AnalysisExplainersFeaturedHomepagePolitics

Ghana’s Anti-LGBTQ Bill: An intersection between law, culture and human rights!

Introduction

In a unanimous decision, the Parliament of Ghana passed the  Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, popularly referred to as the anti-LGBTQ bill, on Wed. Feb. 28, 2024, after months, if not years, of deliberation. Despite the passage, there appears to be no end in sight for the controversy surrounding the bill, with the players for and against plotting their last-gasp strategies to have the bill assented to by the president or aborted altogether. The media,  both traditional and social media, as anticipated, have been flooded with conversations about the subject since then.

By Ghanaian law, the president has the Executive Power to assent to laws passed by the Parliament of Ghana, and the country is waiting with bated breath from locals and religious groups and quasi-threats from some members of the international community on what the president will do after the MPs passed the bill. 

Several human rights activists have expressed worry over the passage of the bill, which they claim is an affront to the fundamental human rights of citizens of a country reputed to be the bastion of hope, peace and democracy. However, those in favour of the Bill say it is aimed at establishing sexual and family values that are in line with the country’s culture, religion, and moral beliefs.

DUBAWA examines the bill, highlighting the cultural and legal perspectives and its implications on the country’s economy and international reputation. 

The Genesis of the bill?

The call for heads of state of Ghana to indicate their apparent stance on whether Ghana will accept same-sex marriages and relationships has become the norm in contemporary politics. Opposition members have used it to mount pressure on the incumbent governments. The sitting president, Nana Akufo-Addo, is remembered for his not-so-popular interview on Al-Jazeera. He said LGBTQ activities were “bound to happen” in Ghana if the level of activism was increased. His predecessor, John Mahama, also had his day and baptism of fire over LGBTQ when a gay activist, Andrew Solomon, wrote a piece in bed with the president of Ghana and promoted and supported the ex-president’s memoir, My First Coup d’etat

The story about LGBTQ activities in Ghana went a notch higher in Jan. 2021 when the news of the opening of an LGBTQ+  advocacy centre in Accra broke. It was met with a huge public outcry and criticism from most Ghanaians. Several individuals and institutions, including the National House of Chiefs, the National Chief Imam, the Christian Council and the Catholic Bishops’ Conference, called for the closure, arrest and prosecution of individuals responsible for the advocacy centre. The centre was subsequently closed. However, it opened a new national discourse on LGBTQ+ activities in Ghana. 

The Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 is a Private Members Bill introduced by bipartisan Members of Parliament made up of Sam Nartey George, Emmanuel Kwasi Bedzrah, Rev. John Ntim Fordjour, Alhassan Sayibu Suhuyini, Rita Naa Odoley Sowah, Helen Adjoa Ntoso and Rockson-Nelson Etse Kwami Dafeamekpor. On behalf of the group, Hon. Sam Nartey George laid the bill in parliament on Mon. Aug. 2, 2021. It was later referred to the Committee on Constitutional, Legal and Parliamentary Affairs for consideration.

Sam Nartey George, National Democratic Congress member of parliament for the Ningo Prampram constituency, was vocal on the bill in Parliament as he was out of Parliament as well. In an interview on Starr FM, he said he decided to take a keen interest in making sure that the anti-LGBTQ bill is passed to act as a safeguard for his kids who may be introduced to the idea of same-sex relationships in school. According to the MP, he has no interest in what people do in their private rooms, but he draws the line when it (their private perversion) is, in a way, forced down on younger generations without permission. He believes the bill is the ‘best bill/thing’ to happen to Ghana since it protects the country’s family values and children.

Majority Leader Alexander Afenyo Markin is one of the members of parliament who openly criticised parts of the bill.  He filed a last-minute motion for a second consideration of the bill to remove prison sentences from the bill. He argued that community service was the best alternative to prison sentences. 

What is the Human Sexual Rights and Family Values Act 2024?

The Bill, having been passed unanimously by the MPs, now becomes the Human Sexual and Family Values Act, 2024 and will apply to persons who identify as gay, lesbian, transgender, pansexual, bisexual, an ally, or an individual with any other sexual orientation or in a sexual relationship which is contrary to the established sociocultural relationship between a male and a female in Ghana. 

