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Same-sex Marriage: Is Ghana Ripe for It?

Mon, 17 Oct 2011 Source: JusticeGhana

Human Rights v. Cultural Justice

A Review of “Gay Practice Between Adults Not A Crime Says Attorney-General and Minister of Justice- Martin A.B.K Amidu,” Vincent Baffour Acheampong/ Xfm 95.1/ Accra/ Ghana, reported

Asante Fordjour LLB (Hon), LLM International Law And Criminal Justice

ABSTRACT

The fundamental rule in international human rights law states that “All human beings [including; arguably, homosexuals] are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” There are certainly exceptions or qualifications to this. Particularly; on choices, perceived to be injurious to the person or against other individuals within the immediate and/or wider community, where such rights are being advocated. This brings us to the issue of whether Ghana is ripe to accommodate homosexuals. I have been monitoring the debate over same-sex partnership and I have legally; listened to two top-most legal luminaries: the current CHRAJ boss and the Attorney-General, on the topic. On the moral side, I have among others, also listened to leading preachers and imams. Politically, the sitting- president and the main opposition leader, as usual, are silent over the crucial debate. So I will begin by exploring the emerging legality of the practices, taking some references from foreign countries as democratic Ghana, forms part of the global family and therefore, cannot be an isolated island.

INTRODUCTION

Article 1(3) of the United Nations Charter states that one of the purposes of the UN is: "to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion". In the words of Provost, René (3), human rights are conceived as universal and egalitarian, with all people having equal rights by virtue of being human. And that these rights may exist as natural rights or as legal rights, in both national and international law. According to Freeman Michael (4), the modern sense of human rights can be traced to Renaissance Europe and the Protestant Reformation, alongside the disappearance of the feudal authoritarianism and religious conservativism that dominated the Middle Ages as a result of European scholars attempting to form a "secularized version of Judeo-Christian ethics. So is the on-going debate more of morality rather than of law?

The Ancient Rules v The Emerging Gay & Lesbian Rights

International human rights considerations have bestow to humanity the right to have sexual preferences. But the often cited cliché in Ghana when it comes to the question of exercising individual’s rights had been that one’s freedom ends at where one’s nose begins. My former Government Master and friend- Asonaba Kofi Anderson roughly put it this way: “you could blandish your cutlass anyhow; provided in so doing, you don’t hurt the other person.” Rights; obligations and liberty, therefore, flow from law- otherwise, it might be seen as a violation of someone’s right to live without harm. Laws are like traffic lights- red, amber and green. Thus, we can buy any type of car or even aircraft, if we can afford it. Yet, it would be unimaginably catastrophic if we venture to screech or pilot it anyhow; especially, where we could foresee the dangers in such an adventurism.

The argument being advanced here is that there is limit to individual rights and civil liberties as human societies; arguably, are different in appearance and thought. As humans and even in the animal race; our instincts dictate to us to aspire to the best not only for ourselves but also, for our kith and kin or should we say "native land and people". Typical Ghanaian societies are effectively; built around traditional authorities rather than local councils linked to contemporary western democracies. It is tempting to argue that our attitudes towards the familiar or our acquaintances might be warmly felt than the distant central government in Accra.

Yet central government plays a crucial role in the establishment and attainment of social cohesion; especially, in the country such as ours which has multiples of traditional authorities and cultures. And had been historically, known for human rights abuses such as human sacrifice and expulsions of subjects if they kick against traditional settings of the Oman or the state. Indeed Jack Donnelly; quotes Biletzki, Anat (5), as stating that in the ancient world, "traditional societies typically have had elaborate systems of duties... conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, but their well-being was entirely independent of human rights. That these institutions and practices are alternative to, rather than different formulations of, human rights". As Freeman, Michael (asa) argues the concept of universal human rights was not known in the ancient world, not in Ancient Greece and Rome, Ancient India, Ancient China, nor among the Hebrews; and [arguably,] slavery, for instance, was justified in ancient times as a natural condition?

The corresponding question; then, is, historically, what had been the human rights position on the same-sex relationship? From the Christianity or Judaism perspective; we are told that the ancient Law of Moses (the Torah) as recorded in the Book of Leviticus 18 gives a Biblical story of attempted homosexual rape in Genesis in the story of Sodom and Gomorrah, and how the cities were totally set ablaze and destroyed. Homosexual practices in the ancient times were therefore, criminal offences which attract summarily, death penalty without trial. According to Wikipedia.org (6,7), similar prohibitions are found across Indo-European cultures in Lex Scantinia in Ancient Rome and nith in protohistoric Germanic culture, or the Middle Assyrian Law Codes dating 1075 BC. Laws prohibiting homosexuality were also passed in communist China. But The Lesbians, Gay, Bisexual and Transsexual (LGBT) argues that the People's Republic of China neither adopted an Abrahamic religion nor was colonized, except for Hong Kong and Macau which were colonized with Victorian era social mores and maintain separate legal system and that homosexuality was not decriminalized in PRC until 1997.

