LEGAL ARGUMENTS FOR THE RECOGNITION OF SAME-SEX MARRIAGE IN GHANA: EFFORTS TO LEGITIMATE A RETREAT FROM MARRIAGE BY REDEFINING MARRIAGE IN OUR GHANAIAN SOCIETY.
6/30/2012 1:13:51 PM -
| '' We are an aspiring people, a people with faith in progress. Our amended constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. The ambiguity of course, calls for interpretation, the interaction of reader and text'' |
Justice William Brennan Jr.
There is increasing and polemic attacks on people perceived to be practicing homosexuality in Ghana. The verbal and sometimes the physical attack has left many wondering whether our current state of laws guarantees one the right to practice homosexuality like any other rights guaranteed under the 1992 Constitution of Ghana. This polemic and incessant attacks was fuel when the Minister for Western Region of Ghana, Paul Evans Aidoo called on all house owners to give up tenants who practice homosexuality to the police for arrest and prosecution in the law courts. With the brouhaha generated in Ghana, it is incumbent on human rights activist and academic scholars to dispassionately look at the issue of homosexuality, taking into consideration the cultural and psychological mind-set of the indigenous Ghanaian. This position paper sketches the legal and political landscape related to marriage for same-sex couples, distilling and analyzing the key issues that are often obscured in both judicial opinions and the rapid-fire public debate, taking into consideration, the ingrained cultures of the people of Ghana vis a vis the practice of homosexuality. The issue to be addressed will include the long-standing debate as to whether human rights are universal or relative. Which of these dichotomies does the legal regime of Ghana falls, and why? These questions are among the issues that have been addressed in this article. The concluding part of the article makes recommendations on the way forward in this country, where homosexuality is seen as evil and not a right.
The moment may be fleeting in Ghana, but at this writing the power of religious Rights is on the wane. Its moral pretentions have been shaken by high-profile scandals involving sex, drugs and influence peddling. At the same time, issues of homosexuality seems to be enjoying a minor renaissance just now or at least an unusual amount of media attention. The recent media expose' of the issue of homosexuality and subsequent condemnation and threat to inflict wounds on homosexuals in Ghana brings to fore, the constitutional and legal regime regulating homosexuality in Ghana. Whiles some have condemned the act; others have vehemently supported their act, citing the constitution and fundamental human rights as the bases for such a conclusion.
Regardless of the arguments for or against, the issue of homosexuality goes far beyond what has been said about it. It borders on the constitutional provisions and laws regulating the act in Ghana.
In addressing the issue of homosexuality in the light of the recent events in Ghana, this article will fall under the following heading:
I. The Concept of Marriage and Same Sex Union
II. Human Rights Issue and Homosexuality in Ghana
III. The Laws of Ghana and Homosexuality
IV. Conclusion and Recommendation
2. THE CONCEPT OF MARRIAGE AND SAME SEX UNION MARRIAGE
In our part of the world, marriage is held in high esteem due to its religious, political, economic and social significance. Marriage remains a very social institution in Ghana and Africa as a whole. The main purpose of marriage and customary law appears to be perpetuation of the human race. This is given the impetus by section 41(3)(c) of the Matrimonial Causes Act, 1971)(Act 367) which says barrenness and sterility are a ground for divorce if the marriage is a customary marriage.
The Matrimonial Causes Act of Ghana with all intends and purposes seem to postulate that, marriage is the union between one man and one woman to the exclusion of all others. Hence, prove of adultery on the part of any of the partners could lead to the dissolution of the marriage in Ghana. Though, no specific legislation defines what marriage is in Ghana, it seems that, marriage as defined is the union between one man and one woman to the exclusion of all others. Christianity may have largely influenced monogamous marriage in Ghana with subsequent endorsement by legislation. The law in Ghana incorporates the English policy, which regulates marriage, though Ghanaians are polygamist by custom. This calls for a brief analysis of what marriage is meant to the English.
In the English law at least, marriage is an agreement by which a man and a woman enter into a certain legal relationship with each other and which creates and imposes mutual rights and duties . Looked at from this point of view, marriage is clearly a contract, though a distinct form of contract, and consequently it is sui generis in many respects.
The classic definition of marriage in English law is that of the position stated by Lord Penzance in the case of Hyde v. Hyde , as
''I conceive that marriage, as understood in Christendom, maybe defined as the voluntary union for life of one man and one woman to the exclusion of all others.''
