In Ghana, identifying as LGBTIQ+ and engaging in certain related activities will soon be prohibited.[1] This is if Human Sexual Rights and Family Values Bill 2024, enacted by the Ghanaian Parliament on 28 February 2024 will be assented to by President Nana Akufo-Addo. Amongst the new crimes, identifying as LGBTIQ+ will be an “offence”, which could lead to a misdemeanour conviction, resulting in a fine or imprisonment for 2 to 3 years.[2] Furthermore, advocating for, promoting, or propagating activities prohibited under this Act could result in imprisonment for a term of 5 to 10 years.[3] Ghana is now on the brink of implementing these regulations, which will significantly impact the daily lives of LGBTIQ+ people and others affected. In the meantime, the President has involved the Supreme Court to determine whether this Bill aligns with Ghana’s Constitution.
We argue in the following that the Ghanaian Supreme Court now has the potential to make a decision that reaches far beyond Ghana and its LGBTIQ+ community. We hope that the Court recognizes the significance of this matter and decides to uphold human rights as outlined in both the Ghanaian Constitution and international human rights law.
LGBTIQ+ rights in Africa: An uncertain path
LGBTIQ+ (lesbian, gay, bisexual, trans, intersex, queer) rights persist as one of the most contested aspects of human rights globally, especially in those regions grappling with the (dis)entanglement of British colonial influence. In recent years, Africa has witnessed a dual trajectory in the legal and political treatment of sexual orientation, gender identity, gender expression, and sex characteristics (SOGIESC) issues. Countries like Botswana, Mauritius and Angola have decriminalised same-sex sexual conduct through legislative or judicial initiatives, overturning the outdated Penal Codes inherited from the British colonial era that remain in place.[4] Conversely, other African states like Uganda, have sought to intensify the criminalisation of same-sex sexual conduct in recent times.[5] Since May 2023, the Ugandan Anti-Homosexuality Bill has been in force which includes severe penalties such as imprisonment for life without the possibility of being released in case of the commitment of the “offence of homosexuality” [6] defined as performing same-sex intercourse or allowing a same-sex act on her or him.[7] The Act also introduces death penalty in case of conviction to “aggravated homosexuality”[8] including the commitment of “offence of homosexuality” when “the person against whom the offence is committed is a person with a disability or suffers a disability as a result of the sexual act”[9]. Additionally, consent, whether given or not, is not considered a defence against such charges.[10] Now, the Ugandan Constitutional Court decided to not nullify or suspend this Act, and consequently, to t declare the Act as such vulnerating fundamental rights of LGBTQI+ people, only striking down specific sections such as about restricted healthcare access to LGBTQI+ people.[11] The negative impacts on the daily lives of LGBTIQ+ people, particularly aggravated discrimination, physical and violence and marginalisation by society are increasing.[12]
By passing the Human Sexual Rights and Family Values Bill 2024, Ghana’s Parliament has now aligned itself with the latter trend; placing the country among those that have sought to intensify the criminalization of LGBTIQ+ identities. President Nana Akufo-Addo has announced that he would wait for a decision by the Ghanaian Supreme Court on the matter before signing the Bill into law.
What happened in Ghana prior to the Bill?
According to some voices, the drafting of the Bill was a response to the recent developments in relation to SOGIESC issues. Especially the drafting of this Bill was prompted by developments such as the opening of Ghana’s first LGBTIQ+ community centre in Accra ensuing in public protests and pressure from religious leaders.[13] Following threats to burn down the Centre, on 24 February 2021, it was forced to close down following a raid by national security forces.[14]
On 20 May 2021, 21 participants of a paralegal training session focused on documenting and reporting human rights violations against LGBTIQ+ people were unlawfully arrested and charged with ”Unlawful Assembly”.[15] Following charges brought under section 201 (1) of the Ghana Criminal Code, the defendants were convicted of the commission of a misdemeanour.[16] However, after 22 days in jail under miserable circumstances, the defendants were released on bail pending appeal.[17] Finally, on 2 August 2021, the Circuit Court acquitted all of the victims of arbitrary detention due to “insufficient evidence”.[18]
A few days after this acquittal, the ‘Promotion of Proper Human and Sexual Rights and Ghanaian Family Values Bill 2021’ was introduced in the Ghanaian Parliament.[19] The Bill seeks to criminalise the promotion, advocacy, funding, and act of homosexuality in all its forms. Following numerous debates in Parliament and subsequent modifications to the Bill, the Ghanaian Parliament has now enacted the Human Sexual Rights and Family Values Bill 2024.
