Ghana: Ghana’s New Anti-Homosexuality Invoice Violates Everybody’s Rights, Not Simply LGBTIQ+ Folks

Ghana’s new anti-homosexuality bill infringes a number of rights and freedoms, not solely of lesbian, homosexual, bisexual, transgender, intersex and queer (LGBTIQ+) folks however of heterosexuals too. The invoice has been within the works since 2021 when it was tabled in parliament as a private member’s bill.

The target of the Human Sexual Rights and Family Values Bill is

to supply for human sexual rights and household values and for associated issues.

On the coronary heart of the rivalry concerning the proposed legislation is the query of discrimination, its function and its impact of nullifying or impairing the popularity, enjoyment or train by all individuals, on an equal footing, of all rights and freedoms.

The title of the invoice, clearly, is ironic as a result of the legislation fairly units out to disclaim the suitable to sexuality and associated rights to LGBTIQ+ folks and to criminalise their actions. Furthermore, what constitutes “sexual proper” shouldn’t be outlined within the invoice. The important thing motion which is criminalised is consensual sexual relations between two gay adults.

The invoice defines such practices, linking them to related provisions within the Criminal and Other Offences Act of Ghana. Curiously, it additionally criminalises different acts, equivalent to oral intercourse, which heterosexual {couples} additionally do. It will, subsequently, mechanically “convert” heterosexuals into homosexuals. The LGBTIQ+ neighborhood can be prohibited from marriage and from adopting or fostering.

If the president indicators the laws, Ghana will be a part of 36 African countries the place homosexuality is against the law. It is punishable by loss of life in some countries , together with Nigeria and Mauritania. So, Africa stays a tricky place for LGBTIQ+ folks. However there was some progress in international locations like South Africa and Mauritius the place colonial period legal guidelines have been repealed.

Learn extra: Mauritius is the latest nation to decriminalise same-sex relations in a divided continent

As a scholar of worldwide human rights legislation, I imagine this invoice will infringe the suitable to privateness, proper to well being, freedom of affiliation and expression, and press freedom. It’ll additionally impinge on the rights of academics, lecturers, civil society activists and residents who share content material on social media platforms that the invoice deems unlawful.

Compromising key freedoms

The invoice’s criminalisation of consensual sexual relations between two gay adults and imposition of sentence of three years on violators of that provision of the legislation is prohibitive and disproportionate. The follow shouldn’t be criminalised, but when in any respect, violation ought to at finest entice a non-custodial sentence, for instance a advantageous or neighborhood work. The LGBTIQ+ neighborhood has the suitable to be handled with dignity. The truth that somebody is homosexual mustn’t result in a lack of his/her humanity.

Furthermore, for the reason that solely method the criminalisation of consensual intercourse may be enforced is by “peeking by way of the window”, this can infringe on the suitable to privateness.

There was many situations the place members of the LGBTIQ+ neighborhood, and even those that the society take into account as such however are usually not, have been arrested and subjected to acts of molestation, abuse, torture and other forms of violence and extrajudicial measures which represent a violation of their proper to dignity. Some are even killed. The vigilante teams that impact these arrests even have the behavior of extorting cash from the alleged perpetrators of LGBTIQ+ practices. The place the “suspects” find yourself on the police station, the police have additionally resorted to extortion of huge sums of cash from the suspects earlier than letting them go.

The legislation seeks to avert such occurrences by imposing a time period of imprisonment of between six months to a few years for anybody who harasses somebody accused of being LGBTIQ+. Nonetheless, this can be a feeble try by the sponsors of the invoice to appease or guarantee the LGBTIQ+ neighborhood.

The ban on offering healthcare assist for trans individuals is more likely to end in discrimination on the suitable to well being, which is a common proper. The pressured disbandment of LGBTIQ+ associations in Ghana, will represent a violation of the suitable to freedom of affiliation and freedom of expression, amongst others. It has been abused in numerous situations and is more likely to be additional abused much more. The supply that seeks to make homeowners of digital platforms or bodily premises through which LGBTIQ+ teams organise responsible of selling LGBTIQ+ actions violates the suitable to freedom of affiliation and expression, amongst others.

Additionally, the availability on imposing harsh sentences on academics and different educators who speak about LGBTIQ+ within the classroom is more likely to infringe on the suitable to tutorial freedom and the suitable to schooling. Additional, the imposition of six to 10 years of imprisonment for anybody who produces, procures, or distributes materials deemed to be selling LGBTIQ+ actions is more likely to result in the abuse of the suitable to freedom of expression, info and schooling and even press freedom. The identical goes with the availability on criminalising the “public present of romantic relations” between folks of the identical intercourse, even together with cross-dressing.

What’s vital to additionally observe is that the legislation shouldn’t be made to limit or violate the rights of the LGBTIQ+ neighborhood solely, as famous above with regard to heterosexual. Additionally, academics, lecturers, media personnel and civil society activists, individuals who share content material over social media platforms, or broadcast content material on LGBTIQ+ are additionally going to be held criminally accountable.

Presidential or constitutional problem

I suggest that President Nana Akufo-Addo mustn’t assent to the legislation as it’s, counting on article 108 of the 1992 Structure since, being a personal members invoice, it has doubtless monetary implications for the state. Thus, counting on article 106, he can refer the invoice to his highest advisory physique (Council of State) for its recommendation. In any other case, he has the ability to state in a memo to the Speaker of Parliament any particular provisions of the invoice which in his opinion must be reconsidered by Parliament.

If he doesn’t, the matter may be taken to a Human Rights Court docket by a citizen, counting on article 33(5)of the Structure, which supplies that “the rights, duties, declarations and ensures referring to the elemental human rights and freedoms particularly talked about on this Chapter shall not be thought to be excluding others not particularly talked about that are thought of to be inherent in a democracy and supposed to safe the liberty and dignity of man.”

The opposite possibility is to go straight to the Supreme Court docket to problem the constitutionality of the invoice.

Kwadwo Appiagyei-Atua, Affiliate Professor of Regulation, College of Ghana