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In 1994, the ] (UNHRC) confirmed in '']''<ref></ref> that laws criminalizing consensual same-sex activity violate both the right to privacy and the right to equality before the law without any discrimination, contrary to Article 17 of the ]<ref></ref> (the "Covenant"). Those laws interfere with privacy rights, regardless of whether they are actively enforced, and "run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention" by driving marginalised communities underground. The UNHRC has subsequently affirmed this position on many occasions by urging countries to repeal laws that criminalize consensual same-sex activity and thereby bring their legislation into conformity with the Covenant.<ref></ref>{{rp|page: 6 ¶ 27}}<ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref> Ghana ratified the Covenant on 7 September 2000.<ref></ref> In 1994, the ] (UNHRC) confirmed in '']''<ref></ref> that laws criminalizing consensual same-sex activity violate both the right to privacy and the right to equality before the law without any discrimination, contrary to Article 17 of the ]<ref></ref> (the "Covenant"). Those laws interfere with privacy rights, regardless of whether they are actively enforced, and "run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention" by driving marginalised communities underground. The UNHRC has subsequently affirmed this position on many occasions by urging countries to repeal laws that criminalize consensual same-sex activity and thereby bring their legislation into conformity with the Covenant.<ref></ref>{{rp|page: 6 ¶ 27}}<ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref><ref></ref> Ghana ratified the Covenant on 7 September 2000.<ref></ref>


The ] in June 2002 found that arrests for being homosexual or for engaging in consensual homosexual conduct are, by definition, human rights violations.<ref></ref> The arrests constitute an arbitrary deprivation of liberty in contravention of Article 2, Paragraph 1 of the ] and of Article 2, Paragraph 1<ref></ref> and Article 26<ref></ref> of the Covenant. The Declaration is part of international law and is, therefore, binding on Ghana. The ] in June 2002 found that arrests for being homosexual or for engaging in consensual homosexual conduct are, by definition, human rights violations.<ref></ref> The arrests constitute an arbitrary deprivation of liberty in contravention of Article 2, Paragraph 1 of the ] and of Article 2, Paragraph 1<ref></ref> and Article 26<ref></ref> of the Covenant.


This position is consistent with other regional and national jurisprudence, including the decisions of the: This position is consistent with other regional and national jurisprudence, including the decisions of the:

Revision as of 12:28, 17 August 2013

LGBTQ rights in Ghana Ghana
Ghana
StatusMale illegal, female uncertain
Penalty3 years imprisonment if consensual
Gender identity–

Lesbian, gay, bisexual, and transgender (LGBT) persons in Ghana face legal challenges not experienced by non-LGBT residents. Male same-sex sexual acts are illegal in Ghana, although it is uncertain whether female same-sex sexual activity is legal.

Law regarding same-sex sexual activity

Under Ghanaian criminal law, same-sex sexual activity among males is illegal. It is uncertain whether same-sex sexual activity among females is illegal.

Chapter 6 of the Criminal Code, 1960, as amended by The Criminal Code (Amendment) Act, 2003, provides:

  • Section 104. Unnatural Carnal Knowledge.

(1) Whoever has unnatural carnal knowledge —

(a) of any person of the age of sixteen years or over without his consent shall be guilty of a first degree felony and shall be liable on conviction to imprisonment for a term of not less than five years and not more than twenty-five years; or

(b) of any person of sixteen years or over with his consent is guilty of a misdemeanour....

(2) Unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner....

Under Section 99, "unnatural carnal knowledge shall be deemed complete upon proof of the least degree of penetration".

According to Section 296 of the Criminal Procedure Code, which applies because of Section 1 of the Criminal Code, a misdemeanour is punishable by imprisonment for not more than three years.

Section 12(2) of Chapter 5 of the Constitution of Ghana provides that, "Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest."

Recognition of same-sex relationships

There is no legal recognition of same-sex couples under Ghanaian law.

Discrimination protections

Ghanaian law does not protect persons from discrimination based on sexual orientation.

Adoption of children

A single person may apply to adopt a child if that person is a citizen of Ghana, except that a single male may adopt only if the child to be adopted is his biological child. Same-sex couples are not allowed to adopt children.