Contextualising the Bill – What does the Bill aim to establish?
The draft law does not only concern sexual acts but also seeks to criminalise the mere identification of individuals as LGBTIQ+. If the President assents to the Bill as passed, the new law would compel Ghanaians to report suspected LGBTIQ+ persons to the police or face four months in prison. Suspected LGBTIQ+ people would be required to undergo conversion therapy or face up to five years imprisonment. Additionally, alongside the criminalisation of LGBTIQ+ individuals and same-sex sexual activities, the Bill prohibits the propaganda, advocacy, support and other related activities, including the disbandment of LGBTIQ+ groups, societies, associations, clubs or organisations according to Article 13 and subsequent provisions. Furthermore, the Bill also penalizes allies for using sex toys according to Article 4 (e) (vii) together with Article 4 (3) (b).
Is the Bill constitutional?
This question is presently awaiting a decision from the Supreme Court of Ghana. In our considered opinion, , as it stands, the Bill contravenes both Ghana’s Constitution of 1992 and international human rights law.
Article 15 (1) of the Constitution guarantees the inviolability of the dignity of all persons, while Article 21 (1) protects fundamental freedoms, inter alia, freedom of speech and expression (a), freedom of thought, conscience and belief (b) as well as the freedom of assembly and freedom of association. Thus, the Human Sexual Rights and Family Values Bill 2024 criminalizes the promotion and advocacy of activities related to the protection of LGBTIQ+. Such provisions clearly violate the constitution’s protection of broad equality guarantees.[20] In addition, Article 17 (2) of the Ghanaian Constitution states that “a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.”. Although sexual orientation is not explicitly listed among these grounds, the broad non-discrimination clause inherently encompasses any potential bases for discrimination, including sexual orientation, in alignment with international human rights standards.
Furthermore, the Bill runs foul of Ghana’s international human rights obligations. Moreover, Article 2 of the African Charter stipulates that every individual is entitled to the enjoyment of rights and freedoms without discrimination based on various characteristics, including “or other status.” Soft law mechanisms established by the African Commission have recognized sexual orientation as a ground for the non-discrimination clause.[21]
Concluding remarks
Now that the President has transmitted a case to the Ghana Supreme Court to rule on the constitutionality of the Bill, all eyes are now on the Ghanaian Supreme Court, which holds the potential to issue a landmark decision with significant implications, not only for Ghana and its LGBTIQ+ community but also for the entire continent and beyond.
The Supreme Court has three possible courses of action: Firstly, it can dismiss the Bill on procedural grounds. This is a less controversial path but would likely be a temporary fix as was demonstrated by the Uganda case in 2014 where Parliament simply fixed the procedural defects and passed the bill again. Secondly, the Court could allow the Bill to pass as constitutional, similar to the approach recently taken by the Ugandan Supreme Court, a decision that would raise serious concerns about the reasoning of the Supreme Court and but also set in motion the legal persecution of LGBTIQ+ people in Ghana and of those who seek to support their claims for protection.
Thirdly, the Court can declare the Bill unconstitutional on substantive grounds, thereby affirming human rights principles and sending a powerful message to other countries struggling with homo- and transphobic movements. In relation to this possibility, the Supreme Court has in its favour a substantial body of domestic and international precedents to rely on in its ruling.
