Constitutionality of the Promotion of Proper Human Rights and Ghanaian Family Values

04.02.2024 LISTEN

The Promotion of Proper Human Rights and Ghanaian Family Values Bill, hereafter referred to as “the bill," is now under discussion in Ghana’s Parliament. The law proposes a set of measures intended to regulate the activities of the lesbian, gay, bisexual, transgender, and intersex (LGBTI) population.

This paper aims to provide an in-depth, evidence-based analysis of the bill’s constitutionality per Ghana’s supreme law, the 1992 Constitution, rather than passing judgement on its moral merits. For it is settled, '[O] the authorities, in testing any law for constitutionality, the court should not concern itself with the propriety or expediency of the impugned law, but with what the law itself provided' See New Patriotic Party v. Attorney-General [1997-98] 1 GLR 378, holding 3.

The court's role, as ought to be academics, therefore, is to decide whether the bill aligns with the provisions of the 1992 Constitution, regardless of personal opinions on its moral implications or the rights engaged. This analysis does that by examining whether a ‘compelling interest ‘exists that warrants the bill in the first place.

Key Provisions of the Bill

The bill proposes to criminalise same-sex intimacy and romantic acts between consenting adults, even in private settings. It also prohibits the advocacy of LGBT rights and the promotion of organisations that support the LGBT community. The bill threatens to punish violations of these provisions with imprisonment for a term of five to ten years. The overarching aim of the bill is to 'promote proper human rights and uphold Ghanaian family values' under the auspices of clauses (1) and (2) of Article 39, 1992 Constitution.

Potential Impacts of the Bill

It can be agreed that the bill targets individuals based on their identity and consequently, prima facie, directly infringes, or at the very least touches upon, the rights to privacy, culture, respect for human dignity, freedom of expression, thought, belief, and conscience, as well as the freedom of association, which are protected under Articles 15,17, 18, 21, and 26 of the 1992 Constitution.

Constitutional Framework

The Constitution, through Article 1, establishes its inherent supremacy and requires all laws to be consistent with its provisions. Article 2 vests in the Supreme Court's jurisdiction to interpret and enforce the Constitution and further grants the Constitution the power to judicially review legislation for constitutionality under Article 130. Because of this, the Supreme Court would decide if the bill was constitutional. How the Supreme Court will decide on the claim if it presents the chance is an interesting academic question that this paper aims to answer in the most detail possible.

Guaranteed Human Rights

The rights guaranteed under Chapter Five of the 1992 Constitution, spanning from Articles 12 to 33, include the right to life, the protection of personal liberty, respect for human dignity, and protection from slavery and forced labour. Other rights include the protection of privacy for homes and other properties, the right to equality before the law, freedom from discrimination, and the right to a fair trial.

The rights guaranteed under Chapter Five further include protection against deprivation of property and outline the property rights of spouses, women's rights, children's rights, and the rights of people with disabilities and sick. It also provides rights for persons detained or restricted under a state of emergency in any part of Ghana and guarantees the right to administrative justice and economic, educational, and cultural rights.

Furthermore, Article 21 enumerates certain fundamental liberties for all persons in Ghana, including the freedom of speech and expression, which encompasses the freedom of the press and other media; the freedom of thought, conscience, and belief, including academic freedom; the freedom to practice any religion and demonstrate such practice; the freedom of assembly, including participation in processions and demonstrations; and the freedom of association, which includes the freedom to form or join trade unions or other national and international associations for the protection of their interests.

Although several fundamental human rights are enumerated in great detail in the Constitution, Article 33(5) allows for including rights not expressly mentioned; hence, the list of rights is not exhaustive. As a result of that provision, the Supreme Court, as per Archer CJ, Francois, Edward Wiredu, and Bamford-Addo JJSC, found in New Patriotic Party v. Ghana Broadcasting Corporation [1993–94] 2 GLR 354 that:

"The Constitution, 1992, under Article 33(5), embraced a liberal framework that would include all possible shades of freedom not specifically or expressly mentioned but which were essential cogs to enhance the driving capacity of a truly free-wheeling democracy."

