The Supreme Court has held that the fact that some countries, through judicial pronouncement and legislation, have legalised homosexuality, does not mean Ghana should apply those laws, stressing that homosexuality and other forms of unnatural carnal knowledge remained a crime under the laws of Ghana.

In a judgment detailing why it upheld the law criminalising unnatural carnal knowledge, the apex court held that it could not simply accept foreign laws which were not in tune with the values of Ghana or were at variance with the laws of the country, particularly the 1992 Constitution.

“The law’s utility thus becomes waste, if it is just transportation of alien cultural values and ideas which have no foundation at all with the peculiar social factors in our legal system” the court held.

Unnatural carnal knowledge

The court held that Section 104 (1) (b) of the Criminal Offences Act, 1960 (Act 29), which criminalised unnatural carnal knowledge does not violate the 1992 Constitution, and therefore any form of sexual intercourse which does not involve the “penetration with a penis into a woman’s vagina” remained a crime.

“Therefore, any sexual intercourse with a person or animal other than through the means of penetration with a penis into the female vagina is unnatural and criminalised under Section 104 of Act 29,” the court stated.

“Such situations include sodomy and bestiality which is carnally knowing an animal or where a person allows an animal to carnally know that person,” the court held.

Unanimous decision

The court made the pronouncement after throwing out a suit by the plaintiff, Dr Prince Obiri-Korang, who wanted the court to recognise the rights of homosexuals, arguing that such people were discriminated against under Section 104 (1) (b) of Act 29, and was thus unconstitutional.

Dr Obiri-Korang further argued that Section 104(1) (b) of Act 29, violated the right to privacy and liberty, as respectively provided under Article 18(2) and 14(1) of the 1992 Constitution
The court held that although the plaintiff had made an extensive argument in support of his case, most of his arguments were based on laws of other countries, which could not be accepted and applied in Ghana.

The unanimous decision by the seven-member panel of the apex court, which declared Section 104(1) of Act 29 as constitutional and thus, upholding the 64-year-old criminalising unnatural carnal knowledge was authored by Justice Issifu Omoro Tanko Amadu.

Peer pressure

In a concurring opinion, Justice Emmanuel Yonny Kulendi held that the fact that some countries have accepted homosexuality does not mean that Ghana should do the same.

“Whilst the constitutions and laws of other nations may have expressly legalized homosexuality, glorified gay marriages and by way of affirmative actions, promulgated legislation to propagate, outdoor, evangelize, preach and sell the notions of homosexuality to every fabric of those societies, Ghana as a nation, and for that matter this Court, cannot by "peer pressure" be cajoled into adopting similar stance” he stated.

Again, he held that the 1992 Constitution does not recognise homosexuality contrary to the view of the plaintiff, but rather upholds family and cultural values which frown on the practice.
He cited Article 28(1) of the Constitution which enjoins Parliament to enact laws that would protect and advance the family as the “unit of society is safeguarded in promotion of the interest of children”.

Justice Kulendi wondered how the family could be created in line with the above constitutional provision if homosexuality and other forms of unnatural carnal knowledge were legalised in the country.

“It is difficult to see how the family could be created through a mode of sexual connection that threatens the most naturally ordained routes of conception.

It is equally uncertain as to how the family may exist with such engagements of unnatural carnal knowledge in the name of upholding privacy rights,” Justice Kulendi held.

The Supreme Court judge was also of the opinion that the various cultures and values in the country did not accept homosexuality, and since the Constitution recognised such values, Section 104(1) of Act 29 could not be said to be unconstitutional.

“It is without a doubt that the question of homosexuality borders on morals and traditional values. Society's denunciation is expressed in the criminalization of not only homosexuality but all forms of unnatural carnal knowledge stated in section 104 of Act 29.

This denunciation finds further expressions in other constitutional articles that promote family values. Thus, in the terms explained by the Plaintiff in this case, it is without doubt that the practice of homosexuality is unconstitutional. The criminalization of the same cannot therefore be said to be an affront to the Constitution,” Justice Kulendi added.
Privacy

The court also rejected the plaintiff’s argument that Section 104(1) (b) violated the right to privacy.

According to the court, the plaintiff’s argument that the law interfered with people’s privacy was untenable as such an argument could mean that the State should not criminalise certain actions which took place in private but were injurious to the public.

The right to privacy, the court added was not absolute, but subject to certain restrictions such as public safety, economic well-being of the country and public morality.