Did the decriminalization of libel through the repeal of the criminal libel law mean that libel was made legal in Ghana? No, libel is still a tort in our civil law and damages can be awarded against a person who makes libellous statements against another. I would like you to hold on to this thought for a moment.

Often times, decriminalization and legalization are used interchangeably or at worst the former is commonly viewed as resulting in the latter, both of which are very misleading.

Therefore, it is inaccurate to suggest that decriminalizing an act is synonymous with or leads to legalizing the act.

What is the difference between decriminalization and legalization?

At a broad level, Ghana’s laws can be categorized into civil law and criminal law. The civil law governs through prescription and prohibition our interactions that are of a private nature. It is so private, that the duty and right to resolve any infraction is placed on the individual.

They include contract laws, marriage laws, adoption laws, and land laws. For this reason, in a land dispute, it is up to the parties to the dispute and not the Attorney-General to resolve the dispute. The state cannot interfere with that dispute.

Most importantly, when we speak of the civil law, any resolution of the infraction is termed as a “remedy” which excludes imprisonment and fines. Some of the many remedies in civil law include; damages, specific performance and on occasion the forfeiture of rights.

Thus, in a land dispute, the remedy never includes imprisonment or a fine– save for contempt of court. The criminal law governs mainly through proscription our interactions that are of a public nature.

Put differently, our interactions that are significant enough to place the duty and the right in the state to address any infractions.

The criminal law includes the Criminal Offences Act 1960 (Act 29) and any other provision in any legislation that proscribes a particular conduct with a punishment attached to it. Consequently, when there is a theft, rape or murder, the Attorney-General and not the victim has the right and the duty to prosecute the offense.

Here, the consequence of an infraction is often referred to as a “penalty” which includes imprisonment and fines.

From the above, to be legal means to be enshrined in the law. Put differently, to be sanctioned in the civil law, criminal law or both the civil and criminal law.

For the reason that the criminal law is but one aspect of our laws it is more aptly refered to as a subset rather than synonymous with the word legality.

As already noted an act can be removed from the criminal law and still remain impermissible by the civil law. An example is the shameful Criminal Libel Law of yesteryear, which criminalized libelous statements. Often weaponized by the ruling party to imprison its political opponents.

Although it was decriminalized in 2001, it was far from legalized. For in torts law – civil law – a person can be held liable for making libelous statements. To make a libel statement against an individual may no longer be criminal but by no means is it legal, because it is “prohibited” under the civil law.

Therefore, a person would not be imprisoned for making libelous statements but may be found liable in civil law for defaming another person and may have damages awarded against them. Here, although libel statements have been decriminalized, libel statements have not been made legal.

On the subject of homosexuality, Ghana’s civil laws do not recognize homosexuality. For instance, section 66 of the Children’s Act 1998 (Act 560) does not recognize the right of adoption by homosexuals. Also, our marriage laws only recognizes heterosexual marriages.

All these laws in the category of civil laws are hugely influenced by our religion and customs as a people. On the other hand, section 104 of Act 29 criminalizes “unnatural carnal knowledge” – which is often referred to as the law that criminalizes homosexuality. It is punishable by a maximum sentence of three years.

As a consequence, Ghana has a body of laws both civil and criminal that do not provide any normative acceptance of homosexuality on one hand and on the other hand criminalizes it. Simply put, homosexuality is not legal in Ghana – both in civil and criminal law.

Therefore, when we say Ghanaians oppose legalization of homosexuality, we are referring to the disapproval of Ghanaians to using the law to sanction homosexuality.

By inference, I dare say that it speaks to the desire of Ghanaians in using the law to project its cultural and religious values that oppose homosexuality. It however does not reveal which category of laws – criminal or civil – that Ghanaians prefer to use as a tool to assert their values.

Consequently, the act of decriminalizing homosexuality is not sufficient to conclude that it is being made legal. It simply means that the state, as demonstrated with the decriminalization of libel, would no longer put homosexuals in prison.

Or put differently, that the state would not use the criminal law as way to disincentivize homosexuality but rather, the state would use other laws apart from the criminal law to discourage the practice.  

All other state sanctions meant to incentivize heterosexuality – and by implication disincentivize homosexuality – still remain in force. That is, homosexuals even in spite of decriminalization of unnatural carnal knowledge will still be excluded from the range of legally sanctioned benefits the state confers on heterosexuals – the right to marry, adopt and dispose of property within marriages.  

It is in this vein that homosexuality can be decriminalized and still not be legal because the civil law would still refuse recognition of homosexuality without which, the practice could not be correctly referred to as legal. This is the sense in which libel was decriminalized and yet remains illegal because our torts law creates a civil liability for libelous statements.

Why Ghanaians should decriminalize homosexuality without legalizing it

As a religious conservative country, Ghanaians have every right to demand that the laws reflect their religious and cultural values. I argue that even in a secular society such as ours, where a vast majority of the people agree on certain universal cultural and religious values, it is their right and in fact the duty of the government to sanction those core values as long as it does not harm a minority.

Our cultural and religious preference for heterosexuality has been rightly sanctioned in our marriage and adoption laws. However, there is evidence that the criminalization of homosexuality is not only harmful to homosexuals but also dehumanizes them.

It has been well documented by human rights organizations that; living under the specter of a possible jail sentence, homosexuals have been forced to live in an environment of abuse, unable to report violence against them for fear of being arrested themselves.

This state of affairs runs contrary to Ghana’s human rights obligations and religious values of compassion.

That apart, unnatural carnal knowledge being a victimless crime, is difficult if not impossible to enforce without breaching the privacy of Ghanaians. It is almost impossible to prosecute an intimate act between two consenting adults who do not view such an act as wrong because none of them would report it to the police. That is why there is no known record of prosecution of the act of “unnatural carnal knowledge” in Ghana.

The only value of such a law as part of state sanctioned religious and cultural values is that it is a strong moral statement. The criminal law as a reflection of a country’s moral values is arguably the strongest statement of its morals.

However, compared to our marriage and adoptions laws which can actually be enforced, it is clear that our criminal law is of little value other than just a statement of our values. Where, as a statement of values, homosexuals are subjected to violence, it must be abandoned.

In conclusion, often times the discourse on this subject has been characterized by the lack of this important distinction. Whenever the members of the gay community advocate for the decriminalization of homosexuality, the discourse often turns into whether the country should legalize homosexuality.

This is at best a misunderstanding and at worst a distortion of the issue at stake. Therefore, it is possible for Ghanaians to oppose legalization of same-sex relationships whiles supporting the decriminalization of homosexuality.

By so doing, homosexuality would remain impermissible under our civil laws but would be removed from the criminal law as has been achieved by the decriminalization of libel. By understanding the difference between the two concepts we can appreciate that these are fundamentally different questions.

I concede that my position would be violently objected to by the most conservative and the most liberal of Ghanaians. It is intended to be. It is a middle ground, where no one really wins or where everyone wins, depending on how you see things.

The author, Michael Owusu – Frimpong is a Social Philosopher

Conscious compassionate conservative.