Read the press release below:
We the gay community of Ghana wish to WARN our politicians
that unless they secure our rights to practice who we are, we will go to the
international courts of human rights. We will also seek help from our European
and Western partners, such as Obama and Cameron.This will have a devastating
effect especially on the economy!
It will not take more than a simple
understanding of the arguments being made by several Ghanaians to acknowledge
that they are confusing morals with law.
It happens a lot especially when your
moral values are in direct conflict with a legal standing. The law on
homosexuals is complex and no matter how it is construed, its interpretation
can be stretched to give rights when the actual lawmakers may not have intended
to do so.
I have laughed heavily several times for hearing people claiming
homosexuals have NO legal rights in Ghana because the constitution of Ghana
does not expressly give them any. What most of us have to realize is that, the
law does not only give rights expressly, certain times, they are implied.
I am
not an expert on Ghanaian laws but still have enough knowledge to make this
simple deduction. The legal argument that homosexuals have no rights in Ghana
and their actions constitute a criminality has mostly been founded on Chapter
6, article 104 of the Ghanaian Criminal Code which prohibits “unnatural carnal
knowledge”.
This is defined to include consensual sexual intercourse between
men. Notably, the true effect of this clause is that, it encourages
discrimination and persecution against homosexuals on the basis of their
identity and consensual sexual behaviour.
The above law which subjects
homosexuals to discrimination is a criminal code, meaning the constitution of
Ghana is supreme to it in terms of legal hierarchy. Article 17 of the
constitution of Ghana however guarantees the right to freedom from
discrimination.
What this means is that, under the constitution you cannot
discriminate against anyone for being homosexual (identity and sexual
behaviour) whiles the criminal code says the direct opposite- ‘homosexuality’
by a stretch of the law is illegal.
These two laws are in direct conflict with
each other and as mentioned above, the constitution is supreme so
automatically, it is the constitution that should take precedent. Based on the
above constitutional provision, homosexuals can simple argue that they have the
right to their sexual orientation and must freely be allowed to express and
practice it.
They can do so by arguing that under Article 17, such a
prohibition or not being allowed to hold and practice their sexual preference
(criminalizing it with any code) is DISCRIMINATION, a breach of their constitutional
right…
Also, the African Charter on Human and Peoples’ Rights, ratified by
Ghana in 1989 affirms the equality of all people and even gives homosexuals
more grounds to operate freely.
Article 2 expressly guarantees the right to
freedom from discrimination, article 3 guarantees equality before the law and
article 26 outlines the duty of all individuals not to discriminate….
So as a
Ghanaian, you have a duty not to discriminate against any person or set of
people including homosexuals. So until Article 17 is repealed or amended and
probably the African Charter too, homosexuals have rights to their activities
and possibly to even marry in Ghana…
We must learn to make a distinction between
morals and laws especially when these two opposes each other. No matter your
moral standing or cultural beliefs, the law is the law and someone’s right is
his right whether expressly or impliedly given.
Discriminating or segregating
the minority (homosexuals) is not the way forward. As someone rightly said, if
you want to know how civilized a society is, simply look at how they treat the
minority. The current NDC government cannot hide now when prominent members of
the government are gays and are holding sensitive positions. They must come out
and support gay rights now.
Samuel Kabutey Thompson ACCA,
Secretary
Greater Accra Gay Welfare Association
(GAGWA) Ashiaman
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