Issifu Seidu Kudus Gbeadese
(Youth
Imam from Laribanga)
0244198031
Government, no matter its form and shape,
ought to reflect the will of the people. Sovereignty indeed resides in the
people and this is the opening paragraph in the 1992 Constitution of Ghana. It
states in Article 1 thus, “the Sovereignty of Ghana resides in the people of
Ghana in whose name and for whose welfare the powers of government are to be
exercised in the manner and within the limits laid down in this Constitution.”
It is worthy of note that the architecture
of the government is crystallized on the principle of separation of powers as
was contemplated by the 1992 Constitution of Ghana. With this, the fundamental
assumption is that the powers of government are evenly dispersed amongst the
Three Arms (Executive, legislature and Judiciary), even though Ghana’s system
is practically predicated on a Hybrid System where the Executive is partly
fused in Parliament.
The 1992 Constitution of Ghana confers
distinct powers on these three arms and dictating strictly how the powers ought
to be exercised. Within the framework of this arrangement, no arm can stampede
the conduct of business of the other, except where the Constitution places
substantive limitations to the exercise of any such powers. So, if all three arms were to respect the
dictates of the Constitution, there would not have been any overlaps, stampede,
usurpation and arm-twisting in any form or texture.
How needless is the ongoing brawl between
the Executive and Legislature over The
Human Sexual Rights and Family Values Bill, 2024?
Note the following:
1.
Per
Article 58 of the Constitution, Executive Authority is vested in the President
and shall so be exercised in accordance with the Constitution and not applied
capriciously.
2.
The
legislative power of Ghana shall be vested in Parliament and shall be exercised
through bills and in accordance with this Constitution. (Article 93)
3.
Accordingly
the judicial power of Ghana shall be vested in the Judiciary and justice shall
so be administered independently and subject only to the Constitution. (Article
125)
Per the above Constitutional provisions,
the powers and duties are clearly cut out for the three arms, with each of them
subject to the Constitution only without the discretion to do otherwise.
With this arrangement, the Parliament of
Ghana shall exercise the legislative powers (making of laws) through bills.
Accordingly, the Constitution provides in Article 106(1) thus, “the power of
Parliament to make laws shall be exercised by bills passed by Parliament and
assented to by the President.”
The procedure of law making is set out in
Article 106 and the adjoining sub-clauses. For the avoidance of doubt,
Sub-Clause 7 of Article 106 provides for Parliament to transmit the Bill so
passed to the President to assent to or opt for any other subsequent action
provided by the Constitution. Sub-Clause 7 provides, “where a bill passed by
Parliament is presented to the President for assent he shall signify, within
seven days after the presentation, to the Speaker that he assents to the bill
or that he refuses to assent to the bill, unless the bill has been referred by
the President to the Council of State under article 90 of this Constitution.” Ordinarily,
one would infer from this that, until a Bill is presented by the Clerk to Parliament
to the President, the Law making process provided in Article 106 is incomplete.
So, the attempt by the Clerk to Parliament
to present the LGBTQIA+ Bill to the Presidency was only an execution of a
constitutional mandate as per Sub-Clause 7 of Article 106. Nothing prior, in or
subsequent to this Sub-Clause suggest that, an action before the Judiciary in
respect of a subject matter should obstruct, truncate, suspend or creates a
fetter on a public officer (The Clerk to Parliament) from executing a duty
imposed on such an officer by the Constitution. Neither the President nor the
Court has been clothed with any such powers to obstruct Parliament or its
officers from carrying out a Constitutional mandate such as the transmission of
a Bill to the President. And there is no case law so far as we know that set
any such precedence.