Also, the act will apply to an individual or individuals involved in promotion propagation, advocacy and support or funding for  LGBTTQAP+ activities.

In addition, sections 1 (c ) and (d) of the act add that the bill also applies to individuals or persons:

“Who provides or participates in the provision of sex or gender reassignment, surgical procedure or any other procedure intended to create a sexual category of a person assigned at birth except where the procedure is intended to correct a biological abnormality including intersex; or who engages in a sexual activity prohibited under this Act.”

Highlights of the Bill

Offences committed under this bill are known as a misdemeanour. Most misdemeanours are liable on summary conviction to a fine/penalty unit or a term of imprisonment. The fine for misdemeanours under this bill ranges from not less than seven hundred and fifty penalty units to not more than five thousand penalty units, depending on the offence. On the other hand, the term of imprisonment ranges from not less than two months to not more than ten years, depending on the offence (misdemeanour).

It is interesting to note that same-sex marriage is void under this act. This implies that certified same-sex marriages in other jurisdictions become unenforceable in Ghana.

Also, it is vital to note that an individual aware that an offence committed under this bill ‘shall’ report to the police or relevant authority in the community/ society. The appropriate authority has three days to ensure the report is lodged at the police station. Because of this, a person who verbally or physically abuses, assaults or harasses an individual accused of an offence or suffering from any form of sexual or gender identity challenge under this bill commits a misdemeanour. 

However, the bill allows graphic descriptions to portray the behavioural patterns of a person engaged in an activity prohibited by the bill if used for educational/ instructional purposes or in response to any advocacy or activism.

Interestingly, the bill caters for intersex individuals and victims of sexual activities prohibited under the act.  Section 18 of the bill states:

“The minister may, in consultation with the Ministers responsible for Health and Gender, Children and Social Protection by legislative instrument, make regulations to

  1. Regulate an approved service provider and 
  2. provide for 

 I. the support of victims of sexual activities prohibited under this act;

II. assistance for intersex persons, and 

III. the effective and efficient  implementation of this Act.”

Are there similar laws elsewhere?

Before the introduction of the Human Sexual Rights and Ghanaian Family Values Act, there were no existing laws prohibiting LGBTQ+ activities in Ghana.

Section 104 of Act 29 of Ghana’s 1992 constitution is the closest to the bill. Section 104 of the Criminal Offences Act,1960 (Act 29) prohibits unnatural carnal knowledge of anyone of age sixteen or over with or without the person’s consent.  The term “unnatural carnal knowledge” has been defined under Section 104 (2) of the Criminal Offences Act, 1960 (Act 29) of Ghana to mean “sexual intercourse with a person in an unnatural manner or with an animal.” This definition refers to sodomy. In other words, the penile penetration of the anus is distinguished from the vagina in “carnal knowledge.”

Unnatural carnal knowledge without consent is considered a first-degree felony. It is liable for conviction to a term of imprisonment of under five years and not more than twenty-five years. Unnatural carnal knowledge with a person sixteen and over with consent or with an animal is considered a misdemeanour.

In Africa, countries have passed the Anti-LGBTQ+ law with stringent punishments. In Nigeria, for example, anyone engaged in same-sex marriage or activities is guilty of an offence which incurs a penalty of up to 14 years in prison. The Same-Sex Marriage (Prohibition) Act of 2013 bans a marriage contract or civil union entered into between persons of the same sex. 

Also, North African countries have laws that ban LGBTQ activities. In Algeria, for instance, under the Penal Code 1966 (Article 338), LGBT people face sentences of up to three years in prison.

The most recent is Uganda’s revised anti-homosexuality law, which slams a death penalty on some same-sex acts and a 20-year sentence for ‘promoting homosexuality.’ 

Are there repercussions of the bill on Ghana?

In a presser released on March 4, 2024, the Ministry of Finance, Ghana, cautioned the president to refrain from approving the bill into law. The ministry stated that Ghana could lose $3.8 billion in financial support over six years if he signed the bill.

Virginia Evelyn Palmer, US ambassador to Ghana, has condemned the bill. She believes that the legislation is distasteful and takes away the human rights of gay people in Ghana.

