CONSTITUTIONAL BOUNDARIES TO HUMAN RIGHTS IN GHANA: MEASURING THE SCOPE OF PRIVATE AND PUBLIC INTERESTS IN RESPECT OF ‘RIGHT’ TO SEXUAL ORIENTATION

CONSTITUTIONAL BOUNDARIES TO HUMAN RIGHTS IN GHANA: MEASURING THE SCOPE OF PRIVATE AND PUBLIC INTERESTS IN RESPECT OF ‘RIGHT’ TO SEXUAL ORIENTATION

1. INTRODUCTION

Human rights are rights a person is entitled to by virtue of that person being a human being.[1] They are recognized as inalienable rights which constitute the birthright of an individual as a human being.[2]  The human rights provisions enshrined under chapters 5 and 6 of the 1992 Constitution of Ghana are recognized as being among the best in the world.[3] Chapter 5 of the 1992 Constitution of Ghana enshrines several fundamental human rights and freedoms. These rights and freedoms include right to life,[4] protection of personal liberty,[5] respect for human dignity,[6] and equality and freedom from discrimination.[7] Article 12(1) of the Constitution enjoins all organs and agencies of government, as well as all natural and legal persons in Ghana, to respect and uphold these rights and freedoms. Failure on the part of any such organs and agencies of government, as well as all persons, to uphold these rights and freedoms constitutes a serious violation of the Constitution. The President may, for example, be removed from office for wilful violation of a human right provision under the Constitution.[8]

The Courts are required under article 12(2) of the Constitution to enforce these rights and freedoms “subject to respect for the rights and freedoms of others and for the public interest”.[9] This means that the power of the Courts to enforce both the specifically mentioned and unspecified fundamental rights and freedoms envisaged by the 1992 Constitution is mainly limited to both private and public interests. Article 33(5) of the Constitution also bids the Courts to enforce all rights, duties, declarations and guarantees, relating to fundamental human rights and freedoms, which are considered to be inherent in a democracy and intended to secure the freedom and dignity of a person.

This paper seeks to analyse the ongoing debates on the right to sexual orientation in Ghana within the bounds of the power of the Courts to enforce fundamental human rights and freedoms. The paper argues that public interest and the need to secure cultural values place an entrenched fetter on the power of the Courts to uphold the right to sexual orientation in Ghana. It also submits that freedom against discrimination in relation to the right to sexual orientation will not avail under the current legal regime of Ghana and under article 17 of the Constitution.

This paper is divided into four parts. Part 1 provides the framework, scope and structure of the paper. Part 2 analyses the scope and limitations of fundamental human rights in relation to relevant legal instruments, judicial decisions and more importantly the 1992 Constitution of Ghana. Part 3 focuses on the ongoing global debates on the right to sexual orientation and its recognition or otherwise in different jurisdictions. It also  analyses factors that militate against upholding of right to sexual orientation under the 1992 Constitution of Ghana. Part 4 concludes the arguments that are raised and discussed in this paper.

2. SCOPE AND LIMITATIONS OF FUNDAMENTAL HUMAN RIGHTS

2.1 The International Bill of Rights

The Universal Declaration of Human Rights (UDHR) of 1948 and its two principal covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which became effective in 1976,[10]  arguably constitute the bedrock of the international normative regime for human rights.[11] The UDHR, ICCPR and ICESCR together are generally known as the International Bill of Rights.[12] The rights contained in these instruments are core to the universal human rights system in that they are based on treaties that aim at worldwide membership.[13] This means that the universal application of these human rights is limited to the extent to which Member States have ratified them. Ghana for example is a dualist state[14] hence any treaty it enters into needs to be ratified by its Parliament. Even so a treaty ratified by the Parliament of Ghana does not automatically alter municipal law(s) unless they are incorporated in the laws of Ghana by appropriate legislation.[15]

Despite its moral authority, the UDHR unlike its principal covenants has no legal force and appears to fall outside international law.[16] Its moral authority and influence is limited to the degree of the sacrifice of the sovereignty of the involving States.[17] The ICCPR and the ICESCR have broad coverage of human rights topics developed in detail from the UDHR and additional rights.[18] The human rights embodied in these covenants are considered universal, indivisible, interdependent and interrelated hence the international community is obliged to treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.[19] It could nevertheless be argued that the provisions of the covenants only bind state parties in accordance with their terms and subject to formal matters such as reservations.[20] Yet still, the universal or relative character of rights declared in these major instruments of human rights movement has been a source of debate and contention since the inception of the human rights movement.[21]

