THE HOMOSEXUALITY DEBATE: A LEGAL APPROACH TO A MORAL QUESTION Cletus Alengah

ABSTRACT This article is a contribution to the debate on the criminalisation or decriminalisation of homosexual acts. The debate raises moral questions as well as legal questions such as human rights and the purpose and function of the law. The fundamental question is whether the law can and should intervene in consensual homosexual acts done in private between adults. It is argued that even though the law has a duty to respect human rights and the privacy of citizens, it may legislate against private acts where a compelling state interest exists although it may occasion a breach of some sought of right of another. The conclusion reached is that in the area of homosexuality, such compelling state interest can only be ascertained after an in-depth analysis of the act alongside the current social needs and values of our nation.

C.S.Sp., BA(Philosophy).

I have heard some say ... that such [homosexual] practices are allowed in France and in other NATO countries. We are not French, and we are not other nationals. We are British, thank God! Viscount Montgomery of Alamein INTRODUCTION The above quotation1 is taken from the speech of Field-Marshall Montgomery, otherwise known as Viscount Montgomery, speaking on the second reading of the Sexual Offences Bill. I chose to begin the discussion with this quotation to underscore the fact that Ghana as a sovereign nation cannot formulate its criminal laws solely on what others have done. The decision to enact laws to regulate homosexual practices, like laws regulating all behaviour in society, should be borne out of an informed conscience taking into consideration public policy and the general social and moral sense of the society in which we live. Homosexual activities are not only practices of the modern world but also of the ancient times. Sodomy (men having sex with men), for example, is said to have derived its name from Sodom, a biblical city which God destroyed for their practices of such acts. Since the second half of the 19th century, the practice has been on a steady rise all around the world. In Africa, while some believe the practice has been with us for ages2, others contend it is a Western practice creeping into the diaspora. It is actually astonishing why Africans ascribe all perceived negative behaviours to the West. In Ghana, the approach to the issue has been diverse even among legal brains with some suggesting that our laws do not criminalise homosexual acts as such.3 The necessity of criminalising such acts and its consistency with the constitutional provisions on fundamental human rights has also been at the centre of many debates. On the whole, there seem to be a minority view advocating for the decriminalisation of the act. The debate was fuelled by the threats from America4 and Britain5 to cut aid if homosexuality is not legalised. Though the government has expressed that it is not perturbed by the threats,6 we need as a nation to approach the issue from an objective point of view to make informed decisions. The issue is not that simple as it borders on human rights and the purpose and role of

1 2

Hansard (Lords) 24 May 1965, col. 648 Stephen Murray, Will Roscoe (eds.), Boy Wives and Female Husbands: Studies of African Homosexuality, New York, St Martins Press, 1998 3 Section 104 of the Criminal Offences Act, 1960 (Act 29) makes unnatural carnal knowledge of a person or an animal a crime. Some think the law does not refer to homosexual act as the act is as natural as heterosexual. This will be discussed further in detail. 4 No Gay Rights, No Foreign Aid Obama, General News of Tuesday, 6 December, 2011, http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=225055. Retrieved: 17 December, 2011 5 Countries That Ban Homosexuality Risk Losing Aid, Warns David Cameron. Sunday 30 October 2011. http://www.guardian.co.uk/politics/2011/oct/30. Retieved, 17 December, 2011 6 Mills replies David Cameron; You cant threaten us with gay aid! November 2, 2011. http://edition.myjoyonline.com/pages/news/201111/75813.php. Retrieved: 17 December, 2011

law in the society. This article is not meant to be exhaustive but to expose certain issues of importance and to generate further discussions on the subject to inform our decision. THE PURPOSE OF LAW The English philosopher, Thomas Hobbes7 traces the history of civilisation to an orderless society which he termed the state of nature. The state of nature is the period of mans most natural form of existence where people lived subject to no enacted laws except the laws of nature. Everybody was free to do whatever he wills and is able to do. This created a state of war where every person was at war with the other; resulting in survival of the fittest. In order to to seek peace and follow it, men decided to cede all their rights to one authority and come under that authority. Having acquired all the individual rights of members of the society, the man with the authority then goes ahead to enact laws to regulate behaviour in the society and to achieve the peace such desired. If Hobbes analysis is anything to go by then the beginning of law could be said to be the agreement of people to cede their rights to one authority. The purpose of law then is to seek peace through the regulation of behaviour in the society, albeit, to encourage some behaviours and prevent others. The decision about which behaviours should be encouraged or prevented is not done arbitrary; as Taylor J puts it in Marhaba v The Republic,8 it must have as its proper object the well-being of the whole community. All other purposes of the law conform to this ultimate purpose. The Wolfenden Committee, for example, found as the function of the criminal law the preservation of public order and decency, the protection of citizens from what is offensive or injurious, and the provision of sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence.9 LAW AND MORALITY Morality is a social order that relates to what one ought to do and what one ought not to do. It is a social order because it seeks to regulate behaviour in society and has been with man since his existence. If we consider the purpose and function of law, we see a close relation between law and morality. It is trite learning that the law is not coterminous with morality. 10 Yet, it cannot be denied that morality has greatly influenced law. In this sense, it is better to differentiate between objective morality and religious morality.

