In a landmark decision, the Supreme Court of Ghana has upheld Section 104(1)(b) of the Criminal Offences Act, 1960 (Act 29), which criminalizes anal sex, affirming its constitutionality. The unanimous ruling by the seven-member panel, led by Justice Paul Baffoe-Bonnie, dismissed a writ challenging the law’s constitutionality on Wednesday, July 24, 2024.
The panel, comprising Justices Amadu, Gaewu, Adjei-Frimpong, Lovelace-Johnson, Kulendi, and Darko Asare, confirmed the law’s alignment with the constitution. The court, however, reserved the detailed reasoning for its decision, announcing that the full judgment would be accessible at the court’s registry within ten days.
The challenge was brought forth by Dr. Prince Obiri-Korang, a lecturer at the University of Ghana Law School. He argued that Section 104(1)(b) violated several constitutional rights, including the right to privacy under Article 18, the right against discrimination under Article 17, and the protection of personal liberties under Article 14.
Section 104(1)(b) of Act 29 criminalizes “unnatural carnal knowledge” of a person aged 16 and above, even with their consent, categorizing it as a misdemeanor. Additionally, Section 104(2) defines “unnatural carnal knowledge” as sexual intercourse in an unnatural manner or with an animal.
Dr. Obiri-Korang contended that the law was unconstitutional and infringed on fundamental human rights. However, the Supreme Court found otherwise, dismissing his claims and upholding the law. The court asserted that Section 104(1)(b) did not violate the rights to privacy, non-discrimination, or personal liberties as argued by the plaintiff.
This ruling carries significant implications for Ghana’s legal landscape, especially amid the ongoing debate surrounding the Anti-LGBTQ bill. The decision to uphold the constitutionality of Section 104(1)(b) could lend support to the bill, which seeks to impose stricter regulations on LGBTQ activities in the country.
The Supreme Court’s affirmation of Section 104(1)(b) as constitutional reinforces the legal framework against certain sexual activities in Ghana. This precedent may influence future legislative and judicial actions concerning LGBTQ rights and related legal challenges, potentially shaping the nation’s approach to these sensitive issues.