<<Print>>Some 15 professionals in various fields including law and academia have submitted a memo to Parliament to kick against the anti-LGBTQI+ bill.
To them, the proponents of the bill have not provided any data or evidence to suggest that there is such a threat, beyond a resort to some dogmatic religious tenets and so-called Ghanaian family values, hence want the bill rejected.
They include; Lead Counsel for President Nana Akufo-Addo in the 2020 election petition hearing, Akoto Ampaw, Professor Kofi Gyimah-Boadi, Dr Rose Kutin-Mensah, and the Executive Director of Center for Democratic Development (CDD-Ghana), Professor H. Kwasi Prempeh.
Others are Professor Audrey Gadzekpo, Professor Kwame KariKari, Professor Raymond Atuguba, and Dr Yao Graham.
The rest are: Professsor Dzodzi Tsikata, Kwasi Adu-Amankwah, Kofi Ofei-Nkansah, Dr Kojo Asante, Akunu Dake, Tetteh Homerku-Adjjei and Professor Emerita Takyiwaa Manuh.
The private members’ bill, which is in the pipeline is proposing a 10-year jail term for offenders, including promoters of any sexuality that falls within the LGBTQI+ spectrum other than between a man and a woman.
The legislators promoting the bill, on June 29, 2021, submitted a copy of the draft to the Speaker of Parliament, Alban Bagbin.
It among other things says people of the same sex who engage in sexual intercourse are “liable on summary conviction to a fine of not less than seven hundred and fifty penalty units and not more than five thousand penalty units, or to a term of imprisonment of not less than three years and not more than five years or both.”
It covers any person who “holds out as a lesbian, a gay, a transgender, a transsexual, a queer, a pansexual, an ally, a non-binary or any other sexual or gender identity that is contrary to the binary categories of male and female.”
But in the view of these 15 individuals, the bill is an “impermissible invasion of the inviolability of human dignity, adding railroading the bill through would mean challenging Ghana’s 1992 Constitution.
“Christ’s message was/is that we should love our neighbour and not be judgmental and promote the hate and bigotry that many self-styled Christians exhibit and seek to impose on Ghanaian society.
“Per Article 18 of the Constitution, Ghana is a secular democracy and not a theocratic Christian or Islamic Republic or an African traditional monarchy or chiefdom,” part of an 18-paged memorandum read.
Meanwhile, they have cautioned the recipient of the memo, the Select Committee on Constitutional, Legal and Parliamentary Affairs against creating a “society where the state, through legislation, imposes one view of ‘proper human sexual rights’.”
MEMORANDUM TO SELECT COMMITTEE ON THE CONSTITUTIONAL, LEGAL ANDPARLIAMENTARY AFFAIRS ON THE:PROMOTION OF PROPER HUMAN SEXUAL RIGHTS AND GHANAIAN FAMILYVALUES BILL, 2021
IntroductionThe LGBT Bill currently before Parliament is a major step backwards for democracy,inclusiveness, the protection of minorities and the vulnerable in society, and of fundamentalhuman rights in Ghana. Under the grand sounding banner of ‘ proper human sexual rightsand Ghanaian family values’ the Bill seeks to send the country back centuries into thepast. Its language of ‘recant and treatment’ echoes the middle ages of Europe where thestate and the Church, driven by misguided notions of heresy and witchcraft, hunted downinnocents in the name of God and religious values. Blinded by religious zealotry andintolerance, the theocratic State and its Church forced innocent vulnerable persons to‘recant’ their religious beliefs and burnt nonconformists at the stakes in the misguided beliefthat their gruesome murder would, somehow, purge their souls of evil. And, just as the Bill seeks to do in modern day Ghana, individuals and neighbours then wereencouraged, and even placed under a duty, to report and expose ‘witches’ to the authoritiesso they could be apprehended and burnt.
Any sympathizers were suspect, just as how theLGBTQ+ Bill would criminalize those who support or express sympathy for, or provide asactuary or safe haven for LGTBQ+ persons. This is how the word ‘witch-hunt’ came intothe English vocabulary.With all due respect, the provisions of the LGBTQ+ Bill, are not becoming of the Parliamentof our Republic. Our Parliament, celebrated r ightfully, as a critical player in Ghana’s much-lauded constitutional democracy, ought not to become party to a fanatical crusade ofintolerance and extremism in the 21st century.The Bill violates the right to inviolability of the person. It violates virtually all the keyfundamental freedoms guaranteed under the Constitution, namely the right to freedom ofspeech and expression; the right to freedom of thought, conscience and belief; the freedomto practice any religion and to manifest such in practice (which includes the freedom not topractice any religion); the right to assemble, including the freedom to take part inprocessions and demonstrations; the freedom of association and the right to organize- in essence the fundamental human rights guaranteed under Article 21 of the Constitution.
In addition, the provisions of the Bill violate the dignity and inviolability of every person,guaranteed under Article 15; it violates the principle of equality before the law, and the rightto freedom from discrimination on grounds of gender, race, colour, ethnic origin, religion,creed or social economic status, guaranteed under Article 11, as well as the right to privacyguaranteed under Article 18 of the Constitution. In short, the provisions of the Bill are soegregious in their violation of the fundamental human rights and freedoms guaranteed underthe Constitution that it beggars belief that it could be introduced as a Bill in the House ofParliament.i. Preliminary Procedural unconstitutionalityEven before we address the substantive provisions of the Bill, there is the need to drawattention to a preliminary and fundamental procedural defect of this Bill, as a privatemembers’ Bill.We count ourselves among those that have long argued and advocated that Article 108 not be read, as it had been throughout the history of the 4th Republic, to precludethe introduction of a Private Member’s Bill. We believe that Article 108, as written, allowsroom for and was never intended to deny Members of Parliament the opportunity to initiatelegislation in their own name by means of a Private Member’s Bill.
