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Opinions of Wednesday, 22 June 2011

Columnist: Bonsu, Nana Ama

Homosexuality and the Law in Ghana

On 7 June 2011, Ghana’s Daily Graphic newspaper carried a front page story which quoted the Director of Public Prosecutions, Ms. Gertrude Aikins, as insisting that under current laws of the country, homosexuals can be tried for their sexual acts. But to what extent is the DPP correct in her assertion, if one examines the law to which she refers with a legal lens devoid of passion? What does the law say?

Plainly, section 104 (1) (b) of the Criminal Code, to which Ms. Aikins refers, states, "Whoever has an unnatural carnal knowledge of any person of sixteen years or over with his consent is guilty of a misdemeanor." Section 104(a) is couched in similar language, the only difference being that of the lack of consent and the fact that it not a misdemeanor in the absence of consent. For the purposes of this article, the discussion shall centre on s.104 (1)(b), as it refers to consenting adults.

Clearly put, then, in order to be guilty under the law, two elements have to be proved together. First, that the accused has had ‘carnal knowledge’ of another person, and secondly, that the said carnal knowledge was unnatural. It does not matter that the other person gave consent to the act, nor does it matter that they are both over the age of sixteen. It is a trite point of criminal law that a person cannot be guilty of the offence unless both elements are proved beyond reasonable doubt.

The Daily Graphic stated in its report that ‘ Ms Aikins said persons engaged in such activities fell foul of the law but admitted that compared to sodomy, homosexuality carried a less severe sentence as far as the Criminal Code was concerned’. It is important to understand the distinction between homosexuality and sodomy as it helps our understanding of the law. Ms Aikins has assumed that homosexuality is consensual and therefore a misdemeanor under 104(1)(b), whilst sodomy is covered by s104(1)(a) and is premised on the absence of consent. With great respect, she is completely wrong.

Homosexuality is defined as the sexual attraction a person has for another person of the same gender. This includes lesbians. The attraction between two men may or not lead to anything sexually physical, and even if it does, it does not always necessarily lead to penetrative anal sex, contrary to popular perception and myth. It is obvious that no law in Ghana criminalizes desires, and therefore homosexuality (i.e. the sexual attraction) in itself cannot possibly be misdemeanor as Ms. Aikins suggests. Sodomy, on the other hand, is the actual physical act of anal sex. Since it can be perpetrated on a woman by a man, it cannot possibly be the sole preserve of homosexuals. Further, some men have sex with men solely for financial reasons, out of curiosity or experimentation, or because they find themselves in situations like prisons and boarding schools, where they do not have ready access to women. But they do not necessarily feel any sexual attraction in that direction and certainly do not consider themselves homosexual. Simply put, not all homosexuals are sodomites, and not all sodomites are homosexuals.

With these in mind, let us go back to s.104. First, what is ‘carnal knowledge’? Simply put, it is in law, sexual intercourse, which in turn refers to penetrative sex. For example, rape is defined as carnal knowledge of a woman without her consent, whilst it is trite law that there cannot be rape without penetrative sex. It follows clearly, therefore, if there is no penetrative sex, there can be no carnal knowledge and therefore no breach of s.104, even if there is sexual intimacy. Thus, two adult men caught just kissing, mutually masturbating each other or otherwise fondling/caressing each other consensually without more cannot legally be said to be having carnal knowledge of each other. Since there is no penetrative sex between lesbians, they cannot be possibly guilty under this law for sexual intimacy as there is no carnal knowledge between them, even if they use artificial sex aids like vibrators or dildos to achieve penetration and stimulation.

Even assuming carnal knowledge is established between two men, the additional element that needs to be proved is that the carnal knowledge was ‘unnatural’. The question then arises; what is ‘unnatural’ in law, and what does it mean in this particular context? Does ‘unnatural’ in s.104 refer to the nature of carnal knowledge? Or the gender of the person of whom the carnal knowledge has been had? My view is that it refers to the former, given that the word appears immediately before ‘carnal knowledge’ and is therefore descriptive of it. In other words, it is possible for a man to have ‘unnatural carnal knowledge’ of a woman. It is argued that anal sex is clearly unnatural because that is not what the anus is designed for. Fair argument, but with that logic, men who receive oral sex from women should ask themselves whether the mouth was designed for that purpose. How about a man who has sexual intercourse with a woman with the use of a condom, as its use is clearly unnatural? In fact, interestingly, the Catholic Church’s position against artificial contraception is premised on the grounds that it acts as a barrier to God’s divine, natural purpose of the creation of life. Given the church’s stand on homosexuality, it can perhaps be said that compared to other churches that do not disapprove of artificial contraception, the Catholic Church is at least being consistent in its position on what it believes to be unnatural sex. But the wider point here is that the adjective ‘unnatural’ is too loose to have any clear meaning in law and only creates difficulties in consistent interpretation.
In any case, even if we agree anal sex is unnatural, we run into another difficulty. Under s.104, whoever has anal sex with a person of either gender commits an offence. Remember that the law simply says ‘...unnatural carnal knowledge of any person…’ and does not specify gender. The law could have said ‘of another man’ but chose to remain gender-neutral. Even though ‘his consent’ follows after that, ‘any person’ is arguably more suggestive in supporting the gender neutrality and in any case only creates confusion at best. For the law to be fair and consistent in its application, the state must vigorously pursue heterosexual men who engage in the unnatural carnal knowledge of their consenting wives and girlfriends by way of anal sex with the same zeal for prosecuting homosexual men doing likewise. Otherwise s.104 becomes discriminatory and manifestly unfair.

In the current climate in Ghana of hostility towards homosexuality, it is likely that a zealous, bible-thumping circuit court judge will slam the gavel hard and use s.104 to jail two gay men or lesbians caught in flagrante delicto kissing and fondling each other in their private room and who are brought before him or her. S/he will receive plaudits from the press and the general public for taking a step towards stamping out homosexuality. It will take a brave judge, unfettered by personal moral outrage and disgust for homosexuality, to look dispassionately at the law and state calmly that s.104 is hopelessly inadequate in such a scenario and to set them free, even if it brings him public opprobrium and perhaps suspicions about his sexuality.

If society is disapproving of homosexuality and seeks to address it by law, then you cannot have the absurdity where that law discriminates between the various flows from homosexuality as s.104 clearly does. In any event, societal disapproval without clear, unambiguous laws to register that disapproval is not in itself enough to jail people, otherwise we should jail adulterers, fornicators and those who masturbate if we are really serious about seeking the moral high ground. After all, the bible, which many Ghanaians consider to be the supreme law of the land rather than the constitution, rails clearly against these, together with homosexual acts.

Some may say the law needs radical overhaul to make things clearer and more encompassing. That is a separate argument. But the law as it stands is clearly inadequate and its application to prosecute and jail homosexuals in Ghana by taking advantage of convenient public outrage is flagrant injustice. Let us deepen our respect for the rule of law and for justice delivery to all our citizens, however much we may find their activities morally reprehensible. That, and not the howling and baying for blood, is the true test of a civilized nation.