Supreme Court petitioner on anti-LGBT Bill threatened

An Accra-based businessman who has petitioned Ghana’s apex court over the anti-LGBT Bill currently before Parliament has had threats on his life because of his stance against the said Bill would not discourage him from seeking a Supreme Court interpretation of its constitutionality and human rights infringements.

Henry Kojo Tetteh is alleging that the petition he filed has earned him stigmatization, threats of harm, physical confrontations and even threats that he would be raped through his anal area without lubricants to give him a first-hand experience of what gays go through.

“As for the threats from some insane folks that they would force anal sex on me to prove my true intentions, it is neither here nor there. It is about what the Bill actually contains and whether it is not contradictory to our Constitution and whether it does not infringe on basic human rights, press freedoms and freedoms of association.

“It is wrong for a country to say it believes in press freedoms yet it would bring a new law to jail journalists who speak their independent minds on LGBT issues and when some of us go to court, some anti-democrats threaten to grab me and have anal sex with me if I truly support gays”, the petitioner complained in conversation with journalists over the weekend.

Mr. Mensah noted that there is a lot of deliberate misinformation being put in the public domain about the Promotion of Proper Human Sexual Rights And Ghanaian Family Values Bill, 2021and this has led to a very hostile environment and attacks on persons who dare speak against the Bill.

“It seems most media houses for strange reasons believe the Bill is being pushed by some LGBT people to legalize the practice in Ghana and that is what they continue to tell the public to never support such legalization attempts. The Bill is far from that. It has nothing to do about legalization or freedoms of LGBT but that is what everyone has been made to believe”, Kojo Mensah noted.

When asked whether he would seek some police protection against the threats, the petitioner said his lawyers have asked him to stay calm and that they themselves would take up the matter.

The petition, currently before the Supreme Court reads in part:

The cumulative effect of the Bill under reference pending before Parliament is to interfere with freedoms and rights afforded the citizenry and take away the rights of the persons who have sexual preferences other than what is known to the general populace. Indeed, the rights of the citizenry are recognized in the Criminal and other Offences Act. Act 29

The lack of consent criminalizes any sexual act including natural and unnatural acts. I would reproduce the provision on unnatural carnal knowledge captured in section 104 of Act 29.

Unnatural carnal knowledge

(1) A person who has unnatural carnal knowledge

(a) of another person of not less than sixteen years of age without the consent of that other

person commits a first-degree felony and is liable on conviction to a term of imprisonment of not less than five years and not more than twenty-five years; or

(b) of another person of not less than sixteen years of age with the consent of that other person commits a misdemeanor; or

(c) of an animal commits a misdemeanor.

(2) Unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner or, with an animal.

Sexual behavior between consenting adults ought not to warrant an interference by the state. Indeed, the Criminal and Other Offences Act, has undergone various forms of amendment but not once has there been an attempt to criminalize sexual act between two consenting adults that appears to be different from what others perceive as normal. The law makers knew and have always known that the state is precluded from delving into matters personal between two adults who are ad idem with each other. This explains why unnatural carnal knowledge is a crime only if same is without the consent of the other party or the other party is below the age of 16 years.

The Bill prohibits the forming of an association comprising these categories of persons listed in the preceding paragraphs, and further bans the participation of this association Meanwhile, freedom of association is guaranteed under Article 21 of the 1992.

The Bill further seeks to prohibit the practising of any activity relating to this community. This is contrary to Article 26) which provides that every person is entitled to enjoy, practice, profess, maintain, and promote any culture, language, tradition, or religion subject to the provisions of this Constitution.

It is worth of note that this provision is indeed unfettered.

Proponents of this Bill are of the view that same ought to be passed as it is in line with public interest. However, the activities of these persons are personal to each other between two consenting adults and does not affect the public adversely. Their activity is subject to the provisions of the criminal code which adequately address any eventualities that may result therefrom.

The Bill is repugnant to the Constitution in that it leads to the subjective discretion of people of the general populace to determine whether a person belongs to that group. Exercise of subjective discretion, most often than not, leads to unfounded and unsubstantiated complaints to the Police. This becomes a vindictive tool to be used by person who have issues with each other. The bill would only open a pandora box leading to unwarranted chaos to the detriment of all and sundry. The bill should not see the light of day.

It is trite learning that the Constitution cannot be amended by statute. The bill has the effect of limiting the invocation and application of Article, 12, 17, 21 and 26. In other words, the bill has the effect of discriminating against certain categories of people or persons, thereby abusing their fundamental human rights.

The Constitution is a living document and to give meaning to recourse should be given to the intent of the framers of the Constitution. It is, therefore, not the intent of the Constitution to subject-specific categories of persons to different treatment because of their sexual preferences and orientation when the same is between two consenting adults. The Bill in its entirety is discriminatory and a gross abuse of the fundamental Human Rights enshrined in the 1992 Constitution.