Supreme Court dismisses injunction against anti-LGBTQI+ Bill

The Supreme Court has thrown out an application which sought to stop the Speaker of Parliament from allowing the House to proceed to debate an anti- LGBTQI+ Bill until the determination of a suit challenging its constitutionality.

In a unanimous decision yesterday, a nine-member panel of the apex court, presided over by the Chief Justice, Justice Gertrude Torkornoo, held that the applicant could not make a case to convince the court to grant the interlocutory injunction.

Delivering the decision of the court, the Chief Justice, Justice Getrude Torkornoo said the issues raised in the injunction application were the same issues that would be determined by the court in the substantive case.

The court, she held, would not put an injunction on an incomplete work of Parliament, especially when the court could adequately deal with the same issues under contention in the substantive case.

“The issues raised by this application for injunction are matters to be determined in the substantive matter.

The application for injunction is, therefore, dismissed,” Justice Torkornoo ruled.

Contempt struck out

In view of the dismissal of the injunction application, the applicant — Dr Amanda Odoi — withdrew an application for contempt against the Speaker of Parliament, Alban Sumana Kingsford Bagbin.

Dr Odoi wanted the court to punish the Speaker for his directive for the anti-LGBTQI+ Bill to undergo a second reading in spite of the injunction application.

With the contempt application, the applicant had argued that despite being served with the injunction application, Mr Bagbin still went ahead and directed Parliament to proceed with the bill, an act which the court described as “a complete disregard for court processes and calculated to interfere with the due administration of justice”.

After the withdrawal of the contempt application, the Supreme Court dismissed the application for contempt as withdrawn.

Apart from the Chief Justice, other members of the panel were Justices Paul Baffoe-Bonnie, Gabriel Pwamang, Mariama Owusu, Henreitta Mensa-Bonsu, Emmanuel Yonny Kulendi, Barbara Ackah-Yensu, Samuel Asiedu and George Koomson.

Application

Moving the application for interlocutory injunction, counsel for the applicant, Dr Ernest Ako, said by allowing the anti-LGBTQI+ Bill to proceed in Parliament, the Speaker of Parliament breached Article 108 of the 1992 Constitution.

Article 108 of the 1992 Constitution prevents Parliament from considering a bill which was not introduced on behalf of the President if that bill in the opinion of the Speaker of Parliament or the person presiding would lead to the imposition of taxes or affect the public finances.

Counsel argued that the Human Sexual Rights and Ghanaian Family Values Bill, a private member’s bill, would have fiscal implications on the country and, therefore, it was incumbent on the Speaker to give an opinion in accordance with Article 108 of the 1992 Constitution before allowing the House to proceed on it.

“The balance of convenience calls for staying the hands of the Speaker of Parliament until the substantive matter.

The only thing Parliament suffers is not proceeding with the bill during the time the case is pending in court,’’ counsel said.

Justice Mensa-Bonsu then asked counsel if putting an injunction on the Speaker of Parliament was a prudent idea since another person could preside over Parliament in the absence of the Speaker, adding, “unless you want us to put an injunction on the whole Parliament”.

The Chief Justice also asked counsel whether the issues he was raising were not the same as the substantive matter, which the court was yet to determine.

Justice Torkornoo then wondered if it was legally right to put an injunction on the Speaker of Parliament based on issues that the court would eventually determine in the substantive matter.

“In the event we find merit in your case, can we not strike down the Bill as unconstitutional?” the Chief Justice asked.

Dr Ako answered that putting an injunction on the Speaker from allowing Parliament to proceed to hear the bill would prevent the continuous violation of the 1992 Constitution.

Opposition

Counsel for the Speaker of Parliament, Thaddeus Sory, who opposed the application for interlocutory injunction, argued that the applicant had failed to meet the conditions for the grant of an injunction.

He said the applicant had not exhibited any hardship she would suffer if Parliament proceeded with the bill while the case continued in the court.

Again, Mr Sory argued that the applicant in her own affidavit in support of the motion of injunction, had admitted that the Speaker of Parliament had already expressed his opinion on the bill in accordance with Article 108 of the 1992 Constitution, except that the applicant was not in support of the position taken by the Speaker.

“We pray that this application does not satisfy the test for the grant of injunction and should be dismissed,” Mr Sory submitted. 

on behalf of the Attorney-General, the second respondent in the application, Dr Sylvia Adusu, a Chief State Attorney, also opposed the application and stated that the Speaker of Parliament was performing his duties which should not be put on hold by the court.

Dr Adusu said if the applicant was aggrieved by the actions of the Speaker of Parliament, the best option was for her to wait for the court to determine the constitutionality of such actions.

Case

Dr Odoi — an academic researcher — is challenging the constitutionality of the Human Sexual Rights and Ghanaian Family Values Bill which is seeking to outlaw the practice of LGBTQI+ and any activity promoting it in the country.

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

According to her, the aspect of the bill that called for therapy and medical assistance for LGBTQI+ persons was a clear indication of the financial impact the bill would have on the country if passed into law.

The applicant is, therefore, seeking a declaration from the Supreme Court that the action of the Speaker of Parliament violates Article 108 of the 1992 Constitution, and an order for the Speaker or his deputies from violating the said constitutional provision.

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