Several international human rights conventions served as the foundation for Ghana's human rights laws as evidenced by the references made by the Experts who drafted the Constitution in their report and Ghana is compelled under Article 40 of the Constitution to adhere to the principles and aims of adhere to the principles enshrined in or as the case may be, the aims and ideals of the Charter of the United Nations; the Charter of the Organization of African Unity; the Commonwealth; the Treaty of the Economic Community of West African States; any other international organization of which Ghana is a member and since the case of Toneen v Australia, it has been held by the United Nations Human Rights Committee in charge of overseeing the International Covenant on Civil and Political Rights that the criminalisation of private consensual relations between adults, solely based on their sexual identity, violates Article 17 of the Covenant to which Ghana is a State party and does not meet the test of ‘reasonableness’.
It is submitted on the basis that, Article 33(5), even if read narrowly, would serve to incorporate existing such substantive rights under international human rights laws and human rights principles as established in Toneen v Australia without the need for municipal ratification. As well as those rights that have come to be recognised in international law as 'jus cogens' or short of becoming ‘jus cogens’ have reached a preferred position in any democratic society.

Doctrine of Preferred Position

The doctrine of preferred position/freedoms in constitutional law recognises that there are some rights and freedoms in the hierarchy of every constitutional setup that requires more than ordinary protection from the courts. As a result of this doctrine, any legislation that explicitly limits these rights and freedoms is denied the usual presumption of constitutionality and is subjected to strict scrutiny by the judiciary. It follows then that the preferred nature of these rights enjoys protection from complete denial, and attempts to limit them are treated with suspicion by the judiciary and then subjected to strict scrutiny.

This principle was applied and adopted by the Supreme Court per Akuffo JSC in Republic v. Tommy Thompson Books Ltd. and Others [1997-98]. 1 GLR 515, wherein it was said by the learned Justice that:

'the principle is that where a Constitution permits the enactment of legislation, the effect of which imposes any limitation on any constitutional rights, it is necessary that such limiting statute be viewed with extreme suspicion by a society, such as ours, which has a declared commitment to the promotion of democracy and the protection of fundamental human rights and freedoms.'

Continuing, her Ladyship cited with approval the Canadian authority of R v. Zundel [1992] 10 CRR (2d) 193 at 209, where it was said by McLachlin J, in reading the majority opinion of the Supreme Court of Canada, that,

" in determining the constitutionality of a criminal provision which has any limiting effect on a freedom guaranteed by the Canadian Charter of Rights and Freedoms the primary proposition must be that “legislation limiting the enumerated rights may be unconstitutional. (There is no presumption of constitutionality).”

16. Also, in the case of New Patriotic Party v. Inspector General of Police [1993–94] 2 GLR 459, Hayfron-Benjamin JSC said that while legislation can limit a preferred right through a constitutionally permissible derogation, it cannot completely deny constitutional freedoms. And any such denial would be unconstitutional and void.

Therefore, if a prior restraint in a legislative provision result in a total denial of a constitutional right or freedom, that provision must be declared null and void for being unconstitutional.

In Ghana Independent Broadcasters Association v Attorney General and Another (J1 4 of 2016) [2017] GHASC 45 (3 November 2017), the Supreme Court unanimously endorsed the principle of preferred rights and found the right to freedom of expression, for instance, was a preferred right at page 2 of the judgement.

That is because these rights were deliberately incorporated and entrenched by its framers to signify both the retained rights citizens maintained as part of their social contract with the state as well as to affirm the extent of personal autonomy under the Constitution and can therefore only be derogated from either the explicit authority of the Constitution itself or upon a law not inconsistent with the Constitution of Ghana. (See pages 62–83 of the Proposals of the Committee of Experts, 1992, for a more extensive discussion.)

The preferred nature of the rights in Chapter Five is further highlighted by Article 12(1), which restates that the rights contained in Chapter Five must be respected by all, including 'the Executive, Legislature, and Judiciary' as well as all organs of government and its agencies. The inclusion of Article 12(1) emphasises the significance of the rights outlined in Chapter Five and shows a boundary for government cum state entities, preventing them from exceeding the limitations set by the Constitution concerning those rights. That means ordinarily those rights, as captured under Chapter Five specifically and those incorporated via Article 33(5), must be safeguarded, and upheld by all branches of government and their respective agencies in the ordinary course of affairs.

