Ghana's new anti-homosexuality bill infringes several rights and freedoms, not only of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) people but of heterosexuals too. The bill has been in the works since 2021 when it was tabled in parliament as a private member's bill.
The objective of the Human Sexual Rights and Family Values Bill is
to provide for human sexual rights and family values and for related matters.
At the heart of the contention about the proposed law is the question of discrimination, its purpose and its effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.
The title of the bill, obviously, is ironic because the law rather sets out to deny the right to sexuality and related rights to LGBTIQ+ people and to criminalise their actions. Moreover, what constitutes "sexual right" is not defined in the bill. The key action which is criminalised is consensual sexual relations between two homosexual adults.
The bill defines such practices, linking them to similar provisions in the Criminal and Other Offences Act of Ghana. Interestingly, it also criminalises other acts, such as oral sex, which heterosexual couples also do. This will, therefore, automatically "convert" heterosexuals into homosexuals. The LGBTIQ+ community is also prohibited from marriage and from adopting or fostering.
If the president signs the legislation, Ghana will join 36 African countries where homosexuality is illegal. It's punishable by death in some countries , including Nigeria and Mauritania. So, Africa remains a tough place for LGBTIQ+ people. But there has been some progress in countries like South Africa and Mauritius where colonial era laws have been repealed.
Read more: Mauritius is the latest nation to decriminalise same-sex relations in a divided continent
As a scholar of international human rights law, I believe this bill will infringe the right to privacy, right to health, freedom of association and expression, and press freedom. It will also impinge on the rights of teachers, lecturers, civil society activists and citizens who share content on social media platforms that the bill deems illegal.
Compromising key freedoms
The bill's criminalisation of consensual sexual relations between two homosexual adults and imposition of sentence of three years on violators of that provision of the law is prohibitive and disproportionate. The practice should not be criminalised, but if at all, violation should at best attract a non-custodial sentence, for example a fine or community work. The LGBTIQ+ community has the right to be treated with dignity. The fact that someone is gay should not lead to a loss of his/her humanity.
Moreover, since the only way the criminalisation of consensual sex can be enforced is by "peeking through the window", this will infringe on the right to privacy.
There has been many instances where members of the LGBTIQ+ community, and even those who the society consider as such but are not, have been arrested and subjected to acts of molestation, abuse, torture and other forms of violence and extrajudicial measures which constitute a violation of their right to dignity. Some are even killed. The vigilante groups that effect these arrests also have the habit of extorting money from the alleged perpetrators of LGBTIQ+ practices. Where the "suspects" end up at the police station, the police have also resorted to extortion of large sums of money from the suspects before letting them go.
The law seeks to avert such occurrences by imposing a term of imprisonment of between six months to three years for anyone who harasses someone accused of being LGBTIQ+. However, this is a feeble attempt by the sponsors of the bill to appease or assure the LGBTIQ+ community.
The ban on providing healthcare support for trans persons is likely to result in discrimination on the right to health, which is a universal right. The forced disbandment of LGBTIQ+ associations in Ghana, will constitute a violation of the right to freedom of association and freedom of expression, among others. It has been abused in a number of instances and is likely to be further abused even more. The provision that seeks to make owners of digital platforms or physical premises in which LGBTIQ+ groups organise guilty of promoting LGBTIQ+ activities violates the right to freedom of association and expression, among others.
Also, the provision on imposing harsh sentences on teachers and other educators who talk about LGBTIQ+ in the classroom is likely to infringe on the right to academic freedom and the right to education. Further, the imposition of six to 10 years of imprisonment for anyone who produces, procures, or distributes material deemed to be promoting LGBTIQ+ activities is likely to lead to the abuse of the right to freedom of expression, information and education and even press freedom. The same goes with the provision on criminalising the "public show of romantic relations" between people of the same sex, even including cross-dressing.
What is important to also note is that the law is not made to restrict or violate the rights of the LGBTIQ+ community only, as noted above with regard to heterosexual. Also, teachers, lecturers, media personnel and civil society activists, people who share content over social media platforms, or broadcast content on LGBTIQ+ are also going to be held criminally responsible.
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Presidential or constitutional challenge
I propose that President Nana Akufo-Addo should not assent to the law as it is, relying on article 108 of the 1992 Constitution since, being a private members bill, it has likely financial implications for the state. Thus, relying on article 106, he can refer the bill to his highest advisory body (Council of State) for its advice. Otherwise, he has the power to state in a memo to the Speaker of Parliament any specific provisions of the bill which in his opinion should be reconsidered by Parliament.
If he does not, the matter can be taken to a Human Rights Court by a citizen, relying on article 33(5)of the Constitution, which provides that "the rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man."
The other option is to go straight to the Supreme Court to challenge the constitutionality of the bill.
Kwadwo Appiagyei-Atua, Associate Professor of Law, University of Ghana