For the avoidance of doubt, the
Constitution allows for some level of discretion to be exercised by these three
arms of government, by way of regulating their own business. So, the Judiciary
by an Act of Parliament (Courts Act, 1993 (Act 459) and other subsidiary
legislations like C.I 47, regulates the conduct of judicial proceedings. Also, the Constitution allows for Parliament
to conduct its business by its own standing orders. This is provided in Article
110 of the Constitution. Except where a provision in the standing orders is in
contravention of the Constitution, the conduct of the business of Parliament
cannot be restrained by the Supreme Court. And this was the reasoning of the
Supreme in the case of Dr. Amanda
Odoi V The Speaker of Parliament and the Attorney General.
The
Sky’s Law Suit and the Law
On the 5th of March, 2024 Richard
Dela Sky, a citizen of Ghana filed a suit invoking the original jurisdiction of
the Supreme Court as per Article 2 and 130(1) for the interpretation and
enforcement of the Constitution relative to the LGBTQIA+ Bill. Interestingly,
at the time this writ was filed before the apex court, The Human Sexual Rights
and Family Values Bill had not been transmitted to the President. It implies
that, it is still a raw bill yet to be refined into a proper bill ready to be
presented to the President. If this were the case, Richard Sky’s suit is
premature, in that the right conferred on him as a citizen of Ghana in Article
2, to invoke the original jurisdiction of the Supreme Court for the enforcement
of the Constitution is yet to accrue to him.
For the sake of this argument, Article 2
of the Constitution states:
(1) A
person who alleges that—
(a) An
enactment or anything contained in or done, under the authority of that or any
other enactment…is inconsistent with, or in contravention of a provision of
this constitution, may bring an action in the Supreme Court for a declaration
to that effect.
A Bill yet to be presented to the
President does not have the force of law to be an enactment properly so called
within the meaning of Article 2(1)(a). In fact, the Supreme Court can only determine
the constitutionality of a LAW and not a BILL. And as the Law Lords asserts,
you cannot put something on nothing and expect it to stand. The right to even
sue is yet to accrue, and until there is an enactment to be interpreted as per
Article 2, the Jurisdiction of the Supreme Court to consider such a premature
action can be questioned in this case.
In that “premature suit”, Richard Sky
prays the court for an order restraining the Speaker of Parliament and the
Clerk to Parliament from presenting The
Human and Sexual Values Bill, 2024 to the President for his assent. Unless
the transmission of the Bill to the President as provided for by Article 106(7)
is considered unconstitutional, respectfully, the Court has no business in
restraining the Speaker or the Clerk from its transmission once it is power and
duty conferred on them by the Constitution.
Also, relief 6 sought by Sky, praying the
court to restrain the President from assenting to the Bill may equally suffer
the same legal fate, since the act of assenting to a Bill is a constitutional
mandate handed the President in Article 106(7).
In the circumstances, the President of
Ghana has no business, no power in any form or texture to have written the
unfortunate letter to Parliament, seeking to dictate to the People’s
Representative on how to conduct its constitutionally mandated duty. That
singular act can constitute a violation of the Constitution which the President
swore to uphold and defend.
In the alternative, the President has the
right to refuse to assent to the Bill. Sub-Clause 8 of Article 106 provides for
the President to opt not to assent to any Bill. The provision further provides
two options for the President in case he refuses to assent to the Bill; he had
an option to signify to the Speaker through a Memorandum of his refusal to
assent to the bill or refer the bill to the Council of State. The act of
writing to Parliament and dictating to the August House to cease the
transmission of the Bill to the President was not contemplated by the framers
of the 1992 Constitution neither is it supported by any settled practice within
the law.
In any case, there are living precedents
set by President Akuffo-Addo within the remit of this same subject matter of
law suits pending before the apex court on an ongoing subject matter. It will
be recalled that the Hon. Haruna Iddrisu, Hon. Mahama Ayariga and another filed
a law suit in the Supreme Court on April 19th, 2022, seeking to
restrict the implementation of the E-levy. This was subsequent to President
Akuffo-Addo’s act of not recognizing Parliament and the Judiciary and by
extension, the will of the people when popular voices were against the E-levy,
and went ahead to assent to it. While the suit was pending, the Ministry of
Finance on the authority of the President went ahead to implement the E-levy
with effect from 1st May, 2022. At the time, the Secretary to the
President did not see reason, neither did the Attorney General see any legal
question in respect of the pendency of the suit vis a vis the implementation of
the E-levy.
