The dilemma of a nation of LGBT+ Bill passage: To sign or not to sign?

For the past four years, we have stopped writing and reporting from the Billaw Mountains not because we do not have pens to do so. It's also not true that we have run out of news items to report. The decision to write on raging social and political issues of national interest is personal, and we will write when we should write to right the wrongs of society.

Fast forward: over the week, the Parliament of Ghana passed the most controversial Bill−LGBTQ, perhaps ever since we returned to constitutional rule in 1992. In its current state, the bill, if assented to by the president and gazetted, becomes a law in operation with full teeth to bite. Indeed, the passage of the bill, as expected, received a lot of mixed reactions from the citizenry and the international community, especially the United States of America.

Prior to the passage of the bill on March 31, 2021, a lot of credible media portals reported the opening of an LGBT+ centre in Ghana. This news was received with a lot of criticism from across the length and breadth of the country, including notable persons and institutions like the National Chief Iman, the National House of Chiefs, and the Christian Council.

The above development led to a renewed sense of heated debate among the citizenry following the avalanche of criticisms and the general dissatisfaction that greeted the opening of the LGBTQ centre, with some people calling for persons engaged in any act of LGBTQ or any related act arising therefrom, incidental to and in connection with LGBTQ, to be arrested and punished because such acts, as they put it, are alien, outlandish, unorthodox, and unknown to the Ghanaian culture and do not accord with the pristine sociocultural values of any ethnic group in Ghana. It was for this reason, and perhaps only for this reason, that some Members of Parliament introduced a Private Members' Bill (PMB) to that effect.

The law before the passage of LGBT+ Bill:

The Criminal and Other Offences Act, 1960 (ACT 29), under Section 104(2), criminalizes unnatural carnal knowledge. It describes unnatural carnal knowledge as "sexual intercourse with a person in an unnatural manner or with an animal". However, this definition appears to be unsatisfactory and incomplete because not all forms of unnatural carnal knowledge or sexual intercourse with persons of the same sex have been criminalized by ACT 29.

Thus, traditionally, the law on sexual intercourse is gender-specific and inherently discriminatory against males, and it's proved to be complete pursuant to Section 99 of Act 29 when there is evidence of "vaginal penetration," or the least degree of penetration beyond anything referred to as brushwork.

It's, therefore, safe to surmise that sexual intercourse or unnatural carnal knowledge between and among females has not been catered for under our current Criminal and Other Offenses Act, 1960 (ACT 29). The proponents of the bill, therefore, seek to provide a broader prescription of unnatural carnal knowledge or sexual intercourse of same-sex people in general without limiting the same to proof of "vaginal penetration.".

General arguments in favour of the bill. What are the facts?

Firstly, it's a fact that all three main religious groups in Ghana, including persons of high moral values who act as the veritable conscience of the nation, find favour with the bill and are in support of it. They contend that the bill seeks to consolidate Ghana's constitutional and legislative framework. Thus, even though Section 104(2) of Act 29 already provides for unnatural carnal knowledge, there still exist some inherent lacunae that must be cured or addressed.

Also, they submitted that the bill seeks to operationalize and give legal effect to articles 28 (1) (d) and (e) and 39 (1) and (2), which provide for the protection of children against moral hazards and are indeed justifiable. Thus, it recognizes the family as a basic unit of society and that the state should be encouraged and is hereby encouraged to take proactive steps, including the enactment of legislation where necessary, to integrate appropriate customary values into the fabric of the nation.

Proponents of the bill further opined that there are severe and irreversible health concerns that will be unleashed on the nation if the bill is not passed. To strengthen their argument, it was submitted that about 65% of HIV/AIDS infections among adults and adolescents were between male and male sexual contact in the United States. (Centers for Disease Control and Prevention; HIV Surveillance Report, 2018)

General arguments against the bill: What are the facts?

Firstly, it's their argument that passing the bill into law will sin against articles 17 (1), 21 (a) (b), and (e) of the Constitution, 1992. Thus, the said provisions guarantee equality before the law and prohibit all forms of discrimination and the freedom of expression, conscience, and thought, among others. Thus, any attempt to criminalize them will not only be deemed repugnant but also inconsistent with the letter and spirit of the Constitution, and to the extent of the inconsistency, be void.

Again, they concluded forcefully that the passing of the bill into law would also be injurious to Article 40 of the Constitution, 1992. Thus, the said provision relates to an inherent obligation on Ghana to respect and honour international treaties and conventions that we subscribe to or for which she is a member. Among such treaties is the International Declaration of Human Rights. The International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights.

Can the president refuse to assent to a Bill passed by Parliament?

It's imperative to state that Parliament is vested with the legislative authority to make laws for the country pursuant to Article 106 of the Constitution, 1992. Laws are made through the introduction of bills that may come in the name of the president and, by necessary implication, be sponsored by the government. The other option is bills introduced by a Member of Parliament or a group of them, which are referred to as a Private Members' Bill (PMB). The facts that animated the subject matter in discourse are more of the latter than the former.

The question of whether or not the president can refuse to assent to a bill passed by Parliament requires more of an explanation than an emphatic no ! or yes! Perhaps more accurately, the appropriate question would be, and it's thus: What can Parliament do if the president refuses to assent to a bill passed?

The fact is, there are two options available to the president that are constitutionally mandatory:

After the bill is transmitted to the president, he has seven days after the transmission to indicate to Parliament whether he has assented to the bill or refuses to do so. If the second option suffices, he has to write to Parliament within 14 days and indicate the reason(s) for the refusal. Here, the president can disagree with certain parts or the entire bill and make recommendations that he wants to be incorporated or amended through a memo. When he does this, Parliament has to reconsider the bill through the process as provided by the Constitution in Art. 106. And when the reconsideration is done, Parliament shall pass a resolution supported by votes of 2/3 of the members, and the president is then duty-bound to assent to the bill within 30 days.


The second option is for the president to refer the bill to the Council of State for consideration as per Article 90 of the Constitution, 1992. Inherent in this option is yet another memo directing the Council of State to address his challenges with the bill and what he wants the Council of State to do. Where the Council of State considers the referred bill, it shall communicate the same to the President and Parliament for consideration. Parliament shall then proceed to consider the recommendations of the Council of State, and the cycle continues until the bill is assented to.

Conclusion:

The anti-LGBTQ law is not about discrimination, nor is it about acting on the theatre of our emotions. The bill has nothing to do with civilization or democracy, nor is it about exercising our rights as a nation among the community of "civilized nations.". The anti-LGBTQ law is more about using our God-given talents to think and decide for ourselves what is good and what is bad for us. What we value and cherish as a people and uphold with all its pristine purity. It's more about protecting our traditional values and beliefs, not the culture and customs of others unknown to us. It is essential to uphold these principles to preserve our society's moral fabric and ensure a better future for generations yet unborn.