Fri, 22 Mar 2024 Feature Article

The Anti-Lgbtqia+ Bill: The “holy President,” The Law And The Sovereign Will Of The People

The Anti-Lgbtqia+ Bill: The holy President, The Law And The Sovereign Will Of The People

Government, no matter its form and shape, ought to reflect the will of the people. Sovereignty indeed resides in the people and this is the opening paragraph in the 1992 Constitution of Ghana. It states in Article 1 thus, “the Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.”

It is worthy of note that the architecture of the government is crystallized on the principle of separation of powers as was contemplated by the 1992 Constitution of Ghana. With this, the fundamental assumption is that the powers of government are evenly dispersed amongst the Three Arms (Executive, legislature and Judiciary), even though Ghana’s system is practically predicated on a Hybrid System where the Executive is partly fused in Parliament.

The 1992 Constitution of Ghana confers distinct powers on these three arms and dictating strictly how the powers ought to be exercised. Within the framework of this arrangement, no arm can stampede the conduct of business of the other, except where the Constitution places substantive limitations to the exercise of any such powers. So, if all three arms were to respect the dictates of the Constitution, there would not have been any overlaps, stampede, usurpation and arm-twisting in any form or texture.

How needless is the ongoing brawl between the Executive and Legislature over The Human Sexual Rights and Family Values Bill, 2024?

Note the following:

  1. Per Article 58 of the Constitution, Executive Authority is vested in the President and shall so be exercised in accordance with the Constitution and not applied capriciously.
  2. The legislative power of Ghana shall be vested in Parliament and shall be exercised through bills and in accordance with this Constitution. (Article 93)
  3. Accordingly the judicial power of Ghana shall be vested in the Judiciary and justice shall so be administered independently and subject only to the Constitution. (Article 125)

Per the above Constitutional provisions, the powers and duties are clearly cut out for the three arms, with each of them subject to the Constitution only without the discretion to do otherwise.

With this arrangement, the Parliament of Ghana shall exercise the legislative powers (making of laws) through bills. Accordingly, the Constitution provides in Article 106(1) thus, “the power of Parliament to make laws shall be exercised by bills passed by Parliament and assented to by the President.”

The procedure of law making is set out in Article 106 and the adjoining sub-clauses. For the avoidance of doubt, Sub-Clause 7 of Article 106 provides for Parliament to transmit the Bill so passed to the President to assent to or opt for any other subsequent action provided by the Constitution. Sub-Clause 7 provides, “where a bill passed by Parliament is presented to the President for assent he shall signify, within seven days after the presentation, to the Speaker that he assents to the bill or that he refuses to assent to the bill, unless the bill has been referred by the President to the Council of State under article 90 of this Constitution.” Ordinarily, one would infer from this that, until a Bill is presented by the Clerk to Parliament to the President, the Law making process provided in Article 106 is incomplete.

So, the attempt by the Clerk to Parliament to present the LGBTQIA+ Bill to the Presidency was only an execution of a constitutional mandate as per Sub-Clause 7 of Article 106. Nothing prior, in or subsequent to this Sub-Clause suggest that, an action before the Judiciary in respect of a subject matter should obstruct, truncate, suspend or creates a fetter on a public officer (The Clerk to Parliament) from executing a duty imposed on such an officer by the Constitution. Neither the President nor the Court has been clothed with any such powers to obstruct Parliament or its officers from carrying out a Constitutional mandate such as the transmission of a Bill to the President. And there is no case law so far as we know that set any such precedence.

For the avoidance of doubt, the Constitution allows for some level of discretion to be exercised by these three arms of government, by way of regulating their own business. So, the Judiciary by an Act of Parliament (Courts Act, 1993 (Act 459) and other subsidiary legislations like C.I 47, regulates the conduct of judicial proceedings. Also, the Constitution allows for Parliament to conduct its business by its own standing orders. This is provided in Article 110 of the Constitution. Except where a provision in the standing orders is in contravention of the Constitution, the conduct of the business of Parliament cannot be restrained by the Supreme Court. And this was the reasoning of the Supreme in the case of Dr. Amanda Odoi V The Speaker of Parliament and the Attorney General.

The Sky’s Law Suit and the Law
On the 5th of March, 2024 Richard Dela Sky, a citizen of Ghana filed a suit invoking the original jurisdiction of the Supreme Court as per Article 2 and 130(1) for the interpretation and enforcement of the Constitution relative to the LGBTQIA+ Bill. Interestingly, at the time this writ was filed before the apex court, The Human Sexual Rights and Family Values Bill had not been transmitted to the President. It implies that, it is still a raw bill yet to be refined into a proper bill ready to be presented to the President. If this were the case, Richard Sky’s suit is premature, in that the right conferred on him as a citizen of Ghana in Article 2, to invoke the original jurisdiction of the Supreme Court for the enforcement of the Constitution is yet to accrue to him.

For the sake of this argument, Article 2 of the Constitution states:

  1. A person who alleges that—
  1. An enactment or anything contained in or done, under the authority of that or any other enactment…is inconsistent with, or in contravention of a provision of this constitution, may bring an action in the Supreme Court for a declaration to that effect.