“I am saddened because some of the smartest, most creative, most decent people I know are LGBT. The bill Parliament passed takes away not only their basic human rights but also those of all Ghanaians because it undermines their constitutional rights to freedom of speech, freedom of assembly, and freedom of the press. It will be bad for public order and public health,” as posted on the US Embassy Ghana’s Facebook page.

She added that the bill, if passed, will hurt Ghana’s economy and international reputation. 

In a presser, Matthew Miller, US State Department Spokesperson, said that the passage of the bill limits the rights of one group in the society, which to an extent undermines the rights of all.

“The bill would also undermine Ghana’s valuable public health, media and civic spaces, and economy. International business coalitions have already stated that such discrimination in Ghana would harm business and economic growth,” he added.

Several reactions have been to the Ministry of Finance and the US Ambassador to Ghana’s claim. Various political actors and commentators have advised that Ghana should not sacrifice its ‘morality’ for financial gains. In his presentation on Peace FM, Ghana, Kwesi Pratt, a veteran journalist, questioned the essence of the Ministry of Finance’s caution to the president. He added that he was loathed that LGBTQ discussions have taken centre stage of discussions in the days leading to Ghana’s 67th independence anniversary. 

In an exciting twist, private legal and media practitioner Richard Dela Sky applied to the Supreme Court, Ghana, seeking that the Human Sexual Rights and Family Values Bill be nullified on March 5, 2024.

“This bill, in its essence and provisions, raises profound concerns regarding the potential infringement of the fundamental human rights and freedoms guaranteed to every Ghanaian by the Constitution,” he stated in a press release.

In his press release, Mr Sky stated the reliefs and orders he sought in his legal action are as follows: 

“i. A declaration that upon the true and proper interpretation of Article 33(5) of the Constitution of 1992, in light of Articles 12(1) and (2), 15(1), 17(1) and (2), 18(2), and 21(1) (a) (b) (d) and (e) of the Constitution, the passage of “The Human Sexual Rights and Family Values Bill, 2024” by Parliament on 28th February 2024 contravened the Constitution and is to that extent null, void, and of no effect.

 ii. A declaration that the Speaker of Parliament contravened Article 108(a)(ii) of the Constitution, in light of Article 296(a)(b) and (c), by admitting and allowing Parliament to proceed upon and pass “The Human Sexual Rights and Family Values Bill, 2024” into law as the same imposes a charge upon the Consolidated Fund or other public funds of Ghana.

 iii. A declaration that Parliament exceeded its authority under Articles 106(2) and 108(a)(ii) in passing “The Human Sexual Rights and Family Values Bill, 2024,” as the same imposes a charge upon the Consolidated Fund or other public funds of Ghana.

 iv. A declaration that, upon the true and proper interpretation of Articles 102 and 104(1) of the Constitution, Parliament lacked the requisite quorum to pass “The Human Sexual Rights and Family Values Bill, 2024.” 

v. An order restraining the Speaker of Parliament and the Clerk to Parliament from presenting “The Human and Sexual Values Bill, 2024” to the President of the Republic for his assent. 

vi. An order restraining the President of the Republic from assenting to “The Human and Sexual Values Bill, 2024,” as such action will directly contradict the Constitutional safeguards of liberties and rights of Ghanaians. 

vii. An injunction barring any attempts to enforce the provisions of “The Human Sexual Rights and Family Values Bill 2024,” particularly those criminalising same-sex relationships and related advocacy efforts. 

viii. Such further orders or directions for this Honourable Court may seem to meet.”

He called for Ghanaians to view the legal action as an endeavour to preserve the integrity of the constitution and the democratic values it upholds.

The president, in response, says he is waiting for the Supreme Court to rule on the case before he decides whether to approve. 

Some have described the president’s media briefing as deliberate, alluding to the fact that the media briefing was held on Monday, March 4, 2024. and Mr Sky’s application to the Supreme Court was on March 5, 2024.

Conclusion

Although the Promotion of Human Sexual Rights and Ghanaian Family Values Act has been passed by parliament in a unanimous bipartisan decision, it awaits ascension by the president. If it is passed, LGBTQ+ activities, advocacy, activism and support will constitute a misdemeanour liable on a summary conviction to a fine or a term of imprisonment.

Show More

Related Articles

Make a comment

Back to top button