The intersection of culture and justice: How Ghanaian legislation honours tradition

In response to Joseph Whittal, the Commissioner of CHRAJ, who criticized the anti-LGBTQ+ bill, it is imperative to acknowledge the impact of cultural values on legislative design.

Despite what the Commissioner asserts, cultural values have a legitimate role in the legislative process. This rebuttal aims to provide compelling evidence for its position by highlighting the ways in which laws uphold societal cohesion and stability and how cultural values serve as a reflection of a society's moral compass.

Maintaining social cohesion requires that members of a society share a common sense of identity, beliefs, and customs, which is provided by cultural values. Legislation must therefore be consistent with these ideals in order to preserve harmony and collective societal norms. According to eminent philosopher Martha Nussbaum, cultural values are a "core commitment" necessary to advance social cohesiveness and unity (Nussbaum, 1997). By enacting laws that uphold these cultural values, societies create a shared understanding of appropriate behaviour, which lessens the possibility of disputes and divisions.

Culture acts as a moral compass, outlining what is acceptable and inappropriate in a given community. Respecting moral principles is essential to preserving social order and promoting peaceful cohabitation. Article 29 of the Universal Declaration of Human Rights states that cultural rights must be respected without impeding people's freedom and equality. Culturally-influenced legislation upholds societal norms and expectations by serving to reinforce moral standards. Disregarding cultural values when making laws would compromise this essential component of government.

The claim that cultural values impede the advancement of human rights ignores the wide range of cultural contexts. It is necessary to acknowledge the variety of viewpoints present in a society in order to respect cultural values. Culturally informed legislation can reconcile the protection of marginalized groups' rights—like those of the LGBTQ+ community—with a respect for the cultural context in which it is enacted. The secret is to take a measured approach that respects human rights and takes into account the underlying cultural values of a community. As an illustration, the preamble of the Ghanaian Constitution, published in 1992, places a strong emphasis on the protection of individual rights and the advancement of cultural values. 

The 1992 Constitution of Ghana also stipulated the following in Article 11(3). 

(3) For the purposes of this article, "customary law" means the rules of law, which by custom are applicable to particular communities in Ghana.

Societies are dynamic, constantly evolving structures. Cultural values also change with time to reflect changing social dynamics. Legislation that is sensitive to cultural differences recognizes the value of considering the local context and allows for more complex forms of governance. By using this tactic, laws are ensured to be grounded in the specific needs and objectives of the community, as opposed to being imposed from without. For an average African, polygamy is a common example. Renowned legal scholar Philip Alston has emphasized the significance of local context in the application of human rights law (Alston, 2004).

Although the Commissioner contends that laws based on cultural values shouldn't be applied to particular individuals, it's important to acknowledge that the courts play a crucial role in defending human rights. The judiciary is in charge of making sure that laws are applied fairly and in accordance with the constitution. Since it enables the assessment of any allegations of constitutionality or human rights violations, the legal system provides checks and balances. The Ghanaian Constitution, for example, grants the judiciary the power to interpret the nation's laws and ensure that people's fundamental rights are respected. The Universal Declaration of Human Rights includes provisions to safeguard everyone's rights in Articles 8, 10, and 21, however, these are not without limit See also Ghana's 1992 Constitution, Article 12 and 33.

In summary, it is crucial to recognize the compatibility of cultural values when laws are being enacted. Cultural values provide societies with a moral compass by fostering social cohesiveness and establishing social norms. Following these guidelines in law ensures social harmony, protects minorities' rights within their cultural context, and considers the unique dynamics of a community. The judiciary protects individual rights and acts as a check on the legality of laws. Legislative processes that disregard cultural values jeopardize the moral fibre, stability, and cohesion of societies. Achieving fair laws that benefit every member of society necessitates balancing human rights with cultural values.

References:

- Alston, P. (2004). Putting the "Rights-Based Approach" to Development into Perspective. Human Rights Quarterly, 26(4), 984-1024.

- Constitution of Ghana (1992).

- Nussbaum, M. (1997). Cultivating Humanity: A Classical Defense of Reform in Liberal Education. Harvard University Press.