But merely because Article 108 can and must be read properly to allow MPs the opportunity to introduce a Private Member’s Bill does not mean that any and every Bill that is introduced as a Private Member’sBill qualifies as such. Article 108 (a) (ii) of the Constitution of the Republic prohibitsParliament from proceeding onany private members’Bill that “in the opinion of the personpresiding,makes provision for the imposition of a charge on the Consolidated Fundsor other public funds of Ghana”. To be sure, Article 108 (a),usesthe words “in the opinionof the person presiding”. This, however, does not give the person presiding acarte blanche to form any opinion s/he fancies without regard to the content or impact of the Bill in question.The opinion of the presiding person, as to whether or not the Bill imposes a charge on theConsolidated Funds or other public funds of Ghana, cannot be and is not intended to be amerely subjective opinion, not controlled by, or subject to, any objective consideration orfacts. Such a rendition of Article 108 (a) (ii) would make it practically ineffective and defeatthe constitutional purpose and intendment of the makers of the Constitution. . It would, ineffect, turn the limited allowance that Article 108 impliedly makes for a private member’s billinto an open and unrestricted invitation for any matter to be addressed legislatively by meansof a private member’s bill, without any regard whatsoever to the scale or enormity of its fiscalimpact on the public treasury.
Such a reading of Article 108 (a) (ii) would not comport withthe intent of the Framers, which is that those bills that seek to impose substantial budgetarycosts on the State must be reserved for the Executive to introduce. On the contrary, where, as in the provisions of the present Bill, the State is made to assume extensive policing dutiesand expend substantial policing resources to implement a law and to bear the cost of medicaland psychiatric treatment of LGBTQ+ persons who purportedly recant upon arrest and agreeto treatment, it is obvious that the Bill is designed to impose and, indeed, would imposesignificant charges on the Consolidated Fund or other public funds of Ghana”-Irrespective of the subjective opinion of the presiding person that permitted this privatemembers’ Bill to be laid before Parliament, the Bill, in fact, imposes a charge on “theConsolidated Funds or other public funds”, and, by the express terms of Article 108, cannotlawfully be introduced in or acted upon by Parliament as a private members’ Bill. Accordingly, the introduction of this LGBTQ+ Bill as a private members’ Bill in Parliament,irrespective of the Bill’s merits or demerits, constitutes a direct and gross violation of Article108 (a) (ii). Given the charges that the Bill seeks to impose on the Consolidated Funds andor any other public funds of Ghana, the only and constitutionally permissible means by whichsuch a bill ought to have been introduced was in the words of Article 108 (1) “by or onbehalf of the President of the Republic”.
We therefore urge the Select Committee onConstitutional, Legal and Parliamentary Affairs to do the right and proper thing bythemselves, Parliament and the people of Ghana by advising Parliament that it cannotproceed with the Bill, given the Bill’s manifest unconstitutionality.ii. Highlights of the Bill –violations of the key fundamental human rights provisions ofthe Constitution.The Bill in its memorandum quotes with approval the view expressed by the National Houseof Chiefs that being LGBTQ++ is a“taboo and inhuman,” under Ghanaian culture. Thatstatement, with respect, stigmatizes the being and identity of LGBTQ+ personsas inhuman.It thereby denies the humanity and identity of LGBTQ++ persons. This constitutes an assaulton their humanity and directly violates Article 15 (1) of the Constitution which provides that“The dignity of all persons shall be inviolable”. Further, such stigmatization violates Article 15 (2) (b) of Constitution which provides that “No person shall, whether or not heis arrested, restricted or detained, be subjected to any other condition that detractsor is likely to detract from his dignity or worth as human being”. By stigmatizingLGBTQ++ people as inhuman, the Bill reinforces hatred for LGBTQ++ persons, as personswho have no place in our society and deserve to be destroyed. This thereby subtly givesextremists licence to take the law into their own hands to attack or lynch LGBTQ++ persons.
This is so, in our respectful view, notwithstanding the pious provisions in the Bill that purportto protect the rights of LGBTQ++ persons from people taking the law into their hands andattacking them, by criminalizing such acts.The Bill in Clause 2 criminalizes LGBTQ+ sexual activities, and any person holdinghimself out as an LGBTQ+ person on the pain of imprisonment for not less than threeyears or more than five years, or to a fine of not less than 700 penalty units or 6,000penalty units or both. a) Criminalizing expression, advocacy, promotion of, solidarity with, and support forLGBTQ++ persons and activity, and the right of LGBTQ++ persons to organize, toassemble or demonstrateIn seeking to promote what it refers to as ‘proper human sexual rights and Ghanaian f amilyvalues’ and norms, the Bill in clause 12 goes to the extreme of criminalizing and prohibitingideas, views, and expressions promoting or advocating support for LGBTQ++ practices,including films, broadcasting of LGBTQ+ comments or opinions on the internet, textmessages that express support or sympathy for, or solidarity with, LGBTQ+ identity, cause,views, and activities. In the result, under Clause 12 of the Bill, any person who advocatesthe recognition of, solidarity with, or promotes LGBTQ+ rights or causes, even if the personis not a LGBTQ++ person, commits an offence which on summary conviction is liable toimprisonment for not less than five (5) years or more than ten (10) years.