A Bill yet to be presented to the President does not have the force of law to be an enactment properly so called within the meaning of Article 2(1)(a). In fact, the Supreme Court can only determine the constitutionality of a LAW and not a BILL. And as the Law Lords asserts, you cannot put something on nothing and expect it to stand. The right to even sue is yet to accrue, and until there is an enactment to be interpreted as per Article 2, the Jurisdiction of the Supreme Court to consider such a premature action can be questioned in this case.

In that “premature suit”, Richard Sky prays the court for an order restraining the Speaker of Parliament and the Clerk to Parliament from presenting The Human and Sexual Values Bill, 2024 to the President for his assent. Unless the transmission of the Bill to the President as provided for by Article 106(7) is considered unconstitutional, respectfully, the Court has no business in restraining the Speaker or the Clerk from its transmission once it is power and duty conferred on them by the Constitution.

Also, relief 6 sought by Sky, praying the court to restrain the President from assenting to the Bill may equally suffer the same legal fate, since the act of assenting to a Bill is a constitutional mandate handed the President in Article 106(7).

In the circumstances, the President of Ghana has no business, no power in any form or texture to have written the unfortunate letter to Parliament, seeking to dictate to the People’s Representative on how to conduct its constitutionally mandated duty. That singular act can constitute a violation of the Constitution which the President swore to uphold and defend.

In the alternative, the President has the right to refuse to assent to the Bill. Sub-Clause 8 of Article 106 provides for the President to opt not to assent to any Bill. The provision further provides two options for the President in case he refuses to assent to the Bill; he had an option to signify to the Speaker through a Memorandum of his refusal to assent to the bill or refer the bill to the Council of State. The act of writing to Parliament and dictating to the August House to cease the transmission of the Bill to the President was not contemplated by the framers of the 1992 Constitution neither is it supported by any settled practice within the law.

In any case, there are living precedents set by President Akuffo-Addo within the remit of this same subject matter of law suits pending before the apex court on an ongoing subject matter. It will be recalled that the Hon. Haruna Iddrisu, Hon. Mahama Ayariga and another filed a law suit in the Supreme Court on April 19th, 2022, seeking to restrict the implementation of the E-levy. This was subsequent to President Akuffo-Addo’s act of not recognizing Parliament and the Judiciary and by extension, the will of the people when popular voices were against the E-levy, and went ahead to assent to it. While the suit was pending, the Ministry of Finance on the authority of the President went ahead to implement the E-levy with effect from 1st May, 2022. At the time, the Secretary to the President did not see reason, neither did the Attorney General see any legal question in respect of the pendency of the suit vis a vis the implementation of the E-levy.

Again, a coalition of Civil Society Organizations including the CDD, ACEP, SEND Ghana, Ghana Integrity Initiative, etc. filed a suit challenging the directive of President Akuffo-Addo in June 29, 2020, to the Auditor General to proceed on an involuntary accumulated leave of 167 days. While this suit was pending, the President upheld his directive and even appointed Mr. Johnson A. Aseidu to act in the stead of Mr. Domelovo. Ultimately, the Supreme Court ruled that the President’s directive was unconstitutional although, belated.

The Sovereign Will of the People
As indicated earlier, sovereignty resides in the people and for whose interest and welfare the powers of government shall be exercised. Anything done to massage the ego and serve the individual interest of the President or any person in government is a betrayal of the people who entrusted power in the President to exercise for and on their behalf.

It is on record and public knowledge that the passage of The Human Sexual Rights and Family Values Bill, 2024, was unanimous in Parliament, without even a single dissenting voice when the voice vote was put by the Rt Hon Speaker. By implication, the will of the people was carried and affirmed through their 275 Representatives. Prior to that, the moral society of Ghana through its leaderships have submitted Memos in support of this Bill. Popular voices in Ghana are in support of this bill. How do we identify the sovereign will of the people, if not through these key stakeholders?

The Human Sexual Rights and Family Values Bill, 2024, was introduced in Parliament as a Private Members’ Bill, in response to a surging trend of advocacy, sponsorship and the propaganda for the activities of homosexuals in Ghana. In and around 2020/21, there were bill boards being mounted across Ghana by the LGBTQIA+ plus group, seeking to regularize their activities in Ghana. Prior to this, this group started a public display of their marriage ceremonies and finally chose Accra, Ghana to host their International Conference between 27th and 30th July, 2020.

These developments came on the back of President Akuffo-Addo’s opened assertion on Al Jazeera in 2017 that Homosexuality is still illegal in Ghana, because there are not enough activists pushing for its legalization. And if in the future a strong coalition should emerge and advocate strongly, its legalization “is bound to happen.” This assertion seems to have opened the floodgates for the activism, starting with the campaigns on bill boards.

If indeed, homosexuality is illegal in Ghana in the words of President Akuffo-Addo, how come that its activities in the form described above were not criminalized and the perpetrators brought to book swiftly as it is done to Journalists who were alleged to have attacked either the President or his wife? The nonchalance demonstrated by the President and his government in the wake of the smuggled activism was what triggered Hon Sam George and his colleagues to have initiated the current Bill to partly criminalize same sex marriage, activism, promotion, sponsorship among other activities.