7 8

Leviathan This is Hobbes most distinguished work, published in 1651 [1979] GLR 90 at 99 9 Report On Homosexual Offences and Prostitution (The Wolfenden Report) 10 Henrietta J.A.N. Mensa-Bonsu, The General Part of Criminal Law: A Ghanaian Casebook, vol. 1, Accra, Black Mask Ltd., 2001. p. 27

Many people define morality in terms of religion.11 In his book Ethics Without God,12 Kai Nielsen argues that one does not need to believe in God or belong to a religion in order to be ethical.13 In other words, God is not the author of morality and that a disbelief in God is not a ground for one to be unethical or immoral. This is what I call objective morality as opposed to religion-based morality. In the later, something is right or wrong because someone says so whereas in the former, behaviours that are right and wrong are so in themselves and has no recourse to other personalities or supernatural being(s). This distinction also exists in the criminal law. The law differentiates between crimes that are mala in se and those that are mala prohibita. The later are crimes because someone or some authority made them so while the former are crimes because they offend the very nature of humanity and thus wrong in themselves. Mala in se crimes are said to constitute breaches of moral rules14 and may include murder15 and rape16 while mala prohibita crimes are made crimes by the society to regulate social behaviour or uphold the integrity of the State. Examples of such crimes include insulting the national flag,17 unlawful training,18 and the taking or administering of an unlawful oath.19 Mala in se crimes require proof of mens rea (a blameworthy state of mind) because they may have a connotations of moral failure.20 Offences mala prohibita however may not require a guilty mind and give rise to strict liability. The distinction between objective morality and religious morality helps in our understanding of the relationship between law and morality. Debates on this topic has been characterised by the issue of whose morality becomes the guiding principle. This is a problem if one views morality from the religious point of view.21 It needs not be re-emphasised that the realm of religious morality is not the business of the law. As Lord Hope of Craighead noted in R v Governing Body of JFS22 it is not the business of the courts to intervene in matters of religion and in the words of Munby LJ, The aphorism that Christianity is part of the common law of England is mere rhetoric.23 Morality in this sense should thus be viewed objectively. An objective approach to morality blurs the question of whose morality the law should consider. The law itself recognises

11

Few authors have this distinction. Cf. Hans Kelsen, General Theory of Law and State, Cambridge, Harvard University Press, 1945. p. 21 12 Kai Nielsen, Ethics Without God, London, Pemberton, 1973 13 Ethics and morality are used as synonymous in this sense. 14 Supra note 10, p. 28 15 Section 46ff of Act 29 16 Section 98 of Act 29 17 Section 184 of Act 29 18 Section 189 of Act 29 19 Section 191 of Act 29 20 Supra note 10, p.28 21 Certain types of morals differ from one religion to the other and even within the same religion, such differences may exist among different denominations. A typical example is the Catholic Churchs opposition to contraceptives and divorce which is different from most other Christian denominations. 22 [2010] 1 All ER 319 23 R v Derby City Council [2011] EWHC 375

some kind of public morality.24 This is the objective kind of morality that makes reference to no individual, group or religion. Lord Devlin recognises this kind of morality as an essential part of the bondage that keeps society together which the society may use the criminal law to preserve...25 Nothing much can be said of about this so-called public morality. But one point need to be reiterated; that it is objective and in a way general. The 1815 Declaration of the congress of Vienna, for example, recognised slave trade as being repugnant to the principles of humanity and universal morality26 (emphasis mine). A long line of cases have made references to this kind of morality.27 Part Four, Chapter Seven of the Criminal Offences Act 1960 (Act 29) entitled Offences Against Public Morals is also very informative on this topic. The words of R. E. Bannerman that the points at which morality and the law overlap increase from time to time, depending upon the current social values28 sums it all. Although they are of different nature and purpose, the law is greatly influenced by the rules of morality.29 THE ISSUE OF HOMOSEXUALITY The thrust of this article is to examine the laws attitude towards homosexuality and especially with respect to criminalising the act in Ghana. As Lord Devlin noted in his essay Morals and the Criminal Law, Each one of us has ideas about what is good and what is evil; they cannot be kept private from the society in which we live. If men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate.30 Homosexuality refers to sexual activities between people of the same sex. The two main forms of homosexuality are gay31 (men who have sex with men) and lesbianism (women who have sex with women). The term has also been used to refer to the sexual activities of people who have sex with both men and women (bisexuals) and transgendered people. The term is said to have been coined by the German psychologist, Karoly Maria Benkert in the late 19th century.32 The last two centuries have seen an increased debate about the practice including same-sex marriage. The debate has centred mainly on moral and legal issues which I seek to contribute.
24 25