This paradoxicallymeans that under the Bill, even this current memorandum to Parliament would be acriminal offence punishable upon conviction by a term of not less than five years andnot more than ten years. This is so, even though it is a contradiction in terms and makesabsolutely no sense for Parliament to invite varied views from citizens on a Bill that seeks,should it become law, to criminalize the very views supporting or advocating LGBTQ++rights and causes! Unfortunately, this is precisely what the Bill does.Clause 12, accordingly, directly violates Article 21 (1) (a) of the Constitution, which providesthus:”All persons are entitled to freedom of speech and expression, which shall includethe fr eedom of the press and other media.” Clause15 of the Bill seeks to disband groups, associations, and organizations, whileClause 16 prohibits, as a criminal offence, the formation, organization, or registration ofany LGBTQ++ groups and any activity to support or sustain any such group, organization,or association. Anyone who does so is liable upon summary conviction, to imprisonment
5for a term of not less than six years and more than ten years.
Clause 15 of the Bill is clearlyin direct contravention of Article 21 (1) (e) which provides that:“All persons shall be entitled to freedom of association, which shall include freedomto form or join trade unions and other associations, national and international, for theprotection of their interest”. But that is not all. By criminalizing any activity to sustain or support LGBTQ++ organizationsor association, the Bill directly criminalizes the right of LGBTQ++ and their supporters totake part in demonstrations and processions in support of LGBTQ++ causes, in flagrantviolation of the fundamental freedom to assemble, including the right to take part inprocessions and demonstrations as guaranteed under Article 21 (1) (d) of the Constitution.The Bill founds its rationale in criminalizing the right to assemble, associate, to process, toexpress or promote views in support of LGBTQ++rights on the premise that “[o]nce it isdetermined that the object or purpose of the group is unlawful, there can be no right ofassembly or association in respect of the object or purpose”.
The Memorandum cites asexamples the Vigilantism and Related Offences Act, 2019 (Act 999), which proscribes theformation of groups for the furtherance of the interests of group members by use of threatof violence or intimidation, and the Cybersecurity Act, 2020 (Act 1038), that permitsreasonable restrictions or interference in the enjoyment of the right to privacy of home,property, correspondence or communication. But such analysis, with respect, misconceives the law-making process and the justificationfor limitations in such circumstances. In the context of the Vigilantism and Cybersecuritylaws, the prohibited acts are matters that directly and objectively threaten public order,public safety, material public interest, human life, and financial and economic interests. Itis these weighty considerations that lead to criminalizing any right to associate to promoteor advocate or express support for these activities that manifestly and materially haveharmful consequences for the individual, society and social wellbeing.
It is the scale ofharm that justifies such restrictions. In the instant situation, the sponsors of the Bill havenot provided a shred of evidence demonstrating any substantial harm that LGBTQ++activities pose to society that provides a reasonable justification for such high-handedrestrictions of fundamental human rights.The sponsors of the Bill seek in the Memorandum to the Bill to justify the far-reachingencroachment on fundamental human rights on the ground that“such rights or freedomsby their very nature are not absolute. The Constitution prescribes reasonablerestrictions that are necessary for public health, order or safety ”. That isconceptually correct.
But the burden the sponsors then assume is to demonstrate that, indeed, theprovisions of the Bill are reasonably necessary for the protection of a legitimate publicinterest or individual right. Unfortunately, the sponsors fail astonishingly to provide anyempirical evidence to support this assertion, except though appeals to so-called Africancultural values and religious values which they claim the overwhelming majority ofGhanaians subscribe to. What this viewpoint singularly misconceives is that protectingfundamental human rights does not simply mean protecting the beliefs and interests of theoverwhelming majority.It also means protecting the rights and freedoms of minoritiesand historically vulnerable groups, such as LGBTQ++ persons. In fact, theConstitution, speaking through Article 21(4) (e), rightfully disapproves of actions, includingthose done under the guise of exercising some right or freedom of amajority, that “inciteshatred against other members of the community,” which is precisely what this Bill does.Instead of this Bill, what Article 21(4) (e) implicitly urges and expects Parliament to do isenact laws that protect vulnerable and unpopular minorities, fellow members of ourcommunity, from being targeted for hatred by a majority or another section of the community. b) Criminalizing housing of LGBTQ++ personsClause 10 of the Bill makes it a criminal offence punishable on summary conviction by aterm of imprisonment of not less than three years or more than five years for a person(even if s/he is a friend, family member, or even a sibling or a parent) to keep a house forthe purpose of hosting LGBT+ persons, where s/he knows that they are LGBTQ+.
So a sister cannot house a brother she knows to be a LGBTQ+ person, in the event that personreceives visits from LGBTQ+ associates and lovers. Nor can a mother house a son ordaughter, if she is aware of his/her LGBTQ++ identity, and allows her daughter or son withsuch identity to receive his/her lovers or even LGBTQ+ friends in that house. The Bill seeksto make any such act of filial or parental love pregnant with possible criminal liability.Landlords are also to beware, on the pain of prosecution and imprisonment, knowinglyrenting out premises to LGBTQ++ persons.These provisions echo George Orwell’s ‘1984’, with ‘Big Brother’ looking over our shouldersto ensure that we all, even in the deep and inner recesses of our bedrooms, comply with acertain prescribed view of “proper human sexuality,” even in the most intimate and privaterelationship between adults. As it is only possible to know what is going on in a housesuspected to be a home for LGBTQ+ persons by resorting to all manner of devices to intrudeinto the private and intimate spaces of those persons placed under suspicion, the Bill, essentially, invites the police and neighbours to engage in acts that endanger and violatethe privacy and property rights of such persons.Honourable members of the Select Committee, with respect, nothing could be moreintolerant and beyond the pale than these provisions of the Bill that seek to override thefreedoms that Ghanaians have fought for over the decades and won at the costs of ourlives and liberty.
