By Melanie Nathan, Aug 25, 2024, Country Conditions Expert, Africa LGBTQI+ Including Ghana
In February of 2024 Ghana passed the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Act. Since the the new law has been subjected to several laws suits. There has also been a lawsuit against the earlier anti-Homosexuality Penal Code that criminalizes consensual same sex acts. This post will summarize the latest developments and where the law is at currently.
The Current Valid Penal Code criminalizing consensual same-sex sexual acts:
On July 24, 2024, the Supreme court of Ghana upheld a colonial-era law that criminalizes adult consensual same-sex conduct, contrary to Ghana’s human rights obligations. The judgment comes at a time when the country is engulfed in legal battles and controversy over the dangerous new anti-LGBT law, the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Act. The Court upheld the British colonial legacy of criminalizing so-called ‘unnatural sex.' The law had been challenged on the grounds that it violated the constitutionally protected rights to privacy and personal liberties, rights that everyone has under international law as well, and regardless of their sexual orientation.
Ghana’s constitution ensures respect for human dignity, protection of personal liberty, and the right to privacy for all. Yet, violence against LGBT people is prevalent, and persecution has escalated significantly in recent years especially with the backdrop of the newly debated Family Values Act.
Supreme Court held that the fact that some countries, through judicial pronouncement and legislation, have legalized homosexuality, does not mean Ghana should apply those laws, stressing that homosexuality and other forms of unnatural carnal knowledge remained a crime under the laws of Ghana.
Prince Obiri-Korang, a law lecturer at the University of Ghana, initiated the suit to overturn the law. Under section 104(1)(b) of Ghana’s Criminal Offences Act 1960 (Act 29), inherited from the British colonial law, “whoever has unnatural carnal knowledge[…]of a person sixteen years or older, with his consent, is guilty of a misdemeanor.” Unnatural carnal knowledge is defined in section 104(1)(2) as “sexual intercourse with a person in an unnatural manner or with an animal.” According to the supreme court judges, “unnatural manner” also includes the use of sex toys.
The court made the pronouncement after throwing out a suit by the plaintiff, Dr Prince Obiri-Korang, who wanted the court to recognise the rights of homosexuals, arguing that such people were discriminated by virtue of Section 104 (1) (b) of Act 29, and was thus unconstitutional. Dr Obiri-Korang further argued that Section 104(1) (b) of Act 29, violated the right to privacy and liberty, as respectively provided under Article 18(2) and 14(1) of the 1992 Constitution.
The court held that although the plaintiff had made an extensive argument in support of his case, most of his argument were based on laws of other countries, which could not be accepted and applied in Ghana.
The unanimous decision by the seven-member panel of the apex court, which declared Section 104(1) of Act 29 as constitutional and thus, upholding the 64-year old criminalizing unnatural carnal knowledge was authored by Justice Issifu Omoro Tanko Amadu.
Peer pressure
In a concurring opinion, Justice Emmanuel Yonny Kulendi held that the fact that some countries had accepted homosexuality does not mean that Ghana should do same.
“Whilst the constitutions and laws of other nations may have expressly legalized homosexuality, glorified gay marriages and by way of affirmative actions, promulgated legislation to propagate, outdoor, evangelize, preach and sell the notions of homosexuality to every fabric of those societies, Ghana as a nation, and for that matter this Court, cannot by "peer pressure" be cajoled into adopting similar stance” he stated.
Again, he held that the 1992 Constitution does not recognize homosexuality contrary to the view of the plaintiff, but rather upholds family and culturural values which frowns on the practice. He cited Article 28(1) of the Constitution which enjoins Parliament to enact laws that would protect and advance the family as the “unit of society are safeguarded in promotion of the interest of children”.
Justice Kulendi wondered how the family could be created in line with the above constitutional provision if homosexuality and other forms of unnatural carnal knowledge were legalized in the country.
“It is difficult to see how the family could be created through a mode of sexual connection that threatens the most naturally ordained routes of conception.