Article 20(1)a, 28(1)d of 1992 Constitution of Ghana Lord Devlin, The Enforcement of Morals, p. 1 26 Declaration of the Congress of Vienna, 1815 27 In In Re Asante (DECD); Owusu v Asante [1993-1994] 2 GLR 271 at 320, Charles Hayfron-Benjamin said of the practice of vowing to take to oneself one wife and going ahead to procreate with other women as being very subversive to public morality. In Ibrahim v Amalbini [1978] GLR 368 at 388, Taylor J denounced the claim of an adulterer seeking the child of a marriage still in subsistence as being contrary to public morality and decency. 28 Bannerman R. E., Neglegence The Reasonable Man and the Application of the Objective Test in AngloAmerican Jurisprudence, [1969] 6 UGLJ 69 29 Supra note 10, p. 43 30 Lord Devlin, Morals and the Criminal Law in The Philosophy of Law, R. M. Dworkin, Oxford: Oxford University Press, 1977. p. 31 Gay may also be used to represent both male and female homosexuals 32 Homosexuality in Stanford Encyclopedia of Philosophy; http://www.plato.stanford.edu.htm

THE MORAL ISSUE It is an undisputable fact that the issue of homosexuality raises questions of morality. In fact, it is more of a moral problem than of a legal problem. As a moral issue, homosexuality covers the areas of both gay and lesbianism and the activities of these people that may not even result in sexual intercourse. Most of the moral arguments advanced against homosexuality have Gods law as their basis. Most religions thus frown on homosexual acts as being contrary to Sacred Scripture and a deviation from Divine command.33 Yet, some religious denominations reject the act as being against Gods law. The Anglican Church, for example, sanctions the act and even has some of their ministers involved in same-sex marriage.34 Most ethicists on the other hand, outside religion, contend that the act is unnatural, a diminution of human dignity and a threat to family life. It was even at some point seen as a psychological problem. The Dutch health institutions stopped treating it as a psychological problem only in 1973.35 Three years later, the World Health Organisation listed it as a mental illness36 and was only removed from the list in 1990.37 Some ethicists have however reconsidered their opinion on the topic in the light recent developments.38 THE LEGAL ISSUE The fact that homosexuality is a moral issue does not necessarily preclude it from all legal discussions and legislation. As noted earlier, though the realms of law and morality are distinct, the influence of one on the other cannot be overruled. It stands without contention that it is easier to criminalise morally wrong behaviours as opposed to morally neutral behaviours.39 Homosexual activities have thus been the business of the law over the past years with recent amendments. In England, for example, the Sexual Offences Act 1956 read in part as follows:40 It is an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be a party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man. It is to be noted that homosexual activities among females (otherwise known as lesbianism) was not covered by this enactment. Whatever that informed the drafters of the law to exclude female
33

Vatican Declaration on Some Questions of Sexual Ethics, 1976, in Social Ethics: Morality and Social Policy, 3rd ed., Thomas Mappes and Jane Zembaty, eds., (New York: McGraw-Hill, 1987), pp. 246 - 247 34 In 1957, the Archbishop of Canterbury declared support for recommendations of the Wolfenden Committee to decriminalise homosexualise practices between consenting adults. (BBC News of 4 September 1957) 35 Homosexuality: the Law, Ethics and the Bible, www.seekingtruth.co.uk/homosex/htm 36 International Classification of Diseases, Ninth Revision (ICD-9) 37 International Classification of Diseases, Tenth Revision (ICD-10) 38 Burton Leiser, Homosexuality and and Unnaturalness Argument, in Mappes and Zembaty, eds., supra note 33 39 H. Packer, The Limits of the Criminal Sanction in Mensa-Bonsu, supra note 10, p. 40 40 Section 13 of Sexuaal Offences Act, 1956