Honourable members of the Select Committee, with respect, nothing could be moreintolerant and extremist than these provisions of the Bill that seek to override the freedomsthat Ghanaians have fought for over the decades and won at the cost of their lives andliberty.d) The defence of Ghanaian cultural valuesOn the question of Ghanaian cultural and traditional values, the sponsors of the Billconveniently refuse to acknowledge that not all of our cultural and traditional ‘values’ canstand up to the demands of inclusiveness, diversity, and fundamental rights within ademocratic republic such as Ghana. For instance, traditional Ghanaian values do not fullyaccept persons with disability as persons having full and equal rights as those withoutdisability. The custom and values of some communities, especially in the past, consideredtwins as an abomination, with the result that they, by custom and tradition, had to be killedas evil, just like how the Bill’s sponsors considerLGBTQ++ persons inhuman and as evil.The infamous witch camps in northern Ghana where vulnerable women and old ladies are,even to date, banished for unproven allegations of witchcraft, are a product of our cultureand tradition. There is also thetrokosi cultural phenomenon, in the Volta Region, wherevery young girls are given away to the god or spirit represented by a priest or priestess forthe ‘sins’ of other family members, and become virtually enslaved for the rest of their lives.Even until recently, the notion of gender equality was largely alleged to be repugnant to African or Ghanaian cultural values.
These are all cultural beliefs and practices based ontraditional norms and values. Indeed, in parts of Eastern Africa, albinos are targeted andmurdered because of their pigmentation, based on similar false cultural beliefs!But the fact that these are part of Ghanaian and African cultural and traditional norms andvalues do not make them acceptable in modern Ghana, in a free and democratic Republic.
They are clearly unacceptable. And that is why Article 39 (2) provides as follows:“39(2). The State shall ensure thatappropriate customary and cultural valuesareadopted and developed as an integral part of thegrowing needs of the society as a whole, and in particular, practices which are injurious to the health andwellbeing of the person are abolished”. [Emphasis added] Again, the Bill singularly fails to understand that matters of culture and societal values arebest protected and promoted by education and cultural engagement, rather than the crudeand blunt blade of criminal law. It is for this reason that, for example, Article 39 (1) of theConstitution places a duty on the State “to take steps to encourage the integration ofappropriate customary valuesinto the fabric of national lifethrough formal and informaleducation and the conscious introduction of the cultural dimension to relevant aspects ofnational planning.” It does not direct that the State should pass laws to impose certaincultural values on Ghanaians, much less sectarian cultural, or religious values.It should therefore be apparent to all, especially the sponsors of the LGBTQ+I Bill, that whilewe must cherish those aspects of our culture and values that enhance our being, knowledge,freedoms and livelihood as a people, and promote empathy and inclusiveness, we shouldbe quick to jettison those that inhibit us, impose cruel and unjustifiable restrictions andhardships on minorities and vulnerable groups, and evince a singular lack of empathy forone another. Indeed, Article 39 (2) enjoins us to ensure that cultural practices and valuesthat are injurious to the well-being of the person are abolished! The fact that thememorandum to the Bill rather cites Article 39 in support of the oppressive and inhumaneprovisions of the Bill, with respect, betrays a total misconception of the scheme of valuesour Constitution upholds. An appeal to Ghanaian cultural values and traditional norms, as a basis for the Bill, is byitself, therefore,neither a necessary nor sufficient justificationfor a Bill that isundoubtedlydriven by a totalitarian and authoritarian ethos, and religiousfundamentalist and extremist notions.
Such an appeal is no justification for a Bill thatseeks to impose on the proud people of Ghana a decidedlysectarian and monolithic view of ‘proper human sexual(sic!) rights. Misplaced cultural nationalismThe promoters of the Bill seek to whip up their misguided version of Ghanaian culturalnationalism by raising the scare that LGBTQ+ rights are alien to Ghanaian culture andtradition, and are being promoted by a morally depraved West. In the first place, it isGhanaian LGBTQ++ persons who are fighting for social tolerance and acceptance, havingsuffered in the obscurity of darkness and social exclusion for years. Secondly, it is simplynot true that LGBTQ+ tendencies and inclinations are foreign to Ghanaian or Africansocieties. Indeed, there are historical records of Ancient Egypt that suggest and indicate that homosexuality existed as early as the 5th Dynasty, that is, around 2,380 BCE/BC.
Mural representations in the tomb of two male manicurists depict a relationship that may beconsidered the earliest historical record of a homosexual relationship betweenNiankhkhnum and Khnumhotep, who were chief manicurists of the Pharaoh and otherroyalty. Other references to homosexuality/lesbianism in Ancient Egypt can be found in aspecific text of the female author of the Egyptian”Book of the Dead ”, written in 970 BCE/BCthus:“I never had sex with a woman in the temple”,suggesting that she had sex with womenoutside the temple. While we do not use these records to suggest that homosexual andlesbian practices, to the extent that they existed in Ancient Egypt, were the same in natureand extent as they exist in modern society, these historical allusions indicate the need foranti-LGBTQ++ warriors to be more questioning of their dogma that such practices are aliento Africa and African societies, and are solely the product of decadent western imperialistcultural onslaught.Indeed, as a matter of fact, LGBQT persons have been a well-known ‘secret’ in Ghanaianfamilies and society for a long time, and not just the product of any external advocacy. Weare all aware of the familiar references to ‘male’ individuals who display distinctroles andhabits of women, who are sometimes openly referred to as, for example,Kodjo besia’ or‘Kwesi besia” , depending on the day on which he was born.
