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Opinions of Tuesday, 26 October 2021

Columnist: Daniel Kofi Awuku-Asare

The legal philosophy of America's unwritten constitution - the Ghanaian case study

LGBTQ+ act is not acceptable in most African countries LGBTQ+ act is not acceptable in most African countries

The issue of human rights and its advocacy, no doubt has assumed such a global momentum that the sovereignty of nations and their laws are critically challenged by the passage of numerous international laws, conventions, and treaties when it comes to the violation of such provisions in the lives of the citizenry in the nations around the world.

Perhaps, the most talked-about human rights advocacy in recent years is the emergence of the LGBTQ+ Movement. Indeed, this group has succeeded to a very large extent with great momentum in the jurisdictions of the Western World.

Their penetration into the Developing World, however, remains a hurdle that no one single answer can easily overcome; not even under the Constitutions of many developing economies especially in Africa.

The introduction of the Proper Human Rights and Ghanaian Family Values Bill 2021 draft bill, in the Parliament of Ghana that seeks to criminalize the activities of the LGBTQ+ community has attracted much attention across the length and breadth of the Ghanaian society.

Of course, talking about human rights is a subject of the Rule of Law, which I am particularly interested to elucidate legal basis, legal concepts, and legal arguments. It is very obvious that the context within which the LGBTQ+ movement seeks their validation is through legal arguments so any attempt to assent or denounce their claim must be exercised legally.

The moral and socio-cultural factors on their own cannot answer a legal claim, but relevantly, they can validate a legal stance or proposition.

In his book, the American Unwritten Constitution, an Authority, and a Constitutional Law Professor at Yale University, Professor Akhil Reed Amar, argues that the Unwritten Constitution of America – fundamentally, derives its significant principles from the lived experiences and lifestyle of the sovereignty of the American people, and to that effect must and does aid the interpretation of the terse text of the written Constitution.

The sovereignty of the American people is deduced from the very belief systems and way of life or cultural embodiment of the American, and same find their way into the principles and claims of the American Unwritten Constitution, undoubtedly, as proposed by Professor Amar. Many instances have been advanced by the reputable Constitutional Law Professor that alludes to law, logic and reasoning.

For instance, Professor Amar, argues, that before, the adoption or ordainment of the American Written Constitution in 1789 at the Philadelphia Convention, the sovereignty of the American people was already at play in civic engagements and proactive discourse, and also, even before the Declaration of Independence in 1776.

This meant, that the lived experiences and lifestyle of the sovereignty of the American people, promoted and acknowledged free speech and freedom of expression; indicatively, this exercise emanating from the sovereignty of the American people predated the ordainment of the Written Constitution and its subsequent adoption of the Bill of Rights of which the First Amendment forms part and promulgate Freedom of Speech and Expression among others.

In his conclusion in this particular instance, therefore, the Written text of the First Amendment did not begin the practice of the Freedom of Speech, and therefore, its constitutional ordainment is very correct – in that it reflects the lived experiences and lifestyle of the sovereignty of the American people.

There are many constitutional elements like the concept of Majority Rule, Separation of Powers, Limited Government, Federalism, etc., which do not find their direct space in the terse text of the Written Constitution, howbeit, accepted as constitutional practices in the democratic context because of the history of their emergence, which of course hinges on the lived experiences and lifestyle of the sovereignty of the American people.

Indeed, the Ninth Amendment support, the conclusion, that human rights could not be definite because they are inherent and natural, therefore, certain unenumerated rights could be derived in the evolution of our democratic culture, but such could be settled on only within the undisputed context of the lived experiences and lifestyle of the sovereignty of the American people.

Landmark Supreme Court cases including Brown v Board of Education have settled many controversial constitutional questions from the purview of the Unwritten Constitution proposition as Prof. Amar narrates. So in essence, the interpretation of the Written Constitution of America sometimes depends on the Unwritten Constitution, when the interpretation of the terse text in the literalist approach leads to absurdity.

The question that the LGBTQ+ proposed Bill in Ghana faces, must be analyzed from this legal lens. If the interpretation of the terse text of the 1992 4th Republican Constitution on the question leads to absurdity or even if such clear text does not exist, then the Unwritten Constitution principle in the American context must be applied within the Ghanaian context as well because it makes legal sense.

And in that exercise, therefore, one would ask the multi-dollar question: “What has been the lived experiences and lifestyle of the Ghanaian people prior to the adoption of the 1992 4th Republican Constitution or say an earlier one of the 1925 Guggisberg Constitution?

This question is not a difficult legal question to answer by every nook and cranny of Ghanaian society. In fact, the lived experiences and lifestyle of the sovereignty of the Ghanaian people across all spans of tribal and religious fronts dangerously frowns on man-man or woman-woman marriage or any of their modifications, prescribed by the LGBTQ+ Movement.

The legal answer is simple, within the context of the right to marriage in Ghana, which same is advanced under the 14th Amendment in the US jurisdiction, thus, marriage is between a naturally born male and naturally born female with such natural physical characteristics identified at birth.

Advancing the legal intellectual argument of the Yale Professor in question, Professor Akhil Reed Amar, an Authority on Constitutional Law - within the context of the Ghanaian jurisprudence, it is illegal to practice LGBTQ+ within our geopolitical spheres.

And as I attempted to do here and cautioned in my introductory piece, the answer I provide here is primarily within legal argument connected inseparably to cultural norms, morality, and social values – which themselves are allowed in Constitutional Law philosophy.

I, however, have a piece of advice to offer the Ghanaian society - Democracy involves much the expression of views and opinions, and even within the American context, there are only a few instances where such rights under the First Amendment could be suppressed.

The viewpoints of those Ghanaian University Professors must not be necessarily attached to their personality – they have a right to express their views, but those views do not make the laws; rather they inform the making of the laws.

What are your views publicly expressed that inform the making of the laws especially on the proposed Proper Human Rights and Ghanaian Family Values Bill 2021, draft bill? In America, when it gets critical, the majority’s view hits the streets in protestations. Advocacy Groups get radical, and civic engagements are enhanced.

The passage of the law must be reflective of the majority view of the citizenry since Congress is representational. I believe that the Ghanaian democracy is evinced along with the same model, and therefore, if indeed, the majority of the rank and file of the Ghanaian populace abhor the LGBTQ+ Movement in Ghana, then it must reflect in Parliament, anything in the opposite will be counterproductive and non-representational in that sense.

How many of the 35million+ people in Ghana today have publicly registered their disgust for the LGBTQ+ to serve overwhelming evidence to challenge a contrary outcome from Parliament?

Let’s do the needful!

Reference: Amar, Akhil Reed: AMERICA’S UNWRITTEN CONSTITUTION: the Precedents and Principles We Live By, Basic Books (2012).