homosexual practices does not seem clear to the present writer, although recent enactments have followed the same trend. Owing to diverse opinions, the government constituted a 13-member Committee chaired by the then Vice-Chancellor of Reading University, Sir John Wolfenden to look into the law on homosexuality and prostitution. The Committee known as the Wolfenden Committee did an extensive work and presented its report in September 1957, three years after it was constituted. The155-page report entitled Report on Homosexual Offences and Prostitution otherwise known as the Wolfenden Report recommended chiefly that homosexual activities between consenting adults be decriminalised. This recommendation received support from several people and organisations. Prominent among them, the Archbishop of Canterbury, Dr. Geoffrey Fisher, the British Medical Association, the Howard League for Penal Reform and the National Association of Probation Officers. Yet, it wasnt until after ten years that the Parliament passed a law to reflect the recommendations. The Sexual Offences Act 1967 provided at section 1(1) as follows Notwithstanding any statutory or common law provision a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years. The age of consent for homosexual activities was reduced to 18 in 1994 and further to 16 in 2001 to coincide with age the of consent to heterosexual sex. 41 It is also important to note that the 1967 Act defined homosexual activities not only in terms of penile penetration but also any act amounting to gross indecency of a man towards another man.42 The Act also maintained as criminal homosexual activities committed in public and those which more than two people partake.43 The case of the US is quite different. Laws on homosexuality differed from State to State. In 1986 the US Supreme Court held in Bowers v Hardwick44 that laws criminalising homosexual acts do not contradict any constitutional provision. At the time of Bowers, twenty-five States had laws prohibiting homosexual acts. Ten years later, the Court rejected an amendment to the Colorado state constitution that would have barred any city or county to take any action, executive or judicial, to recognise gays and lesbians as a protected class.45

41 42

Cf. Sexual Offences (Amendment) Act, 2000 Section 1(7) of Sexual Offences Act, 1967 provides that For the purposes of this section a man shall be treated as doing a homosexual act if, and only if, he commits buggery with another man or commits an act of gross indecency with another man or is a party to the commission by a man of such an act. 43 Section 1(2) provides in part that An act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done (a) when more than two persons take part or are present 44 478 U.S. 186 45 Romer v Evans 517 U.S. 620

Sooner or later, the decision in Bowers began to receive criticisms. The thoughts of most Americans on the issue changed. A 2001 research showed that 48 per cent of Americans supported the legalisation of homosexuality. Two years later, the number had increased to about 60 per cent.46 In 2003, the Court in a 6 3 majority decision47 reserved its decision in Bowers. The decision was informed by, among others, the right to liberty under the Due Process Clause of the U.S. Constitution. At the time of the decision in Lawrence, thirteen states still had laws prohibiting homosexual conducts. The Courts decision therefore paved way for the repeal of state laws criminalising homosexual acts. Yet, homosexuals were never admitted into any of the Security Services including the Military, FBI and the Secret Service. It wasnt until 2010 that attempts were made to end the Dont Ask, Dont Tell policy to allow people who publicly practised gay to serve in the military. THE GHANAIAN CASE The law on homosexuality is covered by section 104 of the Criminal Offences Act, 1960 (Act 29). For the avoidance of doubt, it may be of some importance to reproduce the law here. The said section reads48 104. Unnatural Carnal Knowledge (1) A person who has unnatural carnal knowledge (a) of another person of not less than sixteen years of age without the consent of that other person commits a first degree felony and is liable on conviction to a term of imprisonment of not less than five years and not more than twenty-five years; or (b) of another person of not less than sixteen years of age with the consent of that other person commits a misdemeanour; or (c) of an animal commits a misdemeanour. (2) Unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner or, with an animal. Perhaps, it may be of some importance to begin the discussion from the bottom. For some, the question of homosexuality is not covered by our criminal law and thus cannot be considered a crime in Ghana.49 The argument is that homosexuality could not be likened to unnatural carnal knowledge which rather implies homosexuality is unnatural. The Act itself defines unnatural
46 47