2.2 Universality and Relativism of Human Rights

The universality school of thought claims that international human rights, such as rights to equal protection, are and must be the same everywhere.[22] This notion is founded on the assumption that human rights are inherent in a person by virtue of his being human hence cultural, geo-political and other considerations do not present valid grounds for depriving a person of such rights.[23] Haggins for instance argues that human rights are human rights and are thus independent of the fact that states (or grouping of states) behave differently so far as their politics, economic policy and culture are concerned.[24]

Advocates of the universality of human rights have however been pressed to concede to the claim that many basic rights like right to fair criminal trial allow for culturally influenced  forms of implementation or realization.[25] Nonetheless, Abotsi opines that advocates of cultural-relativism confuse the political willingness of a State or other institutional structure to make concessions of right with the independent and innate inherence of the right in the person.[26] He considers the cultural-relativism argument as logically inconsistent, in that the willingness to concede a right by the State is only a manifestation or recognition and acceptance of such rights and does not affect the inherence of the right in the person.[27]

These assertions however downplay the significant impact of culture on the legitimacy and acceptability of human rights by a state or group of people. The assertions also ignore the fact that modern concepts of human rights being a product of the West were influenced by its culture and jurisprudence. Indeed, examination of human rights concept and the rights expressed in it show that they are not only rooted in the philosophical, constitutional and legal development of the 18^th century western political philosophy, but also the circumstances in which they were adopted as universal moral standards excluded the participation and views of non-western cultures.[28]

Many African countries, such as Ghana, were under colonial rule when the UDHR was being drafted hence their input was limited.[29] Mutua has noted that this exclusionary beginning, lack of universality and the absence of major cultures and geographically specific historical perspectives are the sources of serious tensions within the human rights movement today.[30] Respect for human rights and its sustainability can thus only be achieved if they both reside in law and reside in the living and practiced culture of the people.[31] Therefore, the legitimacy and acceptability of the modern universal human rights regime needs to be complemented and strengthened with the specific cultural experience of various societies.[32]

Proponents of cultural relativism therefore claim that most and some rights and rules about morality are encoded in and thus depend on cultural context, namely indigenous traditions and customary practices including political, religious and institutional structures.[33] They assert that the notions of right and wrong as well as moral rules based on them necessarily differ throughout the world because the cultures in which they take root and inhere themselves differ.[34] This school of thought to some extent contradicts the basic premise of the human rights movement.[35] Nevertheless the basic instruments of human rights, unlike the African Charter on Human and Peoples’ Rights (ACHPR),[36] do not make explicit concession to cultural variations.[37] Paragraph 5 of the Vienna Declaration and Programme of Action for instance enjoins all States to promote and protect all human rights and fundamental freedoms regardless of their political, economic and cultural systems.[38] This declaration however falls short of the fact that successful promotion of human rights by national laws must be placed within the prevailing cultural attitudes and institutions.[39]

As earlier stated, the ACHPR expresses an important degree to cultural variation[40] especially in its preamble and article 22. Sondem has observed that the quest for a universal code of behaviours in relation to the international human rights development must acknowledge global cultural differences.[41] He contends that the human rights in Africa can only succeed by adopting strategies that are sensitive to cultural issues.[42] This view is consistent with growing calls for non-Western societies to develop national human rights regimes founded not only on basic human rights standards but also enriched by African, Asian and other cultural experiences.[43] Consequently, the national constitutions of many African countries, have established a regime of minimal universal human rights standards, based on the diverse cultural and religious orientations of the people.[44] Bennett has observed that the Constitutions of Zimbabwe, Swaziland and Botswana indicate that the application of African customary law is not subject to the prohibition on discrimination contained in the constitution.[45]

2.3 The 1992 Constitution of Ghana and Cultural Rights

The main sources of law in Ghana include the common law of Ghana which comprises the doctrines of equity and the rules of customary law.[46] Customary law, in the context of the Constitution, means the rules of law which by custom are applicable to particular communities in Ghana.[47] This means that the custom and culture of a particular community in Ghana can affect the legitimacy and acceptance of an international human right insofar as such customs and culture are not inconsistent with any provision of the Constitution. Article 26 of the Constitution guarantees cultural rights and practices in Ghana. It provides that every person in Ghana is entitled to enjoy, practise, profess, maintain and promote any culture, tradition or religion subject to the provisions of the Constitution.[48] This implies that all customary practices which do not dehumanise or injure the physical wellbeing of a person are permissible by the Constitution.[49]

The Constitution also enjoins the state to take steps to encourage the integration of appropriate customary values in the fabric of national life and consciously introduce cultural dimensions to relevant aspect of national planning.[50] It is also a constitutional imperactive to ensure that appropriate customary and cultural values are adapted and developed as an integral part of the growing needs of the society as a whole while abolishing traditional practices which are injurious to the health and wellbeing of a person.[51]

It is therefore submitted that the enforcement of any human right in Ghana may be subjected to appropriate customary and cultural values unless such values are injurious to the health and wellbeing of an individual. The factors determining customary and cultural values that may be injurious to the health and wellbeing of a person, respectfully submitted, are dependent on the relevant facts and laws. For instance, customary and cultural values that may inhibit the enjoyment of right to sexual orientation in Ghana could only be held unlawful or unconstitutional if they are proven to injure the health and wellbeing of persons who seek to enjoy that right. The foregoing discussions thus suggest that the 1992 Constitution makes a significant concession to lawful traditional practices and customary values in relation to the country’s developmental agenda and aspirations.

