IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- A.D. 2024

CORAM: BAFFOE-BONNIE JSC (PRESIDING)

LOVELACE-JOHNSON (MS.) JSC
AMADU JSC
KULENDI JSC
GAEWU JSC
DARKO ASARE JSC
ADJEI-FRIMPONG JSC

WRIT
NO. J1/18/2021
24TH JULY, 2024

DR. PRINCE OBIRI-KORANG ………………... PLAINTIFF

VRS

ATTORNEY GENERAL ………………….. DEFENDANT

JUDGMENT

AMADU JSC:

INTRODUCTION
My Lords, the preamble to the Constitution of the Republic of Ghana 1992,
provides;
IN THE NAME OF THE ALMIGHTY GOD
We the People of Ghana,

IN EXERCISE of our natural and inalienable right to establish a framework

of government, which shall secure for ourselves, and posterity the blessings
of liberty, equality of opportunity and prosperity;

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IN A SPIRIT of friendship and peace with all peoples of the world;

AND IN SOLEMN declaration and affirmation of our commitment to:

Freedom, Justice, Probity and Accountability;

The Principle that all powers of Government spring from the Sovereign Will
of the People;

The Principle of Universal Adult Suffrage;

The Rule of Law;

The protection and preservation of Fundamental Human Rights and
Freedoms, Unity and Stability for our Nation.

DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS

CONSTITUTION.

(1) The Constitution of the Republic of Ghana 1992, from it’s very
preamble amplifies certain core values, pillars and features upon which
it is anchored. These values are well intended to regulate the affairs of
the people, it’s institutions and leaders. In the comity of constitutional
democracies, the adherence and respect for the rule of law, the
protection and preservation of fundamental human rights and freedoms
of every individual, is invariably non-negotiable. However, the
operationalization, enforcement and interpretation of any Constitution
can stultify the realisation of these principles and portend an anathema
to societal growth of nation state and the entire human race.

(2) Whereas, the enjoyment and ventilation of human rights have been
guaranteed under the 1992 Constitution, just as in all civilized nations
across the world, these rights, freedoms and liberties are not at large

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 absolute and without limits. In limiting the enjoyment of these rights
and freedoms, however, such limitations and consequential sanctions
ought to find expression and justification within the constitution, or
other statute consistent with the constitution lest the limitations may be
potentially or actually unconstitutional.

(3) Section 104 of the Criminal and Other Offences Act 1960 (Act 29)
criminalises the offence of unnatural carnal knowledge with or without
consent. The section enacts as follows:
(1) A person who has unnatural carnal knowledge
(a) of another person of not less than sixteen (16) years
of age without the consent of that other person commits a first
degree felony and is liable on conviction to a term of
imprisonment of not less than five (5) years and not more than
twenty-five (25) years; or
(b) of another person of not less than sixteen (16)
years of age with the consent of that other person
commits a misdemeanor; or

(c) of an animal commits a misdemeanour.

(2) Unnatural carnal knowledge is sexual
intercourse with a person in an unnatural manner or, with
an animal. (Emphasis added).

(4) In the instant action which invokes the original jurisdiction of this
court, we have been urged by the Plaintiff to pronounce as
unconstitutional, Section 104(1)(b) of the Criminal and Other Offences
Act, 1960 (Act 29) which criminalises unnatural carnal knowledge. The
Plaintiff’s contention is that, the said section violates the rights of
individuals (especially homosexuals) to liberty, non-discrimination, and
privacy as guaranteed under Articles 14(1), 17(2) and 18(2) of the 1992
Constitution. The Defendant (the Attorney General) contests this assertion

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 of the Plaintiff, and argues contra that, the criminalization of unnatural
carnal knowledge under Section 104(1)(b) of Act 29 is consistent with
the letter and spirit of the 1992 Constitution. For the Defendant, same
is in accord with the moral values of the state and consistent with the
intendments of the framers of both the Constitution and the said
provision under Section 104(1)(b) of Act 29.