Place of the Spirit of the Constitution

Chapter Six of Ghana's 1992 Constitution holds the spirit of the Constitution and sets out the state's policy objectives. The framers of the Constitution were clear in their minds that the policies and objectives captured under Chapter Six of the 1992 Constitution should not be justiciable by themselves but rather represent the spirit of the Constitution. That was expressed in the following terms on page 49, paragraph 94, of the Committee of Experts' Report:

"Against the background of the achievements and failings of our post-independence experience, and our aspirations for the future as a people, the Principles attempt to set the stage for the enunciation of political, civil, economic and social rights of our people. They may thus be regarded as selling out in broad strokes the spirit or conscience of the Constitution."

Even though these provisions are not rights in and of themselves, they become rights that can be enforced and heard in court when read in conjunction with a Chapter Five provision. This was established in the decisions of Bamford-Addo and Akuffo JJSC in the case of the New Patriotic Party v. Attorney-General [1997-98] 1 GLR 378.

It is widely accepted among authorities that the spirit of the Constitution can be used as a tool for interpreting it. This principle has been established in various cases, including Tuffuor v. Attorney-General [1980] GLR 637 per Sowah JSC at 647-650, SC, Francois JSC in NPP v. Attorney-General [1993–94] GLR 35 at 79 and 86, SC, Acquah JSC in National Media Commission v Attorney-General [2000] SCGLR 1 at 11, and Bamford-Addo JSC in Apaloo v Electoral Commission of Ghana [2001-2002] SCGLR 1. Consequently, although the provisions in Chapter Six of the Constitution can aid in its interpretation, they do not independently establish enforceable rights for citizens, the state, and its agents.

It is therefore reasonable to make the proposition that for a provision within Chapter Six of the Constitution to be of any legal effect, it must be interpreted alongside an "empowering" provision within the Constitution itself. Consequently, for a Chapter Six provision to impact the fundamental human rights safeguarded by Chapter Five of the 1992 Constitution, that specific Chapter Six provision must establish a "compelling government or state interest" that justifies the limitation of those rights.

This justification can either be due to the public interest as outlined in Article 12(1) or because it is the only permissible means allowed by the Constitution to achieve that 'compelling government or state interest', evinced through a specified public policy ground, that is inherent in the provision itself. And further, the intrusion is proportionate in satisfying just the compelling government or state interest and no other interest but that alone.
The proposition is substantiated by the statement of Acquah JSC in Republic v. Tommy Thompson Books Ltd. (No. 2), Tommy Thompson & Eben Quarcoo [1996–97] SCGLR 484, where he established the principles of necessity and proportionality as required justifications for intrusions into preferred rights in the following terms:

'“ From the language of article 164 and similar provisions like article 21(4)(c) the law in question must be ‘reasonably necessary or required’ in the public interest, national security, etc. This really implies that for any law to qualify as being reasonably necessary or required, the objective of that law must be of such sufficient importance as to override a constitutionally protected right or freedom. In other words, the objective of that law must not be trivial or frivolous, otherwise that law will not be reasonably necessary or required. The objective must be sufficiently important in the sense that it must relate to concerns which are pressing and substantial. After this, it must be shown that the law itself is a fairly proper means of achieving this important objective. This will involve an examination of the provisions of the law to determine, inter alia, whether the provisions infringe any fundamental principle of law like natural justice, and whether they unduly impair the constitutional right. The nature of the examination in this second stage will depend on the nature of the law and the issues at stake.”’

