CONSTITUTIONAL
BOUNDARIES TO HUMAN RIGHTS IN GHANA: MEASURING THE SCOPE OF PRIVATE AND PUBLIC
INTERESTS IN RESPECT OF ‘RIGHT’ TO SEXUAL ORIENTATION
- 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.
- 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
18th 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
30th June 2017, Germany became the 15th 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.
[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.
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