Indeed, the big brother of all democracies, the United States of America did not and still does not have a universal law legalizing same sex marriage applicable to all states. Until in 2013 when the United States Supreme Court ruled in the case of United States V Windsor, declaring section 3 of the Defense of Matrimonial Act (DOMA) unconstitutional, states like Mississippi, Ohio, Arkansas, Georgia, Kentucky, Texas and 7 others, had explicit laws denying federal recognition to same sex marriage and its related activities. During this period, the International Monetary Fund (IMF) which is issuing threats to Ghana and attempting to retrain the President from assenting to the LGBTQIA+ bill still had its headquarters in the United States, with the United States being its biggest beneficiary.

The argument that the current Bill is discriminatory and could violate human rights in Ghana is weak and unfounded on common logic. Every law is discriminatory, futuristic and somehow preemptive. So, today, can we have Armed Robbers or Rapists or Thieves inaugurate their respective associations, have opened conferences and display their activities in the open, simply because of freedom of assembly and association as provided in Article 21(d) and (e) in the 1992 Constitution? If they cannot do so, how come that homosexuals are allowed to have their opened marriages and even attempted to organize their International Conference in Ghana at a time the Ghanaian laws are said to criminalize their activities?

It is worthy of note that, the enjoyment of human rights are not without conditions. In fact, Article 12(2) of Ghana’s Constitution states explicitly that, “every person in Ghana, whatever his race, place or origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this chapter (Chapter 5) but SUBJECT TO THE RESPECT FOR THE RIGHTS AND FREEDOMS OF OTHERS AND FOR THE PUBLIC INTEREST.” This is a clear case of fetters to the so called absolute and complete enjoyment of fundamental human rights of citizens of Ghana.

Do we have “public interest” in the activities of the homosexuals? Of course yes. Every nation is built on its history which embodies its identity, traditions and customs. It is not for nothing that the 1992 Constitution of Ghana recognizes and guarantees the Chieftaincy institution and customary law and usage in Articles 270(1) and 11(2).

It is trite knowledge that Ghana has lost a substantial part of its traditions, customs and its pristine identity to Colonialism and Slavery. Ironically, the British who raped us off our identity and customs in the wake of colonialism is still holding their customs and traditions to their chest. Until her passing, Queen Elizabeth was the most powerful woman who ever lived. The laws of the United Kingdom are still protecting their sacred chieftaincy institution with its attendant customs.

While at that, the United Kingdom prohibits polygamy for whatever reason. Indeed, under section 11(b) of the Matrimonial Causes Act, 1973 of the United Kingdom, a person commits Bigamy if that person at the time of committing him or herself to a marriage was already married. This law is as discriminatory as the current LGBTQIA+ Bill of Ghana if we were to hold the two to the test of proper definition of what constitutes discrimination. And interestingly, this law is applied in Ghana as a Common Law country if a couple was to marry through Ordinance instead of Customary. How?

Will Ghana be a lone lamb in Africa if we were to allow the current Bill to become law and by extension will Ghana be economically impotent? Indeed, Uganda recently passed quite a stiffer law to crack down on homosexual activities. Also, in May 2019, the High Court in Kenya upheld laws criminalizing homosexual’s acts. Worthy of note is that, out of the 53 countries in the Commonwealth, most of them former British colonies, 29 of them have laws that criminalize homosexuality. Indeed, within the 54 states in Africa, it is only South Africa and the French Islands of Mayotte and Reunion that have explicit laws recognizing same sex marriages and civil unions. With these scenarios, how can Ghana be treated as a lone lamb if we were to proceed to make this Bill a Law? The Saudi Arabia, which is one of the greatest allies of the United States, prescribes death as a legal punishment for same sex marriage.

Comparing the laws prohibiting same-sex marriage across different jurisdictions, Ghana’s current Bill is very friendly, moderate and soft in its wording and application. For instance, Section 17(3) of the current Human Sexual Rights and Family Values Bill, 2024, seeks to even protect homosexuals against extra judicial treatment. Per the above section, a person who verbally or physically abuses, assaults or harass a person accused of any offence relative to the activities of homosexuals, commits a misdemeanor and shall suffer the punishments prescribed in section 84 to 87 of the Criminal Offences Act, 1960, (Act 29).

Perhaps, the last rape that will finally rip Ghana of its complete identity is the legalization of same-sex marriage. And where the arguments are going, just maybe, the dominoes are about to fall in favor of the legalization of homosexuality in Ghana. If we lose the ground to those seeking to undo this current LGBTQIA+ Bill, including, President Akuffo-Addo and his government’s nonchalance and intransigence, the grounds would have been fertile enough for activism to realize President Akuffo-Addo’s declaration of “IT IS BOUND TO HAPPEN.”

Issifu Seidu Kudus Gbeadese
(Youth Imam from Laribanga)
[email protected]