, distributed digital ledgers, and are controlled through cryptographic keys.
This makes them fast, borderless, and versatile. They can be traded like commodities, used as a medium of exchange, or held as property. But their intangible, decentralised nature makes them awkward for traditional legal frameworks.
The Classification Puzzle
Lawyers have long divided personal property into two boxes: choses in possession, meaning things you can physically hold like a car or cash, and choses in action, meaning intangible rights you enforce against someone else like debts or shares.
Digital assets do not fit neatly into either. They are not tangible, so they cannot be possessions. But unlike debts or shares, they do not represent a claim against any person you can sue. If you lose Bitcoin through hacking, there is no bank or obligor standing behind it. Control is purely technical, not contractual.
The courts are grappling with this. In the UK case of AA v Persons Unknown, the High Court recognised Bitcoin as property and granted a proprietary injunction to freeze stolen coins. The court reasoned that even if cryptocurrencies do not fit neatly into the old categories, they still bear the hallmarks of property because they are definable, transferable, and have permanence. Building on this, the UK Law Commission has proposed a third category of personal property, described as “data objects.”
Elsewhere, the picture is mixed. The European Union has adopted the MiCA Regulation to give crypto a clear framework. The United States remains divided, with courts and regulators disagreeing on whether tokens are securities, commodities, or something else. China has banned cryptocurrency transactions outright while building its own state backed digital yuan.
The Ghanaian Story
In Ghana, cryptocurrencies exist in a legal vacuum. Generally, they are not expressly prohibited, but they are not recognised as legal tender and fall outside the Payments Systems and Services Act and other financial laws. The Bank of Ghana and the Securities and Exchange Commission have repeatedly issued public notices warning of the risks, particularly fraud, scams, and lack of consumer protection.
In 2022, the Bank of Ghana issued a notice, clarifying that digital assets are neither legal tender nor regulated under Ghanaian law. By August 2024, the Bank reiterated that notwithstanding draft regulations in development, its Notice No. BG/GOV/SEC/2022/23 remained in effect. That directive prohibits banks and payment service providers from facilitating crypto asset transactions until formal regulatory guidelines are published.
This position reflects caution. On one hand, authorities acknowledge the potential of digital assets to transform payments, remittances, and investment. On the other hand, the lack of regulation creates fertile ground for scams and exposes consumers to significant risk. The promise of new rules for licensing Virtual Asset Service Providers signals progress, but until then, participants remain unprotected.
Smart Contracts: The Invisible Machinery
Most digital assets operate through smart contracts. These are self executing agreements coded onto blockchain networks that automatically perform terms once conditions are met. The simplest way to imagine them is like a vending machine: if the right input is given, the machine releases the product, without a cashier.
Smart contracts power crypto transactions, NFT marketplaces, and decentralised finance platforms. They promise efficiency, transparency, and certainty by removing human intermediaries. Yet they clash with the foundations of Ghana’s contract law, which is built on English common law principles of offer, acceptance, consideration, intention, and capacity.
The challenge is whether code can embody legal intent. When a transaction is executed automatically, is there mutual assent in the way contract law requires? What if an error in code produces an unfair outcome? And when parties are located in multiple jurisdictions, which law governs the agreement?
Globally, courts are still grappling with these questions. Some jurisdictions have recognised smart contracts as binding so long as they meet basic requirements, while others remain cautious. In Ghana, where contract law still values flexibility, documented intent, and good faith, the rigid automation of smart contracts sits uneasily.
The Real Challenges
Taken together, digital assets and smart contracts expose deep cracks in traditional legal systems. Ownership disputes are difficult because once stolen or transferred, assets are hard to trace and recover. Jurisdictional problems arise because the technology is borderless while laws are national. Precedent is scarce, which breeds uncertainty. And in unregulated markets, fraudsters thrive while legitimate businesses hesitate to innovate.
The risk is that Ghana, like many countries, could be left behind, either paralysed by uncertainty or exposed to unregulated chaos.
Conclusion: The Way Forward
Digital assets are not going away. They are already shaping global commerce, and Ghana cannot afford to ignore them. What is needed is a clear, balanced framework that recognises digital assets as property under Ghanaian law, creates a licensing and supervisory regime for service providers, provides for the recognition of smart contracts where they meet basic contractual requirements, and trains judges and lawyers to handle disputes in this space. Public education will also be key to reducing scams and losses.
Handled wisely, digital assets could be a tool for financial inclusion, innovation, and economic growth. Handled poorly, they could become another frontier of fraud and instability. The choice, as always, rests with the law.