It is equally uncertain as to how the family may exist with such engagements of unnatural carnal knowledge in the name of upholding rights to privacy,” Justice Kulendi held.
The Supreme Court judge was also of the opinion that the various cultures and values in the country did not accept homosexuality, and since the Constitution recognized such values, Section 104(1) of Act 29 could not be said to be unconstitutional.
“It is without a doubt that the question of homosexuality borders on morals and traditional values. The society's denunciation is expressed in the criminalization of not only homosexuality but all forms of unnatural carnal knowledge stated in section 104 of Act 29.
This denunciation finds further expressions in other constitutional articles that promote family values. Thus, in the terms explained by the Plaintiff in this case, it is without doubt that the practice of homosexuality is unconstitutional. The criminalization of same cannot therefore be said to be an affront to the Constitution,” Justice Kulendi added.
The court also rejected the plaintiff’s argument that Section 104(1) (b) violated the right to privacy.
According to the court, the plaintiff’s argument that the law interfered with people’s privacy was untenable as such an argument could mean that the State should not criminalized certain actions which took place in private but were injurious to the public.
The right to privacy, the court added was not absolute, but subject to certain restrictions such public safety, economic well -being of the country and public morality.
With this ruling, the court has expanded the interpretation of Section 104(1)(b), apparently adopting language from the anti-LGBT Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021, which specifically prohibits a person, in clause four, from engaging in any acts that undermine the proper human sexual rights and Ghanaian family values.
The 2024 Proper Human Sexual Rights and Ghanaian Family Values Act
The new law was enacted in February 2024, and has not yet been signed by the President of Ghana, while being challenged in the Ghanaian Supreme Court.
The Family Values Act carries heavier criminal penalties for same-sex activities, advancing further aspects of criminalization, to include punitive measures against anyone who identifies as LGBT, queer, pansexual, and any other non-conventional gender identity as well as allies to these communities. It would also punish anyone providing support, funding, or public advocacy for sexuality and gender minority rights.
The Bill was passed by Ghana's Parliament into law in February of 2024, but is pending attestation by President Akufo-Addo, who has refused to accept it on his desk for the 30 day time period to run, stating he will wait for the Court challenges ruling on the procedural validity of the Act.
Ghana’s Supreme Court on Wednesday (July 17) deferred its ruling, sine die, on a request to restrain Parliament from transmitting the highly contested anti-LGBTQ bill to President Nana Akufo-Addo for his final approval. The ruling means debate around the bill, which has dominated Ghana’s political discourse since parliament passed it in February, will be sidelined from the campaign for December’s presidential election race.
MP Sam George: “It doesn’t make sense that the ruling on the injunction placed on the anti-LGBTQ bill has been adjourned sine die. The Chief Justice seems to have an agenda against the bill. The Supreme Court has no power to injunct Parliament; it is an abuse of power, capricious power. We expect the Chief Justice to demand accountability from the Judge. The delay deprives Parliament and undermines the process." “There was a ruling that was supposed to be given on the 17th of July. She [the Chief Justice] came and unilaterally decided to stay that ruling. She cannot impose an injunction on Parliament suo motu.”
So effectively the Bill is stuck - and it cannot be delivered to the President until a ruling. He is refusing to accept it for attestation until there is a ruling.
Samuel Nartey George has warned protestors against wearing political party colors ahead of the planned demonstration against Chief Justice Gertrude Araba Esaaba Sackey Torkornoo. “Don’t dare come with party colors. We will let the Police deal with you. We are not doing politics; we are coming with Ghanaian colors. This has no political affiliation. We are fighting for the future of our children” he said.
The Bill is now a political ping pong ball: Sam George has been slammed by opponents for spending so much time on LGBTQI+, whilst neglecting real problems in his constituency - including bad roads, poor infrastructure in schools, etc., indicative of the scapegoating of LGBTI people for political purposes.
Meanwhile, the FACT is that LGBTQ+ Ghanaians have not asked anyone to legalize same-sex marriage. People just want protection of basic rights.
