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20.07.2011 Feature Article

On The Legality of Homosexual Relationships: A Lay man's opinion

On The Legality of Homosexual Relationships: A Lay man's opinion
20.07.2011 LISTEN

I have followed with keen interest the on-going discussion in the Ghanaian society regarding homosexuality (here, I use homosexuality to refer to sexual intercourse between persons of the same gender). As someone who has previously written and published on this subject in the Ghanaian media (my previous article was captioned “Is There A Single Christian Answer to Sexual Orientation?”), I will like to share my thoughts again as a way of enriching the current discussion.

Firstly, let me state that although I will be considering the legal issues pertaining to homosexuality, I am not a person with any formal legal training. However, I believe that lay people may also have some insight which, when shared, can help to shape and mould our society for the better.

To allow for easy reading and coherency, I have organised this article into titled sections.

Historical Philosophical Considerations
From my modest knowledge in history and philosophy, I have come to understand that throughout history, key personalities within every society have played important roles in helping the broader society to determine right from wrong; acceptable behaviour from unacceptable behaviour; and legality from illegality.

For Western societies, philosophers of ancient Greece such as Socrates, Plato and Aristotle; and their relatively more modern colleagues such as Descartes, Newton, Burke, Hegel, Kant, Mill and Voltaire all played important roles in what came to be accepted as right and wrong in these societies. In our African society, it was common practice for the King's word (Chief's word) to be the law although this position has changed even as African countries have passed their own national constitutions as the highest law of their respective territories.

Whether it was Aristotle's position that virtue should be most highly regarded when it comes to ethics; or Immanuel Kant's regard for duty; or John Stuart Mill's utilitarianism, I am sure more learned law professors and philosophers in our own Ghana will attest to my point that these men and others have had tremendous influence on society's view of right and wrong. To give an example to support my point, A. V. Dicey is credited by many for coining the expression “Rule of Law” although others before Dicey -- such as Aristotle -- made strong claims for what we now call rule of law.

Therefore, as it may be agreeable to all that a small number of human beings have had great influence on the broader society's perception of right and wrong, it stands to reason that the discussion we see today with various interested parties airing their positions on issues they feel strongly about is consistent with history. This is to say that it is people who decide what they will accept as right and what they will deem as wrong.

Presently, expert opinion is still highly regarded when it comes to the formulation of laws for many societies. Scientists, philosophers, and even theologians all have made important contributions to the laws of societies across the world. We should also note here that as knowledge advances, there will be new areas that will need to be legislated, and for the proper laws to be made, expert opinion will be rated highly in the determination of the legal framework governing those situations. For example, as science develops and scientific research advances, a time will come when Ghana may have to legislate on stem cell research. When (or if) Ghana ever gets to that point, the views of scientists, philosophers and ethicists, theologians and other interested parties will be crucial in arriving at the final laws that we promulgate.

Divergent Public Opinion on the Homosexuality discussion

The discussion on homosexuality has generated comments from all sections of society. From the streets to the radio, interested parties are making their voices heard. For some people, homosexuality is a private matter and should be allowed to remain so. For others, homosexuality is an important moral issue that has repercussions on the eventual development of our nation.

In expressing their divergent views, people are exercising their right to freely express themselves in this country of ours that prides herself in the rule of law. The discussion should be allowed to continue on the substance of the subject matter and on nothing else. The greater society benefits when intelligent reasons are given in support of the various arguments being made by all parties that have a stake in this issue.

As I have already stated, history teaches us that people have always determined what they will accept as right and what they will condemn as wrong. Therefore, even as this discussion continues, I think it will be in everyone's interest to avoid foul language and comments that deviate from the subject.

We will have to understand that even as we want to rightly claim our freedom of expression, we should not prohibit others from voicing out their opinions just because their positions may be different from ours.

Possible Inconsistencies in the Legal Argument

I have heard the argument being raised in some quarters about homosexuality being a “victimless” case (here, I believe proponents of this argument mean that there is no victim other than the person(s) involved in the act. I will be glad if someone clarifies this position better if I am wrong). While a case may be made either way — for a victimless case or otherwise — I think this argument is weak given that our laws in Ghana (and laws elsewhere) punish the so-called victimless cases.

To clarify how laws have been enacted against victimless cases (and here, “victimless” is being assumed to mean that none other than the offender suffers harm), let us consider the following examples:

In some jurisdictions, failure to wear a seatbelt while seated in a moving vehicle is a punishable offence. Ruling out an accident involving other vehicles and living road users (as in road users who have life, e. g. human beings and animals), an accident involving a driver without a seatbelt which eventually results in near-fatal injuries to the driver leaves none other hurt apart from the driver. Although only the driver gets hurt in this instance, the law in some jurisdictions mandates police officers to arrest (or ticket) drivers and passengers without their seatbelts fastened.

Similar arguments can be made for suicide, drug trade and drug use, and criminalisation of attempted crimes (i.e. people being charged with “attempted rape” and “attempted murder” although no actual crime was committed; hence, no victim).

In the arguments under this section, I have assumed “victimless” cases to mean cases in which the perpetrator(s) is/are the sole sufferer(s) of harm. If this definition is not what proponents of this term imply, I can only think of one other possibility: “victimless” cases are situations in which no one at all (not even the perpetrators) suffers harm. With this second definition also, there appears to be a lot of inconsistencies with the prevailing laws in Ghana. For example, the person who disobeys the local government bye-law not to walk on the grass is guilty of a punishable offence although no one suffers harm.

So where do we go from here?
I am not sure about the consensus among those who disagree with homosexuality: Is it criminalise homosexual behaviour? Is it to only prohibit same-sex marriages? Is it to deny homosexuals some rights that their heterosexual counterparts enjoy?

In my opinion, the questions here (and others related to the subject heading) should form the foundation of this discussion. The Ghanaian society — and other societies — have evolved complexities to an extent that there are no easy answers to some of the challenges that we face today.

As I mentioned earlier in this article, there are examples in our statute books of so-called “victimless” cases which are punishable offences. Therefore, it will not be a novelty to add homosexual behaviour to the existing list. However, it appears that there is not yet compelling reason for someone's private affairs to become punishable by the larger society (except if we say that the homosexuality is not private at all in that it has repercussions on the larger society. . .whatever those repercussions may be).

In the end, I will want to call on others who have well thought-out arguments on the subject of homosexuality to share their reasons on public platforms so that collectively, we can arrive at a final decision on the subject of homosexuality.

By: Arden Darko-Boateng,
Texas, USA.

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