The Question Of Gay; Criminalize Or Legalize

It is fact that the gay issue which gain currency at the beginning of this year has been swept under the carpet due to the hazy political climate with regards to pink sheets, amicus curie, clerical errors and transpositional errors. But what affect our societal fabric must be given urgent attention because to a large extent it has the tendency to affect our way of life.

The gay question must be responded with precision in order to save the country time to be debating on ambiguities. To answer this question competently, the Ghanaian position must be lucid, and on this issue, there are three positions that the country can take i.e. for gayism, against gayism or indifference.

The position of a country must necessarily be reflected in it laws. It is instructive to note that in the recent past people have been convicted in this country on the score of been gays but under the 'indecent exposure.' This case was reported by the Daily Graphic in 2003. Mark S. Luckie, author, Somewhere over the rainbow, writes,

'The majority of gay men and women in Ghana do not profess their sexuality because of section 104 of the Ghanaian Criminal Code that makes "unnatural carnal knowledge" a crime.'

For the sake of clarity, section 104 reads,
'(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 misdemeanour; or

(c) of any animal is guilty of a misdemeanour.'
Then section 104 (2) defines unnatural carnal knowledge as,

'(2) Unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner or with an animal.'

It is important to note that there is no offence as homosexuality in our laws. So whenever cases of gayism arise, the best channel is the back door of 'indecent exposure' and 'unnatural carnal knowledge.' My headache is why don't we as a country take the bold step of making a law to criminalize or decriminalize homosexuality? This is because the position of the country is clear. It can be recalled in late August 2006 when an international conference of gays and lesbians was supposed be to held in Ghana, the public outrage sparked an intense national debate that brought homosexuality to the forefront of the national agenda.

President Kufour's government announced a ban on any such conference and said criminal sanctions would be imposed on anyone involved in its organization. Minister of Information and National Orientation then, Kwamena Bartels issued a statement condemning the conference.

"The government (would) like to make it absolutely clear that it shall not permit the proposed conference anywhere in Ghana," the statement continued. "Unnatural carnal knowledge is illegal under our criminal code. Homosexuality, lesbianism and bestiality are therefore offences under the laws in Ghana."

"The government does not condone any such activity which violently offends the culture, morality and heritage of the entire people of Ghana," the statement read. "Supporting such a conference, or even allowing it, will encourage that tendency which the law forbids."

In January 2012 when homosexuality again became a topical issue because of the threat by British Prime Minister David Cameron and US President Barrack Obama to redraw aids to Ghana should the country remain obdurate on the issue, the response in terms of public anger and President Mills was obvious. Myjoyonline.com wrote,

'President John Evans Atta Mills says the Ghana Government stands by its position that homosexuality is against the culture and norms of Ghanaians and, therefore, the government would not go against the wishes of the people.

He said the (his) government will not support the practice of homosexuality so long as Ghanaian society frowns on it.'

The online news agency further quoted President Mills' as saying,

'Democracy means government of the people by the people and for the people. And if the people do not want it, no responsible leader will go against the wishes of the people.'

When international gay activist, Andrews Solomon, popped up as a friend to President Mahama, the Minister for Information and Media Relations, Mahama Ayariga under the authority of the President with alacrity and a strong worded statement debunk the news and further stated at a press conference that,

'The President is to execute the laws of Ghana. And the laws of Ghana are very clear on homosexuality, the laws of Ghana appall and criminalize homosexuality; there is no dispute about that. Homosexual conduct which is unnatural carnal knowledge of one person or another is criminal and punishable by the laws of Ghana,'

Again, surprisingly, there is no offence as Homosexuality. Meanwhile, the 1992 constitution makes it clear in article 19 (11),

'No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.'

This question has travelled from President Kufour through the late President Mills to President Mahama, why hasn't Ghana made the frantic effort to sponsor legislation to make homosexuality a criminal offence; defined and its penalty prescribed? The hard truth is that the opinions of Presidents or their appointees do not matter in the face of what constitute an offence in the face of our laws.

Some have argued that homosexuality is an issue of morality so let's leave it as it is. But I humbly contend that throughout human history when morals issues keep popping up in national discussions, such moral issues have always been coded into law. So why are we dragging our feet into making homosexuality a criminal offence? Or legalize it and open the flood gates for immoral activities which come with it.

There is no need denying the fact that we all know where this gays and lesbians issue would end. The history of countries which have legalized same sex marriages today started like what is happening in Ghana. 'Let's recognize them; 'let's allowed them,' 'let's protect them' 'they are human beings like us,' 'it's their choice,' 'it's their sexual orientation,' etc. The country must be clear the reason we are against homosexuality and if we want to backtrack on that, get ready for the collateral damage which accompanies the endorsement i.e. legalization of abortion, prostitution, indecent exposure, etc.

With the foregoing, it is safe to conclude that Ghana is on the crossroads and we have a choice to choose one option and stick to it regardless of its repercussions. Criminalize homosexuality and maintain the status quo or legalize it and be ready to expand the horizon to include abortion, prostitution and all that we will describe as immoral. Now that politicians especially parliamentarians have in their purse 7,200 ghana cedis as monthly salary, it's now time for some value for money service. Legalize or criminalize, the ball is in our courts. You decide!

JOSHUA G. KYEREMATENG
FACULTY OF LAW, UCC.