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Let me first of all acknowledge the debonair journalist, Halifax Ansah-Addo with my heartfelt gratitude for illuminating my benightedness on the seemingly dowdy and irrational anti-LGBTQI bill which awaiting passage into law.
I would, therefore, like to stand on the broad shoulders of the aforementioned gentleman to launch my harmless, albeit thought provoking missiles at the direction of the so-called proponents of anti-‘gayism’.
I have deliberately kept my silence all this while over the Ghana’s anti-LGBTI bill until I chanced on the aforesaid journalist’s thought provoking article(see: Will Akufo-Addo government jail journalists over LGBT reportage?-ghanaweb.com, 30/08/2023).
In fact, I felt enormous torment upon reading that the anti-LGBTI bill, when passed, would not only target gay people, but the allies, journalists, media owners who act as the proponents, and more ridiculously, house owners for sheltering alleged homosexuals . How bizarre?
In effect, the said bill, when passed, would not only criminalise the benign praxes of LGBTI people, the freedoms and rights of heterosexuals and other innocent people would be capriciously curtailed. How unfortunate?
We should, however, not lose sight of the fact that the right to freedom of opinion and expression is encapsulated in international law -Article 19 of the Universal Declaration of Human Rights and Article 19 of International Covenant on Civil and Political Rights.
More significantly, the freedom of opinion and expression has been given meaning in Ghana’s 1992 Constitution.
In practice, free speech is an inalienable right to seek, receive and convey information and ideas of all kinds, by any means which may be deemed appropriate.
In other words, the right to freedom of expression denotes the ideas of all kinds, including those that may be deemed offensive.
That being said, freedom of opinion and expression may be subject to restrictions, but these shall only be such as are provided by law and are necessary: restrict in the public interest on grounds of national security, to preserve public order, to protect public health, to maintain moral standards, to secure due recognition and respect for the rights and freedoms of others or to meet the just requirements of the general welfare of a democratic society.
Besides, the fact that freedom of opinion and expression is not absolute and is subject to permitted abridgment does not mean that the right can be curtailed arbitrarily according to legislative, executive or judicial discretion.
In fact, this right, like others, may be restricted to protect and balance other rights and interests. However, it is the complexion and the degree of these restrictions that is often contended in extant human rights and security jurisprudence.
Suffice it to stress that the ways in which restrictions are to be determined and imposed and the criteria which apply to the formulation of permitted abridgement are crucial.
Indeed, if freedom of opinion and expression is to be meaningful, it cannot however be subject to crude majoritarian dictates.
Apparently, what differentiates a human right from any other right is that a human right is available to and enforceable by a minority, however small and even against the wishes of a majority.
In fact, if freedom of opinion and expression was to become subject to ordinary legislature, executive or judicial control, it would be no different from any other statutory right which the authorities are free to confer and withdraw at their pleasure.
Thus, the restriction of freedom of opinion and expression becomes a crucial and delicate question. For any restrictions cannot be based on ideological perceptions of legislature, executive or judicial, but must be predicated on objectively founded and comprehended criteria.
I am cognisant of the fact that the 1992 Constitution of Ghana criminalises the practice of homosexuality.
If that was to be the case, how can any elected politician or an erudite practitioner exert all his/her precious time and energy on yet another law over bread and better issues?
I cannot remit my fury in condemnation over the way and manner the supposedly morally upright Ghanaians are gleefully condemning the practice of the so-called evil of our time-homosexuality.
Whenever I hear all sort of people, ranging from pastors, prophets, soothsayers, black magicians to fetish priests, ventilating their arousing disgust over the so-called evil of homosexuality, the question I often ask myself is: is the practise of homosexuality the only sin the almighty God abhors?
The fact, however, remains that over the years we have been living with gays and lesbians in our communities.
So whether we like it or not, gays and lesbians will continue to practice in secrecy until thy kingdom come.
And, if indeed, the act of homosexuality is the greatest sin against God and mankind, they will account to their creator themselves one day, but not you and me.
We should, however, not lose sight of the fact that we are all descendants of Biblical Adam, and therefore each and everyone has his/her own shortcomings.
In all this, what appears much more bizarre is the renowned lawyers who are hiding behind the moral and religious invocations and consistently condemning the actions of the men and women who have volitionally chosen to go contrary to the conventional way of making love.
I must, however, confess that I used to appal homosexuality so much until I completed Masters in International Human Rights Law Programme.