It will be seen that, this definition involves four conditions; first and foremost, the marriage must be voluntary. Secondly, it must be for life. Thirdly, the union must be heterosexual and fourthly, it must be monogamous. Neither spouse may contract another marriage so long as the original union subsists. This position confirms the churches influence of marriage prior to enactments of legislations.
It is trite law that, the common law became part of our jurisprudence when the English law was introduced into the Ghanaian legal system through the Supreme Court Ordinance of 1876. Section 14 of the Ordinance provided that:
'the common law, the doctrines of equity, the statues of general application which were in force in England at the date when the colony obtained a local legislature, that is to say, on the 24th of July 1874, shall be in force within the jurisdiction of the court'.
The ordinance made the common law part of the laws of the then Gold Coast (now Ghana). Through it, the body of laws known as family law, including that of marriage became part of the laws of Ghana. As of that date, most of the fundamental principles for the recognition and enforcement of marriage in Ghana has been settled.
The elements of marriage explains above makes it clear that, marriage as defined and understood is to the exclusion of homosexuals. Marriage as explain is a form of contract. However, as a distinct contract, marriage is the only contract that bestows status. It can be argued that, marriage bestows status on those who choose and otherwise capable of entering into it and the creation of relations between them. The status bestowed by marriage is of course that of 'husband' and 'wife' and the relation between husband and wife is the form of life that marriage alone creates. To make it plain, marriage inherently is heterosexual in form and practice. From this, it can be said that, marriage is unequivocally the unity of opposite sex, which is husband and wife. The common law position is still in force in Ghana with consummation an essential part of marriage.
SAME SEX UNION
Same-sex marriage or union (also known as gay marriage) is marriage between two persons of the same biological sex or social gender. The introduction of same-sex union or marriage has varied by jurisdiction, resulting from legislative changes to existing laws, courts challenges based on constitutional guarantees of equality, or a combination of both. In some countries, allowing same-sex couples to marry replace a previous system of civil unions or registered partnerships.
With this preliminary background of marriage and same-sex union in mind, it can rightfully be argued that, the recognition of same -sex union in Ghana marks a complete departure from the traditional, cultural and legal mode of contracting marriage in Ghana. Such a departure will therefore require an unambiguous worded statute to bring about the recognition of any form of marriage other than what is traditionally known to exist between man and woman.
3. HUMAN RIGHTS ISSUES AND HOMOSEXUALITY IN GHANA
The issue of homosexuality as human right issue brings to the mind, the debate and issues of what constitute human rights. Whether everything branded 'nicely' as human rights qualifies to be universally accepted as such and hence whether human rights upheld in one country can trigger and led to the same situation in another country. Homosexuality as it is known, started in the Western world and United States to be precise.
The issue as the universal acceptance of a practice, including homosexuality brings to fore once more the long-standing debate between universalism and cultural relativism under human rights, which to some extent social scientist and human rights scholars have barely found acceptable symmetry in this ideological standoff. Where as the nexus between the two ideologies is largely sustained by conservatism and liberalism, both pulling from different sides, its distinct features still remains intact.
Proponents of universalism assert that everyone is endowed with certain entitlements merely by reason of being human, and that such rights should be universal to the extent of their nature. To them, human rights are thus conceived in a Universalist and egalitarian fashion. Such entitlements can exist as shared norms of actual human moralities, as justified moral norms or natural rights supported by strong reasons, or as legal rights either at a national level or within international law.
On the other hand, cultural relativism is the view that no culture is superior to any other culture when comparing systems of morality, law, politics or religion. It's the philosophical notion that all cultural beliefs are equally valid and that truth itself is relative, depending on the cultural environment. Those who hold unto cultural relativism share in the opinion that all religious, ethical, aesthetic, and political beliefs are completely relative to the individual within a cultural identity. Relativism often includes moral relativism, (that ethics depend on a social construct), situational relativism (where right or wrong is based on the particular situation), and cognitive relativism (truth itself has no objective standard). Left without dialogue, the two ideologies remain antagonistic.
For a fact, one of the most relatable issues of the past twenty years has been the dispute between two different ideologies of human rights on a global scale, universalism, and cultural relativism. Universalism holds that more 'primitive' cultures will eventually evolve to have the same system of law and rights as Western cultures. Cultural relativists hold an opposite, but similarly rigid viewpoint, that a traditional culture is unchangeable to its enthusiasts.