It is also not a secret that as farback as the 1960s, if not earlier, some pairs of girls in female secondary schools developedclose sexual relationshipsknown as ‘supi’ , a practice that continues today.These are wellknown homegrown facts, and not western inspired.e) Promoting Goals 3 and 5 of SDGsIt is a complete fallacy and misreading of Goal 3 of the UN’s SDGs for the Bill’s sponsors tostate in the memorandum to the Bill that the Bill will “ensure healthy lives and promote well-being for all atall ages” , when the Bill rather stigmatizes LGBTQ++ persons as inhumanand seeks to criminalize their very existence and make life a living hell for them. In the samevein, the Bill is in no way related to Goal 5 of SDGs, which is “to achieve gender equalityand empower women and girls”. These references to the SDG goals simply expose the lackof understanding of the import of these goals and reinforce the authoritarian ethos thatinforms the Bill, in contrast to the SDGs that are inclusive and pledge‘to leave no onebehind’, including LGBTQ+I persons.In essence, when all the fanciful justifications, supposedly grounded in culture, tradition andreligion, are stripped of their beguiling clothes and adornments, what is left of the high sounding “Bill for the Protection of Proper Human Sexual Rights and Family Values” isstigmatization, bigotry, intolerance, repression, authoritarianism, violation of thefundamental human rights of LGBQT+ persons, false piety, cruelty to, and lack ofempathy for, them.f) Binary and unscientific categories of male and female as the only categories of sexClause 10 of the Bill decreesas “grossly indecent act” andprohibits, on the pain ofimprisonment for three months or one year, upon summary conviction, the public show ofany amorous relations with or among persons of the same sex; or public show of affectionamong persons where one or more of them have undergone gender or sex realignment, orpublic show of affection between or a person intentionally cross-dressing to portray thatperson is of a gender different fromwhat the sponsors refer to as ‘the gender assigned atbirth’ with intent to engage in any act prohibited under the Bill!.
It is clear that the Bill is grounded on the unscientific and speculative notionthat a person’ssex is determined at birth and that sex is either male or female. While this may be a notionencouraged by some religion, any gynecologist, medical doctor, or biological scientist knowsthat a person’s gender is not always determined at birth, nor is it necessarily binary bynature. The natural world is full of surprises that may shock the uninformed. In our respectfulview, this fact alone undermines the very foundations upon which the Bill is built. Indeed,there are recurrent provisions in the Bill which implicitly admit and concede to the reality thatpersons may be born at birth who do not fit into the arbitrary binary alternatives of male orfemale, which the Bill seeks to impose on Ghanaians. This is demonstrated in clauses ofthe Bill that make exception to the binary alternatives in the case of“surgical proceduresintended to correct a biological anomaly ”, such as in Clause 1 (e); in Clause 2 of the Billwhichdefines ‘intersex” as“an individual whose sexual anatomy or chromosomes does notfit the traditional markers of "female" or "male" assigned at birth” ; and. Clause 6 (f) (ii) whichaccepts a departure from the decreed binary alternatives“in the case of correcting abiological anomaly, including intersex .”Interestingly, the Bill proposes the Minister for Religious Affairs and Culture as theresponsible officer for ensuring the medical treatment of persons.
This demonstrates thereligious fundamentalist extremism driving the Bill, making the Bill reminiscent of that ofstates such as the Taliban-ruled Islamic Emirate of Afghanistan!!g) Threat to Ghanaian family and family values The Bill, however, argues that LGBTQ+ activities threaten the heterosexual family unit asthe foundation of society and that permitting LGBTQ+ activities to flourish is a threat tosociety and even the human species. The proposers of this far-reaching claim have notprovided any data or evidence to suggest that there is such a threat, beyond a resort tosome dogmatic religious tenets and so-called Ghanaian family values.First of all, what constitutes the Ghanaian family unit is hardly uniform or static.
For example,the nuclear family unit or household, comprising two married heterosexual partners and theirbiological children, though increasingly common among elite or middle-class urban Ghanaian can hardly be said to represent the Ghanaian cultural norm. To many, particularlyoutside the ur ban elite enclaves, the family is still reckoned, for example, in “extended”family or polygamous terms, with the nuclear family of the urban elite regarded as foreign.Single parent-headed households are also quite prevalent, as are various otherpermutations and combinations Any serious discussion of, or concern for, maintaining Ghanaian family values we submit,ought, in our respectful view, first to begin with addressing the rampant issue of pregnancyof young women and teenagers out of wedlock, and the abandonment, after the act, of suchyoung women by their male partners. That is what clearly undermines Ghanaian familyvalues. According to data from the Ghana Health Service District Information ManagementSystem,between 2016 and 2020, about 555,575 teenagers aged 10 to 19 years, aresaid to have gotten pregnant. 13,444 teenagers between the ages of 10 and 14 gotpregnant, while some 542,131 teenagers aged 15 to 19 years got pregnant during the sameperiod. On average, a little over 112,800 teenagers got pregnant annually over the fiveyears! These are real data clearly showing the real threat to Ghanaian family values andthe family as a basic unit of Ghanaian society, not the unsubstantiated threat purportedlyposed by LGBTQ++ persons.
