In recent years, Russia, Nigeria, Uganda, and Hungary have all passed repulsive laws discriminating against and violating the rights of Queer individuals. In Ghana, the recently proposed Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill (the Bill) adopts the same discriminatory approach, but takes it a step further by seeking to criminalise LGBTTQQIAP+ (Queer) individual representation in the state.

Amidst the ongoing police and media prejudice against the Queer Community in Ghana, this anti-Queer Bill makes the country's position on Queer rights explicit. Despite the fact that the majority of the nation's colonisers legalised same-sex marriage about a decade ago, this homophobic perspective still permeates Ghana's colonial legislative framework. The Bill is intended to target the sexual minority communities of Ghana and further criminalise anybody who communicates a sense of empathy or assistance for Queer individuals. In Ghana, the Bill symbolizes a witch-hunt targeting Queer individuals.

GHANA’S COLONIAL LEGISLATIVE FRAMEWORK

Ghana’s Criminal Code of 1960, primarily a colonial-era statute, criminalises the notion of “unlawful carnal knowledge” under section 104 and section 106. It makes non-consensual unnatural sexual intercourse a first-degree felony punishable by a minimum of five years in jail and a maximum of 25 years if convicted. Under the existing law, “unnatural” consenting sexual intercourse is already penalised up to three years of imprisonment.  The exception to Ghana's “unnatural offences is that they  only pertain to gay men (male genital penetration), not women engaging in same-sex intercourse, as asserted in the  Constitution Review Commission (“CRC”) Report in 2011. Nevertheless, due to the obvious ambiguity surrounding the concept of “unnatural carnal knowledge,” as well as socio-cultural prejudice, both alleged gay men and lesbians are regularly detained. Officials in Ghana constantly advocate for section 104, arguing that it is only utilised in rape cases and not in individuals’ private lives, yet the actuality is absolutely the opposite. Members of Parliament have frequently expressed the belief that homosexuality is a mental illness, not a human rights concern.

The right to equality is enshrined in Ghana's Constitution in article 17(1). Discrimination on the premise of "gender, race, colour, ethnic origin, religion, creed, or social, or economic position" is prohibited under article 17 (2). Different gender identities can be included in a liberal point of view of gender. Social status, on the other hand, might be determined by the position that Queer individuals carry as a group within society. Underneath the equality and non-discrimination principle, the CRC considered including the terms "sexual orientation" and "sex". Amidst existing prejudices, the new proposed Bill lands another blow, as it exacerbates long-standing trauma by rendering the Queer community and its advocacy completely illegal, as well as imposing harsher imprisonment sentences.

THE BILL

The aim of the Bill is to promote the “Ghanaian family values” (section 2) and prohibits Queer individual’s engagement, sexual intercourse, marriage, or any activity which also includes any surgery for sex or gender reassignment or any other procedure that can create a sexual category other than the sexual category of a person assigned at birth.  Section 10, again forbids and declares any marriage other than heterosexual as void. Section 12 states that any promotion, propaganda, and advocacy of the same will be penalised. 

Any assistance given in support of an action that is prohibited by this legislation is illegal and will be penalised. If a person violates this provision, they will be condemned to a term of imprisonment of no less than five years and no more than ten years if they are found to be guilty on summary conviction. The Bill's section 14 prohibits funding or endorsement of Queer projects. If anyone is discovered to be doing so, they will be sentenced to prison for a period of five to ten years. Any Queer organisation must be dissolved under section 15. The proposed regulation indirectly recommends despicable crimes including “conversion therapy” and other abhorrent violations such as unnecessary medical treatments on intersex infants and “corrective rape” for women, all of which amounts to ill-treatment and are conducive to torture, and violative of international human rights.

GHANA’S INTERNATIONAL OBLIGATIONS

Ghana, as a member of the United Nations and the African Union, is a signatory to many regional and international instruments obliging it to protect Queer rights, such as equality, non-discrimination, privacy, and protection from torture, which inter alia includes:

• the Universal Declaration of Human Rights [‘UDHR’];

• the African Charter on Human and Peoples’ Rights (‘ACHPR‘);

• the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol);

• the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’);

• the International Covenant on Civil and Political Rights (‘ICCPR’);

• and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’).

Regionally, the ACHPR Resolution 275 urges African states to take concrete action to prevent violence and discrimination premised on people's legitimate or perceived gender identity and sexual orientation. Furthermore, Ghana is obligated by the notion of “Pacta Sunt Servanda” within the realm of international human rights law, following the amalgamation of UDHR, ICCPR, and ICESCR, which collectively intends to protect the gender identity and sexual orientation rights of the individuals. In their preambles, all three instruments recognise the "inherent dignity and [...] the equal and inalienable rights of all members of the human family". These instruments also recognise the individual's right to self-identification and freedom of expression, which are fundamental to rights related to gender identity and sexual orientation (UDHR, article 19-20; ICCPR, article 19 and 22). The instruments further protect an individual's right to privacy and the prohibition of arbitrary interference with that as well (UDHR, article 12; ICCPR, article 17). Furthermore, these instruments are founded on the notion that all individuals are born free and equal in dignity and rights (UDHR, article 1).

RESPONSE TO THE BILL

A copy of the Bill was leaked and was widely shared, which initiated the current debate. Parliamentarians Alban Bagbin and Sam George support the Bill and argue that homosexuality is already illegal, so there is no room for any deliberation in the fight against the Queer Community. However, the Bill has been strongly condemned by United Nations experts, who contend that it violates many international conventions to which Ghana is a signatory, notably the Universal Declaration of Human Rights. The United Nations Programme on HIV and AIDS (UNAIDS) has also condemned the Bill and has supported its rejection on the pretext that if approved, this legislation will undoubtedly drive individuals further away from HIV prevention, care, and treatment facilities, and jeopardising the progress achieved on these fronts thus far.

In every region, sexual minorities are marginalised and suffer disproportionately. Members of Ghana’s the Queer community are vulnerable due to existing prejudice and continuous physical or emotional harassment, as stated in a Human Rights Watch report from 2018. They avoid approaching the authorities for safety and the pursuit of justice because they are afraid of being identified and prosecuted. It would be a blatant violation of basic human rights to further criminalise it.

Unfortunately, the Bill is anticipated to receive enough votes in Parliament to become official. Ghana is a conservative country, and the Bill's massive popularity stems primarily from conservative religious doctrine and intolerance of any expression of homosexuality.

Sarthak Gupta is an undergraduate law student on the B.A; L.L.B [Hons] at the Institute of Law, Nirma University, India. His academic interests include Constitutional Law, Human Rights law; Gender Studies, and International Law.