This leads to the clear logical conclusion that a Chapter Six provision cannot be used on its own to limit a substantive right protected by Chapter Five of the Constitution. Any doubt still remaining can be sufficiently rebutted with the proposition that ‘the spirit of the Constitution can never override its clear letters’.
Also, it makes sense to think of the Directive Principles of State Policy as limiting the state or government's strong interests, where they arise, to the stated public policy grounds in Chapter Five, where such grounds are named by a provision, instead of the general idea of "public interest" as stated in Article 12(2). Needlessly to say, even where the grounds upon which the State seeks an intrusion into the domain of a preferred right relates to ‘public interest’, such grounds would be found in Article 12(2) which permits derogation on a public interest basis and which is also a Chapter Five provision, supporting the proposition that a Chapter Six provision without clear conjunction with other provisions outside the Chapter has no legal effect or legal effect sufficient to override a Chapter Five right. Therefore, it is maintained that a Chapter Six provision cannot override a Chapter Five provision, just as the spirit of the Constitution cannot surpass its text and is only useful in understanding the text of the Constitution.
However, a Chapter Six provision may form or raise a compelling state or government interest in triggering a limitation of basic human rights when the law itself enables it as will be shortly short.
The argument previously advanced is further reinforced by the fact that the state, including both Parliament and the Executive, is obligated by Article 12(1) to adhere to and respect the human rights outlined in Chapter 5. Consequently, when the state chooses to implement any obligations under Chapter Six, it is implied that these obligations must be interpreted in the context of Chapter Five. That is so as Chapter Five generally delineates the limits to which the state can enact policies that impact human rights with permissible public policy grounds for derogation clearly stated example Article 21.

Sui Generis: Derogable Nature of Rights

As mentioned above, the rights provided in Chapter Five of the 1992 Constitution are neither absolute nor non-derogable, as shown by the remark from Acquah JSC. Also, the Constitution itself admits the possibility for the derogation of some of these rights under specific conditions. Article 12(2) applies the rights stated in Chapter Five of the 1992 Constitution generally to 'public interest' and respect for the rights of others.

The Constitution itself proceeds to define the public interest as embracing any privilege or advantage that benefits or is intended to benefit the whole people of Ghana. It must be mentioned at this point that, by force of reverse logic and an application of the 'expressio unius est exclusio alterius', the public interest would not include any privilege or advantage that does not benefit or is not intended to benefit the majority of Ghanaians.

Yet, in other cases, the Constitution clearly states the public policy reasons for restricting or derogating certain protected rights, such as public safety, public health, or the functioning of essential services and proceeds to require that any such laws made must be reasonably justifiable and in keeping with the spirit of the Constitution. That establishes the principle of ‘strict scrutiny’ concerning the intrusion into the scope of those rights.

Strict Scrutiny Standard and Burden

It is trite learning that unless a provision of the Constitution inherently permits derogation, any derogation from a right guaranteed under the Constitution is prima facie unconstitutional and unless justified as necessary to advance a compelling public interest, will be struck down by the courts.

Therefore, in People's Popular Party v. Attorney General [1971] 1 GLR 138, it was found 'clear' by Hayfron-Benjamin J, as he then was on page 147 of the report that 'any interference with or restriction in the exercise by any person of the right to the freedoms set above is prima facies wrongful unless it can be shown (a) that such interference was in pursuance of some provision of a law in force, (b)that the law has made provision for the imposition of the restrictions on the exercise of these freedoms, (c) that these restrictions are reasonably required in the public interest, and (d) the act performed constituting the invasion is shown to be reasonably justifiable in terms of the spirit of the Constitution.'
The proposition also finds support in the position adopted by the Supreme Court in the matter of Civil and Local Government Staff Association of Ghana v. Attorney-General, backed in Republic v. Baffoe-Bonnie and Others, where it was stated per Sophia Akuffo JSC that:

“Prima facie, constitutional rights and freedoms are to be enjoyed fully but subject to the limits which the Constitution itself places thereon, in the terms of Article 12(2)…… '

And further, found in the test for the validity of legislative encroachments on rights guaranteed under Chapter Five as set by the Supreme Court in CLOSSAG v. AG, that is:

"a. Is the limitation necessary? In other words, is the limitation necessary for the enhancement of democracy and freedoms of all, is it for the public good?b. Is the limitation proportional? Is the limitation over-broad such as to effectively nullify a particular right or freedom guaranteed by the constitution"

However, it must be observed that in Republic v. Tommy Thompson Books Ltd. and Others [1997-98] 1 GLR 515 Her Ladyship, Akuffo JSC couched the test in slightly different terms as follows:

whether the 'law' restricts or limits any of the fundamental freedoms or rights guaranteed; (b) if it does, whether such limitation is reasonably required within the specific parameters set by the Constitution, 1992, and ( c) is reasonably justified within the letter and spirit of the Constitution, 1992 ( See page 605 of the report)