Again, a coalition of Civil Society
Organizations including the CDD, ACEP, SEND Ghana, Ghana Integrity Initiative,
etc. filed a suit challenging the directive of President Akuffo-Addo in June
29, 2020, to the Auditor General to proceed on an involuntary accumulated leave
of 167 days. While this suit was pending, the President upheld his directive
and even appointed Mr. Johnson A. Aseidu to act in the stead of Mr. Domelovo.
Ultimately, the Supreme Court ruled that the President’s directive was unconstitutional
although, belated.
The
Sovereign Will of the People
As indicated earlier, sovereignty resides
in the people and for whose interest and welfare the powers of government shall
be exercised. Anything done to massage the ego and serve the individual
interest of the President or any person in government is a betrayal of the
people who entrusted power in the President to exercise for and on their
behalf.
It is on record and public knowledge that
the passage of The Human Sexual Rights
and Family Values Bill, 2024, was unanimous in Parliament, without even a
single dissenting voice when the voice vote was put by the Rt Hon Speaker. By
implication, the will of the people was carried and affirmed through their 275
Representatives. Prior to that, the moral society of Ghana through its leaderships
have submitted Memos in support of this Bill. Popular voices in Ghana are in
support of this bill. How do we identify the sovereign will of the people, if
not through these key stakeholders?
The
Human Sexual Rights and Family Values Bill, 2024,
was introduced in Parliament as a Private Members’ Bill, in response to a
surging trend of advocacy, sponsorship and the propaganda for the activities of
homosexuals in Ghana. In and around 2020/21, there were bill boards being mounted
across Ghana by the LGBTQIA+ plus group, seeking to regularize their activities
in Ghana. Prior to this, this group started a public display of their marriage
ceremonies and finally chose Accra, Ghana to host their International
Conference between 27th and 30th July, 2020.
These developments came on the back of
President Akuffo-Addo’s opened assertion on Al Jazeera in 2017 that
Homosexuality is still illegal in Ghana, because there are not enough activists
pushing for its legalization. And if in the future a strong coalition should
emerge and advocate strongly, its legalization “is bound to happen.” This
assertion seems to have opened the floodgates for the activism, starting with
the campaigns on bill boards.
If indeed, homosexuality is illegal in
Ghana in the words of President Akuffo-Addo, how come that its activities in
the form described above were not criminalized and the perpetrators brought to
book swiftly as it is done to Journalists who were alleged to have attacked
either the President or his wife? The nonchalance demonstrated by the President
and his government in the wake of the smuggled activism was what triggered Hon
Sam George and his colleagues to have initiated the current Bill to partly
criminalize same sex marriage, activism, promotion, sponsorship among other
activities.
Indeed, the big brother of all
democracies, the United States of America did not and still does not have a
universal law legalizing same sex marriage applicable to all states. Until in
2013 when the United States Supreme Court ruled in the case of United States V Windsor,
declaring section 3 of the Defense of Matrimonial Act (DOMA) unconstitutional,
states like Mississippi, Ohio, Arkansas, Georgia, Kentucky, Texas and 7 others,
had explicit laws denying federal recognition to same sex marriage and its
related activities. During this period, the International Monetary Fund (IMF)
which is issuing threats to Ghana and attempting to retrain the President from
assenting to the LGBTQIA+ bill still had its headquarters in the United States,
with the United States being its biggest beneficiary.
The argument that the current Bill is
discriminatory and could violate human rights in Ghana is weak and unfounded on
common logic. Every law is discriminatory, futuristic and somehow preemptive.
