I have had the opportunity to review a number of draft legislations in my line of work as a legal policy person.

In reviewing draft legislations, one has to consider the object of the bill or the legislative gap the proposed bill seeks to fill. In other words, the ‘mischief’ the bill seeks to cure, as the lawyers would put it. One also has to pit the proposed clauses against constitutional provisions and court decisions to check if the proposed clauses are compatible with same.

International law and best practice(s) in other jurisdictions are also important yardsticks. Typically, a review is in the form of a memorandum to the relevant Parliamentary Select Committee recommending that problematic clauses identified be amended or expunged to ensure the passage of credible legislation. 

I point out these considerations to highlight the fact that this is the first time I have come across a draft bill that is so incurably deficient. The proposed private member bill; ‘Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021’ is so constitutionally flawed to the extent that no amount of amendment, tweaking or redrafting could possibly save it. 

Take Clauses 12-16 of the bill for instance. These clauses generally criminalise any form of association or advocacy for the rights of gay people including funding for such activities. Ghana’s 1992 Constitution guarantees the rights of all persons to assemble freely, to speak freely and bandy together to promote a cause. Our courts have given a number of decisions enforcing these rights, including the decision of the Supreme Court in the case of New Patriotic Party v Inspector General of Police [1993-94] 2 GLR 459—509.

In resolving the key issues in that case, Amua-Sekyi JSC observed that ‘[e]xcept in time of war, or when a state of emergency has been declared, it cannot be right for any agency of the executive to suppress the free expression of any opinion, however unpopular that opinion may be. The believer in absolutism and the anarchist, those who support and those who are opposed to abortion, those who favour and those who oppose equal rights of women—yes, lesbians and homosexuals too—are all entitled to the free expression of their views, and the right to assemble and demonstrate in support of those views and to propagate those views.’ [Emphasis added]

Given the relevant provisions of the Constitution guaranteeing these rights and the decisions of the courts enforcing same, Clause 12-16 of the bill seeking to criminalise any form of association or advocacy for the rights of gay people is inherently flawed, in my view. No amount of amendment or redrafting can salvage these clauses to make them compatible with the Constitution. 

In a democratic dispensation where the rights of all persons, including social minorities, are guaranteed under the Constitution, any legislation seeking to target and single out LGBT+ persons or gay rights advocates for such unfair treatment further marginalises and victimises them and sets a dangerous precedent for the treatment of unpopular minorities in general.

The proponents of this piece of legislation need to understand that treating other persons unfairly does not guarantee equal justice for anyone.