(5) By the writ filed on the 26th of August 2021, the Plaintiff prays
against the Defendant (Attorney-General), the following reliefs:
a) A declaration that Section 104(1)(b) of the Criminal and Other
Offences Act (Act 29) 1960 is ultra vires Article 18(2) of the
Constitution of Ghana of 1992 in so far as the said section will lead
to the unlawful and arbitrary interference of the privacy of all adult
persons living in Ghana.

b) A declaration that Section 104(1)(b) of the Criminal and Other

offences Act 29 of Ghana is ultra vires Article 17(2) of the
Constitution of Ghana of 1992 in so far as the said section
arbitrarily and unjustifiably discriminates against persons based
on their sexual orientation.

c) A declaration that Section 104(1)(b) of the Criminal and Other

Offences Act 20 of Ghana is ultra vires Article 14(1) of the
Constitution of Ghana of 1992 in so far as the said section
arbitrarily deprives homosexuals of the liberty to select their
intimate sexual partners and their right to engage in intimate
sexual conduct without state interference.

THE PLAINTIFF’S CASE

(6) In his statement of case, the Plaintiff contends that, Section

104(1)(b) of Act 29 which criminalise, the act of “unnatural carnal
knowledge” contradicts Article 18(2) of the Constitution 1992 as the
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 statutory provision unlawfully and arbitrarily invades the privacy of not
only consenting adults who engage in homosexual acts but also, the
privacy of the majority of consenting adults who may engage in
heterosexual conducts.

(7) Plaintiff’s premise for this contention is that, “the term “unnatural
carnal knowledge” as it applies or was applied in various jurisdictions
including the United Kingdom where the term and offense was inherited
from by Ghana may include penetration per anus, the penetration of the
female genitalia or male/female rectum with an inanimate object,
fellatio and cunnilingus all of which are not exclusive to homosexuals”.

(8) It is further submitted by the Plaintiff that, any contention by the

Defendant that, Section 104(1)(b) was enacted to protect morality is
untenable. He reasons that, with the issue of morality, there must be
distinguished “public morality” from “private morality” as urged by such
legal philosophers like John Stuart Mills, HLA Hart as well as the Report
of the Committee on Homosexual Offences and Prostitution of 1957
(Wolfenden Report).

(9) Whereas the Plaintiff concedes that, a law protecting public morality
is justified, he however contends that, issues of private morality should
not be the concern of the state. The Plaintiff’s contention is that, seeking
to regulate same will lead to serious and unjustifiable breach of the
privacy of the individual.

(10) The Plaintiff thus submits that, based on the distinction between
“public morality” and “private morality”, when homosexuality and all
other vaginal sexual acts are carried out in the private among consenting
adults without causing harm to one another, their actions do not fall

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 within the purview of the law and same is therefore protected under
Article 18(2) of the Constitution, 1992.

(11) With respect to the second relief, the Plaintiff submits that the
entrenched provision in Article 17(2) of the 1992 Constitution seeks to
ensure that legislation does not discriminate against any person or group
of persons including homosexuals based on their inherent specific
characteristics. The Plaintiff argues that, the list of persons protected
under Article 17(2) of the Constitution is not exhaustive and thus, having
regard to the spirit and principles undergirding the Constitution 1992,
same should include homosexuals.

(12) The Plaintiff attacks any attempt to foreclose the sexual preferences
of such persons based on religious arguments, as homosexuals are also
entitled to the freedom of religion. The Plaintiff refers to Article 21(1)(c)
of the Constitution 1992, as guaranteeing the right of any person not to
believe in any supernatural or other being. According to the Plaintiff,
while the constitution guarantees all adult persons the liberty to choose
a partner with whom they may engage in consensual private sexual
activities, Section 104(1)(b) of Act 29 arbitrarily and unjustifiably
discriminates against homosexuals by preventing them alone from
participating in their sexual preference.

(13) The Plaintiff argues further that, the application of the provisions in
Section 104(1)(b) of Act 29 indicates a pattern of historical
discrimination against homosexuals. According to the Plaintiff, Section
104(1)(b) of Act 29 criminalises acts like penetration per anus and
fellatio among consenting adults as a whole and that, the historical
pattern with regard to prosecution and persecution under the said
provision seems to have disadvantaged homosexual gays, as there is
not yet a reported case relating to the offense of unnatural carnal
knowledge in which the accused persons are consenting heterosexual
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 adults who engaged in sexual behaviours other than penile to vaginal
intercourse.

(14) The Plaintiff submits that, “penetration per anus (along with other
sexual acts such as fellatio, masturbation, use of sex toys etc.) is gays”
main mode of sexual expression and that denying them of their only
mode of sexual expression is discriminatory because heterosexuals are
permitted the right to sexual expression (at least, penile-vaginal intercourse)
in a way that they prefer.

