Will President Mahama Assent to the Anti-LGBTQ Bill? His Constitutional Options and Political Calculus

The passage of the Human Sexual Rights and Family Values Bill, 2025 by Parliament last week, May 29, has shifted the national conversation from whether the bill would pass to a more consequential question: will President John Dramani Mahama assent to it if and when it reaches his desk?

At first glance, the answer might appear straightforward. During the 2024 presidential campaign, Mahama publicly indicated on several occasions that if Parliament passed the bill and it was presented to him as President, he would sign it. Those statements were widely interpreted as support for both the objectives and legislative intent of the bill.

However, the constitutional, legal and political landscape has evolved significantly since then.

Since assuming office, Mahama has adopted a more cautious and nuanced posture. While continuing to affirm traditional family values and cultural norms, he has suggested that moral and civic education may be a more effective means of addressing issues relating to sexuality than criminal sanctions alone. He has also indicated that such legislation would be better pursued as a government-sponsored bill rather than a Private Member's Bill and has also stated that the bill is not among the immediate priorities of his administration. More recently, speaking at Chatham House in London, he has publicly highlighted concerns regarding alleged procedural irregularities surrounding the bill's passage and referred to possible mechanisms for review.

Taken together, these statements suggest that the critical question is no longer whether Mahama agrees with the broad objectives of the bill. Rather, the issue is whether he is prepared to assume constitutional responsibility for legislation that may yet face procedural and substantive constitutional challenges.

The Constitutional Crossroads
Once the bill is transmitted by Parliament, the President is not required to make an immediate decision. The Constitution provides him with several options as Mahama stated recently. One option is, he may seek advice from the Attorney-General and other constitutional advisers or he may refer the bill to the Council of State under Article 90 of the 1992 Constitution for consideration and comment.

Alternatively, he may return the bill to Parliament with reasons for withholding assent and invite reconsideration or he may assent to the bill, in which case it becomes law.

The significance of these options is that Mahama need not reject the bill's objectives in order to decline immediate assent. He may instead rely on constitutional, procedural or legal concerns arising from the bill itself or the manner in which it was enacted.

Lessons from Uganda: Procedure Can Be Fatal

One factor the President may legitimately consider is the experience of Uganda. In 2014, Uganda's Constitutional Court struck down the country's Anti-Homosexuality Act. The court did not invalidate the law because it disagreed with its policy objectives. Rather, it held that Parliament had passed the legislation without the constitutionally required quorum.

The lesson is profound. A law may enjoy overwhelming public support and yet be invalidated if constitutional procedures are not strictly followed.

The Ugandan decision is not binding on Ghanaian courts. Nevertheless, it illustrates the risks associated with procedural defects in highly controversial legislation and explains why a President may be reluctant to assent to a bill where unresolved questions exist regarding quorum, voting procedures, circulation of amendments or compliance with parliamentary rules.

In Ghana's case, Speaker Alban Bagbin's recent concerns regarding aspects of the bill's passage have introduced a new layer of uncertainty. Whether those concerns ultimately prove justified is a separate question. Their existence alone provides a basis for further constitutional scrutiny.

The Article 108 Question
A second issue relates to Article 108 of the Constitution, which restricts the introduction of certain categories of legislation by Members of Parliament where those bills impose a charge on public funds.

This issue has assumed renewed significance following the Supreme Court litigation involving a Private Members’ Bill, including the cases brought by Richard Dela Sky and Dr Amanda Odoi when the Human Sexual Rights and Family Values Bill was first passed by Parliament in 2024.

Contrary to some public commentary, the Supreme Court did not definitively settle the full scope of Article 108 in those cases. Rather, the Court largely approached the issue through the lens of justiciability and ripeness. In substance, the Court emphasized that it would not determine abstract or speculative constitutional questions detached from a concrete legal controversy or fully crystallized legislative act. The Court therefore declined to provide an expansive interpretation of Article 108 at that stage of the legislative process, effectively leaving open the broader interpretive question concerning the extent to which a bill’s fiscal consequences may engage Article 108.

That unresolved question remains relevant to the Human Sexual Rights and Family Values Bill, 2025 recently passed by Parliament.

Critics argue that the bill creates new criminal offences whose enforcement will inevitably require public expenditure through police investigations, prosecutions, incarceration, prison administration, healthcare, feeding and supervision of convicted persons. They contend that the cumulative financial burden associated with enforcement may be substantial enough to raise legitimate Article 108 concerns, particularly given that the bill originated as a Private Member’s Bill rather than a government-sponsored measure.

Supporters of the bill respond that Parliament has already addressed these issues internally and that Speaker Alban Bagbin permitted the bill to proceed after considering its fiscal implications. They further argue that the ordinary costs associated with enforcing criminal laws do not automatically amount to a constitutional “charge on public funds” within the meaning of Article 108 and caution against an interpretation that would render virtually every criminal law amendment constitutionally suspect.

