By: Rishav Devrani and Namrata Rawat
The social, political and cultural milieu of a country is extremely important in moulding its social norms. With the recent crackdown of the police and media alike on pro-LGBTQ+ paralegals in Ghana and an anti-LGBTQ+ Bill under talks, the nation’s stance on queer rights is easily discernible. Ironic, as it may seem, this outlook still pervades the nation’s colonial legal framework while most of its colonisers have already legalised same-sex marriages almost a decade ago.
Through this article, the authors seek to delve into the veracity behind Ghana’s legal regime on LGBTQ+ rights. They attempt to do this by scrutinising its legal framework, the influence of its socio-religious fabric on the same, and its international legal obligations. The authors conclude that LGBTQ+ rights, as opposed to ‘special rights’, are inherently embedded in the body of international human rights. Moreover, there is ample room in the Ghanaian Constitution to honour and import the construction of ‘sex’ and ‘gender’ to include sexual orientation and gender identity (hereinafter ‘SOGI’) as per the international standards, if only there is the required political will. A massive overhaul of the legal system is thus, needed to enfranchise the nation’s LGBTQ+ folks.
Section 104 of the Criminal Code of Ghana, 1960 also known as the ‘anti-gay’ law, criminalises unnatural carnal knowledge. It punishes non-consensual unnatural sexual intercourse with a first-degree felony, inviting minimum imprisonment of five years and up to twenty-five years upon conviction. Individuals indulging in unnatural consensual sexual intercourse shall be charged with misdemeanour, which invites imprisonment for a term of up to three years. The caveat to Ghana’s unnatural offences, as also recognised by the Constitution Review Commission’s (hereinafter ‘CRC’) Report in 2011, is that it only applies to gay men (penile penetration) and not women indulging in same-sex intercourse. However, the vagueness surrounding the definition of ‘unnatural carnal knowledge’ and the cultural hostility often result in arrests of both- suspected gays as well as lesbians. Officials from Ghana often defend Section 104, stating that it is solely used against rape cases and not in the private life of individuals, however, the reality is evidently converse. Members of Parliament have often expressed their outright abomination and stated that LGBTQ+ is a mental disorder, not a human rights issue.
Article 17(1) of the Constitution of Ghana enshrines the right to equality. Article 17 (2) prohibits discrimination on grounds of “gender, race, colour, ethnic origin, religion, creed or social or economic status.” A liberal interpretation of gender would include different gender identities. Whereas, social status can be understood to include the status which queer folks occupy as a community within the society. The CRC contemplated the inclusion of the words ‘sexual orientation’ and ‘sex’ under the equality and non-discrimination principle. In its final recommendation, it levied the burden on the judiciary to decide upon the matter.
SOCIAL FACTORS: AN ANALYSIS
Post-Colonial Queerphobic State
Modern day scholarship and media project African nations to be more queerphobic than their Western/European counterparts. What they fail to acknowledge is that queerphobia is an after-effect of years of European colonisation that sternly penalised queer behaviour. The Western narrative mischaracterises the queerphobia existing in post-colonial African nations by not accounting the role of colonial ‘anti-sodomy’ laws that have shaped the present day legal system in most African nations, including Ghana. In Africa, thirty-two countries still criminalise homosexuality and out of these eighteen were British colonies. Post-independence, most nations adopted the political and legal systems imposed upon them, thereby inheriting such anti-queer laws. The introduction and enforcement of these laws in the colonial era have shaped the aggressive normative behaviour towards sexual minorities in the society, stigmatising them as criminals for hundreds of years. The deterrence mechanism of these penal laws has had long-lasting effects in moulding moderndays’ attitude towards queer folks. Today, as the African nations retain queerphobia in an attempt to denounce Western morals, a situation of ‘queer-paradox’ arises since these nations are perpetual victims of a colonial legacy- the queerphobic legal system.
An additional legacy of colonisation, the tussle between religious groups and LGBTQ+ rights activists has been ever-present in Ghana, even as recently as 2021. With 96 percentage of the population following some form of religious belief (Christians, 70 percent), it has played an immense role in hindering the growth of queer rights in the country. Prayer Camps constituted by privately-owned Christian religious institutions being used as conversion camps is an example of the same. The social institutes bearing cultural and religious perceptions often shape a myopic view towards the attainment of socio-economic and political equality for sexual minorities. Deviance is quoted by religious fundamentalists for building a negative connotation for queer activism in Ghana. Religious and political leaders shield behind the defences of homosexual activities being ‘un-biblical’ or ‘un-Christian’ and even ‘un-African’. African states often rely on religion as a lens through which they seek to become social and political actors. Although such religious propagators do have the capacity and influence to mitigate the society, more often than not, they strive towards a heteronormative structure. A study done in 2016 showcased that such disdain and denunciation towards sexual minorities in Ghana originated from the fear of social exclusion and disintegration of prevailing social norms that have sustained over the years. Such condemnation could also be viewed as an act of refutation of Western culture/ideology by the Ghanaians.
