Criminalisation of homosexuality in Ghana

Unfortunately, I had to take yesterday off owing to a bout of food poisoning. But now I’m fighting fit and back at work. I have finished my first assignment on the legal framework around the criminalisation of homosexuality in Ghana, Uganda and Nigeria.

The situation in Uganda and Nigeria has been well publicised. In February of this year the Ugandan President signed is assent to the Anti-Homosexuality Act (formerly known as the “Kill the Gays” Bill). Homosexual acts were previously illegal in Uganda, but the new Act goes much further towards criminalising homosexuality per se owing to the new offences of “attempted” homosexuality and “promoting” homosexuality. The offence of attempted homosexuality can be made out by any same-sex “touching”, by any part of the body, with any object or through anything, with "the intention of committing homosexuality”. It is therefore conceivable that arrests could be made for simply holding hands or hugging. NGOs working with sexual minorities to combat the HIV/AIDS epidemic, or landlords and families providing accommodation to LGBT people are now also at risk of being accused of “promoting” homosexuality.

The Nigerian Same Sex Marriage (Prohibition) Act was signed into assent in December 2013. This goes much further than simply criminalising same-sex marriage and, like the Ugandan Act includes provisions that will put NGOs and other organisations working to combat HIV/AIDS much more difficult. The Act also criminalises anyone who purports to be in a same sex marriage/civil union. The definition provided in the Act is so broad that it could include any two people of the same sex living in the same house, providing each other with mutual support – even if this is not a sexual relationship. The Act therefore places both homosexual and heterosexual people at risk of arbitrary arrest and detention and false accusations.

These are just a few of the difficulties arising from the Acts.

I was asked to focus on these areas as there is concern at HRAC that there is some appetite in Ghana for reactionary anti-homosexuality legislation to be passed. Consensual, private sexual acts between adult men is already criminalised in Ghana and is punishable by 5 – 25 years imprisonment. My analysis therefore also focused on the problems inherent in this aspect of the Ghanaian Criminal Code.

I considered two main areas:

• The compatibility of the Ugandan, Nigerian and Ghanaian law with their international treaty obligations; and
• The compatibility of Ugandan, Nigerian and Ghanaian law with their own constitutions.

My legal analysis concluded that the legislation in all three countries is deeply problematic. All three countries have ratified the International Covenant on Civil and Political Rights, which protects the rights to equality, dignity, privacy and freedom of expression, association and assembly. The United Nations Human Rights Committee, along with numerous other international and domestic courts and tribunals, has previously found that criminalising homosexuality breaches these rights (see Toonen v Australia UNHRC, Communication No. 488/1992, CCPR/C/50/d/488/1992, 31 March 1994).

All three countries have also ratified the African Convention on Human and People’s Rights, which also protects the rights to equality, dignity and freedom of expression, association and assembly. The African Commission has not expressly dealt with a case concerning the criminalisation of homosexuality, though it has made several pronouncements that national legislation that conflicts with international law is invalid (see for example Commission Nationale des Droits de l'Homme et des Libertés v Chad  Comm., No. 74/92 (1995); Media Rights Agenda and Others v Nigeria Comm., 105/93, 128/94, 130/94 and 152/96 (1998); Legal Resources Foundation v Zambia Comm., No. 211/98 (2001)). Earlier this year, the African Commission also passed Resolution 275 condemning discrimination on the grounds of sexual orientation and gender identity.

Finally, all three countries enshrine the rights to equality, dignity, and freedom of expression, association and assembly in their own Constitutions. Uganda and Nigeria also enshrine the right to privacy.

This is just a very brief summary of my complete analysis, which in the end amounted to 40 pages in total and included significant case law from the African Commission on Human and Peoples’ Rights, the UN Human Rights Committee, the Inter-American Court of Human Rights, the European Court of Human Rights, and domestic courts in Canada, the USA, Zimbabwe, South Africa, Fiji, India, the Philippines, Nepal, Ecuador and more.

It is intended that this document will be used as a lobbying tool for HRAC to assist in their LGBT advocacy efforts.

If anyone is particularly interested in this issue, I would recommend they visit the website of the Human Dignity Trust, which has a wealth of information available: www.humandignitytrust.org