Living conditions

In Accra, very few gay and gay-friendly bars can be found, and the gay scene in Accra is considerably less noticeable than in Western countries. In Ghana's other large cities, such as Kumasi and Tema, gay social life exists, but on a less noticeable level. In rural areas, homosexuality is generally not accepted and many rural Ghanaians do not accept that homosexuality exists.

According to a 19 August 2004 Afrol News report, Prince MacDonald‚ the leader of the organisation for gays, lesbians, bisexuals, and transsexuals in Ghana, commented that "there are lots and lots of people in our prison home who have been caught by this unfriendly law". He said that the "police beat and punish people who are found to be gays".

On 1 September 2006, the BBC reported that the Ghanaian government had banned an LGBT rights conference that was alleged to be taking place on 4 September at the Accra International Conference Centre and at a venue in the city of Koforidua. Minister of Information and National Origin Kwamena Bartels said, "The government does not condone any such activity which violently offends the culture, morality and heritage of the entire people of Ghana. Supporting such a conference, or even allowing it, will encourage that tendency which the law forbids. Government would like to make it absolutely clear that it shall not permit the proposed conference anywhere in Ghana. Unnatural carnal knowledge is illegal under our criminal code. Homosexuality, lesbianism and bestiality are therefore offences under the laws in Ghana." The conference eventually appeared to be a hoax.

On 21 July 2011, Paul Evans Aidoo, the Western Region Minister, ordered all gay people in the west of the country to be rounded up and arrested and called on landlords and tenants to inform on people they suspected of being gay.

At the Commonwealth Heads of Government Meeting in November 2011, then President John Atta Mills pledged to never initiate or support any attempt to legalize homosexuality in Ghana. This was in response to British Prime Minister David Cameron's comment that the United Kingdom would consider cutting off aid to any country that failed to recognize gay rights. Mills said that Cameron "does not have the right to direct other sovereign nations as to what they should do especially where their societal norms and ideals are different from those that exist" in Britain.

The U.S. Department of State's 2011 Human Rights Report found that,

LGBT persons faced widespread discrimination , as well as police harassment and extortion attempts. Gay men in prison were often subjected to sexual and other physical abuse. In June 2010 more than 1,000 protesters in Takoradi, Western Region, participated in a peaceful rally against reports of gay and lesbian activities in their city. This was reportedly the first such protest in the country. In May 2010 an HIV/AIDS training workshop was held in Takoradi for health- care workers. After the workshop, The Daily Graphic announced that 8,000 gay persons had been "registered" in the Western and Central Regions. However, experts in the field denied that there had been any such "registration". After the workshop there was significant negative reporting in the media about homosexuality. In a June 2010 interview with The Daily Graphic, the Western Region minister called on the government to take steps to combat homosexuality. He included the possibility of police raids on locales frequented by gay men and lesbians, efforts by community leaders to "wean young people" away from homosexuality, and a public condemnation by the government. However, no arrests of persons were made in connection with his comments by year's end, and he did not repeat his call. It was reported that four men who worked within the community of gay men were arrested in May 2010 in connection with an alleged sexual assault and were later charged with sodomy. The case was first brought to the Takoradi Circuit Court on August 24; however, it had not been heard by year's end.

In February 2012, President Mills reiterated the Ghana government's stance on LGBT rights, stating that,

We have made our positions well known. Ghanaian societies frown on homosexuality ... if the people's interest is that we do not legalize homosexuality, I don't see how any responsible leader will decide to go against the wishes of his people. I heard what the secretary general said and I wasn't surprised because of where he is coming from, but we only listened to him. We have all made our positions well known. Nobody can say in Ghana we discriminate against homosexuality, there is no witch-hunting on homosexuality ... that is their own problem so we only listen and move on. The secretary general has made his views known and we have also made our views known so the value is the same.

Ghana's obligations under international law and treaties

In 1994, the United Nations Human Rights Council (UNHRC) confirmed in Toonen v. Australia that laws criminalizing consensual same-sex activity violate both the right to privacy and the right to equality before the law without any discrimination, contrary to Article 17 of the International Covenant on Civil and Political Rights (the "Covenant"). Those laws interfere with privacy rights, regardless of whether they are actively enforced, and "run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention" by driving marginalised communities underground. The UNHRC has subsequently affirmed this position on many occasions by urging countries to repeal laws that criminalize consensual same-sex activity and thereby bring their legislation into conformity with the Covenant. Ghana ratified the Covenant on 7 September 2000.

