Anti-Gay Bill suit: Speaker’s financial impact assessment sparks controversy in court

There was controversy in the Supreme Court yesterday in the suit challenging the Anti-Gay Bill over the existence of a financial impact analysis supposedly prepared by the Speaker of Parliament before the bill was passed.

At the Supreme Court yesterday, lawyers from the Office of the Attorney-General (A-G) and the plaintiff challenging the passage of the bill questioned why the Speaker of Parliament had not made available the said analysis since his lawyers had stated in July that such a document, indeed, existed.

A Chief State Attorney, Sylvia Adusu, in moving an application for extension of time to enable the A-G to file its statement of case, said the A-G, the second defendant, had been forced to delay its statement of case due to the failure of the Speaker to produce the analysis.

The Chief State Attorney said the financial analysis, if indeed available, would have far-reaching consequences on the case.

She, therefore, expressed worry about why the Speaker was not making it available as he had promised.

“We did not delay out of disrespect for this court, but we were waiting for a certain document from the first defendant (Speaker), which in July he said was available,” Ms Adusu submitted.

The counsel for the plaintiff, Paa Kwesi Abaidoo, also expressed reservations about the Speaker’s failure to produce the financial impact assessment.

However, the single judge who presided over the case, Justice Yaw Asare Darko, asked why the two lawyers were making a big fuss about the said financial impact assessment.

The presiding judge asked: “If you have a case with someone, and the person says he has a document that will be of his benefit, and he is not producing (it), why force him?”

Justice Darko granted the extension of time requested by the Office of the A-G to file its statement of case by granting it an additional seven days.

Why is it important?

In July, counsel for the Speaker, Thaddeus Sory, told the apex court that he had just received new information that his client, indeed, gave an opinion on the impact of the bill on the public purse, and also caused a fiscal impact analysis to be conducted on the bill, pursuant to Article 108 of the 1992 Constitution and the Public Financial Management Act, 2016 (Act 921).

The issue of whether or not the Speaker of Parliament gave an opinion on the financial impact the bill would have on the Consolidated Fund, as well as causing a fiscal impact analysis to be conducted on the bill, are at the heart of the suits challenging the constitutionality of the Anti-Gay Bill at the Supreme Court.

Article 108 of the 1992 Constitution stipulates that any bill before Parliament, which would have an impact on the Consolidated Fund should be introduced by or on behalf of the President.

It further stipulates that in the event a bill is introduced by any entity other than the President or on behalf of the President, the person presiding in Parliament must give an opinion on whether the bill would have an impact on the Consolidated Fund before it is laid before Parliament.

Again, the Public Financial Management Act, 2016 (Act 921) stipulates that before considering any bill, Parliament ought to ascertain the impact it would have on the nation’s purse by conducting a fiscal impact assessment on the bill.

It is the contention of the two plaintiffs, who have filed different suits at the Supreme Court, namely Richard Sky and Dr Amanda Odoi, that the Anti-Gay Bill was a private member’s bill which failed to follow the dictates of Article 108 of the 1992 Constitution and Act 921.

The plaintiffs said the bill would put a charge on the Consolidated Fund because under the bill, persons convicted of homosexuality could be jailed, which could impose costs on the state.

In view of that, they averred that the Speaker of Parliament breached Article 108 of the 1992 Constitution by not giving an opinion on whether the bill, when implemented, could lead to financial consequences on the country through a charge on the Consolidated Fund.

In this regard, if the Speaker, indeed, conducted a financial impact assessment on the bill before its passage, it could significantly strengthen the defence of the Speaker against the two suits.

Anti-Gay Bill

On February 28 this year, Parliament passed the Human and Sexual Rights and Family Values Bill, which was a bi-partisan private member’s bill.

If assented to by the President, the bill, which enjoyed overwhelming support from members of the House, will impose three years’ minimum jail term and five years’ maximum incarceration on those who engage in and promote homosexual activities in the country.

It has, thus, criminalised and prohibited pro-gay advocacy, as well as those who fund the activities of lesbian, gay, bisexual, transgender, intersex, queer/questioning, asexual, among other such people.

The passage of the bill has since generated diverse reactions, with its opponents describing it as a drawback of the human rights status of the country, while its proponents insist it was necessary to guard against the normalisation of homosexual and other queer sexual activities in the country.

President Nana Addo Dankwa Akufo-Addo has indicated that he would only act on the bill after the Supreme Court had determined the suits challenging its constitutionality.

Writer’s email: emma.hawkson@graphic.com.gh