(15) The Plaintiff further argues in support that, the cirminalisation of acts
of “unnatural carnal knowledge” perpetuates stigma and hostile
discrimination against homosexual persons. Furthermore, same also
negatively affects the health of the gay community as it has the tendency
to dissuade homosexual persons (particularly gays) from accessing health
facilities. The Plaintiff surmises further that, even when they visit such
health facilities they are likely to be ignored or attended to with disdain
and contempt.

(16) On his final relief, the Plaintiff submits that, Section 104(1)(b) of Act
29 infringes the personal liberty of the individual under Article 14(1) of
the Constitution 1992 as same cannot also be justified under any of the
exceptions provided under Clauses (a)-(g) of Article 14(1) of the
Constitution 1992. The Plaintiff argues that, the right to liberty
encompasses the right to sexual autonomy as all adults of consenting
age are entitled to complete liberty over the most intimate decisions
relating to their personal lives, including the choice of a partner.

THE DEFENDANT’S CASE

(17) The Defendant had no objection to the locus standi of the Plaintiff nor
any objection to the jurisdiction of this Court to adjudicate over the

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 instant action. In defence to the merits of the action, the Defendant
submitted on the first relief that, having regard to the letter and spirit of
the 1992 Constitution, it can be argued that, the Constitution did not
envisage a society where same sex relations or bestiality would be
tolerated. The Defendant argues that, Article 18 of the 1992 Constitution
in providing for the right to privacy is mindful of the protection of morals
and the prevention of disorder or crime. For the Defendant, by
criminalising the act of “unnatural carnal knowledge” under Section 104
of Act 29, it is conceivable that, it is consequent upon what the society
approves to be morally wrong.

(18) The Defendant submits further that, from the time the Constitution
1992 was promulgated, Ghanaian society has not shown any signs of
accepting homosexuality and Section 104 of Act 29 had prevailed since
then and has stayed. The Defendant has cited several academic studies
and has made references to some statements by senior public
functionaries such as the president of the Republic of Ghana and the
Speaker of Parliament of Ghana all of which in our view are irrelevant
and inconsequential to the determination of the legal issue provoked by
the Plaintiff’s action.

(19) On the first relief sought by the Plaintiff, the Defendant submits that,
per the letter and spirit of Article 18(2) of the 1992 Constitution, and in
keeping with the values of Ghanaians, the said relief be dismissed. The
Defendant contends further that, Section 104(1)(b) of Act 29 does not
authorise any person to enter another’s bedroom for the purposes of
ascertaining whether there has been or there is any unnatural carnal
knowledge taking place therein. Therefore, the law does not seek to
infringe on the privacies of individuals. On the contrary, the law is
intended to protect the moral fiber of society.

(20) On the second relief sought by the Plaintiff to the effect that, Section
104(1)(b) of Act 29 is ultra vires Article 18(2) of the 1992 Constitution,
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 the Defendant submits that, Article 17(2) of the Constitution 1992,
makes no mention of sexual orientation as one of the grounds of
discrimination recongised by Ghanaians. For the Defendant, for any such
term of sexual orientation to be imported into the Constitution, same
requires a deliberate amendment of the Constitution. Relying on the case
of T.T. NARTEY VS GODWIN GATI [2010] SCGLR 74, the Defendant
submits that, unnatural sexual acts such as those described by the
Plaintiff namely, penetration per the anus and fellatio among others can
hardly be said to be justifiable by any stretch of imagination and
therefore cannot be said to come under the purview of Article 17(2) of
the Constitution 1992.

(21) Finally, with respect to the third relief, the Defendant submits that,
the freedom contemplated under Article 14(1) of the Constitution 1992
cannot be stretched to encompass the kind of freedom the Plaintiff refers
to. The Defendant denies Plaintiff’s contentions seeking to suggest that,
no harm is caused to practitioners of the criminal acts of unnatural carnal
knowledge. For the Defendant, studies have shown to the contrary that,
homosexual acts like penetration through the anus among other
unnatural sexual practices cause serious harm to those who practice it.

MEMORANDUM OF ISSUES

(22) On the 24th of August 2022, the parties filed a joint memorandum of
issues formulating the following for determination:
1. Whether or not Section 104 (1)(b) of the Criminal and Other
Offences Act (Act 29) of 1960 contravenes the provisions on the
right to privacy enshrined in Article 18(2) of the 1992 Constitution
of Ghana, by criminalizing unnatural carnal knowledge between
consenting adults in seclusion.