The United Nations Working Group on Arbitrary Detention in June 2002 found that arrests for being homosexual or for engaging in consensual homosexual conduct are, by definition, human rights violations. The arrests constitute an arbitrary deprivation of liberty in contravention of Article 2, Paragraph 1 of the Universal Declaration of Human Rights and of Article 2, Paragraph 1 and Article 26 of the Covenant.

This position is consistent with other regional and national jurisprudence, including the decisions of the:

The South African court said,

Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy. ... The criminalisation of sodomy in private between consenting males is a severe limitation of a gay man's right to equality in relation to sexual orientation.... It is at the same time a severe limitation of the gay man's rights to privacy, dignity and freedom. The harm caused by the provision can, and often does, affect his ability to achieve self-identification and self-fulfilment. The harm also radiates out into society generally and gives rise to a wide variety of other discriminations, which collectively unfairly prevent a fair distribution of social goods and services and the award of social opportunities for gays.

Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires each state party to "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction". Article 1.1 defines "torture" to be,

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The Committee Against Torture, which officially monitors the implementation of the convention by state parties to the convention, has said that the protection of minority or marginalized individuals or populations especially at risk of torture is a part of the obligation to prevent torture or ill-treatment. Their laws against torture must cover all persons, regardless of "gender, sexual orientation, transgender identity". Ghana ratified the convention on 7 September 2000.

Anand Grover, the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, reported in April 2010 that laws criminalising sexual conduct between consenting adults impede HIV education and prevention efforts and are incompatible with the right to health. The Joint United Nations Programme on HIV and AIDS (commonly known as UNAIDS) has a similar view.

The international obligations of countries to respect the human rights of all persons, irrespective of sexual orientation and gender identity, were articulated in 2006 in the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. The Principles were developed and adopted unanimously by a group of human rights experts. Principle 2 ("Rights to Equality and Non-Discrimination") affirms that everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity, and specifically obligates countries to,

repeal criminal and other legal provisions that prohibit or are, in effect, employed to prohibit consensual sexual activity among people of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity.

Principle 6 (the "Right to Privacy") affirms the right of everyone, regardless of sexual orientation or gender identity, to the enjoyment of privacy without arbitrary or unlawful interference, and confirms the obligation of countries to,

b) Repeal all laws that criminalise consensual sexual activity among persons of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity.

c) Ensure that criminal and other legal provisions of general application are not applied to de facto criminalise consensual sexual activity among persons of the same sex who are over the age of consent.

The United Nations High Commissioner for Human Rights, Navanethem Pillay, in a statement to a High-Level Meeting on Human Rights, Sexual Orientation and Gender Identity at the United Nations on 18 December 2008 affirmed.

The principle of universality admits no exception. Human rights truly are the birthright of all human beings. Sadly ... there remain too many countries which continue to criminalize sexual relations between consenting adults of the same sex in defiance of established human rights law. Ironically many of these laws, like Apartheid laws that criminalized sexual relations between consenting adults of different races, are relics of the colonial era and are increasingly becoming recognized as anachronistic and as inconsistent both with international law and with traditional values of dignity, inclusion and respect for all.... It is our task and our challenge to move beyond a debate on whether all human beings have rights – for such questions were long ago laid to rest by the Universal Declaration – and instead to secure the climate for implementation.... Those who are lesbian, gay or bisexual, those who are transgender, transsexual or intersex, are full and equal members of the human family, and are entitled to be treated as such.

