A human rights critique of Ghana's Anti-LGBTIQ+ Bill of 2021

Abstract

The Ghanaian Parliament is currently considering the passage of a law to re-criminalise consensual same-sex conduct between adults in private. If passed into law, the Anti-LGBTQ+ Bill will usher in a 'second wave' of criminalisation of lesbian, gay, bisexual, transgender, intersex, queer (LGBTIQ+) conduct and related activity. Section 104(1) (b) of the Criminal Offences Act of Ghana already criminalises 'unnatural carnal knowledge', which targets sexual conduct between persons of the same sex. The proponents of the Bill, a group of parliamentarians, argue that homosexuals do not have rights that can be protected by law. They also argue that homosexuality is against the culture and religion of most Ghanaians and, therefore, should be criminalised. The proposed law seeks to uphold the sanctity of a so-called Ghanaian family and cultural values by criminalising the right to free speech, including academic freedom; freedom of movement and association; and imposes an obligation on every Ghanaian to promote the contents of the Bill, including reporting homosexuals and homosexual activity to the police. This article argues that the foundational argument on which the Bill hinges is flawed, misconceived, and a total mischaracterisation of fundamental human rights enshrined in the 1992 Constitution of Ghana. In addition, viewed from a socio-legal, historical and anthropological perspective, the Bill is an unnecessary and misconceived exercise which, if successful, would derail the democratic gains Ghana has made over the years. Overall, the central arguments in support of the Bill fall short of the minimum threshold to limit the constitutional rights of persons in Ghana.