<<Print>>We the gay community of Ghana wish to WARN our politicians that unless they secure ourrights to practice who we are, we will go to the international courts of human rights. We will also seek help from our European and Western partners, such as Obama and Cameron.This will have a devastating effect especially on the economy!
It will not take more than a simple understanding of the arguments being made by several Ghanaians to acknowledge that they are confusing morals with law. It happens a lot especially when your moral values are in direct conflict with a legal standing. The law on homosexuals is complex and no matter how it is construed, its interpretation can be stretched to give rights when the actual lawmakers may not have intended to do so.
I have laughed heavily several times for hearing people claiming homosexuals have NO legal rights in Ghana because the constitution of Ghana does not expressly give them any. What most of us have to realize is that, the law does not only give rights expressly, certain times, they are implied. I am not an expert on Ghanaian laws but still have enough knowledge to make this simple deduction. The legal argument that homosexuals have no rights in Ghana and their actions constitute a criminality has mostly been founded on Chapter 6, article 104 of the Ghanaian Criminal Code which prohibits “unnatural carnal knowledge”. This is defined to include consensual sexual intercourse between men. Notably, the true effect of this clause is that, it encourages discrimination and persecution against homosexuals on the basis of their identity and consensual sexual behaviour.
The above law which subjects homosexuals to discrimination is a criminal code, meaning the constitution of Ghana is supreme to it in terms of legal hierarchy. Article 17 of the constitution of Ghana however guarantees the right to freedom from discrimination. What this means is that, under the constitution you cannot discriminate against anyone for being homosexual (identity and sexual behaviour) whiles the criminal code says the direct opposite- ‘homosexuality’ by a stretch of the law is illegal.These two laws are in direct conflict with each other and as mentioned above, the constitution is supreme so automatically, it is the constitution that should take precedent.
Based on the above constitutional provision, homosexuals can simple argue that they have the right to their sexual orientation and must freely be allowed to express and practice it. They can do so by arguing that under Article 17, such a prohibition or not being allowed to hold and practice their sexual preference (criminalizing it with any code) is DISCRIMINATION, a breach of their constitutional right… Also, the African Charter on Human and Peoples’ Rights, ratified by Ghana in 1989 affirms the equality of all people and even gives homosexuals more grounds to operate freely. Article 2 expressly guarantees the right to freedom from discrimination, article 3 guarantees equality before the law and article 26 outlines the duty of all individuals not to discriminate…. So as a Ghanaian, you have a duty not to discriminate against any person or set of people including homosexuals.
So until Article 17 is repealed or amended and probably the African Charter too, homosexuals have rights to their activities and possibly to even marry in Ghana…We must learn to make a distinction between morals and laws especially when these two opposes each other. No matter your moral standing or cultural beliefs, the law is the law and someone’s right is his right whether expressly or impliedly given. Discriminating or segregating the minority (homosexuals) is not the way forward. As someone rightly said, if you want to know how civilized a society is, simply look at how they treat the minority. The current NDC government cannot hide now when prominent members of the government are gays and are holding sensitive positions. They must come out and support gay rights now.