15
Opinions Tue, 16 Jan 2018

‘In the name of the Almighty God’: Why homosexuality is outlawed in Ghana

Ghana as a nation holds herself in a number of international human rights Conventions and Treaties including the UN Convention on Human Rights, the Universal Declaration of Human Rights (UDHR), The African Charter on Human and Peoples Rights (ACHPR) among many others. As a member state, Ghana is expected to respect and enforce the rights and freedoms of all persons without any favour or discrimination. The 1992 constitution per chapter five also speculates the fundamental human rights and freedoms which all persons are entitled to.

However, there has been a major issue as to whether or not Lesbians, Gays, Bisexuals and Transgender (LGBT) rights are also recognized and enforceable in Ghana. As a controversial topic among scholars and social commentators, the issue relating to the rights of LGBTs is still uncertain.

In this article, the focus is on Gays and Lesbians. I will consider four main areas in order to arrive at a conclusion of the illegality or otherwise of homosexuality and lesbianism in the Ghanaian society. First, a short background is given to the origins of human rights. Secondly, a discussion is made regarding the position of some of the sovereign states within the international human rights communities on the rights of homosexuals and the implications on Ghana as a member state. A conclusion is made on whether or not the right to same-sex marriages (union between homosexuals and lesbians) is stipulated by the 1992 constitution or any law in Ghana.

Background to Human Rights

Human rights are the natural and inalienable rights and freedoms which human beings are entitled to by virtue of their status as human beings. These include the right to life, property, religion, association, right to marry to mention a few. Therefore, it is incumbent upon all governments to respect, promote and protect these rights and freedoms except in some circumstances where these governments have the option to derogate. Human rights issues especially economic, social and cultural rights were relegated to the background until the formation of the United Nations Organisation in 1945 and its subsequent declaration on human rights captioned “The Universal Declaration of Human Rights (UDHR)” in 1948 and its optional protocols. The declaration by this world body on human rights marked a critical turning point in the struggle for human rights in the sense that, it provided the basis for the adoption of human rights into national constitutions and charters of other continental and sub-continental or regional and inter-governmental organisations.

Many of the state parties to the International Conventions on human rights, in a bid to fulfil their commitment to enforcing the rights of all their nationals also legalise homosexuality and lesbianism in their respective Countries. Homosexuality is sexual intercourse between people of the same sex. It's the collective term for the acts of gays and lesbians. Sexual intercourse between females is known as lesbianism. Gays are male homosexuals. Anal sex between a male and female or male and animal is also unnatural in Ghana. It's recorded that, same-sex marriage first came to be practised somewhere in the United States of America, Canada, UK and other western countries for some years ago and have for some time now been legalized.

The International Gay and Lesbian Association stated in 2015 that many countries in Africa have also legalised homosexuality. These include South Africa, Cape Verde, Mozambique and many more. It is recorded that Cape Verde is the most friendly nation in Africa to a host of homosexuals. Other countries, including Ghana, have resisted all threats from the western governments.

The legalisation of same-sex marriages by the said countries may merely be due to their desire to maintain friendly ties with their western donors and to adhere strictly to the provisions of the UDHR. Article (7) of the UDHR states that,

“All are equal before the law and are entitled to without any discrimination equal protection of the law. All are entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination".

The implication on Ghana is that she protects and enforces the rights and freedoms of all persons without any discrimination against gender, race, religious beliefs, creed and culture among others. The big issue here, therefore, is why Ghana thus seems to frown upon homosexuality.

An insight into this issue will depend on references to certain provisions of the 1992 Constitution, the Criminal Code of 1960 and other recognized laws.

It is relevant to start the discussion here with a reference to the preamble of the 1992 constitution of Ghana.

“In the name of the almighty God, we the people of Ghana, in the exercise of our natural and inalienable rights…”

It is often argued that the position of the laws of Ghana is discriminatory towards gays and lesbians. Homosexual advocates often contend that they do not see the reason why homosexuality should be illegal in Ghana. According to them, it is almost impossible for the act of homosexuality to be considered criminal in Ghana because the 1992 constitution and the Criminal code 1960(Act 29) do not clearly interpret what homosexuality means.

Renowned Lawyer, Abotsi, some time ago stated that under articles 21(1) (a) (freedom of speech and expression) and 33(5), it could be argued that homosexuality is not prohibited in Ghana. He further added that section 104 of Act 29 concerning unnatural carnal knowledge does not clearly relate to homosexuality. An alleged lesbian, also claimed she was born a lesbian and therefore had "inalienable right" to decide whom to marry or "sleep with". These arguments put forth by gays, lesbians, as well as their advocates are worthy of scrutiny. Is it really true that the laws of Ghana are unclear on homosexuality?