From these two ideologies, will Ghana put aside its distinctive culture and embrace homosexuality in the name of universality and concepts?
This question brings to mind the underlying concept of the African Charter on Human and Peoples' Rights to which Ghana is a signatory. Unlike its counterparts, the African Charter recognizes in addition to individual rights the collective or group rights or peoples' rights. As such the Charter recognizes group rights to a degree not matched by the European or Inter-American regional human rights instruments. The charter not only awards rights to individuals and peoples, but also includes duties incumbent upon them. The duties recognize include those towards the family and the State security. The rights and freedoms of each individual shall be exercised with due regards to the rights of others, collective security, morality and common interest.
The African Charter on Human and Peoples Rights confirms the long cherished view that, human rights cannot be a universal concept and limited to particular people and places. Hence, when it comes to the issue of homosexuality, African Countries including Ghana has every right to legislate against it if it will lead to collective well being of the people in African. It can therefore be argued that, homosexuality is alien to our customs and traditional settings, henceforth; it can be legislated against in Ghana. However, it is of the view of this writer that, unambiguous legislation should be enacted to make it illegal for one to engage in the act of homosexuality. This will lead to the fulfillment of the very Charter as African unanimously accepted and voted for during the 1979 Assembly of Heads of State and Government in Banjul. This aspect of the article intends to catalyze sound argument founded in law and not sensationalism and sometimes monomaniac arguments either for or against the rising issue of homosexuality in the country, given that cultural relativism is an exact antithesis to universalism and as Africans, we have a rich culture excluding homosexuality to protect.
4. THE LAWS OF GHANA AND HOMOSEXUALITY
Understanding the laws of Ghana vis a vis homosexuality calls for the interpretation of the laws that deals with the subject under consideration. It must however be noted that, since the issue of homosexuality has not been adjudicated upon in any court within the jurisdiction, the writer will employ broad, liberal and generous interpretation taking into consideration the core values and principles of the Ghanaian populace when it comes to homosexuality. The laws to be discussed will be limited to the Matrimonial Causes Act 1971(Act 367) and the Criminal Act 2007 (Act 741).
THE 1992 CONSTITUTION
The 1992 Constitution of Ghana is the fundamental law of Ghana to the extent that, any law found to be inconsistent with the provisions of the Constitution is declared null and void. Arguments for homosexuality in the world call for proper interpretation of the legal framework within various jurisdictions. It seems palpable clear that, there exist a Universalist argument accepted and adopted by all who embraces homosexuality. Such arguments among others is not limited to the idea that, marriage as defined to mean heterosexual union bars same-sex marriage or union, this rule distinguishes between heterosexual and homosexual couples because it denies the latter access to the regulatory regimes that govern and constitute marriage at law, that this distinction is discriminatory and violative of the equality rights of homosexuals provided by Article 15 (1) and 17(2) because equality protects and expresses human dignity, because dignity is violated when the person or claimant is subjected to differential treatment on an enumerated or analogous ground reasonably feels his or her dignity is demeaned by that treatment, and that the effect of the treatment is to perpetuate or to promote the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of the Ghanaian society. In a nutshell, they argue that, confining marriage to men and women unreasonably infringes the equality rights of homosexuals and is therefore constitutionally unacceptable in a free and democratic society such as Ghana. Implicit in this argument is the idea that, marriage must be reformulated as the voluntary union for life of two persons to the exclusion of all others. Another argument is the universal human rights issues and the argument of equality before the law. My primary concern here is, whether such Universalist argument is sounded in law, culture and traditional history of Ghanaians. The Constitution of Ghana regulates the conducts and acquisition of citizens in Ghana. One of the laid down procedure for the acquisition of citizenship in Ghana is through marriage. Article 7 (1) of the Constitution of Ghana states among others that, a woman married to a man who is a citizen of Ghana or a man married to a woman who is a citizen of Ghana may upon making an application in a manner prescribed by parliament be registered as a citizen of Ghana. This Constitutional provision makes it clear that, the only valid recognizable marriage is the one that take place between a man and a woman or the one that bestows the status of 'husband' and 'wife'. Once a person satisfies this requirement, he can be granted citizenship of Ghana. More intriguing and thought provoking is the provision under Article 9 (3) of the 1992 of Ghana. Article 9 (3) of the Constitution empowers the High Court on an