2.4 The 1992 Constitution: Scope and Limitations of Human Rights in Ghana

Constitutions set out the rights and duties of citizens and provide mechanisms to protect their interests.[52] The basic human rights guaranteed under the 1992 Constitution seeks to reverse the experience of years of abuse of human, political and civil rights in Ghana and protect individuals against future abuse.[53] The Constitution embodies and entrenches human rights provisions enshrined in the Universal Declaration of Human Rights and the African Charter on Human and Peoples’ Rights[54] (although Ghana’s human rights are situated in the latter).[55] These rights have been clearly set out in articles 12 to 33 of the Constitution.[56] They include the protection of personal liberty (subject to reasonable suspicion of having committed or being about to commit a criminal offence under the laws of Ghana), respect for human dignity, right to equality before the law and freedom from discrimination, and cultural rights.[57]

However, the enjoyment of any fundamental human right under the Constitution is subject to respect for the rights and freedoms of others, respect for public interest and securing of freedom and dignity of individuals.[58] Article 295 of the Constitution defines public interest to include any right or advantage which enures or is generally intended to benefit the whole of the people of Ghana. Respect for human dignity also involves prohibition of any conduct that subjects a person to torture, cruel, inhuman or degrading treatment or punishment or any other condition that distracts a person’s dignity and worth as a human being.[59]

De Waart has contended that the source of human rights is human dignity.[60] Although this contention is narrow in scope, since sources of human rights go beyond human dignity,[61] it conveys the need for human rights provisions to protect and enhance human dignity. Consequently, article 15(1) of the 1992 Constitution provides that the dignity of all persons shall be inviolable. Article 33(5) of the Constitution also recognises rights which are not specified in the Constitution but are inherent in a democracy and intend to secure the freedom and dignity of a person. The Courts of Ghana are thus empowered to incorporate rights and duties that have attained international recognition[62] so long as such rights secure the freedom and human dignity of individuals. The foregoing discussions generally reveal that the enjoyment and enforcement of any form of human rights in Ghana are subject to respect for freedom and human dignity of persons, and public interests. The respect for freedom and human dignity of persons in Ghana therefore form part of public interests and that where there is conflict between these concepts the Courts will uphold public interest.[63]

However the Constitution does not define human dignity but merely states some acts or conducts that may endanger it.[64] The Black’s Law Dictionary defines dignity as the state of being noble or dignified, or holding an elevated position or title.[65] Dignity is also defined as the state or quality of being worthy of honour of respect.[66] Although article 1 of the Universal Declaration of Human Rights (UDHR) provides that all persons are equal in dignity, the UDHR does not define what constitutes dignity.[67] It has been observed that defining human dignity in legal terms is notoriously difficult partly because it (human dignity) only became a conceptual tool for thinking about human rights and democracy after the Second World War.[68] Notwithstanding, paragraph 1 of the preamble to the UDHR acknowledges that recognition of inherent human dignity and inalienable rights of all persons is foundational to freedom.[69]

It is argued that although respect for human dignity requires prohibition of acts or conducts that subject a person to cruel or inhuman treatment, such protection does not necessarily legitimize the act of the person being subjected to an inhuman treatment. For instance, the fact that the right to respect for human dignity obliges people to refrain from subjecting a suspected thief to mob action does not mean that stealing must be decriminalized. In the same vein, the fact that persons who indulge in homosexuality must be protected from  inhuman treatment has nothing to do with the validity of the criminalization of homosexual conduct in a particular country. Accordingly, it is respectfully argued that any law in Ghana that prohibits same-sex marriage or homosexual conduct in Ghana can only be held unconstitutional if that law offends public interest or violates the dignity of homosexuals as human beings in terms of article 15 of the Constitution[70] or both. In the light of the foregoing, chapter 6 of the Criminal Offences Act[71] which criminalises homosexual conducts in Ghana neither affronts public interest nor violates the dignity of a homosexual in Ghana.