Supra note 35 Lawrence v Texas 539 U.S. 558 48 Section 104 of Act 29 49 Ghanas Laws Do not Prohibit Homosexuality Law Lecturer, GhanaWeb, General News of Friday, 14 May 2010

carnal knowledge as sexual intercourse with a person in an unnatural manner, or with an animal.50 The question of what is unnatural still remains unanswered and may be an issue for the courts to determine. Carnal knowledge or unnatural carnal knowledge is said to be complete on the proof of the least degree of penetration.51 The Supreme Court upheld this in the case of Moshie v The Republic.52 Thus, unlike the English law, some kind of penile penetration is required for an offence to be covered by this provision. As Date-Baah, JSC observed in the unreported case of Gligah and Atiso v The Republic:53 Carnal knowledge is the penetration of the womans vagina by a mans penis. It does not really matter how deep or however little the penis went into the vagina. So long as there was some penetration beyond what is known as brushwork, penetration would be deemed to have occurred and carnal knowledge taken to be completed. It thus follows that the offence of unnatural carnal knowledge cannot be committed by females acting alone. The use of sex toys and other gadgets would not amount to carnal knowledge. Whether homosexuality is defined to be natural or unnatural, homosexual acts between consenting females (otherwise known as lesbianism) can never be a crime. The rare (but not impossible) point rather had to be made clear that a female who is carnally known by an animal commits an offence under section 104(1)(c) of Act 29. Then to the question of what is unnatural, it is to be noted that the Act itself does not define what is unnatural; nor is the Interpretations Act (CA 4) instructive on this point. But as Prof Ocran noted in Tsatsu Ttsikata v The Republic,54 The framers of the Constitution did not intend to order legislators to supply a lexicon of words within the four corners of each and every piece of legislation that sought to create a crime. The provision requires a written law of crimes, that is, the creation of crimes in a written form; but not, as Counsel puts it, a written law definition of all words used in a criminal provision. Not only would such a task prove futile or impracticable; it would also ignore the fact that no statute exists in isolation from the general criminal law of any legal system, in particular, Criminal Codes and the Criminal Procedure Codes which may appropriately be described as forming the beams of criminal jurisprudence. Moreover, the language of the law, though specialized, cannot be self-contained and therefore assumes as its foundation the general language of the country in which the legal system functions. No doubt, many statutes provide what is called intrinsic aid, that is, internal definitions and even examples and scenarios of meanings. But this cannot be done, and is not
50 51

Section 104(2) Section 99 of Act 29 52 [1976] 2 GLR 310 53 Excerpts reported in the Daily Graphic, Tuesday, 6 September, 2011. p. 11 54 [2003 2004] SCGLR 1068

expected to be done, for each word or term that is deployed in creating a crime. And where no intrinsic aid is provided, the legal system has always resorted to extrinsic aid in the difficult matter of construing or interpreting legislation. Such acceptable extrinsic aid has always included specialized and general language dictionaries. We may thus resort to dictionary definitions to give meaning to the word. The Longman Dictionary of Contemporary English (updated edition) defines unnatural as, among other things, different from what you would normally expect or different from normal human behaviour in a way that seems morally wrong. What is unnatural therefore refers to a deviation from the normal. We must however be careful in differentiating between innovative acts or new ways of doing things from what is unnatural. Not all abnormal behaviours would be unnatural; only those that seem morally wrong. In the Blacks Law Dictionary unnatural offense is another name for sodomy. Ampiah JSC noted in Mensah v Attorney-General55 that The fundamental rule of interpretation of statutes ... is that what is intended by the framers of an Act must be expressed in the words used in the statute or document. He opined that if the intention differs from what is expressed, the worse for those who wish the actual intention to prevail. The Court further held in the Mensah case56 that words in an enactment should be given their ordinary meaning unless otherwise stated. Abban JSC (as he then was) puts it in Ghana Bar Association v AttorneyGeneral57 as follows: It must also be borne in mind that in construing any statute, for that matter any of the provisions of the Constitution, the duty of the court is to stick to the ordinary meaning of the actual words used. ... unless by so doing it would be at variance with the intention of the law makers or could result in or lead to some obvious absurdity. It thus seems to the present writer that the ordinary dictionary meanings of the word unnatural as provided above are of great importance in giving meaning to this provision of the Act. Most homosexuals do not agree that the act is unnatural. One of them argued, in an interview, that the act is as natural as heterosexual act. He opined that those who claim the act is unnatural say so only because they are in the minority. He claimed that just us many people are born righthanded and a few left-handed, so many are born heterosexual and a few homosexual. Barclow58 supports this argument in the sense that if what is natural is determined by what the majority do or have, then since many people have IQs between 90 and 110, to possess an IQ of about 175 which very few people have would be unnatural. It is the view of the writer that the argument on