However, the absence of a definitive Supreme Court pronouncement on the outer limits of Article 108 therefore leaves the issue legally unsettled rather than conclusively resolved. For President Mahama, that uncertainty may itself become a relevant constitutional consideration in deciding whether to assent immediately, seek further legal advice, refer the matter to the Council of State, or return the bill to Parliament for reconsideration.

The Prospect of Constitutional Litigation

Even if all procedural objections are resolved, another question remains: will the bill survive constitutional scrutiny after assent?

Opponents of the legislation have argued that certain provisions may implicate constitutional protections relating to freedom of speech, freedom of expression, freedom of association, personal liberty, privacy, media freedom and academic freedom.

Supporters respond that the Constitution permits reasonable restrictions necessary to protect public morality, cultural values, family life and the rights of others.

The President is not required to determine these constitutional questions conclusively. That responsibility ultimately rests with the Supreme Court. Nevertheless, he may consider whether certain provisions expose the legislation to prolonged constitutional litigation and whether further legislative refinement may reduce those risks.

Importantly, presidential assent does not shield legislation from judicial review. Even after becoming law, the bill may be challenged before the Supreme Court and High Court and any provision found inconsistent with the Constitution and legislation may be struck down.

What Happens If Mahama Refuses to Assent?

This is perhaps the most overlooked aspect of the debate. The President's refusal to assent does not necessarily end the legislative process. Under Article 106 of the Constitution, if the President returns the bill to Parliament with reasons for withholding assent, Parliament may reconsider it. If Members of Parliament vote by two-thirds majority, the President is constitutionally obliged to assent to it.

In other words, the Constitution gives the President an important delaying and review function, but not an absolute veto. This reality is politically significant. If Mahama refuses assent and Parliament succeeds in securing the required two-thirds majority, the bill could ultimately become law regardless of his reservations. In such circumstances, his refusal would merely postpone rather than prevent its enactment.

The Political Stakes for Mahama and the NDC

The President's decision will not be judged solely through a constitutional lens. It will also carry political consequences for both him and the National Democratic Congress (NDC). If Mahama signs the bill, he may satisfy those who supported his earlier campaign commitments and those who view the legislation as reflecting the moral and cultural values of the majority of Ghanaians and benefit the NDC in the 2028 presidential and parliamentary elections.

However, he may also face criticism from domestic and international human rights advocates who regard aspects of the bill as inconsistent with constitutional rights and international human rights standards.

Conversely, if he refuses assent, he risks accusations of abandoning a position he publicly embraced during the 2024 campaign. Political opponents could portray such a decision as a retreat from a campaign promise or as capitulation to international pressure. Given the broad public support that anti-LGBTQ legislation has historically enjoyed in Ghana, such a perception could carry political costs.

At the same time, refusal to assent could be defended as an act of constitutional prudence rather than political opposition to the bill itself. By relying on procedural concerns, Article 108 questions, Speaker Bagbin's reservations, or the prospect of constitutional litigation, Mahama could frame his decision as one grounded in constitutional fidelity rather than disagreement with the bill's objectives. This distinction may prove critical for the NDC, which must navigate the competing pressures of public opinion, constitutional governance, international relations and its own electoral commitments.

Mahama's Most Likely Course
Viewed collectively, the legal and political landscape confronting President Mahama is considerably more complex than it appeared during the 2024 election campaign. His pre-election statements suggested a willingness to sign the bill if Parliament passed it.

However, his post-election statements suggest a desire to ensure that any legislation he assents to is constitutionally sound, procedurally valid and capable of withstanding judicial scrutiny.

This distinction is important.
A President may support the objectives of a bill while harboring reservations about its constitutional vulnerabilities. For that reason, the most likely immediate outcome may not be outright assent or outright rejection, but rather a period of constitutional review involving consultations with the Attorney-General and in-house legal counsel, possible referral to the Council of State, and careful consideration of the procedural concerns raised by the Speaker, the Article 108 questions associated with Private Members' Bills, and the possibility of future constitutional challenges.

Conclusion
The ultimate fate of the Human Sexual Rights and Family Values Bill, 2025 may depend less on the underlying debate about sexuality and family values than on the constitutional safeguards embedded within Ghana's democratic system.

Questions concerning quorum, parliamentary procedure, Article 108, presidential duty and fundamental rights now occupy centre stage. These are not mere technicalities. They are constitutional guardrails designed to ensure that legislation, however popular or controversial, is enacted in a manner consistent with the Constitution.

President Mahama therefore faces a choice that is as much constitutional as it is political. Whether he ultimately assents to the bill, returns it to Parliament, or seeks further review, his decision will likely be guided not only by the substance of the legislation but also by his assessment of its ability to survive the constitutional tests that almost certainly await it.

What is clear is that even if the President declines to assent in the first instance, the Constitution provides Parliament with a pathway to insist on its legislative will through a two-thirds majority override. Consequently, the final chapter of the Human Sexual Rights and Family Values Bill, 2025 may ultimately be written not by the President alone, but by the interaction between Parliament, the Presidency and, quite possibly, the High Court and Supreme Court.

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