[1] Section 4 (1,e) Human Sexual Rights and Family Values Act 2024.
[2] Section 4 (2) Human Sexual Rights and Family Values Act 2024.
[3] Section 10 (1 and 2) Human Sexual Rights and Family Values Act 2024.
[4] See the example of Botswana, Tashwill Esterhuizen, ‘Decriminalisation of consensual same-sex sexual acts and the Botswana Constitution: Letsweletse Motshidiemang v The Attorney-General (LEGABIBO as amicus curiae)’ (2019) 19(2) African Human Rights Law Journal.
[5] Stella Nyanzi and Andrew Karamagi, ‘The social-political dynamics of the anti-homosexuality legislation in Uganda’ (2015) 29(1 (103)) Agenda: Empowering Women for Gender Equity 24 <http://www.jstor.org/stable/43825974>; Fortunate Machingura and Maryam Shahmanesh, ‘Uganda’s Anti-Homosexuality Act’ (2023) 382 BMJ (Clinical research ed) 1840.
[6] Art. 2 (1) Anti-Homosexuality Act 2023.
[7] Arts. 2 (1) and (2) in connection with Art. 1 Anti-Homosexuality Act 2023.
[8] Art. 3 Anti-Homosexuality Act 2023.
[9] Art. 3 (2) (f) Anti-Homosexuality Act 2023.
[10] Art. 6 Anti-Homosexuality Act 2023.
[11] https://www.hrw.org/news/2024/04/04/uganda-court-upholds-anti-homosexuality-act accessed 10 April 2024.
[12] https://www.hrw.org/news/2024/04/04/uganda-court-upholds-anti-homosexuality-act accessed 10 April 2024 and https://www.amnesty.org/en/latest/news/2024/01/africa-barrage-of-discriminatory-laws-stoking-hate-against-lgbti-persons/ accessed 27 March 2024..
[13] https://www.bbc.com/news/world-africa-68353437, accessed 27 March 2024.
[14] https://www.hrw.org/news/2023/12/12/ghanas-anti-lgbt-push-will-harm-its-democracy accessed 27 March 2024 and ‘Ghana security forces shut down LGBTQ office: Rights group’ Al Jazeera (24 February 2021) <https://www.aljazeera.com/news/2021/2/24/ghana-shuts-down-lgbt-office-rights-group> accessed 27 March 2021.
[15] https://www.theguardian.com/world/2021/may/24/outcry-people-arrested-ghana-advocating-lgbtq-activities accessed 27 March 2024 also https://edition.cnn.com/2021/05/25/africa/ghana-arrests-lgbtq-persons-intl/index.html accessed 27 March 2024.
[16] Section 202 (1) Ghana Criminal Code (Amendment) Act 2003 (Act 646).
[17] https://www.hrw.org/news/2021/09/20/ghana-lgbt-activists-face-hardships-after-detention accessed 27 March 2024.
[18] https://www.hrw.org/news/2021/09/20/ghana-lgbt-activists-face-hardships-after-detention accessed 27 March 2024.
[19] Ohotuowo Ogbeche, ‘Ghana’s anti-LGBTQ bill sparks spike in “legally sanctioned” extortion’ African Arguments (29 November 2022) <https://africanarguments.org/2022/11/ghana-anti-lgbtq-bill-sparks-spike-extortion/> accessed 2 April 2023 also and https://africanlegalstudies.blog/2023/08/11/anti-homosexuality-bills-are-an-abuse-of-the-law/ accessed 27 March 2024.
[20] Section 10 (1) Human Sexual Rights and Family Values Act 2024.
[21] For example, Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity – ACHPR/Res.275(LV)2014 or UNDP November, 2022 / PGA February, (2022). “Advancing the Human Rights and Inclusion of LGBTI People” A Handbook for Parliamentarians, p. 9.