55 56

[1997-98] 1 GLR 227 at 261 Mensah v Attorney-General [1997-98] 1 GLR 227 57 (1995) 1 GSCJ 1 at 13 58 Emmett Barcalow, Moral Philosophy: Theory and Issues, Belmont, Wadsworth Publishing Company, 1994. p. 225

what is natural based on numbers is unfounded and baseless since it is a basic principle of logic that the majority is not always right. The words of Date-Baah59 quoted above would therefore be very necessary in clarifying this point. He defined carnal knowledge as the penetration of the womans vagina by a mans penis (emphasis mine). This implies natural carnal knowledge should be a penis to a vagina; any penetration that does not conform to this will be unnatural. Thus, anal sex (even between people of the opposite sexes) becomes unnatural; so as sexual intercourse between males (owing to the absence of a vagina) and even oral sex (if only that could be called penetration). It is to be noted that section 104 of Act 29 does not cover offences against people below sixteen years. Unnatural carnal knowledge with a person below sixteen years is covered by section 101 of the Act and carries the same penalty as natural carnal knowledge with a person below sixteen years. The offence of unnatural carnal knowledge as in Section 104 of Act 29 has three forms: 1. without the consent of the other person; this is akin to rape60 and carries the same penalty. 2. with the consent of the other person; this is a misdemeanour 3. with an animal (otherwise known as bestiality); this is also a misdemeanour. The first and last are hardly contested. Unnatural carnal knowledge with a person without his consent occasions a violation of ones right for the gratification of another as in rape. The other (bestiality) has been identified with serious health hazards including the possibility of crossbreeding. As for unnatural carnal knowledge with a minor (a person below 16 years) as provided in section 101, since the victim is dole incapas, consent, even when given, is void61 and the act criminal. The law also provides for the unnatural carnal knowledge of idiots, imbeciles and mental patients62 which also rests on the same reason as that of minors. The main contention has thus been with consensual homosexual acts between adults to which we now turn our attention. THE LAWS BUSINESS WITH CONSENSUAL HOMOSEXUAL ACTS? The Western Regional Ministers call for the arrest and prosecution of people suspected to be engaged in homosexual practices received sharp criticism from the foreign media and mixed reactions in the country. I have already referred to the fact that homosexuals see the act as natural as heterosexual and contend that that is their sexual orientation. Some researchers have even suggested biological and genetic reasons for homosexual tendencies.63 This has however been

59 60

Supra note 53 Section 97 of Act 29 61 Section 14(a) of Act 29 62 Section 102 of Act 29 63 See Hamers X-chromosome Research; Le Vays Study of the hypothalamus and Bailey; and Pilliards study of identical twins who are homosexuals

rejected on the basis that the researchers in all the cases were homosexuals and had worked to obtain a specific results.64 It is also submitted by pro-homosexuals that the question of sexual orientation is a matter of private life and the act a private act that the law should not interfere.65 Many such people believe laws criminalising homosexual acts are only borne out of religious beliefs and morality. Then again, there is also the question of human rights66 which gives consenting adults the liberty to engage in sexual activities in private. Enacting rules to regulate such activities should be occasioned by serious health and public policy reasons. As noted earlier, the practice of lesbianism does not fall under this law since women cannot carnally know each other. However, both men and women can be carnally known unnaturally by other men and could be charged under this provision. The question therefore is whether the practice should be the laws business. The decision to regulate consensual homosexual acts between adults should not be based on emotions and religious beliefs; for the immorality of a behaviour is not enough to criminalise such behaviour. The decision should rather be based on medical, social, moral and political reasons.67 The Wolfenden Report noted that it is not within the confines of the law to regulate all sexual behaviours; nor is it its function to intervene in the private lives of citizens or enforce a particular behaviour pattern.68 However, where such behaviours run contrary to the principles enunciated above, the law cannot remain silent on it. The act of homosexuality should therefore be tested against these principles to justify or reject its criminalisation. The Wolfenden Committee submits that when the act takes place in private, it should not be the business of the law unless it can be shown to be contrary to public order or decency. I agree with the dissenting opinion of Justice William Rehnquist in Roe v Wade69 that: If the Court means by the term privacy no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of liberty protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of Justice Stewart in his concurring opinion that the liberty, against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective.

64 65

Supra note 35 Supra note 47 66 The issue of human rights would be discussed further. 67 R v Brown [1993] 2 All ER 75 at 116, per Lord Mustill 68 Supra note 9 69 410 U.S.

