Anti-Gay Bill: Pressure for action
On February 28, 2024, Ghana’s Parliament unanimously passed the Promotion of Human Sexual Rights and Family Values Bill of 2021, popularly known as the ‘Anti-Gay’ Bill.
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Terms of the Bill include a prison sentence of up to three years for individuals who engage in same-sex conduct and up to five years for individuals engaged in ‘wilful promotion, sponsorship or support of LGBTQ+ activities’. Critics claim that the bill contravenes Ghana’s Constitution, which protects the rights of all persons to equality and non-discrimination, freedom of expression, freedom of association and privacy.
Ghana already has a law criminalising ‘unnatural carnal knowledge’, inherited from the period of British colonialism. Section 104(1)(b) of the Ghanaian Criminal Code of 1960, criminalises ‘unnatural carnal knowledge’ (between consenting adults), as a misdemeanour. Section 104(2) defines ‘unnatural carnal knowledge’ as ‘sexual intercourse with a person in an unnatural manner or with an animal’. In Ghana, ‘misdemeanours’ carry a penalty of up to three years imprisonment under Article 296(4) of the Criminal Procedural Code. By the early 21st century, these 1960 provisions were rarely enforced.
The Anti-Gay Bill has sparked considerable controversy both within the country and internationally. Supporters of the Bill claim that the Bill aims to preserve traditional Ghanaian values and protect the innocence of children from unwelcome gay influences. Critics claim that the bill puts the human rights of a sexual minority in jeopardy, justifies anti-gay discrimination and encourages self-styled ‘vigilantes’ to attack those they regard as gay.
Protest
On October 8, more than seven months after Parliament passed the Bill, hundreds of Bill supporters took to the streets of Accra. They were marching to express frustration over what they regard as undue delay in the passage of the Bill into law. Demonstrators included activists of Arise Ghana! in their distinctive red clothes, as well as representatives of Ghana’s main religious groups.
The Member of Parliament for Ningo Prampram, Samuel Nartey George, lead sponsor of the anti-gay bill, addressed the demonstrators in a passionate seven-minute speech, which outlined his concerns about delays in the Bill’s passage into law. Mr George presented petitions to both the Attorney-General and the Chief Justice, urging swift judicial action to advance the pending court cases against the Anti-Gay Bill. The two separate court cases challenging the Bill’s constitutionality were brought before the Supreme Court by a journalist and lawyer, Richard Sky and Dr Amanda Odoi, activist and researcher at the University of Cape Coast. In March, President Akufo-Addo announced that he would not give his assent to the Bill until these challenges were decided by the Supreme Court.
The Anti-Gay Bill is a private member's bill. The President is cautioned against assenting to the Bill as it contradicts Article 108 of the 1992 Constitution, which prevents private members’ bills from imposing financial burdens on public funds. In addition, the Ministry of Finance of Ghana has forecast that, if the Bill becomes law, Ghana will likely lose US$3.8 billion in World Bank funding alone over the next five to six years.
Critics regard the proposed law as a draconian denial of basic human rights for a sexual minority. In addition, the Bill’s opponents point to international treaties to which Ghana is a signatory which, they believe, would be violated if the Bill becomes law. However, advocates for the Bill claim several African countries, including Uganda, Nigeria, Kenya and Cameroun have enacted anti-gay laws with harsh punishments and why should Ghana be different?
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It must be pointed out,however, that under international human rights law, countries are required to safeguard the rights of people regardless of their gender or sexual orientation. The Convention on the Elimination of all Forms of Discrimination Against Women, the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights, all of which Ghana has ratified, protect the rights to integrity and security of the person, as well as freedoms of expression, association and peaceful assembly, including for LGBTQ+ people. Laws criminalising same-sex conduct violate the rights to privacy and freedom from discrimination.
The October 8 demonstration in Accra underlined that in relation to the Bill, things are at an impasse. The elephant in the room is that Ghana’s presidential and parliamentary elections take place in less than two months. President Akufo-Addo will then stand down after two terms. What then happens to the Bill if the court cases are not resolved by December 7? During electoral campaigning, the two leading presidential contenders, the NPP’s Dr Mahamudu Bawumia and John Dramani Mahama of the NDC, have consistently expressed their support for the Bill. The question might be asked: Do these leading presidential candidates genuinely support the Bill and would they sign it into law if elected? Or are they merely using their support for the Bill to gain votes?
What happens after December 7
What will happen after the election when one of them is likely to be President? Both will be well aware of the potential damage to Ghana’s already tottering economy if the World Bank withdraws financial support to the tune of nearly US$4 billion over the next five to six years. Would they risk Ghana’s economic – and perhaps political – stability – by signing the Bill into law?
As the election gets ever closer, the situation remains unresolved. Supporters of the Bill demand its passage into law. Opponents do not agree. What next?
The writers are an Emeritus Professor of Politics, London Metropolitan University, UK and a Political Scientist