2.4  Recognition of Lesbian, Gay, Bisexual, Transgender, Intersex Rights in Selected Countries

Rudman has observed that there is no international legally-binding instrument that specifically lists sexual orientation as a suspect ground.[72] Customary international law has also not developed to a point of including discrimination based on sexual orientation as it does to discrimination based on race.[73] There are also open expressions of objections to such norm because State practice is too diverse for a customary norm of this nature to be developed.[74] In addition, the UN Human Rights Council also remains divided on the issue of sexual orientation as a suspect ground.[75] Therefore, those who seek to include sexual orientation under non-discrimination clauses in existing international human rights law only draw support from soft law which is not legally-binding.[76]

Despite the foregoing limitations, 50 jurisdictions, over the last 35 years, have decriminalised homosexuality.[77] Two dozen countries mostly in Europe and the Americas have legalized same-sex marriage.[78] On 30^th June 2017, Germany became the 15^th European country to recognise same-sex marriage.[79] Same-sex marriage is also permitted in some jurisdictions in Mexico.[80] Following a decision of the US Supreme Court in June 2015, same-sex marriage is now recognised in all the 50 States in the US.[81] There has also been strong pressure from international human rights groups to decriminalise homosexuality throughout Africa.[82] South Africa however remains the only country in Africa where same-sex marriage has been recognised by its Constitutional Court.[83] The principal basis for challenging laws forbidding same-sex marriages is that such prohibition amounts to unconstitutional discrimination against persons who prefer same-sex marriage.[84] In the South African case of Minister Home Affairs v Fourie,[85] for instance, the Constitutional Court concluded as follows:

“...[T]he failure of the common law and the Marriage Act to provide the means whereby same-sex couples can enjoy the same status, entitlements and responsibilities accorded to heterosexual couples through marriage, constitutes an unjustifiable violation of their right to equal protection of the law under section 9(1), and not to be discriminated against unfairly in terms of section 9(3) of the Constitution. Furthermore, and for the reasons given in Home Affairs, such failure represents an unjustifiable violation of their right to dignity in terms of section 10 of the Constitution^. As this Court said in that matter, the rights of dignity and equality are closely related. The exclusion to which same-sex couples are subjected, manifestly affects their dignity as members of society.”[86]

It could be inferred from the above quotation that the Constitutional Court of South Africa mainly grounded its decision on rights to dignity and equality before the law. The Court however failed to adequately demonstrate how both the common law and Marriage Act offended right to dignity since neither section 10 nor section 239 of the Constitution of the Republic of South Africa[87]define human dignity or what constitutes it. The Court also failed to point out the fact that the Marriage Act did not provide for same-sex marriage in South Africa because the said Act was enacted in 1961. It is thus argued that the fact that both the common law and the Marriage Act of 1961 did not provide for same-sex marriage alone did not offend rights to dignity and equality because both laws did not offend any constitutional provision in relation to same-sex marriage until right to sexual orientation was provided for under section 9(3) of the Constitution[88] in 1994.[89]

Right to equality before the law never stands alone; it must always operate in conjunction with other provisions[90] or laws. Consequently, the court ought to have construed the rights to dignity and equality within the context of common law and the Marriage Act 1961 unless the application of these laws was inconsistent with other provisions of the Constitution, aside from the section 9(3) which was later introduced to provide for right to sexual orientation.

2.5 Constitutional Right to Dignity and Equality from Comparative Perspective: the case of South Africa and Ghana

The provisions of sections 9 (equality) and 10 (human dignity) of the Constitution of the Republic of South Africa[91] are distinguishable from articles 15 (respect for human dignity) and 17 (equality and freedom from discrimination) of the 1992 Constitution of Ghana. Although both section 10 and article 15 of the respective Constitutions provide for respect and protection of human dignity, the latter (article 15) further states and prohibits specific acts or conditions that may detract from human dignity. Besides, although both section 9 and article 17 of both Constitutions have enshrined in them the right to equality before the law and prohibit discrimination based on gender, only section 9 expressly prohibits discrimination on the grounds of sex and sexual orientation.[92]

Article 17(2) of the 1992 Constitution of Ghana is silent on discrimination on the grounds of sex and sexual orientation. It has been observed that the framers of the 1992 Constitution substituted “sex”, which was in the 1979 Constitution, with “gender” to ensure the recognition of the natural and biological state of a woman and a man.[93] It has further been observed that the exclusion of sex from the anti-discrimination clause, article 17(2), of the 1992 Constitution weakens the argument that the Constitution abhors discrimination on the grounds of sexual orientation.[94] It may be thus argued that once sex is not mentioned one cannot say that the Constitution cares about it as a ground for discrimination.

