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The crusade against decriminalization of homosexuality – which law criminalizes it in Ghana?

Sampson Anyenini Samson Lardy Anyenini, Legal Practitioner

Sat, 26 Aug 2017 Source: Samson Lardy Anyenini

This week has seen an MP renew the debate against decriminalization of homosexuality in Ghana. MP Rev. Ntim Fordjour has attracted significant media coverage urging his colleagues and the nation to resist what he says are attempts by external forces to lobby or force a change in Ghana’s laws against homosexuality.

He mentions the constitution as proscribing homosexuality but does not help us with any reference to the said specific provision. Truth is, there is no such provision in the Constitution. But he is not alone in this claim even as a law-maker. Many continue to say Ghana’s constitution prohibits homosexual relations without pointing to the said provision.

The law that ought to be referenced is the Criminal and Other Offences Act, 1960 (Act 29). But does it criminalise homosexuality? I will get there shortly but first this discussion reminds of my approach to the debate on narcotics (wee) or abortion in Ghana where I said last year that wee is NOT illegal in Ghana.

The manufacture, cultivation, exportation, importation, possession, injection, smoking, sniffing etc "WITHOUT lawful authority" or "WITHOUT licence" or "WITHOUT lawful excuse" is what is prohibited in Ghana. The law says licence is to be obtained from the Secretary for Health - now Minister of Health. So, all that must be done in Ghana is the mechanics of obtaining the LAWFUL authority or licence or excuse.

On abortion, I elected also to say it is not illegal as if always said because the law provides for legal abortion under specific conditions including when the life of a mother is in danger if she is to carry the pregnancy to term or deliver. A writer puts it this way "when there are medical indications, that is when there are somatic and possibly when there are also psychiatric counter indications, to pregnancy and childbirth." My problem with the ‘abortion is illegal’ shouts is that that encourages it being done in the wrong way in the wrong places resulting in unnecessary deaths or life-threatening complications. The law requires that it is done on the advice of and by certified physician (gyne) and at the appropriate hospital – government hospital.

If the law did fully successfully categorically proscribe homosexuality, the Constitution Review Commission would not have recommended that "the legality or otherwise of homosexuality be decided by the Supreme Court if the matter comes before the Court." The law (Act 29) in section 104(1)(b) is that a person who has consensual unnatural carnal knowledge of another person of not less than sixteen years of age commits a misdemeanor.

Now here is the problem – unnatural carnal knowledge as defined at common law involves penile penetration of anything other than a vagina. Clearly, this law does not catch lesbian relations where there is no penile penetration. It obviously relates to only gay relations and when a man penetrates a woman by a channel other than the vagina.

Consequently, the anti-homosexuality crusade should rather target an amendment to the existing law to include lesbian and associated unnatural sexual relations generally known as homosexuality.

Columnist: Samson Lardy Anyenini