See also

References

  1. "Ghana Country Survey", International Lesbian, Gay, Bisexual, Trans and Intersex Association
  2. ^ "Ghana LGBTI Legal Resources", Fahamu Refugee Legal Aid
  3. The Constitution of the Republic of Ghana
  4. Intercountry Adoption: Ghana, Bureau of Consular Affairs, U.S. Department of State, October 2010
  5. "Ghana's gays organise to fight British criminal law", Afrol News, 19 August 2004
  6. "Ghanaian gay conference banned", BBC News, 1 September 2006
  7. "Somewhere over the rainbow", authored by Mark S. Luckie
  8. "Ghana cracks down on gays", Star Online, 21 July 2011
  9. "I will never support legalizing homosexuality, Ghana's President says", National Post, 2 November 2011
  10. 2011 Country Reports on Human Rights Practices: Ghana, Bureau of Democracy, Human Rights and Labor, U.S. Department of State
  11. "No responsible leader will legalise homosexuality - Mills", I am a Ghanaian
  12. Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, Fiftieth session, CCPR/C/50/D/488/1992, 4 April 1994
  13. International Covenant on Civil and Political Rights, Article 17
  14. Concluding Observations of the Human Rights Committee - Kenya, United Nations Human Rights Committee, 83rd Session, CCPR/CO/83/KEN, 29 April 2005
  15. Human Rights Committee Concluding Observations: United States of America, A/50/40, paragraph 287, 3 October 1995
  16. Concluding Observations of the Human Rights Committee: Cyprus, CCPR/C/79/Add.88, paragraph 11, 6 August 1998
  17. Concluding Observations of the Human Rights Committee: Chile, CCPR/C/79/Add.104, paragraph 20, 30 March 1999
  18. Concluding Observations of the Human Rights Committee: Lesotho, CCPR/C/79/Add.106, paragraph 13, 8 April 1999
  19. Concluding Observations of the Human Rights Committee: Romania, CCPR/C/79/Add.111, paragraph 16, 28 July 1999
  20. Concluding Observations of the Human Rights Committee: Egypt, CCPR/CO/76/EGY, paragraph 19, 28 November 2002
  21. Concluding Observations of the Human Rights Committee: United States of America, CCPR/C/USA/CO/3, paragraph 25 on page 8, 15 September 2006
  22. Concluding Observations of the Human Rights Committee: Barbados, CCPR/C/BRB/CO/3, paragraph 13 on page 5, 11 May 2007
  23. Concluding Observations of the Human Rights Committee: Chile, CCPR/C/CHL/CO/5, paragraph 16 on page 5, 18 May 2007
  24. Status of the International Covenant on Civil and Political Rights, United Nations Treaty Collection, 17 August 2012
  25. Communication addressed to the Government on 3 September 2001, United Nations Working Group on Arbitrary Detention, Opinion No. 7/2002 (Egypt), adopted 21 June 2002
  26. International Covenant on Civil and Political Rights, Article 2, Paragraph 1
  27. International Covenant on Civil and Political Rights, Article 26
  28. Dudgeon v. United Kingdom, European Court of Human Rights, , Series A, No. 45, 23 September 1981
  29. Norris v. Ireland, European Court of Human Rights, Application No. 10581/83, 26 October 1988
  30. Modinos v. Cyprus, European Court of Human Rights, No. 7/1992/352/426, 25 March 1993
  31. ^ National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa, Case CCT 11/98, 9 October 1988
  32. Lawrence v. Texas, United States Supreme Court, 539 U.S. 558 (2003), 26 June 2003
  33. Thomas McCosker v. The State, High Court of Fiji, Criminal Appeal Case Nos. HAA0085 & 86 OF 2005, 26 August 2005
  34. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  35. "General Comment No. 2 - Implementation of Article 2 by States Parties", Committee Against Torture, CAT/C/GC/2, 24 January 2008, page 6, paragraph 21
  36. Status of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations Treaty Collection
  37. "Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health", submitted to the United Nations Human Rights Council by Anand Grover, 27 April 2010, A/HRC/14/20, paragraphs 13 and 68, pages 7 and 20
  38. "Guidance for Applicants to the Global fund to Fight AIDS, TB and Malaria Round 8 Call for proposals", Joint United Nations Programme on HIV and AIDS, 28 February 2008
  39. "The Yogyakarta Principles"
  40. Refer also to "Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles", authored by Michael O'Flaherty & John Fisher, Human Rights Law Review, 8:2, 2008, pages 207-248
  41. Refer also to "Jurisprudential Annotations to the Yogyakarta Principles", University of Nottingham Human Rights Law Centre, under the direction of Professor Michael O'Flaherty with the principal researcher being Gwyneth Williams
  42. "Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity", Report of the United Nations High Commissioner for Human Rights, Submitted to the United Nations Human Rights Council, A/HRC/19/41, 17 November 2011, page 5, footnote 7
  43. "Addressing Human Rights Violations Based on Sexual Orientation & Gender Identity at the 10th Session of the Human Rights Council", ARC International, March 2009, page 2

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