It has been held that the term “sex” as employed in articles 2(1) and 26 of the ICCPR covers the concept of sexual orientation and that although sexual orientation is not expressly mentioned for protection under the covenant, a proper reading of the anti-discrimination provision of the covenant guarantees all covenant rights to every person including those who hold sexual orientation that is different from the majority of the population of a state.[95] This position may be flawed for several reasons. Firstly, “sex” and “sexual orientation” are different in meaning[96] hence the former could not be said to cover the latter. Secondly, an anti-discrimination provision does not stand alone[97] but must be connected to an expressly stated statutory provisions hence the anti-discriminatory provision of the covenant could not be said to cover right to sexual orientation which is not provided for under the treaty. In any case, article 17 of the 1992 Constitution is silent on both sex and sexual orientation.

3        UPHOLDING THE RIGHT TO SEXUAL ORIENTATION IN GHANA?

3.1 Scope of Article 17 of the 1992 Constitution

Article 17 of the 1992 Constitution of Ghana, unlike section 9 of the Constitution of the Republic of South Africa, defines[98] discrimination and also provides exemptions[99] to freedom against discrimination. Article 17(3) defines the word “discriminate” to mean giving different treatment to different persons attributable only or mainly to their respective descriptions by race, gender, religion and other stated grounds[100] whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject to or are not granted privileges or advantages  granted to persons of another description. The foregoing definition is silent on freedom from discrimination on the grounds of sex and sexual orientation.

It is therefore argued that the express exclusion of sex and sexual orientation in article 17(2) and (3) by the framers of the 1992 Constitution denotes that the Constitution does not abhor discrimination on the grounds of sex and sexual orientation because the said discrimination is lawful. The Supreme Court of Ghana in the case of Nartey v Gati[101] unanimously held as follows:

 ‘Article 17 did not mean that every person within the Ghanaian jurisdiction had, or must have, exactly the same rights as all other persons in the jurisdiction. Such a position was simply impractical. Soldiers, policemen, students and judges, for instance, had certain rights that other persons did not have. The fact that they had such rights did not mean that they were in breach of article 17(1). The crucial issue was whether the differentiation in their rights was justifiable, by reference to an object that was sought to be served by a particular statute, constitutional provision or some other rule of law. In other words, the provision in article 17(1) to the effect that: “All persons shall be equal before the law” was not to be construed in isolation, but as part of article 17. That carried the implication that the equality referred to in article 17(1) was, in effect, freedom from unlawful discrimination. It proscribed discrimination based on certain grounds. The implication was that discrimination based on other grounds might not be unlawful, depending on whether the Supreme Court could distil from article 17(1) other grounds of illegitimate discrimination, not expressly specified in article 17(2).’[102]

The above interpretation reveals that the 1992 Constitution allows lawful discrimination and only prohibits unlawful discriminations that are inconsistent with the Constitution or the purpose of any other existing law. It may thus be further argued that any law decriminalizing any homosexual act or conduct, such as same-sex marriage in Ghana, could not be held to be unconstitutional in the light of articles 15 and 17 of the Constitution.  Article 17(4)(b) for instance permits Parliament to enact laws that are reasonably necessary to provide for matters relating to marriage or other matters of personal law[103] (customary law). Article 17(1) of the 1992 Constitution does not, and should not, disable the Ghanaian Parliament from enacting legislation that gives different rights to different classes of people if such differentiation in rights bears a reasonable relationship to the legislative purpose that Parliament  seeks to achieve and that Parliament does not foul any of the grounds stated in article 17(2).[104]

It has been argued that prohibition or non-recognition of same sex marriages and same-sex relationships would not be a law that is reasonably necessary to provide for marriage.[105] On the contrary, such prohibition or non-recognition is reasonably necessary so long as it advances the socio-cultural aspirations of the people in relation to marriage. It has for instance been observed by a recent Constitution Review Commission of Ghana that an overwhelming majority of submissions it received on the subject, kicked against recognition of the right to sexual orientation of homosexuals.[106] This deep-seated opposition to homosexuality may be attributable to the religious orientation of the majority of Ghanaians which acknowledges the existence of God and the need to obey His commandments, including detesting homosexual conducts.[107]

Indeed, the preamble of the 1992 Constitution itself implies that Ghana’s acknowledgement God it its affairs is a foundational base on which the people of Ghana adopted, enacted and gave themselves to the Constitution. This means any conduct, such as homosexuality, that dishonours the name and laws of the Almighty God should not be sanctioned because it is an affront to the foundational tenet of the Constitution. Article 26 of the Constitution also ties the right to enjoy, practise, profess, maintain and promote any religion to cultural rights and practices permissible in Ghana. It could therefore be argued that cultural and religious practices in Ghana could be held as one of the legitimate grounds for outlawing homosexuality in Ghana.

It is submitted, from the above discussions, that the current legal regime on marriage in Ghana, including common law[108] and other existing laws[109] such as the Marriages Act (CAP 127) and Matrimonial Causes Act,[110] which do not provide for same-sex marriage could not be construed to infringe article 17 of the 1992 Constitution in relation to the right to sexual orientation because they neither offend the Constitution nor the intention of Parliament. In the same vein, section 104 of the Criminal Offences Act[111] which criminalises homosexuality in Ghana could not be held to be unconstitutional in that the law furthers the cultural and religious orientation of Ghana.

