The crusade against decriminalization of homosexuality – which law criminalizes it in Ghana?


This week has seen an MP renew the debate against decriminalization of
homosexuality in Ghana. MP Rev. Ntim Fordjour has attracted
significant media coverage urging his colleagues and the nation to
resist what he says are attempts by external forces to lobby or force
a change in Ghana's laws against homosexuality.

He mentions the constitution as proscribing homosexuality but does not
help us with any reference to the said specific provision. Truth is,
there is no such provision in the Constitution. But he is not alone in
this claim even as a law-maker. Many continue to say Ghana's
constitution prohibits homosexual relations without pointing to the
said provision.
The law that ought to be referenced is the Criminal and Other Offences
Act, 1960 (Act 29). But does it criminalise homosexuality? I will get
there shortly but first this discussion reminds of my approach to the
debate on narcotics (wee) or abortion in Ghana where I said last year
that wee is NOT illegal in Ghana.

The manufacture, cultivation, exportation, importation, possession,
injection, smoking, sniffing etc "WITHOUT lawful authority" or
"WITHOUT licence" or "WITHOUT lawful excuse" is what is prohibited in
Ghana. The law says licence is to be obtained from the Secretary for
Health - now Minister of Health. So, all that must be done in Ghana is
the mechanics of obtaining the LAWFUL authority or licence or excuse.

On abortion, I elected also to say it is not illegal as if always said
because the law provides for legal abortion under specific conditions
including when the life of a mother is in danger if she is to carry
the pregnancy to term or deliver. A writer puts it this way "when
there are medical indications, that is when there are somatic and
possibly when there are also psychiatric counter indications, to
pregnancy and childbirth." My problem with the 'abortion is illegal'
shouts is that that encourages it being done in the wrong way in the
wrong places resulting in unnecessary deaths or life-threatening
complications. The law requires that it is done on the advice of and
by certified physician (gyne) and at the appropriate hospital –
government hospital.
If the law did fully successfully categorically proscribe
homosexuality, the Constitution Review Commission would not have
recommended that "the legality or otherwise of homosexuality be
decided by the Supreme Court if the matter comes before the Court."
The law (Act 29) in section 104(1)(b) is that a person who has
consensual unnatural carnal knowledge of another person of not less
than sixteen years of age commits a misdemeanor.

Now here is the problem – unnatural carnal knowledge as defined at
common law involves penile penetration of anything other than a
vagina. Clearly, this law does not catch lesbian relations where there
is no penile penetration. It obviously relates to only gay relations
and when a man penetrates a woman by a channel other than the vagina.
Consequently, the anti-homosexuality crusade should rather target an
amendment to the existing law to include lesbian and associated
unnatural sexual relations generally known as homosexuality.

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