INTERNATIONAL LAW PERSPECTIVE
Ghana, a member of the United Nations Organisation and the African Union, is a party to several regional and international treaties which obligate it to protect LGBTQ+ rights, including the right to equality, non-discrimination, privacy and the right to freedom from violence. These include the African Charter on Human and Peoples’ Rights (hereinafter ‘ACHPR‘), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter ‘CEDAW’), the International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’), and the International Covenant on Economic, Social and Cultural Rights (hereinafter ‘ICESCR’).
Regionally, Resolution 275 of the ACHPR requires African states to take positive steps to end violence and discrimination on the grounds of people’s real or imputed SOGI.
In the international legal spectrum, Ghana is bound by the principle of pacta sunt servanda. The International Bill of Rights comprising the UDHR, the ICCPR and the ICESCR applies herein. Together, these seek to protect and enfranchise the LGBTQ+ community. The three instruments acknowledge the “inherent dignity and […] the equal and inalienable rights of all members of the human family” in their respective preambles. They also celebrate one’s freedom of expression and right to self-identification which are at the core of SOGI. Additionally, they promulgate one’s right to privacy and prevention of arbitrary interference with the same. Furthermore, these instruments are founded on the principle that all human beings are born free and equal in dignity and rights. Thus, they decry any instances of discrimination based on factors such as “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.”The inclusion of ‘other status’ herein clarifies the general position of covering all classifications including sexual orientation. This further elucidates that queer rights are inherently captured within international human rights instruments and thus, are no ‘special rights’ of extraneous origin.
Thereby, it is imperative that all aspects of SOGI are included within the ambit of Ghana’s constitutional provision on non-discrimination (Art. 17). The problematic Section 104 of the 1960 Act also manifestly violates the principles of the right to equality, self-determination, and privacy by criminalising adult consensual homosexual activities. Hence, suchprovisions must be amended without further ado.
The article does not engage in the debate of whether homosexuality is ‘un-African’ or ‘un-Biblical’. It merely seeks to posit that LGBTQ+ rights are inherently entrenched in international human rights. They are no special obligations that go beyond the basic principles of UDHR, ICESCR, ICCPR which recognise the right to equality, dignity, privacy, and non-discrimination of a people. The non-exhaustive nature of internationally recognised grounds of non-discrimination is a testament to the same. Ghana must then attune its constitutional rights and freedoms with its international obligations and CRC’s recommendations by giving a more purposive and holistic reading to its legal provisions.
It is not unknown that in the act of equitably distributing rights, one must navigate around existing heteronormative power structures governing the society. However, it is important to establish an equitable legal system that does not disavow individuals of their mere existence, dignity and liberty. Politics of shame, culture and deviance are then, in the opinion of authors, merely outdated excuses for not ensuring basic human rights for a class of citizens in the legal system.
Chan Tov McNamarah, ‘Silent, Spoken, Written, and Enforced: The Role of Law in the Construction of the Post-Colonial Queerphobic State’ (2018) 51 CORNELL INT’l LJ 495.
UDHR (pmbl para 2) “freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,” the ICCPR (pmbl para 3) “ideal of free human beings enjoying civil and political freedom,” and the ICESCR (pmbl para 2) “ideal of free human beings enjoying freedom from fear and want.”
UDHR, pmbl para 1; ICCPR, pmbl para 2; ICESCR, pmbl para 2.
UDHR, arts 19-20; ICCPR, arts 19 and 22.
UDHR, art 12; ICCPR, art 17.
UDHR, art 1.
UDHR, art 2; ICCPR, art 2 para 1; ICESCR, art 2 para 2.
Cite as: Rishav Devrani and Namrata Rawat, ‘Ghana’s Homophobic and Heteronormative Colonial Laws: An International Law Perspective’ (The RMLNLU Law Review Blog, 15 July 2021) <https://rmlnlulawreview.com/2021/07/15/ghana-homophobic-laws-international-law-perspective/> date of access