Prior to 1997, homosexual in mainland China was found guilty included what LGBT describes as vague vocabulary of hooliganism and that there are no specifically anti-homosexual laws. Currently; there are eight countries without official heterosexist discrimination. They are Argentina, Belgium, Iceland, Netherlands, Norway, Sweden, South Africa, and Spain. This full non-discrimination, in the words of LGBT rights, includes the rights of marriage and adoption. [That] two additional countries have marriage rights for same-sex couples, namely: Portugal and Canada. But in Portugal this right does not include same-sex adoption, and in Canada it varies by jurisdiction (it is legal everywhere except in Nunavut and Yukon). “The Canadian Blood Services’ policy indefinitely defers any man who has sex with another man, even once, since 1977. LGBT people in the US face different laws for certain medical procedures than other groups. For example, gay men have been prohibited from giving blood since 1983, and George W. Bush's FDA guidelines barred them from being sperm donors as of 2005, even though all donated sperm is screened for sexually-transmitted diseases.”

Same-sex Marriage: Is Ghana Ripe for It?

Article 12(2) of the 1992 Constitution states that: “Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.”(8) This obviously; falls short of sexual rights as the law-givers, failed on its anticipation? According to the Webster's New World Dictionary, Public interest means "the people’s general welfare and well being; something in which the populace as a whole has a stake." In the words of Wikipedia; the public interest is central to policy debates, politics, democracy and the nature of government itself.

[But] “While nearly everyone claims that aiding the common well-being or general welfare is positive, there is little, if any, consensus on what exactly constitutes the public interest, or whether the concept itself is a coherent one.” Random House Dictionary (9) writes that public interest seeks the welfare or well-being of the general public; commonwealth, appeal or relevance to the general populace. Which is why the Ghanaian appeared nervous when Attorney-General Amidu said: “unlawful carnal knowledge between two consenting male adults in private is not a crime. That is the state of the law. It has not been amended and that is all I can say. Homosexuality is generally not permitted but in private between two consenting adults…” (opc)

Legally, how truthful could this be? It is said that lawyers have so many ways of making simple matters complex for the non-legal minded- here, on issues that sound more serious on humorous. For the benefit of the non-legalist, unlawful carnal had been admitted to mean nothing more than a sexual activity seen generally as a taboo or forbidden. Since laws and policies are coined to champion cultural or national aspirations of group of peoples. I am prompted to resolve what constitutes a taboo. According to DepNet.ca (10), "taboo" is another interesting word that has strayed somewhat from its original meaning. The Columbia Electronic Encyclopedia (ibid), states that taboo is originally a Polynesian word and seems to have first come into the light of investigation several hundred years ago by early foreign visitors to Polynesia and the Hawaiian islands and refers to something set apart for or consecrated to a special use or purpose. “A taboo can also be placed on an object, person, place or word that is believed to have inherent power above the ordinary. The breaking of a taboo usually requires extermination of the offender or some sort of ceremonial purification. These days, taboo generally refers to a topic or activity that we avoid or prohibit due to social custom,” it adds.

For example, one can exercise the right to have an affair with his sister; her brother or daughter in private which in itself is not injurious or affront to the state. Yet the social stigma that this might carry will be enormous. Whereas it is a taboo for the Ghanaian to marry his sister’s daughter a Malaysian friend once educated me that this is culturally acceptable in his country as biologically, his nephew is not blood-related. This might sound strange in many Ghanaian cultures. This contra to the Akan tradition where it is legally or culturally yes, for Fordjour to get married to his uncle’s daughter or father’s niece but not to his mother’s [Auntie’s] sister’s daughter. As DepNet states, it's generally taboo to walk around naked in public even though this generally does little harm to anyone else and that this sort of silent avoidance stifles free and candid discussion with and about the mentally ill. “In such ways we preserve our ignorance of the facts about mental illness. And ignorance preserves mystery and mystery produces myth and myth stifles fact which defines stigma and taboo and encourages ignorance. It’s a vicious circle. In this way, the mythology of depression is at best harmful and at worst downright dangerous. To remove the stigma and lift the taboo, we must replace myth with fact and ignorance with understanding.” What to do with the “[taboo] unlawful carnal knowledge?”