application made for the purpose by the Attorney General to deprive a person who is a citizen of Ghana other than by birth of that citizenship on the ground that, the activities of that person are inimical to the security of the State, or prejudicial to the public morality or public interest. This brings us to the point of what constitutes human rights in Ghana and how will the Supreme Court approach the issue of homosexuality if it should arise in the Court? The Supreme Court has made it clear that, the interpretation of the Constitution especially those of the fundamental human rights should be construed in a broad, liberal, generous or expansively mode, taking into consideration the spirit of the constitution, history, our aspirations, core values, principles, and with a view to promoting and enhancing human rights rather than derogating from it. The doctrinaire approach the Supreme Court held should be discarded. This was the judgment rendered in the case of Centre for Human Rights and Civil Liberties v. The A.G and the Electoral Commission Writ No. J1/5/2008. In another vain, the Supreme Court in deciding a case that borders on the fundamental human rights of a person observed that,
'we must always guard against a sweeping invocation of fundamental human rights as a catch-all defence of the rights of defendants. People tend to overlook the fact that the Constitution adopts the view of the human rights that seek to balance the rights of the individual as against the legitimate interests of the community. While the balance is decidedly tilted in favour of the individual, the public interest and the protection of the general public are very much part of the discourse on human rights in our Constitution. Thus article 14(1) (d) makes it clear that the liberty of certain individuals, including drug addicts may be curtailed not only for the purpose of their own care and treatment, but also 'for the protection of the community.' Article 14(1) (g) sanctions the deprivation of an individual's liberty upon reasonable suspicion of the commission of an offence under the laws of Ghana, ostensibly for the protection of the community and the body politic.'
The holding of the two cases brings to mind the endorsement of the cultural relativist ideologies on human rights by our Courts. Implicit in the two cases shows that, the courts in deciding on what constitutes human rights will aver it minds to the customs, traditions and what is in the interest of the community as a whole. This makes it clear that, our cherished culture will simply not be sacrificed on the alter of things that runs contrary to it. This interpretation of the constitution as per the yardstick of the Supreme Court cases makes it clear that, any interpretation of the constitution especially aspects of the fundamental human rights must conform to the ideologies of the cultural relativist position. Hence, the fundamental human rights will be limited when it contradicts or runs contrary to the collective interest of Ghanaians that has subsisted over thousands of years.
This aspect of the article bring to fore that, arguments in favour of homosexuality is narrowly made and need not be given currency in our jurisprudence. The authority of the law, should in accordance with the Supreme Court cases be in the maintenance and sustenance of the community's past.
5. THE MATRIMONIAL CAUSES ACT, 1971(ACT 367) AND THE CRIMINAL AMENDED ACT, 2007 (ACT741).
The final analysis of this article intends to discussion the two mentioned Acts and making clear the misinterpretation that have been place on them. The MCA of Ghana regulates marriages contracted in Ghana. It's therefore pertinent to note some of the provision juxtaposing it with arguments for homosexuality. The MCA incorporates the traditional and customary mode of marriage in this country that bestows the status of husband and wife. This impetus to marriage as regarding that of a man and a woman makes homosexuality an unacceptable marriage in Ghana. Section 2 of the MCA requires a petitioner to a divorce to prove the breakdown of the marriage. In satisfying the test of the breakdown of the marriage beyond reconciliation, Section 2(1) (d) requires the petitioner to prove that, among others, the parties have not lived as man and wife for a continuous period of at least two years immediately proceeding the presentation of the petition and the respondent consents to the grant of a decree of a divorce. The above provisions, clearly re-enforces the definition of marriage as between one man and one woman to the exclusion of all others. This is an acceptance of the customary law position. Further is the requirement of the MCA that, marriage may be voidable on ground that, it has not been consummated owing to the willful refusal of the respondent to consummate it. Moreover and a more intriguing aspect is the fact that, if at the time of the marriage, the respondent is pregnant by some other person other than the petitioner, the marriage becomes voidable. Like the customary marriage, procreation is an essential part of the marriage.
From the analysis above, homosexuality is excluded in any form of marriage properly so called in Ghana. This is due to the fact that, consummation of the marriage is absent in homosexuality. More so is the ability of the partners to procreate through pregnancies. Henceforth, the Constitution of Ghana does not support any other means of marriage that threatens the sustenance of family units in Ghana.