3.2 Criminalisation of homosexuality

75 UN member states, over half of which are in the Commonwealth, have over the years criminalised homosexuality.[112] Most of these States still follow the common law tradition.[113] Analysis has shown that majority of the criminalising jurisdictions are common law and dualist.[114] The common law is a source of rights and freedoms in and of itself, separate from statute, and may in fact go beyond statute and International Human Rights Law (IHRL).[115] It may thus be incorrect to suggest that laws criminalising homosexuality violate IHRL[116] since such laws may go beyond the IHRL. In Ghana for example laws, such as section 104 of the Criminal Offences Act, [117] arising out of the common law are enforceable unless they are inconsistent with the 1992 Constitution. Section 104 of the Act provides as follows:

           “(1) A person who has unnatural carnal knowledge

(a)    of another person of not less than sixteen years of age without the consent of that other person commits a first degree felony and is liable on conviction to a term of imprisonment of not  less than five years and not more than twenty-five years; or

(b)   of another person of not less than sixteen years of age with the consent of that other person commits a misdemeanour; or

(c)    ...

            (2) Unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner

                   or, with an animal.”

Section 104 of the Criminal Offences Act makes it an offence to have a sexual intercourse with any person who is sixteen years or above in an unnatural manner. Unnatural carnal knowledge at common law involves penile penetration of anything other than a vagina.[118] The Act only anticipates the situation where a man has unnatural carnal knowledge of a woman or another man and arguably discounts a situation where a woman engages in unnatural carnal knowledge of another woman.[119] This by implication shows that same-sex marriage is not sanctioned in Ghana by the Criminal Offences Act. It is also not in doubt that the Constitution does not recognise the rights of the homosexuals[120]  since, as already discussed, article 17 of the Constitution also does not proscribe discrimination on the grounds of sex and sexual orientation.

Articles 12(2) of the 1992 Constitution obliges the courts to enforce rights and freedoms recognised by the Constitution subject to the respect for rights and freedoms of other persons, and public interest. The rights and freedoms of persons are always products of creation of law and public policy considerations. This implies that the scope of any recognised rights and freedoms of persons in Ghana would be construed within the context of the relevant legal provisions, prevailing social conditions and public interests.

It can therefore be argued that the non-recognition of same-sex marriage in Ghana enhances public interests because it promotes the socio-cultural values of the country in relation to heterosexual marriage. Ghana‘s human rights provisions, as already indicated, are situated in the African Charter on Human and People‘s Rights (ACHPR).[121]  The Preamble of the ACHPR provides for the need to takes into consideration the virtues of Africa’s unique historical tradition and values of civilization when reflecting on the concept of human and peoples’s rights.[122] It also provides that the duty to promote and protect human and peoples’ rights and freedoms must take into account the importance traditionally attached to these rights and freedoms in Africa.[123] Article 29(7) of the ACHPR thus enjoins all individuals in Africa to preserve and strengthen positive African cultural values in their relations with other members of the society in order to contribute to the promotion of the moral well-being of society.[124]

It is therefore trite to submit that homosexuality could be an example of a situation where the desire of an individual to have sex with a person of the same-sex should not be recognised if that practice fails to sit well with the socio-cultural values of the society in which the individual finds himself or herself.[125] An individual cannot shirk this duty under the pretext of a right to privacy or freedom against discrimination since that individual has a duty to protect communal interest. National human rights provisions should still give room for cultural expression because national constitutional human rights provisions are not meant to regulate every aspect of human action within the society.[126]

Cultural communities within States should therefore still retain a certain latitude over how to implement these rights.[127] The constitutional right to freedom from discrimination on the grounds of gender may, for instance, be fundamental but there remains a margin of cultural interpretation of what constitutes gender discrimination.[128] Consequently, the right to sexual orientation of homosexuals should not be recognised in Ghana because that right is an affront to the socio-cultural values of Ghana in relation to marriage and family life.

4        CONCLUSION

This paper has discussed some aspects of the basic international human rights documents relevant to right to dignity and freedom against discrimination. It has also examined articles 12(2), 15 and 17 of the 1992 Constitution in the light of the ongoing debate on right to sexual orientation in Ghana. The paper reveals that Ghana’s human rights provisions are more situated in the context of African Charter on Human and People‘s Rights which places emphasis on the preservation of African’s positive culture. The paper generally concludes that public interest and the need to secure cultural values place an entrenched fetter on the power of the courts to uphold the right to sexual orientation in Ghana. It has also been argued that that freedom against discrimination in relation to right to sexual orientation will not avail under the current legal regime of Ghana.