Even though I personally dislike the act, I am of the conviction that homosexuals have their inalienable human rights and can therefore decide their sexual preference without any external interference.
And, to those who think that homosexuality is a sin against their religion and God, hasn’t it written: thou shall not judge?
And to those law luminaries who have been protesting vehemently against the act of homosexuality: aren’t human rights universal, interdependent, indivisible and interrelated?
Basically, being a human rights lawyer means challenging discrimination and defending the inalienable rights and freedoms of ordinary citizens and denizens regardless.
This means defending, protecting and promoting those rights and freedoms irrespective of their race, religion, tribe, gender or sexual preference, and no matter where in the world they may be under threat.
In other words, a human rights lawyer is supposed to investigate, evaluate, and defend people in cases involving discrimination, torture and abuse amongst others.
What are Human Rights?
Rene Cassin, one of the principal drafters of the universal declaration of Human Rights, adopted by the General Assembly in 1948, subsumed the main tenets of human rights by juxtaposing them with the portico of a temple. Drawing on the battle cry of the French revolution, Cassin identified the four pillars of the declaration as: ‘dignity, liberty, equality, and brotherhood’ (Ishay 2004).
Apparently, the 27 articles of the declaration were divided among these four pillars. The pillar underpinned the roof of the portico (articles 28–30), which stipulated the conditions in which the rights of individuals could be realized within society and the state.
The first pillar covered in the first two articles of the declaration stands for human dignity shared by all individuals regardless of their religion, creed, ethnicity, religion, or sex; the second, specified in articles 3–19 of the declaration, invokes the first generation of civil liberties and other liberal rights fought for during the Enlightenment; the third, detailed in articles 20–26, addresses the second generation of rights, i.e. those related to political, social and economic equity and championed during the industrial revolution; the fourth (articles 27–28) focuses on the third generation of rights associated with communal and national solidarity, as advocated during the late 19th century and early 20th century and throughout the postcolonial era (Ishay 2004).
Based on the preceding explications, we can draw an adverse inference that human rights are the basic rights and freedoms that belong to every person in the world, from birth until death.
More significantly, human rights can never be taken away, although they can sometimes be restricted – for example, if a person breaks the law, or in the interests of national security.
In practice, basic human rights are based on values like dignity, fairness, equality, respect and independence. But then again, human rights are not just abstract concepts – they are defined and protected by national and international laws (EHRC).
In essence, human rights are the basic rights and freedoms that belong to every person in the world, from birth until death.
That being said, the fact that the Universal Declaration of Human Rights acknowledges that all human beings are born free and equal in dignity and rights, and more so when such rights are interdependent, interrelated, universal and indivisible, one would expect universal coverage of human rights.
However, it does not appear to be the case. For instance, the human rights of lesbian, gay, bisexual and transgender people are somehow non-existent in most countries (UN 2011).
The legal obligations of States to protect the human rights of lesbian, gay, bisexual and transgender people are already detailed in international human rights law, which have been articulated severally in the Universal Declaration of Human Rights and other internationally agreed human rights treaties.
What is more, the International Covenant on Civil and Political Rights is candid on the universality, interdependence, interrelatedness and indivisibility of human rights.
For instance, Articles 2.1 and 26 of the International Covenant on Civil and Political Rights stress on universal coverage without discrimination. And, Article 17.1 emphasises that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, or to unlawful attacks on his honour and reputation’. Whereas Article 17.2 stresses that ‘everyone has the right to the protection of the law against such interference or attacks” (UN 1966).
It is also worthy of mention that all members of the human family are protected by the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UN 1984).
But despite the enactment of all these pragmatic provisions, lesbian, gay, bisexual and transgender people are more often than not face discrimination and violations in most countries.
Under normal circumstances, once a human rights treaty is ratified by a state, it becomes legally binding on the said state (Neumayer 2005; Cole 2009).
Yet meta-analysis suggests that some States Parties often do not comply with the treaty obligations following ratification (Hathaway 2007).
I hereby submit, albeit humbly that, since Ghana’s Constitution already frowns on the praxes of ‘gayism and lesbianism’, our elected Members of Parliament must rather think outside the box and help solve the pressing issues that affect the lives of the ordinary Ghanaian.
Kwaku Badu, is a human rights ideologue, and the proud Star Award winner of the GhanaWeb’s 2021 Maiden Excellence Award.
k.badu2011@gmail.com
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