The Attorney General and Minister of Justice, Godfred Dame, after a careful review of the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021, has observed that much as the Bill is not unconstitutional, possible implementation challenges are likely to be faced after the Bill is passed.
“Some provisions, when implemented, would violate some fundamental human rights and freedoms, particularly the right to privacy,” the Attorney General opined.
In a letter addressed to the Chairman of the Committee on Constitutional, Legal and Parliamentary Affairs of Parliament, the Attorney General argued that some provisions of the Bill repeat existing legislation, particularly the Marriages Act, 1884-1885 (Cap 127), the Criminal Offences Act, 1960 (Act 29), the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) and the Children’s Act 1998 (Act 560).
For instance, he stated that “Unnatural carnal knowledge of a person with or without the consent of that person and unnatural carnal knowledge of an animal is already criminalized by Act 29. The Bill seeks to state a broader prohibition on unnatural carnal knowledge or criminalization of sexual intercourse between persons of the same sex. This does not appear to be inconsistent with the Constitution.”
Also, the Attorney General expatiated that the restrictions on the dissemination of certain kinds of information directed at children are not inconsistent with the Constitution.
“The prohibition on adoption, fosterage and marriage between persons of the same sex placed by clauses 17 and 18 of the Bill are not inconsistent with the Constitution,” the letter added.
Lawyer Dame argued further in the letter dated 19 October that “The Bill is a private member’s Bill subject to article 108 of the Constitution. A private member’s Bill should not, for purposes of Government. However, the Bill is indicative of financial implications.”
Further, Chapter Five of the Constitution, the minister intimated, guarantees the fundamental human rights and freedoms of every person. These rights are to be upheld and respected by the Legislature, the Executive, the Judiciary and all organs of government and its agencies and all natural and legal persons, but that “Aspects of the Bill in its current form may violate some fundamental rights, and freedoms enshrined in the Constitution, including the right to freedom of expression, thought and conscience and freedom from discrimination.”
Read excerpts of the letter unedited under “General Preliminary Observations”:
General Preliminary Observations
The cornerstone of fundamental human rights under the Constitution is articles 12(2), 17(1) and 21(1) (a), (b) and (e), which respectively guarantee equality before the law, the prohibition of all forms of discrimination and the freedom of expression, thought, conscience and belief, and association respectively.
The relevant articles are as follows.
Article 12 (2):
“Protection of fundamental human rights and freedoms
- (2) 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.”
Equality and freedom from discrimination
- (1) All persons shall be equal before the law,
General Fundamental Freedoms
- All persons shall have the right to
(a) freedom of speech and expression, which shall include freedom of the press and other media;
(b) freedom of thought, conscience and belief, which shall include academic freedom;
(c) freedom to practise any religion and to manifest such practise;
(d) freedom of assembly including freedom to take part in processions and demonstrations;
(e) freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest;
(f) information, subject to such qualifications and laws as are necessary in a democratic society;
(g) freedom of movement which means the right to move freely in Ghana, the right to leave and to enter Ghana and immunity from expulsion from Ghana”.
The enjoyment and implementation of these rights are subject to respect for the rights and freedoms of others and the public interest.
The Bill, whilst recognizing these rights, seeks to place a fetter on conduct considered against the norms and values of society to be inimical to the public interest, safety and morality.
As will be demonstrated below, parts of the Bill in its present form violate some fundamental rights and freedoms enshrined in the Constitution, including the right to freedom of expression, thought and conscience and freedom from discrimination. Other provisions of the Bill, however, pass the test of constitutionality.
Further, some provisions of the Bill purport to repeat already existing legislation and, in some situations, impliedly amend provisions in existing legislation, particularly the Marriages Act, 1884-1885 (Cap 127), the Criminal Offences Act, 1960 (Act 29), the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) and the Children’s Act 1998 (Act 560),
The Bill is a private member’s bill subject to article 108 of the Constitution. Article 108 of the Constitution provides:
*108. Settlement of financial matters
Parliament shall not, unless the bill is introduced or the motion is introduced by, or on behalf of, the President
- proceed upon a bill including an amendment to a bill, that, in the opinion of the person presiding, makes provision for any of the following
- the imposition of taxation or the alteration of taxation otherwise than by reduction; or
- the imposition of a charge on the Consolidated Fund or other public funds of Ghana or
- the payment, issue or withdrawal from the Consolidated Fund or other public of Ghana of any moneys not charged on the Consolidated Fund or any increase in the amount of that payment, issue or withdrawal; or
- the composition or remission of any debt due to the Government of Ghana; or
- proceed upon a motion, including an amendment to a motion, the effect of which, in the opinion of the person, presiding, would be to make provision for any of the purpose specified in paragraph (a) of this article”.
I am of the view that the Bill may hold financial implications for the State, particularly regarding;
- the collective responsibility of citizens, educational institutions, the Executive, Legislature and Judiciary to promote the values enshrined in the Bill, under clause 3 of the Bill,
- the payment for medical assistance or therapy by an approved service provider under subclause (6) of clause 19, clause 20 and clause 23 of the Bill,
- the provision of prison facilities for persons convicted of an offence to serve their terms of imprisonment, in clauses 4,6,7,8,9,10,11,12,13,14,16,22 and 25 of the Bill.
Thus, the passage of the Bill is subject to subparagraph (iii) of paragraph (a) of article 108 of the Constitution.
A determination of the satisfaction of the conditions in article 108 ought to be made objectively by the person presiding over proceedings in Parliament on the basis of analysis properly conducted by proponents of any bill in question.
It is for this reason that section 100(1) of the Public Financial Management Act 2016 (Act 921) stipulates thus;
“100(1) Any legislation to be laid before Parliament or proposal submitted for the approval of Parliament shall be accompanied by a fiscal impact analysis stating the estimated effect on revenue and expenditure for the financial year in which the legislation or proposal is expected to come into effect”.
It is observed that the Bill is not accompanied by a fiscal impact analysis required by section 100(1) of Act 921.
The stipulation in section 100(1) of Act 921 is rendered more imperative by the character of the Bill as a private member’s Bill.