The state is thus not barred from legislating on private issues, only against such legislations without due process of law, that is, a rational relation to the objective of the state. He noted as an example a law prohibiting abortion where the mothers life is in danger as lacking such rational relation to a valid state objective and continued: ...the adoption of the compelling state interest standard will inevitably require the Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be compelling. The mere fact that an act is done in private therefore does not make it immune to criminal legislation. Such legislation should rather pass the test of not just being in the interest of the state but being a compelling one. A compelling state interest as stated above may be medical, social, political or moral. The relationship between law and morality has already been considered. It was submitted that morality cannot be the only ground for criminalising an act, though it may greatly influence it. Such moral issues are usually conjoined with public policy or decency. Ofori-Amankwah,70 for example, notes morality and decency as the main reasons for the law against bigamy.71 The same could be said of other crimes like trading in prostitution72 and the publication and sale of obscene materials.73 The criminal law therefore recognises morality of some sought, at least when in line with decency, as a means of criminalising an act. A moral issue should therefore relate to decency or public order to catch the attention of the law. One such problem with public order, as Lord Mustill,74 notes is that it bears the risk of drawing young people to it. Though he debunked this as a good ground for criminalising it, it needs some consideration in the Ghanaian context. Article 28(1)(d) of the Constitution 1992 charges Parliament to enact laws to ensure that children and young persons receive special protection against exposure to physical and moral hazards (emphasis mine). A similar responsibility is given to parents by the Childrens Act, 1998 (Act 560).75 Several provisions in the Act as well as other enactments seek to protect the child from exposure to immoral behaviours. Where persons are free to openly practice homosexual acts, the possibility of children living with homosexual parents and being exposed to the practice or luring young people into the practice is very eminent. If in the view of Parliament

70

Ofori-Amankwah E. H., The Scope and the Legal Basis of the Criminal Jurisprudence of Ghana [1970] 7 UGLJ 48 71 The law on bigamy is covered by sections 262ff of the Criminal Offences Act 1960, (Act 30) 72 Section 274 of Act 29 73 Section 280 of Act 29 74 Supra note 67 at 117 75 Section 6(3)a

homosexual acts qualify as moral hazards then a law regulating it will not only be necessary but also a constitutional mandate which must be performed. On the issue of health, recent researches have not shown any health implications with homosexual acts per se. Some sodomites have however confessed to having enlarged anus and occasional unwanted discharge through the anus. In Britain, consenting buggery between males was seen as the principal cause for the transmission of Sexually Transmitted Infection (STIs). 76 In the U.S. and several European countries including Britain, men who have sex with men (MSM) are prohibited from donating blood because of an increased risk of HIV, Hepatitis B and other STIs.77 Although no specific health implication has been identified to be associated with the practice, its implications on public health are not unfounded. Undoubtedly, STIs are transmitted by heterosexuals too. However, the rate of transmission leading to the measures taken by the U.S. and the U.K. among other countries gives us a lot to think about in formulating our policies. Our fight against HIV and other STIs may end in futility. Social issues also need to be considered. Some anti-homosexuals argue that the practice is unAfrican and un-Ghanaian. The present writer does not take this to mean the act is a borrowed practice from elsewhere. The first possible homosexual couple is said to have lived in Egypt around 2400 BCE78 and other researchers have confirmed the practice in ancient Africa. 79 The un-Ghanaian nature of the act rather interprets to mean that the act is not sanctioned by our customary laws. This reason may not be compelling enough as most of the countries that have legalised the act frowned on it in the beginning. Yet, most of these countries legalised the practice when the ideas of the society had changed. In the U.S., about 60 per cent of the people favoured the legalisation at the time the Supreme Court ruled to outlaw laws prohibiting the act. In the case of Britain, the decision was based on a 3-year research by the Wolfenden Committee and their recommendation for the decriminalisation of the act was supported by many people and organisations including the Archbishop of Canterbury, the head of the Church of England otherwise known as the Anglican Church. Currently, no cultural group of people in Ghana sanctions the act. Our Constitution recognises customary law as part of the laws of the land80, yet, no customary law also sanctions the practice. Those calling for the legalisation of the act might have been influenced by what is happening in other countries. We must however remember that for law to fulfil a useful and adequate

76 77

Op.cit. FDA Policy on Blood Donations from Men Who Have Sex with Other Men, Web.archive.org. Retrieved 13 January, 2012; The National Blood Service Exclusion of Men who have Sex with Men from Blood Donation, Blood.co.uk. 2010-07-19. Retrieved 13 January, 2012. 78 Homosexuality www.en.wiki. 79 Stephen Murray, Will Roscoe (eds.), Boy Wives and Female Husbands: Studies of African Homosexualities, New York, St. Martins Press, 1998 80 Article 11 of 1992 Constitution of Ghana