Richard Obeng Mensah, richardobengmensah@gmail.com. The writer is a legal academic in Ghana.  

                                                                                                    

                                 

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[1] Solomon T Ebobrah, ‘Africanising Human Rights in the 21st Century: Gay Rights, African Values and the Dilema of the African Legislator’ [2012] International Human Rights Law Review 1 110, 111.

[2] Constitutional Review Commission, ‘From A Political to A Developmental Constitution’ (2011) Constitutional Commission Review, 626 <https://s3.amazonaws.com/ndpc-static/CACHES/NEWS/2015/07/22//CRC+Report+2011.pdf> accessed 22 June 2017.

[3] ibid 631.

[4] 1992 Constitution (Ghana) 1992, article 13.

[5] ibid, article 14.

[6] ibid, article 15.

[7] ibid, article 17.

[8] ibid, article 69(1)(a).

[9] ibid, article 12(2).

[10] Henry J Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals: Text and Materials (2nd ed, Oxford University Press 2000) 136.

[11] ibid 237.

[12] ibid 141.

[13] ibid 136.

[14] A Kodzo Paaku Kludze, ‘Constitutional Rights and Their Relationship with International Human Rights in Ghana’ [2008] 41 Isr. L. Rev. 677, 679.

[15] Republic v High Court (Commercial Division), Accra; Ex Parte Attorney-Ghana (NML Capital Ltd & Republic of Argentina Interested Party) 990 ([2013-2014] 2 SCGLR).

[16] Steiner and Alston (n 11) 151.

[17] ibid.

[18] ibid 141.

[19] ibid 237.

[20] ibid 142-144.

[21] ibid 366.

[22] ibid.

[23] Ernest Kofi Abotsi, ‘The Universality of Human Rights: An Exposition and Critique of the Relative Approach’ (2004) 1(2004) No 1 KNUST Law Journal 75, 76.

[24] ibid.

[25] Steiner and Alston (n 11) 366.

[26] Ernest Kofi Abotsi (n 24).

[27] ibid.

[28] Stephen Kofi Sondem, ‘The Enforcement of Human Rights in the Context of Custom and Tradition: The Dialectics of Africa Values’ 1 (2005) No 2 KNUST Law Journal 70, 82.

[29] Ciara Bottomley, ‘Unintended Consequences of International Human Rights Advocacy in Uganda’ 2 SOAS LJ 49 2015, 57.

[30] ibid.

[31] Bonny Ibhawoh, ‘Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State’ (2000) 22 (2000) Human Rights Quarterly 838, 855.

[32] ibid 843.

[33] Steiner and Alston (n 11) 366-367.

[34] ibid 367.

[35] ibid.

[36] OAU, ‘African (Banjul) Charter on Human and Peoples’ Rights', adopted 27th June 1981 and entered into Force 21 October 1986 <http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf> accessed 9 July 2017.

[37] Steiner and Alston (n 11).

[38] World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ <http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx> accessed 10 July 2017.

[39] Bonny Ibhawoh (n 27) 855.

[40] Steiner and Alston (n 11) 367.

[41] Stephen Kofi Sondem (n 27) 71.

[42] ibid.

[43] Bonny Ibhawoh (n 27) 843.

[44] ibid.

[45] ibid 844.

[46] 1992 Constitution (Ghana) (n 5), article 11(1)(e)(2).

[47] ibid, article 11(3).

[48] ibid, article 26(1).

[49] ibid, article 26(2).

[50] ibid, article 39(1).

[51] ibid, article 39(2).

[52] Alexander K D Frempong, ‘Constitution-Making and Constitutional Rules in Ghana’ (University of Ghana 2007) <https://www.google.com.gh/?gfe_rd=cr&ei=MeFlWbaAO4T38AfX15HgBw#q=constitution-making+and+constitutional+rule+in+ghana> accessed 12 July 2017.

[53] A Kodzo Paaku Kludze (n 15) 677.

[54] ibid.

[55] Constitutional Review Commission (n 3) 656.

[56] SY Bimpong-Buta, The Role of the Supreme Court in the Development of Constitutional Law in Ghana (Advanced Legal Publications 2007) 363.

[57] ibid.

[58] 1992 Constitution (Ghana) (n 5), articles 12(2) and 33(5).

[59] ibid, article 15(1) -(3).

[60] Stephen Kofi Sondem (n 27) 81.

[61] Ciara Bottomley (n 30) 57.

[62] Kofi Quashigah, ‘The 1992 Constitution of Ghana’ <http://www.icla.up.ac.za/images/country_reports/ghana_country_report.pdf> accessed 12 July 2017.

[63] Constitutional Review Commission (n 3) 656.