The Attorney-General states: “The law does not follow you to see what you do, your house is your castle; your room is your castle, what you do there is no body’s business. It is only when you rape an adult by way of unnatural carnal knowledge that you become a subject of prosecution.” Ms Lauretta Lamptey- the recently-appointed Human Rights Commissioner, told Joy News (11):“I think we have religious, moral, traditional and many barriers to that [homosexuality] and I don’t think we have to simply copy the Western world on everything because someone says, this is where you should be in terms of human rights of individuals.” Yet one is tempted to argue that whereas traditional authorities set some standards for traditional governance; emerging democratic societies and its national parliaments and indeed reputable governments, can hardly hid behind undefined state policy and provisions, to stifle the required law to respond to the cries of its wailing citizens, especially, on the issues that affect their livelihoods or tend to be injurious to their collective future.

Thus whereas Attorney-General thinks that same-sex partnerships were generally considered wrong culturally; an individual [probably the foreign tourist too] was allowed his or her sexual discretion so far as it was within the confines of his/her chambers, Ms Lamptey asserts that CHRAJ will not fight for the rights of homosexuals as the prevailing law deems their activities to be criminal. Presumably, this is to pre-empt the likely tussles that might be raised under Article 17(2) of the Constitution, which states: “A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status. (3) For the purposes of this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description which are not granted of persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.”(asa)

The law-givers failed to foresee emerging rights to sexual preference I share with Ms Lamptey that homosexual rights; should be a legal discourse, rather than about human rights: “The main point that I wanted to make is that the debate has been about rights and that I think the real issue is the legal side of things and that it doesn’t make sense to me. There is some illogic in arguing for increased rights for homosexuals and at the same time saying that by law homosexuality is a criminal offence. How can we say it is criminal and then you want (CHRAJ) to go and protect the very activity that is criminal…?” “In my view I don’t think as a society we are ready to give homosexuals, lesbians, that whole category of people any of those kinds of rights,” she said.

The hidden Dangers of the Practice

The case of R v Brown (12) illustrates not only the issue of consent but also the hidden dangers in homosexual practices and whether the state can stretch its intruding long-arms into private homes. The facts of the case is outline as follows: The appellants- Bown & homosexual colleagues or should we say partners, belonged to a group of sado-masochistic homosexuals who over a 10-year period from 1978 willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain. According to ask.com, the word sado-masochistic is derived from sadism and is used as a sexual term which describes a person who takes pleasure in inflicting some form of humiliation or pain on a person, usually consenting, with the intention of sexual arousal or stimulation to both persons. Thus masochist takes pleasure in the humiliation or pain from another consenting person (13).

In Brown, the Lords considered whether such inflictions of permanent injury could be offence against the person. The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants. Video cameras were used to record the activities and the resulting tapes were then copied and distributed amongst members of the group. The tapes were not sold or used other than for the delectation of members of the group. The appellants were tried on charges of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 of that Act. The Crown focused largely on the contents of the video tapes. Following a ruling by the trial judge that the consent of the victim afforded no defence to the charges, the appellants pleaded guilty and were sentenced to terms of imprisonment. The appellants later appealed against their convictions, contending that a person could not be guilty of assault occasioning actual bodily harm or unlawful wounding in respect of acts carried out in private with the consent of the victim. This was dismissed.

So they appealed to the House of Lords, where the Lords: Templeman, Jauncey of Tullichettle, Lowry, but with Mustill and Slynn dissenting, upheld that consensual sado-masochistic homosexual encounters which occasioned actual bodily harm to the victim were assaults occasioning actual bodily harm, contrary to the cited Act, notwithstanding the victim’s consent to the acts inflicted on him as public policy required that society be protected by criminal sanctions against a cult of violence which contained the danger of the proselytisation and corruption of young men and the potential for the infliction of serious injury. Thus a person could be convicted of unlawful wounding and assault occasioning actual bodily harm, contrary to the law, for committing sado-masochistic acts which inflicted injuries which were neither transient nor trifling, notwithstanding that the acts were committed in private, the person on whom the injuries were inflicted consented to the acts and no permanent injury was sustained by the victim. Accordingly; the appellants had been justly convicted so their appeal was dismissed. What is the limit of the practice between adults in Ghana?

CONCLUSION

In writing this article, I have been guided by the words of Michael Ignatieff “that cultural relativism is almost exclusively an argument used by those who wield power in cultures which commit human rights abuses, and that those whose human rights are compromised are the powerless.” I have considered the Brown case in attempt to contribute on the recent positions of my learned Attorney-General Martin Hamidu and lady Lauretta Lamptey of CHRAJ, on homosexuals’ rights. But I must sound a word of caution that research has found that there are many common sexual practices that fall under the category of sadomasochism discussed above and which could include the following: biting or erotic spanking and more intense practices such as bondage ranging from handcuffs to full body restraints not forgetting, genital choking or slapping. All these sexual encounters could happen in our “private rooms”. We may resolve our doubts if were to be inquisitive in visiting sex shops. How long, then, can Parliament hangs on the corrosive foundations of the current law?

Bibliography & References Available on Request

©Credit JusticeGhana/The OmanbaPa Research Group

Columnist: JusticeGhana