Parts of the anti-LGBTQI+ bill have been deemed unconstitutional by the Attorney General and Minister of Justice, Godfred Dame.
The Attorney General expressed his concerns about the legislation in a letter to the head of the Parliament’s Committee on Constitutional, Legal, and Parliamentary Affairs. He explained that some clauses would infringe basic freedoms and rights of individuals, including the right to privacy.
According to him, some freedoms enshrined in the 1992 constitution may be breached if the bill is passed in its current form.
In his view, while some parts of the bill align perfectly with the constitution, others do not, hence the need to amend them before it is finally passed into law.
“Parts of the Bill in its present form violate some fundamental rights and freedoms enshrined in the Constitution, including the right to freedom of expression, thought, and conscience and freedom from discrimination. Other provisions of the Bill, however, pass the test of constitutionality” he said
He added, “thus, unnatural carnal knowledge of a person of at least 16 years with the consent of that person and unnatural carnal knowledge of an animal is already criminalized by Act 29 as a misdemeanour.
The Bill, however, seeks to categorise the offence as a second-degree felony, making it inconsistent with the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which classifies offences in Ghana generally and their correlative punishments.
However, it should be noted that not all forms of unnatural carnal knowledge or sexual activity involving people of the same sex have been made illegal under Ghanaian law. This is so that the requirements of Section 99 of Act 29 on “Evidence of Carnal Knowledge” can be fulfilled: “Complete on Proof of least degree of penetration.
The Attorney General also stated that “sexual intercourse or unnatural carnal knowledge between or among persons of the female sex, for instance, is not criminalised by current Ghana law. To this extent, subparagraph (a) of paragraph 1 of clause 6 can be seen to state a broader prohibition on unnatural carnal knowledge or sexual intercourse between persons of the same sex as known to Ghana law. The provision is not unconstitutional.
The bill is 36 pages long and describes its objective as “to provide for proper human sexual rights and Ghanaian family values; forbit LGBTQ+ and related activities, ban propaganda of, advocacy for or promotion of LGBTTQQIAAP+ and related activities; provide for the protection of and support for children, persons who are victims or accused of LGBTTQQIAAP+ and related activities and other persons; and related matters.
The anti-LGBTQI+ bill also aims to criminalise the actions of those who identify as lesbian, gay, bisexual, transgender, transsexual, or queer; those who hold opposing socio-cultural notions of sex; those who have a biological anomaly regarding their gender at birth; those who advocate for or financially support lesbian, gay, bisexual, transgender, and queer-related causes; and those who perform surgeries to change a person’s gender.
Additionally, the Bill places a responsibility on individuals and relevant independent constitutional organizations to advance and defend appropriate human sexual rights and Ghanaian family values.
Source: The Independent Ghana