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LGBT-1 - Good notes
Ghana Legal System (FLAW 103)
University of Ghana
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WHETHER LGBTs ACTIVITIES SHOULD BE CRIMINALISED IN GHANA
NB: This is just a guide. Not to be copied by rote and or reproduced dishonourably.
Note again, that the various headings are for the convenience of this write-up. In a typical essay question, you may not need to categorise them in sub-headings (that is not to say however, that same cannot be done.)
Introduction Homosexual conducts and activities include sexual activities of lesbians, gays, transgenders and bi- sexuals (LGBTs). The controversy surrounding the legalisation of conducts and activities of LGBTs in Ghana is on the ascendency. There is hardly any public discussion in the media, which goes without a comment on this controversy.
Those in favour of making these activities legal justify their stance on the respect for fundamental human rights. Ironically, the human rights argument also anchors support for the need to criminalise these conducts.
In this discussion, an attempt shall be made to interrogate the merits and de-merits in making legal, activities of LGBTs in Ghana.
Alternative Introduction
It is incontestable, that the time is ripe in Ghana, for a criterial examination of the subject of legalising sexual activities of lesbians, gays, bi-sexuals and trans-genders. Very recently a private bill was introduced in the Parliament of Ghana seeking among others, to criminalise homosexual conducts. The stance on this issue is not monolithic. What this discussion seeks to do, is to consider the arguments in favour of legalising homosexual conducts and those against the legalisation of homosexual conducts and activities.
The proponents in favour of making legal, homosexual conducts and activities posit, that homosexuals are human beings and entitled as every other person to the enjoyment of the fundamental human rights guaranteed under the 1992 Constitution. Contra, it has also been argued, that fundamental human rights, albeit alienable are not absolute, but subject to the overriding interest of the public.
The various strands of arguments, in justification of either position, shall be taken and expatiated on. To begin with, are the arguments in favour of the legalisation of homosexual conducts and activities in Ghana.
Arguments in Favour of Legalisation
Homosexuals, like all human beings are entitled to the enjoyment of the rights of all humans: In almost every constitutional democracy, the recognition, respect and enjoyment of fundamental human rights is non-negotiable. As reflected under the preamble to the 1992 Constitution of the Republic of Ghana, the respect for fundamental human rights, is a core pillar of the Constitution. In terms of Article 12(1) of the Constitution, all persons, including the legislature, executive and judiciary are obliged to respect the fundamental human rights and freedoms guaranteed under the Constitution. In further abhorrence of the deviation from this respect, Article 12(2) of the Constitution frowns upon any form of discrimination as regards the enjoyment of fundamental human rights. Indeed, Article 17 of the Constitution re- echoes this, by demanding equal treatment of all persons. Therefore, since homosexuals are humans, it will sin against their dignity, which is guaranteed under Article 15 of the 1992 Constitution, to be accorded dehumanizing treatment, for instance, in not according them the opportunity to marry and or satisfy their sexual pleasures.
Arguments in favour of the criminalization of homosexual conducts and activities are moral and not legal arguments: It is legal knowledge, that the law is not coterminous with morality. Most of the proponents in favour of the criminalization of homosexual activities anchor their arguments on moral pleas. Some merely assert, that homosexual activities sin against Christianity or Islam. Ghana, it must be noted is heterogenous in its religious affairs. To succumb to the morality of one, is to trample on the right of others. As indicated, under Article 12(2) of the 1992 Constitution, the enjoyment of fundamental human rights is contingent also, on the respect of the rights of others.
It is empirically flawed, that customary practices and values abhor homosexual conducts : It has loosely been suggested, that homosexual conducts and activities sin against customary values and traditions in Ghana. However, there is no evidence in support of this. Infact, Article 11(3) of the 1992 Constitution reflects the dynamic nature of customary practices and customs among the different communities in Ghana. To suggest, therefore, that same is abhorred by the customs of Ghana is to make a generalized statement without specific justifications.