The Criminal Act of the Ghana makes it vivid when it proscribes homosexuality in no uncertain terms. Under section 104(1) and (b) and 104(2) elucidates the position that homosexuality is not acceptable and hence criminal offence in Ghana. It provides as follows,
Section 104(1) whoever has unnatural carnal knowledge
a. of any person of the age of sixteen years or over without his consent shall be guilty of a first degree felony and shall be liable on conviction to imprisonment for a term of not less than five years and not more than twenty-five years; or
b. of any person of sixteen years or over with his consent is guilty of a misdemeanor; or
Section 104(2) Provides that unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner or with an animal.
Notably in this sections of the Criminal Act is the use of the expression 'his' and 'unnatural'.
The use of the word ''his'' and ''unnatural'' re-enforces and brings to mind the argument that, homosexuality, that is same-sex union between two male persons is unacceptable in Ghana. It is unnatural in the sense that, it falls outside the ambit of what is natural, that is marriage between one man and one woman to the exclusion of all. Those in support of homosexuality make no sense and are just engaging in what I refer to us ''extrapolative legal arguments''. The dual-gender requirement of marriage is based upon the inherent sexual complementarity of husband and wife.
The aspect of the Criminal Act further brings to the light the argument of freedom to privacy guaranteed by the Constitution of Ghana. Supporters of homosexuality in Ghana argue that, the act of homosexuality takes place in the privacy of homes of peoples involved or the actors involved. Hence invading peoples home to effect arrest of what takes place in peoples privacy amounts to unconstitutionally intrusive searches. They argue that, the Constitution frowns on such adventure by the law enforcement agencies in their quest to effect arrest of homosexuals. However, this argument lacks substance and water. This is due to the fact that, such an argument ignores what sort of rights the freedom to privacy entails. To the best of my understanding, freedom to privacy is a civil right, a right created and guaranteed by laws. Unlike natural rights, civil rights can be limited or taken away by properly enacted legislation to that effect. In our jurisprudence, what the Criminal Act of Ghana per section 104 seeks to do is to limit the rights to privacy to homosexual acts and extinguish in Ghana. This is due to the fact that, whether or not homosexual acts is consented to or not in the privacy of peoples home, its still an infringement on the laws of Ghana and punishable by the laws in Ghana as well. This aspect of the Criminal Act of Ghana is in consonance with Article 18(2) of the Constitution of Ghana. Article 18(2) stipulates that, ''no person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in free and democratic society for public safety or economic well-being of the country, for the protection of health or morals , for the prevention of disorder or crime or for the protection of rights or freedoms of others''. Section 104 of the Criminal Acts of Ghana falls under this exception of Article 18(2) of the 1992 Constitution. Section 104 is geared towards the protection of public health or morals and also for the protection of crime. Since homosexual acts is a crime in Ghana per the Criminal Act, section 104 is enacted to prevent such an act where ever it takes place, even in peoples home, henceforth people cannot used the argument of privacy to sustain the act of homosexuality. Once this aspect of the Criminal Act of Ghana seeks to protect the health and morals of the people of Ghana, any intrusion in people's privacy in search of traces of homosexual conduct in sustaining prosecution of persons involved is constitutional and acceptable within our jurisprudence.
The forgoing analysis, according to the view of this writer is to the effect that, homosexuality is not grounded in law and has no foundation to be tolerated in Ghana. Homosexuality is a disease that needs the attention of all and sundry.
6. CONCLUSION AND RECOMMENDATIONS
In conclusion, this article sets in motion whether the debate between universalism and cultural relativism, as expressed in international human rights fora, assists the resolution of conflict and anarchy generated by the perceived presence of homosexuals in our jurisdiction. It therefore brings to bear what marriage entails in our jurisdiction, and as to whether marriage defined entails homosexuality. It can be rightful concluded that, from the forgoing analysis, our laws do not condone and accept homosexuality. It is a criminal offence as at now, any attempt to accept homosexuality should be brought about by an unambiguous legislation, either by the legislatures or by the judicially through their power of interpretation.
However, it is of my view that, since the constitution promotes tolerance rather than homophobia, the entire public must exercise restraint and cease the polemic attacks on perceived people deemed to be homosexuals. As an offence against our laws, people should reports such acts and be prepared to provide substantially incontrovertible and accurate prove that will lead to conviction of people involved. However, until now, everybody in Ghana is deemed innocent until proven guilty. The question then remains, are you innocent?