Ghana’s Supreme Court upholds an anti-LGBT law from the colonial era.
upholds harmful criminal provisions while the government examines an even worse bill.
July 30, 2024, Nairobi – Human Rights Watch announced today that Ghana’s top court, on July 24, 2024, upheld colonial-era legislation that makes adult consenting same-sex behavior illegal, in violation of Ghana’s commitments under international human rights law. The ruling is being made at a time when the nation is deeply divided over a potentially harmful anti-LGBT bill that will intensify the persecution of members of sexual and gender minorities as well as those who support them.
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The British colonial heritage of criminalizing so-called “unnatural sex” was regrettably reinforced by Ghana’s supreme court, according to Rasha Younes, interim LGBT rights director at Human Rights Watch.
“The law was challenged because it infringed upon the rights to privacy and personal liberty guaranteed by the constitution, rights that are universally guaranteed by international law, and rights that are unaffected by a person’s sexual orientation.”
The right to privacy, protection of individual liberties, and respect for human dignity are all guaranteed by Ghana’s constitution. However, there has been an increase in persecution of LGBT persons in recent years due to the bill’s debates, and violence against them is still common.
The lawsuit to invalidate the statute was started by Prince Obiri-Korang, a law professor at the University of Ghana. The Criminal Offences Act 1960 (Act 29) in Ghana, which was derived from British colonial law, states in section 104(1)(b) that “whoever has unnatural carnal knowledge[…] of a person sixteen years or older, with his consent, is guilty of a misdemeanor.” Section 104(1)(2) defines “sexual intercourse with a person in an unnatural manner or with an animal” as “unnatural carnal knowledge.” The judges of the Supreme Court claim that using sex toys is an “unnatural manner.”
The court’s decision has broadened the interpretation of Section 104(1)(b) by seemingly incorporating language from the anti-LGBT Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021. This bill specifically forbids individuals, under clause four, from participating in any activities that compromise Ghanaian family values and proper human sexual rights.
Human Rights Watch was informed in 2017 that the term “unnatural carnal knowledge” is ambiguous, lacks a clear legal definition, makes interpretation difficult, and is applied to discriminate against LGBT people by Jones Blantari, the chief superintendent of Ghana’s police force.
The bill increases the maximum penalty for same-sex activities from three years to five years in prison and increases the likelihood of filing criminal charges against members of the LGBT, queer, pansexual, and other non-conventional gender identity communities as well as those who support them. Additionally, it would penalize anyone who funds, supports, or publicly advocates for the rights of sexual and gender minorities.
In 2021, the measure was introduced by members of parliament. The measure not only makes it more likely that people who support LGBT rights may face criminal charges, but it also makes it possible for anybody who creates, publishes, or distributes anything on social media platforms that promotes actions that are forbidden by the law to face criminal penalties.
Prominent individuals in Ghana, such as the Roman Catholic Cardinal of Ghana Peter Turkson and the head of a major political party and former member of parliament Samia Nkrumah, publicly opposed the law. Nkrumah called the anti-LGBT bill “brutal, harsh, and unjust,” and he encouraged the president to veto it. The late Kwame Nkrumah, Nkrumah’s father, is a significant person in Ghanaian and African history. He led the country’s independence struggle and held the positions of prime minister and president in the 1950s and 1960s.
The harsh measure was approved by the Ghanaian parliament in February 2024 and is currently in the hands of President Nana Akufo Addo, who has yet to sign it.
Younes remarked, “Ghana’s supreme court blew the chance to rid the nation of its foreign legacy of egregious colonial-era laws.” “The president should veto the new bill as evidenced by the court’s failure to uphold LGBT people’s basic rights.”
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