The recognition and or legalisation of homosexual conducts and values accord with best international practices and development : Most developed nations such as the United Kingdom and the United States of America have all embraced the rights of LGBTs. Infact fundamental human rights is now akin to a juscogen which is a preemptory norm of general application which cannot be derogated from by the comity of nations. In New Patriotic Party v Attorney General, Bamford Addo underscored the essence of human rights when she held, that human rights’ treaties, even if they have not been ratified by parliament must be respected as they are self-executory. It is therefore incumbent on Ghana, to also act in the same line of respect for the sexual rights of homsexuals as its international counterparts.
Legalising homosexual activities in Ghana translates into economic benefits to the nation: Recent practice and occurrences show, that most of the Bretton woods institutions- the World Bank and the International Monetary Fund (IMF) condition their grants to the respect of the sexual rights of all persons including homosexuals. Further, Ghana depends on the donors of developed nations such as the United States of America. The disrespect of the rights of homosexuals can cascade into a refusal to get economic assistances from these countries and institutions. This will impair greatly the economy of the state.
It has never been the intendment of the draftsman or framers of the constitution to make illegal every homosexual conduct or activity: Perhaps, the closest legislation to the criminalization of a homosexual conduct is the cirminalisation of unnatural carnal knowledge under section 104 of the Criminal Offences Act, 1960 (Act 29). Over 60 years since the passage of Act 29, it has never been the intendment of the legislature to make criminal every homosexual conduct. Therefore, the urge towards the criminalization of this conduct even fly in the face of the intendment of the framers of Act 29, at the time of its promulgation hence, must be discarded and rejected.
Arguments Against Legalisation
- There is no absolutism with the enjoyment of fundamental human rights: Indeed, fundamental human rights are inalienable rights which needs to be respected and protected by all persons. These rights, are, however, not absolute rights. That is, the enjoyment of these rights are not without limitations. Article 12(2) and Article 17(2) of the 1992 Constitution emphasise these limitations. The articles make clear, that the enjoyment of fundamental human rights is subject to the respect of the rights of others, as well as the public interest, including public health, public safety, and public security. It goes without saying, that granting a free-for-all enjoyment of rights may, impair the interest of the public , particularly,
in Ghana, has not germinated to a status warranting legalisation of homosexual conduct, hence the invitation must be rejected.
Constitutions and Laws grow , hence, where there is a social need, not catered by an existing law the law must accommodate it : Justice Sowah in the case of Tuffour v Attorney-General teaches the learning that, a Constitution must be viewed as a living organism which is capable of growth and development. What this teaching resonates, in constitutional jurisprudence is that nation states must not be stagnant in their application and appreciation of their constitutions. That is, where there is a societal need, which was not hitherto expressly catered by the Constitution, the State must engineer a legislative mechanism to cater for such situation. Therefore, the fact of the absence and or only criminalization of unnatural carnal knowledge under section 104 of Act 29 cannot abate any further criminalization of other homosexual conducts since, the time is now ripe for such conducts to be rendered illegal.
ETC-add more if your 45 minutes is not up; do not forget there is a conclusion.
CONCLUSION
The foregoing discussion shows the quagmire in the arguments in favour of and against the legalisation of homosexual conducts and activities in Ghana. Whiles there is sound justification for making legal, homosexual activities and conducts in Ghana, there is equally well reasoned arguments in favour of making it illegal. Rendering Homosexual activities in Ghana illegal has its own challenges as already demonstrated above. A further practical challenge will be to the implementation of the law. It is observed, that most sexual activities of homosexuals take place in private. Recognising the Constitutional abhorrence to the invasion of privacy under Article 18 of the 1992 Constitution, there will be a difficulty in attaining full implementation of any criminal offence of these activites. However, implicit in Article 18 of the 1992 Constitution is the further recognition that the right to privacy is subject to amongs others, curtailment of criminal offences.
Be that as it may, the economic implications to the criminalisaion of homosexual conducts must be critically weighed by the legislature before settling on making homosexual conducts and activities criminal. It is not the mere legislating of a penal code to criminalise an alleged offensive social conduct but, the socio-economic consequence is also as much critical to the passage of such laws.
In sum, the question: whether activities of LGBTs should be made criminal still warrants further and critical assessment.
NB: This conclusion is not your conclusion. Please have yours.
LGBT-1 - Good notes
Course: Ghana Legal System (FLAW 103)
University: University of Ghana
