Godfred Dame, The Attorney General and Minister of Justice, has stated that the anti-LGBTQI+ Bill is not unconstitutional but faces fundamental challenges.
However, he described sections of the bill as unconstitutional.
“The bill will face some challenges when implemented because some provisions will violate some fundamental human rights and freedoms, particularly the right to privacy,” Mr Dame cautioned.
The anti-LGBTQI+ bill seeks to criminalise activities of persons who hold out as lesbian, gay, transgender, transsexual or queer, persons who hold divergent socio-cultural notions of sex, persons with biological anomaly regarding their gender at birth, persons involved in promotion of or advocacy and funding for lesbian, gay, bisexual, transgender and queer related activities, as well as persons who conduct surgical
procedures to reassign an individual’s gender except for medical purposes.
In an opinion to the Chairman of the Committee on Constitutional, Legal and Parliamentary Affairs of Parliament, Mr Dame explained that the bill further imposed duty on the citizenry and relevant independent constitutional bodies to promote and protect proper human sexual rights and Ghanaian family values.
He noted that the bill also made any union or marriage entered into by persons of the same sex and persons who had undergone gender or sex reassignment void.
“Sections of the bill in its present form violates some fundamental rights and freedoms enshrined in the 1992 Constitution, including right to freedom of expression, thought, conscience and freedom from discrimination while other provisions of the bill passes test of constitutionality.
“Unnatural carnal knowledge is defined by section 104(2) as sexual intercourse with a person in an unnatural manner, or with an animal thus, unnatural carnal knowledge of a person of at least 16 years with consent of that person and unnatural carnal knowledge of an animal is already criminalised by Act 29 as misdemeanour.
“However, the bill, seeks to categorise the offence as second-degree felony, making it inconsistent with the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), which classifies offences generally and their correlative punishments.
“Not all forms of unnatural carnal knowledge or sexual intercourse between persons of same sex have been criminalised by current law because Section 99 of Act 29 on evidence of carnal knowledge prescribes for evidence of carnal knowledge to be complete on proof of least degree of penetration, it will appear sexual intercourse or unnatural carnal knowledge between or among persons of female sex, for instance, is not criminalised by current law,” Mr Dame contended.
To that extent, he indicated that subparagraph (a) of paragraph 1 of clause 6 stated broader prohibition on unnatural carnal knowledge or sexual intercourse between persons of same sex as known to the law was not unconstitutional.