function in society, it must be based on the felt social, economic, moral and political necessities of that particular society at the relevant time.81 HOMOSEXUALITY AND HUMAN RIGHTS Chapter five of the Constitution 1992 guarantees some fundamental human rights and freedoms of all citizens. The constitution seems to make no distinction between rights and freedoms as has been sought to be done recently.82 McRuer sees an important distinction between the two; whereas rights are precisely defined and protected by law, freedoms refer to those acts that are not forbidden and rest mainly upon the general state of peace and order.83 The Court of Appeal of Ottawa shared the same opinion.84 Thus, whereas rights carry a correlative duty of another, freedoms do not carry a duty compelling one to respect.85 In this sense, ones sexual orientation cannot be classified as a right but a freedom. The constitution itself that guarantees rights and freedoms of individuals recognises that rights are not absolute but subject to the rights and freedoms of others and the interest of defence, public safety and public order.86 In response to the claim by the appellants in R v Brown that every person had the right to deal with his body as he pleases, Lord Templeman stated that the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally.87 The Court also rejected the claim by Counsel for the appellants that since the sexual appetites of sadists and masochists can only be satisfied by the infliction of bodily harm, the law should not seek to intervene. Borrowing the words of Swift J in R v Donovan88 it could be authoritatively stated that if the act is unlawful is the sense of being in itself a criminal act, it cannot be rendered lawful just because the perpetrator has rights or freedoms (emphasis mine). It is not discriminatory to legislate against certain acts in the interest of public order, morality and decency; only that such interests must be compelling. In any event, the right to equality and freedom from discrimination as well as the protection of privacy do not form part of those rights subject to no derogation or specific derogation. They rather constitute the categories of rights and freedoms that are subject to both specific and general derogation.89 Besides, the law does not criminalise a lifestyle or a sexual orientation, nor does it declare homosexuals as criminals. Its focus is the act, nothing but the act.

81 82

Ogwurike C., A Functional Analysis of Ghanaian Legal Sources, [1967] 4 UGLJ 122 Kofi Quashigah, A Critical Analysis of the Concept of Rights and Freedoms Under Chapter Five of the 1992 Constitution of Ghana [2005 2007] 23 UGLJ 158 83 Ibid at 162 84 R v Zundel [1987] 35 DLR (4th) 334 85 Op.cit, at 163 86 See Articles 12(2) and 21(4) 87 Supra note 67, at 82 88 [1934] 2 KB 498. Swift J stated at 507 that If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. 89 Supra note 79, at 166

CONCLUDING REMARKS As men and women develop, they develop with their society as well as their laws. Laws are not static but change with time. Such change must be necessitated by felt social, moral and political needs of the society at the relevant time for it to be accepted. In other words, the laws must relate to the current needs and values of the society. The U.S. Supreme Court noted this in two of their major rulings that reconsidered their previous decisions. The Court in Brown v Board of Education90 by a 9 0 decision reversed the separate but equal doctrine which it upheld in Plessy v Ferguson91 to coincide with the view that all people are equal, whether White or Black. In a more recent case of great importance to this discussion, the Court in Lawrence v Texas92, at a time when about 60 per cent of Americans supported the decriminalisation of homosexuality, reversed its decision in Bowers v Hardwick.93 A change in the law is therefore possible except that it must reflect current social needs and values. We must bear in mind that Britain changed their law on homosexuality only after an extensive research and consultation with the recommendations supported by the spiritual head of England, the Archbishop of Canterbury. In America, the change came at a time when about 60 per cent of the people supported it. We must not be drawn to act just because others have done so. We must do an introspection and analysis of the law to make informed decisions. A government sponsored research as was done in England and a consultation with opinion leaders and stake-holders will be of great importance. For those who see the law as discriminatory, homosexuals are still discriminated against in the U.S. and the U.K.94 In any event, it is the conviction of the present writer that the problem of homosexuality (if at all it is a problem) cannot be solved by legislations. We live in a country where laws are not enforced; people publicly operate brothels (against section 277 of Act 29), throw rubbish on the streets (against section 296 of the Act), drum and dance at church services in houses in town (section 293) and maltreat animals (section 303) and still go unpunished. Even though the law against unnatural carnal knowledge remain in our criminal laws, my search in the Ghanaian law reports for cases on the subject proved futile although there is an estimated 3 per cent of Ghanas population engaged in the practice.95 I share the opinion of the Wolfenden Committee that behaviours that are immoral based on conscience, religion or culture should be tackled from those angles.96

90 91 92 93

Supra note 47 Supra note 44 94 Supra note 77 95 3% of Ghanaians are Homosexuals, General News of Friday, 4 November 2011. http://www.ghanaweb.com 96 Supra note 9