Chapter five of the 1992 constitution of Ghana contains provisions on fundamental human rights and freedoms. They include the right to life, privacy and fair trial, equality and freedom from discrimination, protection of personal liberty, respect for human dignity and freedom of speech and expression among many others. One will doubt if the chapter also includes the right to sexual orientation!

According to article 33(5), "the rights specifically stated under this chapter do not exclude other rights which are not specifically mentioned but are considered to be inherent in a democratic state, and which are intended to secure the freedom and dignity of man". Can we say that homosexuality secures the freedom and dignity of man and therefore Ghanaians?

If other democratic countries have legalised homosexuality, does that mean that it should also be legalised in Ghana? It is the view of this writer that article 33(5) does not guarantee the exercise of every so-called right in Ghana, especially homosexuality, merely on the grounds that other democratic nations have permitted them. Homosexuality is contrary to our customs and institution of marriage.

Article 15(1) states that “The dignity of all persons shall be inviolable". What this means per the UN Convention is that rights "cannot be violated or dishonoured unless determined by law and solely for the purpose of securing due recognition and respect for the rights of others and of meeting the just requirements of the general welfare, morality and public order in a democratic society". If all national constitutions really originate from the UN Convention, then Ghana is not going the contrary.

Also, according to article 12(2) of the 1992 constitution, every person in Ghana "shall be entitled to the fundamental human rights and freedoms of the individual contained in chapter five but subject to the rights of others and for public interest". Our constitution defines public interest to include any right or advantage which will or is intended to benefit generally the people of Ghana. Is the practice of homosexuality in Ghana in the interest of the people of Ghana? The answer is, unequivocally, no! If it were in our interest, then why have there been massive public demonstrations against the activities of gays and lesbians?

In August 2011, more than 8000 people in Takoradi and other cities demonstrated against the activities of gays and lesbians. Gay conferences were also cancelled in the cities of Accra and Koforidua. Allowing them to host such conferences would amount to a promotion of their abhorrent acts.

Homosexuality is a threat to public health and morals. Homosexuality is the cause of many Sexually Transmitted Diseases (STDs). In 2003, the Centre for Disease Control and Prevention reported that 63% of American AIDS victims were among the number of homosexuals. Moreover, homosexuality violates the purpose of marriage in Ghana. The purpose for marriage in Ghana is for procreation, to enhance the continuation of human beings. This is a fact known to both the lawyer and the man of God. But the contrary is offered by homosexuals.

The activities of gays and lesbians also violate the customary laws of Ghana as provided by the constitution in article 11(3). That article states that customary law means the rules of law which by custom are applicable to particular communities in Ghana before the coming into force of the constitution and shall not be affected. It is an undeniable fact that homosexuality and lesbianism are not part of our customary practices. There is no any clear record of homosexuality in Ghana prior to the coming into force of our supreme law.

Homosexuality is clearly prohibited in Ghana. According to section 104(1) of Act 29, it is a criminal offence for a person to have an unnatural carnal knowledge of another person of not less than 16 years of age with or without the person's consent. Under section 104(2), unnatural carnal knowledge refers to sexual intercourse with a person in an unnatural manner. Since the purpose of marriage in Ghana is for procreation, and once we can hardly procreate without intercourse between a male and female, and once homosexuals are highly likely to have intercourse, which will be unnatural, our laws should continue to say no to them. Homosexuality can be an end to procreation. Every God-fearing nation ought to ban them.

Ghanaians are religious and have the fear of the Supreme Being in them. This probably explains why the lawmakers started the constitution “in the name of the Almighty God". They only believed in the natural and inalienable rights given to us by God. The Compact Oxford English dictionary (3rd edition, 2015) defines the word “Natural” as an adjective as follows;

"Existing in or obtained from nature (the physical world as opposed to things made by people ); not made or caused by humans and

In accordance with nature; normal or to be expected".

It may thus be concluded that what is natural does not depend on the view of a person but God. It is the expectation of God that marriage must be between a man and a woman for the purpose of procreation. Can we then say that homosexuality is natural, that is, it is determined by God and therefore inalienable? Homosexual behaviour is learned.

The framers of the constitution might never stipulate any right for gays and lesbians activities. The courts therefore out to adopt the broad, liberal and purposive approach of interpretation, by referring much to the preamble of the 1992 constitution as well as the public policy doctrine, to wipe out this social canker from the Ghanaian society. Act 29 which also existed before the constitution shall not be affected.

Homosexuality is illegal, abnormal, unnatural and immoral in the Ghanaian society. The acts of gays and lesbians are injurious to the health of the individuals involved and against public interest generally. They have no such rights which can be exercised in the name of the Almighty God.
Columnist: Emmanuel Wadekuu