In that same case, however, Acquah JSC also propounded a two-fold test expressed in the following terms:

“ From the language of article 164 and similar provisions like article 21(4)(c) the law in question must be ‘reasonably necessary or required’ in the public interest, national security, etc. This really implies that for any law to qualify as being reasonably necessary or required, the objective of that law must be of such sufficient importance as to override a constitutionally protected right or freedom. In other words, the objective of that law must not be trivial or frivolous, otherwise that law will not be reasonably necessary or required. The objective must be sufficiently important in the sense that it must relate to concerns which are pressing and substantial. After this, it must be shown that the law itself is a fairly proper means of achieving this important objective. This will involve an examination of the provisions of the law to determine, inter alia, whether the provisions infringe any fundamental principle of law like natural justice, and whether they unduly impair the constitutional right. The nature of the examination in this second stage will depend on the nature of the law and the issues at stake..”

The disparities in the wording of the criteria as stated in People's Popular Party v. The Attorney-General and Republic v. Tommy Thompson, on the one hand, and those of CLOSSAG v. The Attorney-General emerged can be rationalised as arising from the overarching approach taken by the judiciary in considering encroachment of rights. Where the judiciary views such encroachments from the wide spectrum of public interest as found in Article 12(1), the test applied is the CLOSSAG standard but where the approach focuses on legislative intent against a stated public policy ground, the criteria provided in People's Popular Party v. AG and Republic v. Tommy Thompson become more relevant and beneficial in addressing the matter of constitutionality.
In essence, both tests however concur on the basic principle that in a constitutionality case, a court’s focus should be on the “necessity” of the legislation, not its appropriateness. This involves weighing human rights against a significant state or government interest to ensure the least restrictive outcome for protected rights, all while maintaining a skeptical stance towards the declared legislative intent.
The judicial approach attitude advanced above was supported by Her Ladyship Akuffo JSC in Republic v. Tommy Thompson, where she said:

'the principle is that where a Constitution permits the enactment of legislation the effect of which imposes any limitation on any constitutional rights, it is necessary that such limiting statute be viewed with extreme suspicion by a society, such as ours, which has a declared commitment to the promotion of democracy and the protection of fundamental human rights and freedoms.'

Continuing, Her Ladyship cited with approval the Canadian case of R v. Zundel [1992] 10 CRR (2d) 193 at 209, where it was said by McLachlin J, in reading the majority opinion of the Supreme Court of Canada, that:

"in determining the constitutionality of a criminal provision which has any limiting effect on freedom guaranteed by the Canadian Charter of Rights and Freedoms, the primary proposition must be that “legislation limiting the enumerated rights may be unconstitutional. (There is no presumption of constitutionality).”

The tests adopted by the Supreme Court of Ghana are consistent with the principles of international human rights law, particularly the proportionality test. This test requires that any limitation on human rights obligations must be proportionate to the legitimate aim pursued and must not go beyond what is necessary to achieve that aim.

A similar test is followed by the Supreme Court of the United States (SCOTUS) concerning legislation touching on substantive rights and the way that it is scrutinized. The approach taken by SCOTUS, where the legislation involves a suspect class or infringes a fundamental human right guaranteed under the Bill of Rights, has been to put the impugned legislation under strict scrutiny and then test whether the legislation is necessary and proportionally tailored to advance a compelling government or state interest. Under strict scrutiny, the courts would also not accord the normal presumption of constitutionality to an impugned statute but would seek conviction that the legislation is necessary to advance the compelling government or state interest asserted with the burden failing on the government lawyers; see Sherbert v Verner, Korematsu v United States, NAACP v Albama and Murdock v Pennsylvania.
While the SCOTUS has not completely defined what constitutes a 'compelling interest', the body of judicial authority that has arisen accepts the presence of two broad classifications of compelling interest. First, the courts have identified a compelling state interest when the measure conducted is 'backwards-looking' and designed to correct a historical wrong or disadvantage to a disadvantaged group recognisable by a suspect class.

