The Dilemma of a nation: Of LGBTQ Bill passage; to sign or not to sign?


1.0 Introduction

Billaw………For the past 4 years, we have stopped writing and reporting from the Billaw Mountains not because we do not have pens to do so. It’s also not true that we have run out of newsitems to report. The decision to write on raging social and political issues of national interest is personal and we will write when we should write, to right the wrongs of society.

Fast forward, over the week, the Parliament of Ghana passed the most controversial BillLGBTQ, perhaps ever since we returnedto constitutional rule in 1992. In its current state, the Bill, if assented to by the president and gazetted, becomes a law in operation with full teeth to bite. Indeed, the passage of the Bill, as expected received a lot of mixed reactions from the citizenry and the international community, especially the United States of America.

Prior to the passage of the Bill, on 31st March 2021 a lot of credible media portals reported the opening of an LGBTQ center in Ghana. This news was received with a lot of criticisms from across the length and breadth of the country, including notable persons and institutions like the National Chief Iman, the National House of Chiefs and the Christian Council

The above development, led to a renewed sense of heated debate among the citizenry following the avalanche of criticisms and the general dissatisfaction that greeted the opening of the LGBTQ center, with some people calling for persons engaged in any act of LGBTQ or any related act; arising therefrom, incidental to and in connection with LGBTQ to be arrested and punished because such acts, as they put it; are alien, outlandish,unorthodox and unknown to the Ghanaian culture and do not accord with the pristine sociocultural values of any ethnic group in Ghana. It was for this reason, and perhaps this reason onlythat some Members of Parliament introduced a Private Members’ Bill (PMB) to that effect.

2.0 The law before the passage of LGBTQ Bill

The Criminal and Other Offences Act, 1960 (ACT 29) under section 104 (2) criminalizes unnatural carnal knowledge. Itdescribes unnatural carnal knowledge as “sexual intercourse with a person in an unnatural manner or with an animal”. However, this definition appears to be unsatisfactory and incomplete because not all forms of unnatural carnal knowledge or sexual intercourse with persons of the same sex have been criminalized by ACT 29.

Thus, traditionally, the law on sexual intercourse is gender specific, and inherently discriminatory against males and it’s proved to be complete pursuant to section 99 of Act 29 when there is evidence of “vaginal penetration” or the least degree of penetration beyond anything referred to as brush work. It’s therefore safe to surmise that, sexual intercourse or unnatural carnal knowledge between and among females has not been catered for under our current Criminal and Other Offence Act, 1960 (ACT 29). The proponents of the Bill therefore seek to provide a broader proscription of unnatural carnal knowledge or sexual intercourse of the same sex people in general and without limiting same to proof of “vaginal penetration”.

3.0 General arguments in favour of the Bill. What are the facts?

Firstly, it’s a fact that all the three main religious groups in Ghana, including persons of high moral values who act asveritable conscience of the nation find favour with the Bill and in support of same. They contend that the Bill seeks to consolidate the constitutional and legislative framework of Ghana. Thus, even though section 104 (2) of Act 29 already provides for unnatural carnal knowledge, there still exist some inherent lacunae that must be cured or addressed.

Also, they submitted that the Bill seeks to operationalize and give legal effect to article 28 (1) (d) and (e) and 39 (1) and (2) which provides for the protection of children against moral hazards and indeed, justifiable so. Thus, it recognizes family as a basic unit of society and that the state should be encouraged and is hereby encourage to take proactive steps, including the enactment of legislations where necessary to integrate appropriate customary values into the fabric of the nation.

Proponents of the Bill further opined that there are severe and irreversible health concerns that will be unleashed on the nation if the Bill is not passed. To strengthen their argument, it was submitted that about 65% of HIV/AIDS infections among adults and adolescents was between male-male sexual contact in the United States. (Center for Disease Control and Prevention; HIV Surveillance Report, 2018)

4.0 General Arguments against the Bill: What are the facts?

Firstly, it’s their argument that, passing the Bill into law will sin against article 17 (1), 21 (a) (b) and (e) of the constitution, 1992.Thus the said provisions guarantee equality before the law and prohibits all forms of discrimination and the freedom of expression, conscience, thought belief among others. Thus, any attempt to criminalize them will not only be deemed repugnant but inconsistent with the letter and spirt of the constitution and to the extent of the inconsistency, be void.

Again, they contented forcefully that, the passing of the Bill into law will also be injurious to article 40 of the constitution, 1992.Thus, the said provision relates to an inherent obligation on Ghana to respect and honour international treaties and conventions that we subscribed to or for which she is a member. Among such treaties include International Declaration of Human Rights. International Covenant on Economic, social and cultural rights and international covenant on civil and political rights.

5.0 Can the president refuse to assent to a Bill passed by parliament?

It’s imperative to state that parliament is vested with the legislative authority to make laws for the country pursuant to article 106 of the constitution, 1992. Laws are made through the introduction of Bills which may come in the name of the president and by necessary implication, sponsored by government. The other option is Bills introduced by a Member of Parliament or a group of them which is referred to as a Private Members’ Bill (PMB). The facts that animated the subject matter in discourse, is more of the latter than the former.

The question whether or not the president can refuse to assent to a Bill passed by parliament require more of an explanation than an emphatic No! or Yes! More accurately perhaps, the appropriate question would be and it’s thus: What can parliament do if the president refuses to assent to a Bill passed?

Fact is, there are two options available to the President which are constitutionally mandatory:

1. After the Bill is transmitted to the President, he has 7 days after the transmission to indicate to Parliament whether he has assented to the Bill or refuses to do so. If the second option suffices, he has to write to Parliament within 14 days and indicate the reason (s) for the refusal. Here, the president can disagree with certain parts or the entire Bill and make recommendations that he wants to be incorporated or amended through a memo. When he does this, Parliament has to reconsider the Bill through the process as provided by the constitution in Art 106. And when the reconsideration is done, Parliament shall pass a resolution supported by votes of 2/3 of members, and the President after this is duty bound to assent to the bill within 30 days.
2. The second option is for the President to refer the Bill to the council of state for consideration as per Article 90 of the constitution, 1992. Inherent in this option is yet another memo directing the council of state of his challenges with the Bill and what he wants the Council of State to do. Where the Council of State considers the referred bill, it shall communicate same to the President and to Parliament for consideration. Parliament shall then proceed to consider the recommendations of the Council of State. and the cycle continues until the bill is assented to.

6.0 Conclusion

The Anti-LGBTQ law is not about discrimination, neither is it about acting on the theater of our emotions. The Bill has nothing to do with civilization or democracy neither is it about exercising our rights as a nation among the comity of “civilized nations”. The Anti-LGBTQ law is more of using our God given talents to think and decide for ourselves what is good and what is bad for us. What we value and cherish as a people and uphold with all its pristine purity. It’s more about protecting our traditional values and beliefs not the culture and custom of others unknown to us. It is essential to uphold these principles to preserve our society’s moral fabric and ensure a better future for generations yet unborn.

#Pax Vobiscum!

#We write to right the wrongs of society

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