Equally, extra-marital relationships tend to undermine thefamily as a unit and family values.h) LGBTQ++ persons and childrenIn its attempt to demonize LGBTQ++ persons, provisions of the Bill seek to associateLGBTQ++ persons with pedophilia, when the Memorandum to the Bill has not provided anymaterial or evidential link between LGBTQ++ activities and the abuse of minors. It needs tobe clearly stated that the law prohibits on the pain of grave punishment any sexualrelationship with a child, whether heterosexual or homosexual. Sexual abuse of children issexual abuse of children, and the law bans this, irrespective of the sex of the person.
It is thus unfair and stigmatizing of LGBTQ++ persons for the Bill to state and imply that there issomething peculiar to LGBTQ++ persons that gravitate them towards sexual abuse ofminors, when the overwhelming majority of cases of child sex abuse and defilement are byheterosexual persons. What is striking, nut unsurprisingabout this aspect of the Bill’sdenunciation of LGBTQ++ persons is that the sponsors provide absolutely no data orevidence for demonizing LGBTQ++ persons as pedophile by nature. It is nothing more thana scare-mongering tactic to arouse undeserved and unproven ill-will against LGBTQ++persons.i) Religious Beliefs and LGBTQ+I practicesIt is a given that some Christians and Muslims may find LGBTQ activities offensive andmay detest them. That may be well within their rights, as persons with strong religiousviews, though such attitude does little in promoting a diverse, tolerant and inclusivesociety, in which the interests of minorities and vulnerable groups, including LGBTQpersons, are deserving of equal respect. But can we imagine what would happen to ourdemocratic republic, if we started imposing as the law of the land the religious dogmas andtenets and edicts of one or the other dominant or ascendant religious community? Let itbe stated without equivocation thatours is a secular democratic republic, not atheocratic Christian or Islamic Republic or an African traditional monarchy orchiefdom. In other words, while it allows Christian, Islamic, African traditional and otherreligious beliefs and practices to exist in harmony with one another as fundamental rights,our Constitution rightfully forbids the imposition of a religious dogma, whether Christian or Islamic or traditional on Ghanaians.
Our Constitution, in Article 18 (1)(b) and (c) guarantees and embraces religious diversity, while guarding the freedomof people not to be bound by any particular religious belief or dogma: thus:“. Article 18 (1) (b). All persons shall have the right to -(b) freedom of thought, conscience and belief, which shall includeacademic freedom;(a) freedom to practice any religion and to manifest such practiceAccordingly, our Constitution affirms and protects the right of Ghanaians and otherresidents of, or visitors to, Ghana to be free to practice any religion of their choiceor to beagnostics or,even, atheists.From this perspective and the perspective of criminalizing free speech and expression,assembly and the right to free association, from the perspective of violation of the right tofreedom from discrimination and the right to human dignity, the LGBTQ++ Bill constitutesan existential threat to the republic and its core values as set out in the Preamble, Chapter Five on Fundamental Human Rights, and Chapter 6 on Directive Principles of State ofPolicy of the Constitution of the Republic. It constitutesa flagrant violation of theseguaranteed rights and freedoms. Even from a Christian viewpoint, the crusade against LGBTQ++ persons as inhuman andevil ought to be considered within the context of what Christ would have done in responseto LGBTQ++ persons.
Christ’s message was/is that we should love our neighbor and not be judgmental and promote the hate and bigotry that many self-styled Christians exhibit andseek to impose on Ghanaian society. Little wonder, that as recently as June 2021, PopeFrancis, head of the Roman Catholic Church, favourably compared the work of a USCatholic priest affirming LGBTQ+ Catholics, to that of Jesus. (See:https://www.washingtonpost.com/religion/2021/06/27/pope-francis-affirming-letter-LGBTQ+-gay-catholics/ j) The Role of the World Congress of Families Ghanaians and Africans are all too familiar with the reaction of military or other authoritarianregimes to demands for representative democratic systems of governance and theirresponse that it is an attempt by the West to impose a foreign system. These same regimes however continue to receive foreign aid from the same West. This bears an uncannyresemblance to the actions of the main proponents of the LGBTQ++ Bill, the Coalition forProper Human Sexual Rights and Family Values, who decry foreign impositions. Yet it is undeniable that the Coalition has, in fact, collaborated with, and received considerableassistance from, the western, global anti-gay and anti-abortion network, the self-titled WorldCongress of Families. Indeed, it is no secret that thisWorld Congress of Families organizeda regional conference in Accra in October/November, 2020, in collaboration with the veryNational Coalition for Proper Human Sexual Rights, which has hypocritically spearheadedthe anti-western propaganda.
The self-styled World Congress of Families has been activein promoting the passage of similarly repressive anti LGBTQ++ laws in Nigeria, Cameroon,Uganda and elsewhere in Africa, in Eastern Europe, and in Latin America. It thus lies ill inthe mouth of the sponsors of the Bill to raise the scare-monger of foreign interference inGhanaian cultural values and sovereignty, when they have been beneficiaries of assistancefrom a western-inspired global network sponsored by American Christian far rightconservatives/extremists. There is nothing original or homegrown about this Bill. It takes itsinspiration from Western right-wing crusaders and follows a template used in recent yearsin such places as the Russian Federation, Moldova, and Hungary. j) Is There A Compelling Policy Rationale For This Bill?