[64] 1992 Constitution (Ghana) (n 5), article 15.

[65] Bryan A Garner and Henry Campbell Black (eds), Black’s Law Dictionary (9th ed, West 2009) 522

[66] Catherine Soanes and Angus Stevenson (eds), Concise Oxford English Dictionary (11th ed, rev, Oxford University Press 2006) 401.

[67] United Nations, ‘Universal Declaration of Human Rights’ <http://www.un.org/en/universal-declaration-human-rights/> accessed 12 July 2017.

[68] Catherine Dupre, ‘What Does Dignity Mean in Human Context?’ theguardian <https://www.theguardian.com/commentisfree/libertycentral/2011/mar/24/dignity-uk-europe-human-rights> accessed 12 July 2017.

[69] United Nations (n 68).

[70] Failing to protect them from torture or other cruel, inhuman or degrading treatment or punishment, and any other condition that distracts or is likely to detract or is likely to detract from their dignity and worth as a human being.

[71] Criminal Offences Act, 1960 (Act 29).

[72] Annika Rudman, ‘The Protection against Discrimination Based on Sexual Orientation under the African Human Rights System’ [2015] 15 African Human Rights Law Journal 1-27, 9.

[73] ibid.

[74] ibid.

[75] ibid.

[76] ibid.

[77] Peter J Laverack, ‘International Human Rights Law, Domestic Constitutions and the Common Law: The Criminalisation of Homosexuality Testing the Efficacy of Different Sources of Law’ [2016] European Human Rights Law Review 1.

[78] Pew Research Centre, ‘Gay Marriage Around the World’ (2017) <http://www.pewforum.org/2017/06/30/gay-marriage-around-the-world-2013/> accessed 12 June 2017.

[79] ibid.

[80] ibid.

[81] The Guardian, ‘Gay Marriage Declared Legal across the US in Historic Supreme Court Ruling’ <https://www.theguardian.com/society/2015/jun/26/gay-marriage-legal-supreme-court> accessed 14 July 2017.

[82] Ciara Bottomley (n 30) 56.

[83] Constitutional Review Commission (n 3) 674.

[84] ibid 675.

[85] Minister of Home Affairs v Fourie [2005] ZACC 19, 2006(1) SA 524 (CC) >http://www.saflii.org.za/za/cases/ZACC/2005/19.pdf<accessed 12 July 2017.

[86] ibid para 114.

[87] South Africa, Parliament (1994- ) and Constitutional Assembly, The Constitution of the Republic of South Africa, 1996: As Adopted on 8 May 1996 and Amended on 11 October 1996 (2012).

[88] ibid.

[89] http://www.saflii.org.za/za/cases/ZACC/2005/19.html (n 75) 4.

[90] Alastair N Brown, Human Rights (W Green 2005) 96.

[91] South Africa, Parliament (1994- ) and Constitutional Assembly (n 88).

[92] ibid section 9(3).

[93] Constitutional Review Commission (n 3) 653.

[94] ibid.

[95] Solomon T Ebobrah (n 2) 122-123.

[96] Soanes and Stevenson (n 63) 1319-1320.

[97] Brown (n 91).

[98] 1992 Constitution (Ghana) (n 5) article 17(3).

[99] ibid article 17(4).

[100] Such as place of origin, opinions and colour.

[101] Nartey v Gati [2010] SCGLR 745 [2010] Supreme Court, Accra No J6/1/2010 745.

[102] ibid 748 [Emphasis added].

[103] 1992 Constitution (Ghana) (n 5) article 17(4) (b).

[104] Nartey v Gati [2010] SCGLR 745 (n 91) 749.

[105] Constitutional Review Commission (n 3) 656.

[106] ibid.

[107] Salem Web Network, ‘Bible Verses about Homosexuality’ <http://www.biblestudytools.com/topical-verses/bible-verses-about-homosexuality/> accessed 7 August 2017.

[108] 1992 Constitution (Ghana) (n 5) article 11(1)(d) (2).

[109] ibid article 11(1) (d).

[110] Matrimonial Causes Act 1971 (Act 367) sections 41, 43.

[111] Criminal Offences Act, 1960 (Act 29) (n 72).

[112] Peter J Laverack (n 78).

[113] ibid.

[114] ibid.

[115] ibid 18.

[116] ibid 1.

[117] Criminal Offences Act, 1960 (Act 29) (n 72).

[118] Constitutional Review Commission (n 3) 654.

[119] ibid.

[120] ibid.

[121] ibid 656.

[122] OAU (n 35), para 5, 1.

[123] ibid, para 10, 2.

[124] ibid 9.

[125] Constitutional Review Commission (n 3) 657.

[126] Bonny Ibhawoh (n 32) 855-856.

[127] ibid 856.

[128] ibid.