Ghana will elect a new President in December. President Akufo-Addois not running for office. Current VP and flagbearer Dr. Mahamudu Bawumia will not hesitate to sign the anti-LGBTQ bill into law, barring any legal challenges and as long as it conforms with the procedures, according to Kojo Oppong Nkrumah, Vice Chair of the Party’s Manifesto Committee. (Source: Myjoyonline.com) “He has said openly that he is anti-LGBTQ, and he's not going to support any conversation or argument that says we should normalize or legalize LGBTQ things in this country,” he told Joy News’ PM Express on Monday.
The Housing Minister acknowledged that the bill is currently under litigation to determine whether it followed the correct legal processes before its passage. “It's being litigated, and I'm not going to make a pronouncement on the legality of that bill, but he has said clearly that he will protect Ghanaian family and cultural values. He does not support all these LGBT things that some people are trying to promote. He's totally against it,” he stated.
In May this year, Dr. Bawumia reaffirmed his stance, making it clear that LGBTQ activities would not be tolerated in Ghana if he is elected president.
Read also: ‘I’ll not allow LGBTQ activities in Ghana’ – Bawumia
“On this matter of LGBTQ, I want to say again without any equivocation that we will not allow it in Ghana. It is not going to be allowed. Our Bible says no, our Quran says no, and our people say no. So no. That is the answer,” he declared.
No man will be marrying a man, no woman will be marrying a woman. It is not our value. And I will stand firm no matter the consequences. We will safeguard our country, and we will safeguard our people," he added.
Meanwhile, Ho West MP Emmanuel Kwasi Bedzrah has challenged Dr Bawumia to compel President Akufo-Addo to sign the bill into law now, arguing that Bawumia, as Vice President, should influence the president to act.
Tell your boss to sign Anti-LGBTQ+bill – Ho West MP tells Bawumia
Pushing for the current President to sign the Act into law, candidate for President and current VP Bawumina is being challenged as weak: “If he is man enough to rule this country, he should be able to tell his boss, 'Look, my boss, this is our cultural value, please sign this bill,’” the MP said on Joy FM’s Top Story.
However, Ofoase Ayirebi MP Kojo Oppong Nkrumah disagreed, arguing that Dr Bawumia would not hesitate to pass the bill into law if it is properly constructed and legally laid before him.
“If a bill properly constructed has gone through the processes and is legally laid before him unless there's something fatally wrong with the bill, he will pass it into law,” Mr Oppong Nkrumah stated.
He further explained that the current bill is being contested because “There was a decision that had to be made by the Speaker of Parliament whether or not that bill will impose a charge on the public purse."
“Those who have sued are arguing among other things that the Speaker did not make that determination, and, therefore, could not have admitted it properly as a private member's bill for it to be passed. That is one of the fatalities they are complaining about,” he clarified.
The immense popularity among the majority of Ghanaians of the new Bill is undeniable. This could account for the Court delays, knowing if it rejects the Bill for any reason the reprisal will be harsh. Ghana and other African countries have been cautioned against compromising their culture and values by accepting the practice of LGBTQ+ activities as well as legalizing the same since it will spell doom for the continent. It is clear that the Bill could also have an impact on the elections if for any reason it is rejected by the President who is caught between a rock and hard place as he juggles the global impact of attesting to the legislation. Ghana is already suffering a serious economic slump. The Ministry of Finance has warned that by allowing the Act to become fully enacted law, Ghana stands to loose over $3Blllion in much needed finance from the World Bank, as well as other loses in aid, trade and tourism.
By Melanie Nathan Country Conditions Expert, Africa LGBTQI+ Including Ghana SEE COUNTRY CONDITIONS EXPERT REFERENCES HERE
Sources:https://www.graphic.com.gh/news/general-news/foreign-homosexuality-laws-not-applicable-to-ghana-supreme-court.html fbclid=IwY2xjawE4lJpleHRuA2FlbQIxMAABHZYri40Ma0lyTTuQnBvHbbjsg7HTiI2xqgBtRRcWrFk8XKYGST1Ib3kJBg_aem_N8yNA96-Y0EQLqToF3RdhA
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