The Anti-LGBT law is unconstitutional because it lacks a compelling interest

Feature Article The Anti-LGBT law is unconstitutional because it lacks a compelling interest

The Anti-LGBTI law engages Article 15,17,18, 21 and 26 of the 1992 Constitution. These provisions form part of Chapter Five of the Constitution and constitutes rights guaranteed by the framers of the Constitution see Article 12(1).

The law also criminalizes same-sex consensual practices in private. It therefore also engages Article 17 of the International Covenant on Civil and Political Rights via Article 33(5) of the1992 Constitution.

a. The incorporation of international human rights into the laws of Ghana via Article 33(5) has been recognized by the Supreme Court of Ghana. In New Patriotic Party v Ghana Broadcasting Corporation, it was held by the Supreme Court per Archer CJ, Francois, Edward Wiredu and Bamford-Addo JSC 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 are essential cogs to enhance the driving capacity of a truly free-wheeling democracy [via Article 33(5)]’(insertion mine).

b. It was also established by the UN Committee on Human Rights Committee under Article 5, paragraph 4 of the Optional Protocol to the International Covenant on Civil and Political Rights, in the case of Toneen v Austrialia, Communication No. 488/1992 that the criminalization of consensual same-sex activities does not meet the test for ‘reasonableness’ and therefore a violation of Article 17 of the Covenant.

c. Being a signatory to the Covenant, Ghana is bound to the Covenant via Article 40 and Article 33(5) of the 1992 Constitution even where those local Covenants have not been incorporated via municipal law and thus cannot enact laws that violate the tenets of the covenant.

The Human Rights guaranteed under Chapter Five of the 1992 Constitution enjoy a ‘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.

Therefore, in New Patriotic Party v Inspector General of Police [1993-94] 2 GLR it was held by the Supreme Court per Hayfron-Benjamin JSC that

‘the citizen's freedoms may be restricted by law on the grounds stated in the Constitution, 1992 but they cannot be denied. Any such denial will be unconstitutional and void.’

Consequently, where 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. Therefore, in Ghana v. Attorney-General, backed in Republic v. Baffoe-Bonnie and Others, 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)…… '

Furthermore, 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.'

It is clearly deducible from the above that a restriction on a fundamental human right, short of a complete denial, to be justified must be founded either on Article 12(2) or an ancillary provision of the Constitution permitting such restrictions. And that where such ancillary provisions provide a specified public interest ground, the justification relating to the imposition of restrictions must be reasonably required on the basis of that specified public policy grounds.

Therefore, in Republic v Tommy Thompson Books Ltd. (No 2)., Tommy Thompson & Eben Quarcoo [1996-97] SCGLR 484, Acquah JSC found ‘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.’

The Supreme Court has further established and applied a consistent test in determining the validity of legislation that encroaches into the fundamental human rights guaranteed under the Constitution. In Republic v. Tommy Thompson Books Ltd. and Others [1997-98] 1 GLR 515 Her Ladyship, Akuffo JSC couched the as follows:

a. 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)

And in Civil and Local Government Staff Association of Ghana v. Attorney-General, the test was set for considering the validity of legislative encroachments into human rights was restated as follows:

‘ 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 under the Constitution’.

The standard to meet for a law to qualify as ‘reasonably necessary or required’ was established in Republic v Tommy Thompson Books(cited supra) by Acquah JSC as requiring:

‘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’.

His Lordship continued by saying ‘The objective of that law 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.’

The principles above establish the requirement that for the State to intrude or limit a fundamental human right, there must be a compelling state interest that is pressing and substantial enough to override that fundamental human right.

The starting point for the consideration of the validity of the Anti-LGBT Act therefore has to be whether the law itself carries on a compelling state interest. And in other to establish the compelling interest warranting the Bill as put forward by its proponents, one has to consider the constitutional basis for the Bill. The constitutional basis for a bill as set out in its accompanying Memorandum is Clauses (1) and (2) of Article 39. The reliance on Article 39 which falls under Chapter Six 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. And a Chapter Six provision by itself cannot empower the State to intrude into a fundamental human right.

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.

There is a constitutional norm that prohibits the construction of constitutional provisions on their own outside the context of the Constitution and other provisions of the Constitution. 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 globally. 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 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. It is trite learning that when an enactment provides a method, procedure or rule for doing or achieving objective, only that method, procedure or rule can be followed in achieving that objective.

The term ‘cultural dimensions,’ as used, to reference one of the means by the state to achieve the goals set under Article 39, 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 or any other rights guaranteed by the constitution.The Anti-LGBT law further discriminates on the basis of 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.

Presumption of Unconstitutionality
As the Anti-LGBT law intrudes into the area of fundamental human rights, it does not enjoy the normal presumption of constitutionality flowing from Acts of Parliament. The judicial approach is to presume such laws as unconstitutional until they are justified.

The operation of the presumption of unconstitutionality against enactments that impose restrictions and prior restraints on fundamental rights was recognized by the Supreme Court per Francois JSC in New Patriotic Party v Ghana Broadcasting Corporation wherein the learned justice stated ‘ the US Supreme Court declared in New York Times Co v United States (The Pentagon Papers Case), 403 US 713: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.'' The emphasis is mine. Those words should be observed by the state media as a constant guide, and constitute their creed and testament.’

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).”

It therefore falls on the proponents of the Act to justify it on the basis of a compelling interest warranting the law to the standard set by Acquah JSC in Tommy Thompson Books and how the law represents a proportionate means of achieving that compelling interest. As previously discussed, the premise of the law rests on advancing cultural values which does not create a compelling interest capable of overriding Constitutionally guaranteed rights.

Kofi Opare Hagan