In a deeply disappointing ruling, Ghana’s Supreme Court has chosen to uphold a colonial-era law that criminalizes consensual same-sex conduct, despite the country’s clear human rights obligations.
This decision comes at a time when Ghana is grappling with a contentious debate over a draconian anti-LGBT bill, which would further exacerbate the persecution of sexual and gender minorities and their allies.
According to Rasha Younes, interim LGBT rights director at Human Rights Watch, “Ghana’s Supreme Court has regrettably perpetuated the British colonial legacy of criminalizing so-called ‘unnatural sex’.”
Younes emphasized that “the law had been challenged on the grounds that it violated the constitutionally protected rights to privacy and personal liberties, rights that everyone has under international law, regardless of their sexual orientation.”
The law in question, Section 104(1)(b) of Ghana’s Criminal Offences Act 1960 (Act 29), inherited from British colonial rule, states that “whoever has unnatural carnal knowledge…of a person sixteen years or older, with his consent, is guilty of a misdemeanor.”
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The Supreme Court judges have expanded the interpretation of this section, seemingly adopting language from the anti-LGBT Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021, which specifically prohibits a person from engaging in any acts that undermine the proper human sexual rights and Ghanaian family values.
Prince Obiri-Korang, a law lecturer at the University of Ghana, had initiated the suit to overturn the law, arguing that it violated the constitutionally protected rights to privacy and personal liberties.
However, the Supreme Court’s ruling has dealt a significant blow to the hopes of Ghana’s LGBT community.
The ruling has sparked widespread criticism, with many calling for Ghana to respect the human rights of all its citizens, regardless of their sexual orientation or gender identity.
As Younes noted, “Ghana’s Supreme Court missed its opportunity to rid the country of its alien legacy of egregious colonial-era laws.
The court’s failure to uphold basic rights for LGBT people only further emphasizes why the president should veto the new bill.”
The new bill, passed by parliament in February 2024, awaits President Nana Akufo Addo’s signature.
If signed into law, it would expand criminal penalties for same-sex activities, increase the maximum penalty from three years to five years in prison, and punish anyone providing support, funding, or public advocacy for sexual and gender minorities’ rights.