This test appears to align with the nature of compelling state interest created under Article 17, which permits derogation from the right to freedom from discrimination in areas of personal law, to correct historical injustices by redressing social, economic, or educational imbalances in Ghanaian society, and to make special provisions for different communities based on their special circumstances, not inconsistent with the law.

Second, courts such as the SCOTUS have also found the presence of a compelling state interest in cases that constitute an urgent danger to public safety, some public policy interest, or national security. In such circumstances, the state's interest is viewed as forward-looking and based on operational requirements necessary to safeguard the well-being and security of the population.

Based on all the discussions above, the applicable test can thus be restated as follows:

a. Where the provision in question does not internally permit for derogation, then any legislation encroaching on those rights has to be assessed using the CLOSSAG standard;

b. Where the rights permit derogation on stated public policy grounds, then the test set in People's Popular Party v. Attorney-General would apply.

However, regardless of the test adopted, there is the need for the state to identify and establish a 'compelling interest' at the start of any analysis.

Burden in the Constitutional Challenge

Based on the authorities mentioned earlier regarding the constitutionality test, it seems adequate—particularly considering the language used in the tests—that the responsibility of proving that a violation of constitutional rights is necessary and reasonably justified lies with those defending the law, not those challenging it. This assertion is backed by the principle that a person in possession has a stronger claim than anyone else, except the true owner. Moreover, if the law has granted a person substantial rights, these rights cannot be revoked unless the law explicitly says so. In this case, along with the principles mentioned above and established in common law, substantive law sets a standard to be met in revoking or limiting a right and further outlines the specific policy grounds that must be met. Therefore, an argument that these grounds have not been met immediately puts the onus on the person claiming they have been met to prove this to the Court’s satisfaction.
Furthermore, judicial opinion has been that any invasion is prima facie illegal. It is therefore reasonable to assume that the burden of proof is on the promoters of the law in a challenge; see also the Canadian decision of R v. Oakes [1987] LRC (Const) 477, where a similar approach was used for its persuasive value.

Need to Establish a 'compelling interest.’

From the analysis above so far, the starting point for any scrutiny must be the nature of the interest of the state asserted via the law and whether that interest is sufficiently compelling to override a guaranteed human right. As stated by Acquah JSC cited supra, 'the objective of that law must not be trivial or frivolous, otherwise, that law will not be reasonably necessary or required. The objective must be sufficiently important in the sense that it must relate to concerns which are pressing and substantial.'

When looking at the constitutional basis for a bill this big and affecting so many rights, it was remarkably interesting to see that only Clauses (1) and (2) of Article 39 were briefly mentioned in the memorandum that went with the bill. The bill's sponsors see the preceding clauses as a valid channel of derogation regarding the rights at issue.

However, there is a constitutional norm that prohibits the construction of constitutional provisions on their own. The Constitution must be read in its entirety. As a result, the Supreme Court held in National Media Commission v. Attorney-General that "in interpreting the Constitution, care must be taken to ensure that all the provisions work together as parts of a functioning whole." The components must logically fit together to build a coherent, internally consistent structure..."

Furthermore, it was decided in Kpodo v. Attorney-General per Akuffo CJ that 'it is now a crystallised concept that the Constitution must be read as a whole and constructed purposefully with a view to the future'.

That notion has been a strong basis for the construction of enactments and legislation. In United Say. v. Timbers of Inwood Forest Associates, it was stated 'of course, true that statutory construction "is a holistic endeavour" and that the meaning of a provision is "clarified by the remainder of the statutory scheme . . . [when] only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law." United Say. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 US 365, 371, 98 L Ed 2d 740, 1085 Ct 626 (1988).

The Supreme Court of Ghana has also applied the approach to the interpretation of the Constitution in cases such as the CI 72 case of Abu Ramadan v. Attorney General and Kwasi Danso. In that case, Chief Justice Wood held that to correctly grasp rule 1 (3) (d) and (e), of CI 72 accepted principles of statutory interpretation necessitate that the CI be read as a whole rather than in separate portions. The requirement being that the law should be construed intelligently, taking into account all the parts of the law. The view of Her Ladyship aligned with the principle of harmonious construction which holds for a thorough interpretation of enactments factoring into account all of its provisions to eliminate any conflicts or contradictions.