2. Whether or not Section 104(1)(b) of the Criminal and Other

Offences Act (Act 29) of 1960 contravenes the provisions on the
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 right to equality and non-discrimination enshrined in Article 17(2)
of the Constitution of Ghana, 1992 by criminalizing unnatural
carnal knowledge between consenting adults in seclusion.

3. Whether or not Section 104(1)(b) of the Criminal and Other

Offences Act (Act 29) of 1960 contravenes the provision on the
right to personal liberty enshrined in Article 14(1) of the 1992
Constitution of Ghana by criminalising unnatural carnal knowledge
between adults in seclusion.

4. Whether or not personal liberty under Article 14(1) of the 1992

Constitution of Ghana can be extended to include the choice of a
sexual partner.

5. Whether or not unnatural carnal knowledge is harmful to persons

who practice same.

JURISDICTION OF THE SUPREME COURT

(23) As observed earlier, there has been no objection to the jurisdiction of

this court for the reliefs sought in the action. The absence of any
objection to jurisdiction will however, not automatically result in an
assumption of jurisdiction by the court, as this court is constitutionally
obligated to first determine in any action whether or not it’s jurisdiction
has been properly invoked. The constitutional yardsticks under Articles
2(1) and 130(1) of the 1992 Constitution on which the Plaintiff relies in
invoking the original jurisdiction of this court requires that, there is a
real and genuine question for determination before the court can
proceed to test the constitutionality of any legislation. In the instant
case in particular, the provision of the legislation in question has been
on the statute books for over six (6) decades.

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(24) The Plaintiff has invoked the court’s jurisdiction under Articles 2(1)
and 130 of the 1992 Constitution to determine the present action. The
said articles provide as follows:
“Article 2(1)
(1) A person who alleges that -
(a) an enactment or anything contained in or done under the
authority of that or any other enactment; or
(b) any act or omission of any person;
is inconsistent with, or is in contravention of a provision of
this Constitution, may bring an action in the Supreme Court
for a declaration to that effect.

Article 130(1)
(1) Subject to the jurisdiction of High Court in the enforcement of the
Fundamental Human Rights and Freedoms as provided in Article
33 of this Constitution, the Supreme Court shall have exclusive
original jurisdiction in-

(a) all maters relating to the enforcement or interpretation

of this Constitution; and

(b) all matters arising as to whether an enactment was made

in excess of the powers conferred on Parliament or any other
authority or person by law or under this Constitution.”

(25) A combined reading of the above constitutional provisions settles the

proper forum question. That is, it is only this court which is vested with
the power to test the constitutionality of a legislation made by the
Parliament of the Republic of Ghana and ascertain whether or not same
is consistent with the Constitution. This constitutional power vested in
the Supreme Court is grounded in the principle of supremacy of the
Constitution, as expressed under Article 1(2) of the 1992 Constitution

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 and this court being the only forum in our constitutional arrangement to
determine same, is the proper forum. Thus, in accordance with Article
1(2) of the 1992 Constitution and by virtue of the jurisdiction vested
thereby, where any law is inconsistent with the constitution, then this
court shall have the power to pronounce same as unconstitutional, and
to the extent of the inconsistency strike same down.

(26) In order to avoid the abuse of the original jurisdiction of this court
especially on the determination of issues relating to allegations of
violations of fundamental rights and enforcement thereof, this court has
consistently frowned upon attempts to usurp the jurisdiction of the High
Court in matters where the parties and/or their counsel cleverly becloud
the issues before the court as if same were constitutional issues. This
court also examines situations where there is a settled precedent
defining the subject of the dispute; or where some other forum or body
is better placed to interrogate and determine any issue. The settled law
practices is that, for this court to accede to an invitation to interpret
provisions of the constitution, relative to an impugned statute, the court
is mindful of the following: whether;
i. The constitutional provisions under consideration are vague,
unclear or ambiguous;

ii. Rival meanings have been placed on the true meaning and
effect of the provisions of the constitution.

iii. There is an interplay between institutions of the state vested

with constitutional authority to ascertaining who has the
requisite mandate to deal with the special occasion.

iv. Where there is a conflict between two or more provisions of the

constitution and a question arises which of them is to prevail.

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(27) Where therefore, there is no ambiguity or conflict regarding the
interpretation of any provision of the constitution or the scope of the
functions of institutions set up under the constitution, then, there is no
need for such interpretation. These yardsticks have found constitutional
support for several decades in our jurisdiction from a myriad of notable
decisions such as REPUBLIC VS. SPECIAL TRIBUNAL, EX-PARTE AKOSAH
[1980] GLR 592; YIADOM I VS. AMANIAMPONG [1981] GLR 3, SC; THE
REPUBLIC VS. MAIKANKAN [1971] 2 GLR 473.