There can be no doubt, as we have demonstrated, that the Bill constitutes an impermissibleinvasion of the inviolability and human dignity of the person and, freedom of expression andthought, freedom of assembly, including the right to organize and take part in processionsand demonstrations and the right to protection against discrimination on grounds of gender,race, ethnic origin, religion, creed or social and economic status. These rights are at the veryheart of our constitutional architecture. It is indisputable that, without these rights,Ghana’sdemocracy would be meaningless. It is accordingly our respectful view that any law thatseeks to restrict and repress these rights in specific instances must meet the very highstandard of “necessity ” and “reasonableness” in the defence of life, property, the rights ofothers, public safety, or public health or public interest generally. Any such law must bereasonably justifiable in terms of the core values of the Constitution. If it fails to meet thistest, it is unconstitutional.It is our view that the provisions of the LGBTQ+ Bill are, in their totality, egregious in theirviolations of the fundamental human rights guaranteed under the Constitution, and worsestill do not meetthe reasonably justifiable threshold for restrictions of such rights. Thecriminalization of LGBTQ+ persons, their identity, associations and allies, rather thanpromoting public health, can only drive such persons into the shadows, where they will haveno access to public health or health education.
No compelling public interest is served bythis attempt to drive LGBTQ+ persons underground and render them social outcasts andsecond-class citizens. . Accordingly, the provisions of the Bill, if passed into law, would beunconstitutional, null and void.In any event, if the fear and anxiety of the sponsors of the Bill is that the ambiguity in theMarriage Act 1884 – 1986, (CAP 137), as to whether marriages under this legislation,whether Christian, Mohammedan or customary are confined to only heterosexual couples,this does not call for the Bill and its repressive totalitarian provisions. That lacuna, if any,can easily be filled by amending the law. Furthermore, section 104 (1) (c).of the CriminalOffences Act, 1960, (Act 29) already makes it a criminal offence for a person to have“unnatural carnal knowledge“ of an animal.
The tactic of tagging along provisions on sexualassault of animals with a Bill seeking to criminalize LGBTQ++ persons and activities,ominously stigmatizes them and unfairly suggests that bestiality is an activity associatedwith LGBTQ+ persons, requiring specific provisions to prohibit them. The sponsors of theBill, once more, have provided not even a scintilla of evidence in proof of this wildsupposition. Similarly, there is no need whatsoever for Clause 6 (1) ii) of the Bill whichcriminalizes keeping a brothel for LGBT activities. This is because there is sufficientprovision under the Criminal Offences Act that criminalizes the keeping of a brothel, whether for heterosexual or other sexual activities, as a crime. Similarly, Clause 7 of the Bill thatseeks to make it a crime for any LGBTQ++ person, by threat or intimidation, or by falsepretense or false representation, to procure another to engage in sexual intercourse, isalready catered for under section 107 (e) and (f) of the Criminal Offences Act, (Act 29). Thisagain reveals the zealots’ determination of the sponsors of the Bill to stigmatize anddemonize LGBTQ++ persons. Further, Clause 8 of the Bill makes it an offence to detainanother person with the intent of engaging in an act prohibited under the Bill. Even if it isargued that the provision on rape or defilement do not contemplate homosexual acts, therelevant section of the Criminal Offences Act can easily be amended to include such acts, ifthat were the concern of the sponsors.
Finally, we have demonstrated that the alleged threat to Ghanaian family values and thefamily as a basic unit of society upon which the Bill is founded has not been supported byany empirical data, and is nothing more than scare-mongering. In the circumstances,Parliament ought not to give this obnoxious Bill currency, much less pass it into law.k)The Bill violates a number of International Human Rights Instruments and Normsthat Ghana has assented to, sworn to, or committed to.Just as the Bill violates Ghana’s constitutional provisions on fundamental human rights, it alsoviolates a number of key international human rights instruments and norms, including Articles1 and 2 of the Universal Declaration of Human Rights, and Article 7 of the InternationalCovenant on Civil and Political Rights on protection against torture, cruel, inhuman anddegrading treatment and punishment; Article 17 on arbitrary interference with privacy,correspondence and home; Article 18 on freedom of thought, conscience, and religion; Article19 on the right to “hold opinions without interference” and the right to freedom of expression; Article 21 on the right to freedom of peaceful assembly; Article 22 on the freedom ofassociation, including the right to form or join a trade for the protections of his interests; and Article 26 on the right to equal treatment before the law andto protection againstdiscrimination on any groundsuch as race, colour, sex, language, religion, political or otheropinion. Quite clearly, the provisions of the Bill flagrantly violate all these fundamental civiland political rights of International Human Rights Instruments that Ghana has acceded to.Parliament should be wary lestit becomes the vehicle for Ghana’s breach of thesefundamental provisions of international human rights law.
