No “Wo Fie”: Criminalization of Queer Existence in Ghana
By Sarthak Gupta
In recent years, Russia, Nigeria, Uganda and Hungary have all passed repulsive laws that discriminate and violate the rights of Queer individuals. A recently proposed bill in Ghana, the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 ( “the Bill”) follows the same notion of discrimination and goes a step further by criminalizing LGBTTQQIAP+ (Queer) individual representation in the state.
With the ongoing police and media onslaught on the Queer community in Ghana and this anti-queer bill in the midst, the country’s position on queer rights is blatantly homophobic. Even though the majority of the nation’s colonizers previously legalized same-sex marriages about a decade ago, this homophobic perspective still permeates Ghana’s colonial legislative framework. In Ghana, the bill stimulates the witch-hunt targeting Queer individuals.
Ghana’s Colonial Legislative framework
Ghana’s Criminal Code of 1960, a colonial-era statute, criminalizes the notion of “unlawful carnal knowledge” under Section 104 and Section 106 of the Code. It makes non-consensual unnatural sexual intercourse a first-degree felony punishable by a minimum of 5 years in prison and a maximum of 25 years of imprisonment if convicted. Under current law, unnatural consenting sexual intercourse is already penalized with up to three years of imprisonment. The exception to Ghana’s unnatural offenses is that they would only pertain to gay men (male genital penetration), not women engaging in same-sex intercourse, as asserted in the Constitution Review Commission (CRC) Report in 2011. Nevertheless, due to the obvious ambiguity surrounding the concept of “unnatural carnal knowledge,” as well as socio-cultural prejudice, both alleged gays and lesbians are regularly detained. Officials in Ghana constantly advocate for Section 104, arguing that it is only utilized in rape cases and it does not interfere with private lives. However, reality is quite the opposite. Members of Parliament have frequently expressed their abhorrence on Queer rights discourse, claiming that homosexuality is a mental illness rather than a human rights concern. Hence the bill is the outcome of institutionalized homophobia.
Such targeted discrimination violates the right to equality enshrined in Ghana’s Constitution in Article 17(1). Discrimination on the premises of “gender, race, colour, ethnic origin, religion, creed, or social or economic position” is prohibited under Article 17(2). Different gender identities can be included in a liberal point of view of gender. Social status, on the other hand, might be determined by the position that queer individuals carry as a group within society. Underneath the equality and non-discrimination principle, the Constitution Review Committee (CRC) considered including the terms “sexual orientation” and “sex”. It imposed the standard of proving on the judiciary to reach a decision in its final recommendation. In the existing prejudices, the new proposed bill deals another blow, as it exacerbates the long-standing trauma by rendering the Queer community and its advocacy completely illegal, as well as imposing more severe imprisonment sentences.
The Witch-Hunt Bill
The bill aims to promote “Ghanaian family values” (Section 3) and prohibits Queer individual’s engagement, sexual intercourse, marriage, or any activity, including any surgery for sex or gender reassignment or any other procedure that can create a sexual category other than the sexual category of a person assigned at birth, and provides for imprisonment of “not less than three years and not more than five years or both.” Section 10 again prohibits and declares every marriage other than heterosexual as void. Section 12 states that any promotion, propaganda, or advocacy of the same will be penalized.
Any amount of assistance given to support an action prohibited by this legislation is illegal and punishable. Whoever violates this provision will be condemned to a term of imprisonment of not less than five years and not more than ten years if found guilty on summary conviction. Section 14 prohibits funding or endorsement of LGBTQ+ activities. If anyone is found to be doing so, they might be sentenced to prison for a period of five to ten years. Furthermore, any Queer Rights organization must be dissolved following Section 15. The proposed regulation indirectly recommends despicable and pseudoscientific treatments methods, including “conversion therapy” and other abhorrent violations of human rights, like - medical treatments on intersex infants and “corrective rape” for women, all of which amount to ill-treatment and are comparable to torture and are violations of international human rights.
Ghana’s Opprobrium in International Obligations
Ghana, as a member of the United Nations and the African Union, is a signatory to many regional and international instruments obliging it to protect Queer rights, such as equality, non-discrimination, privacy, and prohibition of torture, which inter alia includes the Universal Declaration of Human Rights (UDHR), the African Charter on Human and Peoples’ Rights (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 (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).
Regionally, ACHPR Resolution 275 urges African states to take concrete actions to prevent violence and discrimination premised on people’s legitimate or perceived gender identity and sexual orientation. Furthermore, Ghana is bound by the notion of “Pacta Sunt Servanda” within the realm of international human rights law, following the amalgamation of UDHR, ICCPR, and ICESCR, which collectively intend to protect the gender identity and sexual orientation rights of the individuals. In their preambles, all three instruments recognize the “inherent dignity and [...] the equal and inalienable rights of all members of the human family.”
These international obligations also recognize the individual’s right to self-identification and freedom of expression, which are fundamental to rights related to gender identity and sexual orientation (UDHR, Article 19-20; ICCPR, Article 19 and 22). Moreover, these obligations also protect an individual’s right to privacy and the prohibition of arbitrary interference with that as well (UDHR, Article 12; ICCPR, Article 17). Furthermore, these instruments are founded on the notion that all individuals are born free and equal in dignity and rights (UDHR, Article 1). Notwithstanding, Toonen v. Australia’s rationale that states cannot prohibit citizens’ human rights based on sexual orientation, Ghana’s new witch-hunt bill is intended to target the sexual minorities of Ghana because of their sexual orientation or gender identity and further criminalizes anybody who expresses empathy or provides assistance to Queer individuals.
The ‘Debate’
A leak of the bill ignited debate after the copy was widely shared. Parliamentarians Alban Bagbin and Sam George supported the bill and argued that because homosexuality is already illegal, there is no room for any deliberation in the fight against the Queer community. However, the bill has been strongly condemned by United Nations experts, who contend that it violates many international conventions to which Ghana is a signatory. United Nations Programme on HIV and AIDS (UNAIDS) also condemned the bill and urged rejection of the bill on the pretext that, if approved, this legislation will undoubtedly drive individuals further away from HIV prevention, care, and treatment facilities, jeopardizing the progress accomplished thus far.
There are no additional obligations further than the fundamental tenets of the UDHR, ICESCR, and ICCPR, which acknowledge an individual’s right to equality, dignity, privacy, and non-discrimination. The notion that internationally accepted non-discrimination principles are not complete is indicative of the same. Ghana must integrate its constitutional rights and freedoms, including its international responsibilities and the guidelines of the CRC, by interpreting its legal provisions much more meaningfully and comprehensively.
Conclusion
Individuals of the Queer community in Ghana are vulnerable because of existing prejudice and continuous physical or emotional harassment. They avoid approaching the authorities for rescue and justice because they are afraid of identification and prosecution. Criminalization might lead to a blatant violation of basic human rights. Ghana is a conservative country, and the bill's massive popularity stems primarily from conservative religious doctrine and intolerance of any expression of homosexuality. Thereby, unfortunately, the bill is anticipated to pass in Parliament to become official notwithstanding with harsh criticism calling it "worst homophobic document ever". Even if the Bill is passed by parliament, the president can either decide to sign it, or veto it. However, it is expected from the post-independence nation to tune with its constitutional obligations to protect Queer rights. Further, calls for political pressure on Ghana from the international community to disregard the bill.
An earlier version of this article appeared in Humanrights Pulse.
Sarthak Gupta is an undergraduate law student [B.A.; L.L.B] at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Human Rights & Gender Studies, and International Law.
Photo is by Nesta Amenyah and is licensed under CC BY-NC 2.0.