Based on the aforementioned, Article 39 has to be read together with Article 26 of the Constitution for Article 39 to make any legal sense or have any legal weight. The necessity of considering Article 39 in conjunction with Article 26 is further reinforced by the dicta made by Bamford-Addo JSC, previously considered, which establishes that the provisions in Chapter Six of the 1992 Constitution do not establish any rights that can be enforced at law without same being connected to other constitutional provisions as well as the general thrust of the discussion on the spirit of the constitution above. As the limitation placed on Chapter Six by this statement applies equally to individuals residing in Ghana as it does to the state and its agencies, it is crucial to analyse Articles 26 and 39 to determine whether they establish a compelling interest for the government or the state.

It is provided under Article 26 of the 1992 Constitution that:

1. Every person is entitled to enjoy, practice, profess, maintain and promote any culture, language, tradition or religion subject to the provisions of this Constitution.

2. All customary practices which dehumanise or are injurious to the physical and mental well-being of a person.

Article 39 reads
1. Subject to clause (2) of this article, the State shall take steps to encourage the integration of appropriate customary values into the fabric of national life through formal and informal education and the conscious introduction of cultural dimensions to relevant aspects of national planning

2. The State shall ensure that appropriate customary and cultural values are adapted and developed as an integral part of the growing needs of the society as a whole; and in particular that traditional practices which are injurious to the health and well-being of the person are abolished.

Purposive Interpretation of Articles 26 and 39

It is quickly observed that Article 26 does not permit a derogation beyond that provided for in Article 26(2); that is, to limit the right, it has to be demonstrated that a customary practice dehumanises or is harmful to the physical and mental well-being of the person or persons involved, granting the state a compelling interest to intervene to remedy the situation.

It is further noted from the provision that the framers of the Ghanaian state recognised its multicultural nature and imposed a duty on the state to preserve, promote, and project specifically Ghanaian culture under Article 39 by ' taking steps to 'ENCOURAGE' the integration of appropriate customary values into the fabric of national life 'THROUGH' formal and informal education and the conscious introduction of cultural dimensions to relevant aspects of national planning'.[emphasis mine].

It is clear, therefore, that concerning any duties imposed upon the state under Article 39, the Constitution laid out a means towards achieving such objectives and those means did not include employing the force of law. The term cultural dimensions is perhaps worth exploring further at this point.

The term ‘cultural dimensions,’ as used, to reference one of the means by the state to achieve its goals, is a term of art that refers to the broad categories that influence a nation’s culture, such as power distance, individualism versus collectivism, and masculinity versus femininity. By incorporating these dimensions into national planning, the state can ensure that its policies and initiatives resonate with the cultural norms and values of the society, leading to greater acceptance and success in accomplishing its legitimate interests. Cultural dimensions cannot therefore be a tool of force used to impose a cultural notion in a multicultural society where the right to culture is guaranteed. But rather, a tool to embed those notions in the State’s own cultural identity through the ways advised under the Constitution.

It is further observed that the language of Article 39(1) subjects it to Article 39(2) which imposes a duty on the State to ensure that appropriate customary and cultural values are adapted and developed as an integral part of the growing needs of the society as a whole and in particular that traditional practices which are injurious to the health and well-being of the person are abolished.

It follows common sense that it was those 'appropriate customary and cultural values' as 'adapted to the spirit of the constitution' and 'developed as an integral part of the growing needs of society as a whole that the framers of the Constitution intended the State to then encourage the integration of as values through our formal, informal education and the conscious introduction of cultural dimensions to relevant aspects of national planning. The term 'cultural dimension' as used on this premise was indicative of both the direction the framers were looking i.e. POLICY and not Law.

The framers of the constitution therefore did not grant the State the power to impose such customary and cultural values on its people through the force of law under Article 39, where it is read alone, nor did they intend to create any interest sufficient to override the right to culture concerning cultural practices that are not proven to be harmful or injurious to the mental and physical well-being of an individual.

Instead, they emphasized the importance of individual freedom and autonomy of the right to freedom of thought, belief, and conscience. They emphasized the importance of individual freedom and autonomy of the right to freedom of thought, belief, and conscience as a fundamental aspect of a democratic society and granted the state the power to streamline Ghanaian culture and cultural values, through education and national policy planning.