In its 2018 report to the Human Rights Council on its 37th Session, the United NationsIndependent Expert against Violence and Discrimination based on Sexual Orientation andGender Identity concluded as follows:“..the rising number of hate crimes based on sexual orientation and gender identitycorrelates with a steep rise in ultraconservative political and religious groups usingtheir platforms to promote bigotry, dehumanize persons on the basis of sexualorientation, gender identity or expression, and foster a stigma and intolerance amongconstituencies. Such discourse sometimes is usedas a means to bolster popularity and detract attention from pressing economic and internal political problems, ….in thelast Universal Review period for Ghana (AHRC/37/7, the recommendations in paragraph 146.59 (which enjoyed the support of Ghana) state that Ghana should“[take the steps necessary to protect lesbian, gay bisexual, transgender and intersex people from violence and discrimination on the basis of their sexual orientation andgender identity.” On 28th July 2021, the Speaker of the ECOWAS Parliament, Sidie Mohammed, in aninterview with TV3, advised that Ghana should be cautious in passing the Bill because ofits implications in promoting insecurity and undemocratic principles.The African Commission on Human and Peoples and Human Rights, in its Resolution 275of 12th May 2014, condemns systematic attacks by State and non-state actors againstpersons on the basis of their imputed or real sexual orientation or gender identity, while inaddition making discrimination against LGBTQ++ persons a violation of their fundamentalhuman rights.South Africa, Mozambique, Sao Tome and Principe (2012) and Cape Verde (2004), as wellas Lesotho (2012) and Seychelles (2016) in Africa have all abolished colonial penallegislation criminalizing homosexuals. The Angolan National Assembly passed a new penalcode that abolished criminalizing homosexual relationship, while making attacks on personsbecause of their sexual orientation as well as discrimination against people on the basis oftheir sexual orientation a crime punishable by not more than two years imprisonment. Itcame into effect in February 2021.The affirmation of the rights of LGBTQ++ persons as human rights is not only by legislation. African courts have also upheld the right of LGBTQ++ persons to protection againstdiscrimination and the enjoyment of their fundamental human right to human dignity and the right to organize and to advocate LGBTQ++ rights.
Thus, inEric Gitari v NGO Board & 4others, [2015], the Kenyan High Court in Nairobi upheld the rights of LGBTQ++ persons toassemble, noting at paragraph 104 of the judgment thus:“ As a society, once we recognise that persons who are gay, lesbian, bisexual,transgender or intersex are human beings...however reprehensible we may findtheir sexual orientation, we must accord them the human rights which areguaranteed by the Constitution to all persons, by virtue of their being human, inorder to protect their dignity as human..” Again in Attorney General of Botswana v. Rammoge & 19 Others, the Court of Appealof Botswana (the highest court in Botswana) upholding the decision of the High Courtaffirming the right of an organization by the name Lesbians, Gays and Bi-sexuals ofBotswana (“LEGABIBO”) to register an LGBTQ++ organization stated asfollows”: “Members of the gay, lesbian and transgender community, although nodoubt a small minority, and unacceptable to some on religious or othergrounds form part of the rich diversity of any nation and are fully entitledin Botswana, as in any other progressive state, to the constitutional protection of their dignity” .The above examples are, in our respectful view, persuasive judicial decisions and legislationin Africa that we urge the Parliament of the Republic of Ghana to give serious considerationto,and reject the “Promotion of Proper Sexual Human Right and Family Values Bill, 2021’. Conclusion As far back as November 1992, in the seminal judgment of the Supreme Court of Ghana inNPP v. IGP,affirming the right of the people to assemble, demonstrate and process againstthe repressive Pubic Order Decree 1972 (NLCD 68), Amua-Sekyi JSC, as if anticipating these dark days that our Republic is threatened with today, stated in a compelling and deeplyinsightful dicta at pages 470 to 471 of the Ghana Law Reports 2 [1993 – 1994] GLR, hisopinion as follows:“In countries that practice true democracy, supporters and opponents of everyconceivable cause are given freedom to associate and express their views. In the end,some have succeeded and their unpopular demands have eventually become majority wishes and have been recognized.
The examples are the anti-slavery groups ineighteenth century England and nineteenth century America and the suffragettes ofboth countries at the beginning of this century. Today, in these countries those whofavour and those who oppose abortion may assemble and hold demonstrations andprocessions in support of their cause, while in the less tolerant societies one may bepermitted and the other banned. In this country it would be unthinkable for any policeofficer to grant homosexuals a permit to hold a demonstration in support of so-calledgay rights, but I ask, if in nineteenth century England the supporters of child labourhad been prevented from stating their case, would its evil consequences have everbeen recognized?In this day and age, it is necessary for us to see that consentnot force is the basis of a just society, and that it is not for the government orour neighbor to tell us what to think or feel or do? [Emphasis added].“Most of the restrictions on our liberties which after years of repression we have cometo accept, are inconsistent with democratic norms. Except in a time of war, when astate of emergency has been declared,it cannot be right for any agency of theexecutive to suppress the free expression of any opinion, however unpopularthat opinion may be. The believer in absolutism, the anarchist, those who opposeequal rights for women – yes lesbians and homosexuals too- are all entitled to thefree expression of their views, and the right to assemble and demonstrate in supportof those views. Once the state takes for itself the power to license association,assemblies and processions, it resorts to support of the status quo, and the only wayof changing the prevailing state of affairs is by use of force.” [Emphasis added] We urge the Parliamentary Select Committee on Constitutional, Legal and Parliamentary Affairs, to heed these prescient and liberating words of Amua-Sekyi JSC from the past, inorder not to createa society where the state through legislation imposes one view of “properhuman sexual rights” (sic!) as the only acceptable one in our free Republic, and wheredissenting views and expressions are criminalized and suppressed. What the Bill envisagesis the very opposite of the words ‘freedom and justice’ that emblazon our coat of arms.The Bill ought, with respect, to be firmly rejected by the Parliamentary Select Committee onConstitutional, Legal and Parliamentary Affairs, and by Parliament as a whole.Respectfully submitted,……………………………
Respectfully submitted,……………………………
1. Akoto Ampaw
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