So, today, can we have Armed Robbers or Rapists or Thieves inaugurate their
respective associations, have opened conferences and display their activities
in the open, simply because of freedom of assembly and association as provided
in Article 21(d) and (e) in the 1992 Constitution? If they cannot do so, how
come that homosexuals are allowed to have their opened marriages and even
attempted to organize their International Conference in Ghana at a time the
Ghanaian laws are said to criminalize their activities?
It is worthy of note that, the enjoyment
of human rights are not without conditions. In fact, Article 12(2) of Ghana’s
Constitution states explicitly that, “every person in Ghana, whatever his race,
place or 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 (Chapter 5) but SUBJECT TO THE RESPECT FOR THE RIGHTS
AND FREEDOMS OF OTHERS AND FOR THE PUBLIC INTEREST.” This is a clear case of
fetters to the so called absolute and complete enjoyment of fundamental human
rights of citizens of Ghana.
Do we have “public interest” in the
activities of the homosexuals? Of course yes. Every nation is built on its
history which embodies its identity, traditions and customs. It is not for
nothing that the 1992 Constitution of Ghana recognizes and guarantees the
Chieftaincy institution and customary law and usage in Articles 270(1) and
11(2).
It is trite knowledge that Ghana has lost
a substantial part of its traditions, customs and its pristine identity to
Colonialism and Slavery. Ironically, the British who raped us off our identity
and customs in the wake of colonialism is still holding their customs and
traditions to their chest. Until her
passing, Queen Elizabeth was the most powerful woman who ever lived. The laws
of the United Kingdom are still protecting their sacred chieftaincy institution
with its attendant customs.
While at that, the United Kingdom
prohibits polygamy for whatever reason. Indeed, under section 11(b) of the
Matrimonial Causes Act, 1973 of the United Kingdom, a person commits Bigamy if
that person at the time of committing him or herself to a marriage was already
married. This law is as discriminatory as the current LGBTQIA+ Bill of Ghana if
we were to hold the two to the test of proper definition of what constitutes
discrimination. And interestingly, this law is applied in Ghana as a Common Law
country if a couple was to marry through Ordinance instead of Customary. How?
Will Ghana be a lone lamb in Africa if we
were to allow the current Bill to become law and by extension will Ghana be
economically impotent? Indeed, Uganda recently passed quite a stiffer law to
crack down on homosexual activities. Also, in May 2019, the High Court in Kenya
upheld laws criminalizing homosexual’s acts. Worthy of note is that, out of the
53 countries in the Commonwealth, most of them former British colonies, 29 of
them have laws that criminalize homosexuality. Indeed, within the 54 states in Africa,
it is only South Africa and the French Islands of Mayotte and Reunion that have
explicit laws recognizing same sex marriages and civil unions. With these
scenarios, how can Ghana be treated as a lone lamb if we were to proceed to
make this Bill a Law? The Saudi Arabia,
which is one of the greatest allies of the United States, prescribes death as a
legal punishment for same sex marriage.
Comparing the laws prohibiting same-sex
marriage across different jurisdictions, Ghana’s current Bill is very friendly,
moderate and soft in its wording and application. For instance, Section 17(3)
of the current Human Sexual Rights and
Family Values Bill, 2024, seeks to even protect homosexuals against extra
judicial treatment. Per the above section, a person who verbally or physically
abuses, assaults or harass a person accused of any offence relative to the
activities of homosexuals, commits a misdemeanor and shall suffer the
punishments prescribed in section 84 to 87 of the Criminal Offences Act, 1960,
(Act 29).
Perhaps, the last rape that will finally
rip Ghana of its complete identity is the legalization of same-sex marriage.
And where the arguments are going, just maybe, the dominoes are about to fall
in favor of the legalization of homosexuality in Ghana. If we lose the ground
to those seeking to undo this current LGBTQIA+ Bill, including, President
Akuffo-Addo and his government’s nonchalance and intransigence, the grounds
would have been fertile enough for activism to realize President Akuffo-Addo’s
declaration of “IT IS BOUND TO HAPPEN."
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