Samson’s Take: Even moral cultural values protected by law endangered?

This week, there’s been talk and debate that left me surprised and scared that even what constitute good moral and cultural values protected by the State in law is endangered.

Majority of Ghanaians are completely outraged at the slightest suggestion of the prospects of the State accommodating homosexual conduct. A few have asked the question “why should what two consenting adults do in their privacy concern anybody or the law?”

That, without more, is most unfortunate and thoughtless. So is it regrettable to think it is showbiz and okay for a young woman to reveal so much of what is dubbed her “private part” in public in the name of entertainment. In her case, it wasn’t about showing too much up her chest but she was actually naked beneath on stage and applauded.

I am dealing with this subject only briefly and it has to be said that those who are saying our law does not criminalise homosexuality can only be misleading the public. Our criminal law in section 104 prohibits an aspect of homosexual conduct.

It frowns on unnatural sexual intercourse and punishes the conduct as a felony where one party did not consent to the act. It punishes it as a misdemeanour where there was consent for the “unnatural carnal knowledge” type of sex. It is also punished as a misdemeanour where it is done with an animal – bestiality. By legal (at common law) definition, unnatural carnal knowledge is intercourse involving penile penetration of anything other than a vagina. This clearly catches gay conduct of men penetrating the unapproved unnatural pathways in either their fellow men or women for sexual gratification while completely leaving out women in lesbian conduct.

In his latest and never seen before most comprehensive book on criminal law in Ghana, “Contemporary Criminal Law in Ghana”, the Court of Appeal’s Justice Dennis Dominic Adjei rightly notes that “there is no custom in Ghana which does not frown upon sexual intercourse with a person through that person’s anus, ears or nose.”

It is sad that, in 2011, we spent 6.3 million dollars on a Constitution Review Commission to advise and recommend that there was no “compelling reason” for it to address the issue by heeding the demand of a majority of Ghanaians who wanted homosexual conduct clearly prohibited by law in Ghana. The CRC preferred the matter to be left with the Supreme Court to pronounce on by the few persons who petitioned it to amend the Constitution to cater for homosexuals.

Recent developments in America and elsewhere on the subject teaches us that leaving the matter to the courts may be a dangerous approach. But again, the courts, obviously, will keep fidelity to the law and not say what the law does not say. I suggest we are better off deciding boldly and now to amend the law (not the Constitution) to fix the present inadequacy and comprehensively prohibit a conduct alien to our custom and moral code, a conduct described rather harshly by Lawyer Mosses Foh Amoaning as “a disorder [that ought not be] elevated into a right.”

So, if we forget the law, let’s not forget our cherished customs and values. Our laws criminalise and punish incest and defilement. In fact, even when you make sexual bodily contact with someone – often a woman without her consent, you may go to jail for six months without the option of a monetary fine. This is the crime of indecent assault. These laws reflect our good customs, religious and ethical moral codes and I hope we don’t soon get into a debate as to whether it is one’s human right to have sex with their family member, or with a minor.

It is part of our good customs and expected of any morally conscious person not to go naked in public or have sex on the streets simply because that’s what and how they want it. Fact is, we decided in 1960 to give the State the power to punish us criminally for such conduct including the conduct of the young lady we are presently loudly justifying and rationalising her criminal immoral act to suit our corrupted sense of showbiz or entertainment.

In Justice Dennis Adjei’s “Contemporary Criminal Law in Ghana”, he explains the misdemeanour offence of gross indecency to include “being naked in public, having sexual intercourse in public or exposing part of the body such as buttocks, sex organs which are to be covered.” This must, however, be done willfully and not where such exposure of the body results from force or accident. It’s not right that a young man did a similar act, during a music performance and is being prosecuted; it cannot be different with this lady so stop making it a gender case of attacking a woman because she is a woman.

Well, for those of you who only want to feel compelled or prohibited by law, guess what article 11 of the Constitution of Ghana says about your good customs? It says; “[t]he common law of Ghana shall comprise the rules generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.”