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Why ‘ACT 29’ is unable to criminalize LGBTQIA+ introduction

Emmanuel Abu Ampong.png Emmanuel Abu Ampong is a law student

Wed, 28 Jul 2021 Source: Emmanuel Abu Ampong

Ghana, both internationally and locally has received varied attention as to its position on issues regarding LGBTQIA+ in the country.

However, the nature of LGBTQIA+ as a semi quasi sexual offence to some is a criminal offense and should not be given any sort of attention in our social and political discourse even though the act pose as a treat to the States Security.

Main Issues

The Primary intent of this piece is to access the inability of the Criminal Code, 1960 (Act 29), specifically section 104 captioned “Unnatural Carnal Knowledge” to criminal LGBTQIA+ even though the provision provides greater accuracy on criminalizing human errors.

The major Question of public concern is Whether orNot LGBTQIA+ is Criminal offence as per the Criminal and Other Offences Act (Act 29).

According to Section 104 (2) of Act 29 defines “Unnatural Carnal Knowledge is sexual intercourse with a person in an unnatutral manner (e.gAnnal Sex) or with an animal”.

The authority holds that where sexual intercourse is done in a way different from the normal (orthodox) way of a man inserting his penis in the vagina of a woman, it is regarded as one of unnatural and can be associated with sodomy or homosexuality.

Again,the offence of unnatural carnal knowledge is gender specific, in the sense that, the female sex organ is not capable of penetrating a sex organ or anus of another person or animal, hence a female cannot be convicted on grounds of unnatural carnal knowledge.This means that, 2 females engaged in the act of lesbianism can’t be held culpable under this act even though Lesbianism is a component of LGBTQIA+.

Conclusion

Sexual offences in our laws are diverse with various punishments for offenders, ranging from misdemeanor to terms of imprisonment of 25years or

Life Imprisonment.

However section 104 of Act 29 is limited on grounds that, is captures only a component of LGBTQIA+ which is Gay, neglecting others hence the need for a law criminalizing the act entirely.

Components of LGBTQIA+; Lesbians, Gays, Bisexual, Transgender, Queer, Intersex, Asexual+ (other sexual orientations).

Background

In recent times, whether or not to legalize LGBTQIA+ has taken an incredible trend in the countries social discourse as a section of the public believe the act to be a violation of human right whiles others see it as a human sexual preference.

Yet some honorable members of parliament have discouraged the legalization of LGBTQIA+.

Among the anti-crusaders of the act is the Honorable Member of Parliament for NingoPrampram who has on countless times insistented that the 1992 Constitution of the Republic of Ghana does not consider same-sex relationships as a fundamental human right.

The honorable Member of Parliament asserts that homosexuality is not a fundamental human right and called on human right activist and legal practitioners contending his position on the matter to prove beyond reasonable doubt the exact portion of the 1992 constitution which say’s otherwise.

His comment comes at a time when members of the general public are expressing diverse opinions on a private member bill sighted on social media against the involvement, promotion, propagation, advocacy, support or funding for LGBTQI+ related activities.

Portions of the Bill state that individuals of the same sex who engage in sexual intercourse are; “liable on summary conviction to a fine of not less than seven hundred and fifty penalty units and not more than five thousand penalty units, or to a term of imprisonment of not less than three years and not more than five years or both.”

Also, it proposed that; “a person who, by use of media, technological platform, technological account or any other means, produces, procures, markets, broadcasts, disseminates, publishes or distributes a material for purposes of promoting an activity prohibited under the Bill, or a person who uses an electronic device, the Internet service, a film, or any other device capable of electronic storage or transmission to produce, procure, market, broadcast, disseminate, publishes or distribute a material for purposes of promoting an activity prohibited under the Bill, commits an offence and is liable on summary conviction, to a term of imprisonment of not less than five years and not more than ten years.”

The Bill further suggests that persons who engage in activities that “promote, support, express sympathy for or call for a change of public opinion towards an act prohibited under the Bill”, are liable on summary conviction to a term of imprisonment of not less than five years or not more than ten years.

Meanwhile, Cambridge Researcher, Oliver Barker-Vormawor, has indicated that should the Anti-LGBT Bill be passed in its current form, sex between a man and a woman would be as illegal as sex between same-sex couples.

Mr Barker-Vormawor explained that the use of pansexual activities in the said Bill is problematic because it could mean sexual activities between two opposite genders.

A pansexual in the proposed Bill, is defined as “a person who engages in a sexual or romantic activity with persons of any gender identity or expression, including persons who do not fit into the binary sex categorisation of male and female.”

“The law defines what it means by pansexual activities, and it says a pansexual refers to a person who engages in sexual or romantic activity with a person of any gender.

"Now, this is important because by this, if you say that pansexual activity is wrong, then it implies that if a person is engaged in sexual or romantic activity with persons of any gender, then they are doing something criminal.

“By this view, if a guy engages in sex with his wife, obviously the wife is of a different gender. So by that intellect, the law is implying that this is a pansexual activity.

"So what I am saying is that they have ended up banning sex in its entirety because of the improper definition they’ve done. This problem persists throughout the Bill,” he told JoyNews.

the writer is a Law student at WIUC

Columnist: Emmanuel Abu Ampong
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