Article 39 read together with Article 26 cannot therefore create a state interest compelling enough to override the cultural rights guaranteed by the constitution on the mere basis that it is contrary to the cultural values local to Ghana even where it relates to a class of people identified and classed based on their gender. Article 17(2) reads 'A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.'

The constitution goes further to inherently define discrimination as 'For the purposes of this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by raw, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description' .

The framers of the Constitution deliberately replaced the term 'sex' which had been used in the 1979 Constitution and referred to the biological distinction between male and female with 'gender' encompassing beyond biological definitions of male and female. While Article 17 allows for Parliament to enact laws 'reasonably required':

for the implementation of policies and programmes aimed at redressing social, economic or educational imbalance in the Ghanaian society;
for matters relating to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;
for the imposition of restrictions on the acquisition of land by persons who are not citizens of Ghana or on the political and economic activities of such persons and for other matters relating to such persons; or
for making different provision for different communities having regard to their special circumstances not being provision which is inconsistent with the spirit of this Constitution.

The scope of the margin of appreciation given to Parliament under Article 17 is clearly one of backwards-looking discrimination to remedy a historical imbalance, roll out an affirmative action or preclude non-citizens from the scope of certain political and economic activities( once again establishing the extent of the rights granted and that where 'foreigners' were intended to be excluded from a particular right that was specified.

The right to freedom from discrimination has been recognized as a fundamental principle of law, and any exceptions to it must be limited and justified. It is noteworthy that as far back as the 1990s, the Supreme Court was progressive enough to acknowledge the rights of LGBTI people, albeit in an obiter dictum. In the case of New Patriotic Party v. The Inspector General of Police, Hayfron-Benjamin JSC, joined by other judges on the bench, said on pages 470 to 471 of the report.

'In countries which practice true democracy, supporters and opponents of every conceivable cause are given freedom to associate and express their opinions. In the end, some have succeeded and their unpopular demands have eventually become majority wishes and have been recognised. Examples are the anti-slavery groups in eighteenth century England and nineteenth century America, and the suffragettes of both countries at the beginning of this century. Today, in these countries, those who favour and those who oppose abortion may assemble and hold demonstrations and processions in support of their cause while, in the less tolerant societies, one would be permitted and the other banned. In this country, it would be unthinkable for any police officer to grant homosexuals a permit to hold a demonstration in support of so-called gay rights; but, I ask, if in nineteenth century England the opponents of child labour had been prevented from stating their case, would it’s evil consequences have ever been recognised? In this day and age, it is necessary for us to begin to see that consent, not force, is the basis of the just society, and that it is not for the government or our neighbour to tell us what to think, or feel or do. Most of the restrictions on our liberty which, after years of repression,we have come to accept, are inconsistent with democratic norms. Except in a time of war, or when a state of emergency has been declared, it cannot be right for any agency of the executive to suppress the free expression of any opinion, however unpopular that opinion may be. The believer in absolutism and the anarchist, those who support and those who are opposed to abortion, those favour and those who oppose equal rights for women—yes, lesbians and homosexuals too—are all entitled to the free expression of their views, and the right to assemble and demonstrate in support of those views and to propagate those views. Once the State takes for itself the power to licence associations, assemblies and processions it resorts to support of the status quo, and the only way of changing the prevailing state of affairs is by the use of force."

It follows then from all the above that the Bill fails on the ground that it does not advance a compelling state interest sufficient to override the rights guaranteed under 1992 for all class of persons and there is no need to subject it even to the proportionality test as it fails on the grounds of necessity alone. The lack of a clear compelling interest is fatal to the entire prospects of the Bill.

The Bill in its current form is therefore unconstitutional as it infringes rights without establishing a compelling state interest supported by Articles 26, 39 or the Constitution as a whole and read purposively. And it is likely to fail the strict scrutiny standards applied by Ghana's court.

Kofi Opare Hagan
Dated:28/12/2023.
Bachelor of Arts Sociology
LLM Advanced Advocacy, Advice and Alternative Dispute Resolution

Barrister, Middle Temple Inn

Constitutionality of the Promotion of Proper Human Rights and Ghanaian Family Values

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