Ghana’s president delays assent to anti-LGBTQ bill, raises constitutionality issues

Previously, engaging in gay sex in Ghana was punishable by up to three years in prison. The newly passed bill expands on this by introducing a prison sentence of up to five years for the "wilful promotion, sponsorship, or support of LGBTQ+ activities."

This is a heightened crackdown on LGBTQ+ rights in Ghana, raising concerns among human rights advocates about the impact on the freedom and safety of the LGBTQ community in the country.

However, President Nana Addo Dankwa Akufo-Addo has refused to immediately give his assent.

According to the laws of Ghana (Article 106 of the Constitution, 1992), presidential assent is required to make a bill passed by parliament a law. Thus, though the bill is passed by parliament, it cannot be effectively operationalized as a legal document without a presidential assent.

What did the president say about his assent?

In a statement, the president noted, “I am aware that last week's bi-partisan passage by Parliament of the Proper Human Sexual Rights and Ghanaian Family Values Bill, on a private member's motion, has raised considerable anxieties in certain quarters of the diplomatic community and amongst some friends of Ghana that she may be turning her back on her, hitherto, enviable, longstanding record on human rights observance and attachment to the rule of law. I want to assure you that no such backsliding will be contemplated or occasioned. I think it will serve little purpose to go, at this stage, into the details of the origin of this proposed law, which is yet to reach my desk. But suffice it to say that I have learned that, today, a challenge has been mounted at the Supreme Court by a concerned citizen to the constitutionality of the proposed legislation. In the circumstances, it would be, as well, for all of us to hold our hands and await the decision of the Court before any action is taken. The operation of the institutions of the Ghanaian state will determine the future trajectory of the rule of law and human rights compliance in our country.”

A price to pay for conservatism?

Ghana's finance ministry has issued a warning, stating that the country could face a significant loss of international financing, estimated at US$3.8 billion over the next five to six years, if President Nana Akufo-Addo signs the controversial anti-LGBTQ bill into law.

The potential repercussions extend beyond the legal and societal aspects, as the finance ministry emphasises that such a move may adversely impact Ghana's foreign exchange reserves and exchange rate stability, as well as the country’s ongoing deals with the International Monetary Fund (IMF).

Suit challenging the constitutionality of the bill

Private legal practitioner and journalist Richard Dela Sky has filed a lawsuit against Ghana's Parliament at the Supreme Court regarding the anti-LGBTQ+ bill. Sky seeks various reliefs, including preventing President Akufo-Addo from assenting to the bill and halting its presentation to the President by the Speaker of Parliament and the Clerk to Parliament. He argues that the bill's passage violates several constitutional provisions - Articles 12(1) and (2), 15(1), 17(1) and (2), 18(2), and 21(1) (a) (b) (d) and (e) - raising concerns about potential infringement of fundamental human rights and freedoms guaranteed by the Constitution.

“In my capacity as a citizen of the Republic of Ghana, deeply committed to the principles of democracy and the rule of law as enshrined in our revered 1992 Constitution, I have initiated legal action in the Supreme Court of Ghana. This action is not a declaration of my personal stance on LGBTQI+ individuals per se, but a conscientious effort to ensure the strict adherence to and protection of the constitutional framework that governs our society,” Sky wrote in a statement.

The constitutionality debate

On the basis of President Akufo-Addo’s remarks and the pending legal action against the bill, legal practitioners in the country have expressed divided opinions about the constitutionality of both actions.

In several posts on X, lawyers raised issues with the president’s decision to withhold assent pending the decision of the Supreme Court and the constitutionality of judicial intervention when an effective presidential assent has not yet been given.

Some expressed that the issue could be analysed in accordance with the 'doctrine of ripeness', which primarily deals with a dispute's timeliness and prevents the courts from interfering too early before a genuine argument emerges.

The following are some reactions on X;

Lessons from Uganda?

Since the passage of the Anti-Homosexuality Act of 2023 in Uganda, the World Bank has declared its intention to cease releasing new funds to Uganda. The law has been described by critics as one of the most stringent globally, the VOA reported. By withholding funds, the World Bank is sending a clear message about the importance of respecting LGBTQ+ rights. This decision pressures Ugandan authorities to reconsider or amend the contentious legislation, emphasising the global repercussions of policies perceived as discriminatory.

More so, the hospitality industry is facing significant challenges, with hoteliers expressing concern over the impact on their businesses. Textile manufacturers in Uganda report a decline in orders from buyers in the United States, Britain, and Europe, attributing it to apprehension surrounding the "Made in Uganda" label on garments. Buyers seem to fear that associating their products with Uganda, in light of recent developments, could adversely affect their business.

Additionally, construction companies in the country are experiencing hesitancy from Western financial backers, signaling a broader economic impact on Uganda as external investors become more cautious due to the prevailing circumstances.

Further, the U.S. Embassy in Kampala refused a visa to Ugandan MP Sarah Achieng Opendi, following her controversial proposal advocating castration as a measure against LGBTQ+ individuals in Uganda. Opendi, who acts as chair of the Uganda Women Parliamentary Association, suggested the amendment during a debate on the country's anti-LGBTQ+ laws.