(28) My Lords, whereas the above judicial tests, are applied in situations
inviting this court for an interpretation of a provision of the constitution,
they may not necssarily be appropriate to be utilised in situations of
enforcements particularly, where the court is invited to ascertain the
legality or constitutionality of a legislation by the Parliament of the
Republic of Ghana which may ordinarily not require interpretation of the
constitutional provision, but only an application of the constitutional
provision to such legislations which any other court can lawfully
determine. In such latter situation, this court in assessing whether its
jurisdiction has been properly invoked must ascertain whether, the
allegations made by the Plaintiff is not fanciful and that same, prima facie
raises a genuine and real constitutional issue. This will ascertain whether
the enactment in question or the provision thereof, is inconsistent or
contradictory with a provision of the constitution as provided for under
Article 2(1) of the 1992 Constitution.

(29) Thus, although Article 2(1) of the 1992 Constitution provides for the
right to invoke the jurisdiction of this Court upon an allegation of an
enactment having been made in excess of the powers of parliament, or
being inconsistent with any provision of the Constitution 1992, such
allegations should be real, genuine and live not frivolous, fanciful or
merely academic. Therefore, where the court has already decided on any
such enactment or a provision of the Constitution, this court will decline
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 jurisdiction to re-open any such question already determined unless
there is a special consideration to depart from its earlier decision.

(30) Authorities abound from this court on various situations and

circumstances where the court pronounced as unconstitutional, pieces
of legislations made by the legislature and even the executive and had
struck down same. See cases such as PROF. KWADWO APPIAGYEI-ATUA
& 7 ORS. VS. ATTORNEY-GENERAL WRIT NO. J1/14/2022; NEW
PATRIOTIC PARTY VS. INSPECTOR GENERAL OF POLICE [1992-93] GLR
586; JUSTICE ABDULAI VS. THE ATTORNEY-GENERAL (UNREPORTED)
WRIT NO.J1/07/2022 DATED 9TH MARCH 2022; MARTIN KPEBU VS.
ATTORNEY-GENERAL [2015-2016] 1 SCGLR 143 etc. In the instant case
however, having reviewed the reliefs sought and the respective
statements of case filed, we are convinced that, the court’s jurisdiction
has been properly invoked to determine the constitutionality of Section
104(1)(b) of the Criminal and Other Offences Act, 1960 (Act 29).

THE STATUTORY PROVISION IN QUESTION

(31) The Offence of Unnatural Carnal Knowledge & Section 104(1)(b) of

Act 29:
Under Section 104(1)(b) of Act 29, a person who has unnatural carnal
knowledge of another person of not less than sixteen years of age with
the consent of that other person commits a misdemeanor. In the case of
a person less than the age of sixteen years, a person who has unnatural
carnal knowledge of such a person, with or without consent commits a
first degree felony. Again unnatural carnal knowledge of an animal is
also criminalised. (See Sections 104(1)(a) &(c). The Plaintiff takes no
issue with unnatural carnal knowledge of persons below the age of
sixteen years as well as animals but targets only adult persons who are
not less than sixteen (16) years of age.

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(32) Section 104(2) of Act 29 defines unnatural carnal knowledge as
“sexual intercourse with a person in an unnatural manner or, with an
animal.” It is to be noted that our laws thus, recognise only heterosexual
life as sexual intercourse between a male and female. This is permissible
if same is penetration through the vagina. In GLIGAH & ATTISO VS. THE
REPUBLIC [2010] SCGLR 870, this court speaking through Dotse JSC
defined carnal knowledge as “the penetration of a woman’s vagina by a
man’s penis. It does not really matter how deep or however little the
penis went into the vagina. So long as there was some penetration
beyond what is known as brush work, penetration would be deemed to
have occurred and carnal knowledge taken to have been completed.”
See also RICHARD BANOUSIN VS. THE REPUBLIC CRIMINAL APPEAL NO.
J3/2/2014 DATED 18TH MARCH 2014 where this court pronounced that
“it is the female sex organs called the vulva and vagina that are normally
penetrated into during any sexual act which can qualify to be carnal
knowledge under Sections 98 and 99 of Act 29.” Therefore, any sexual
intercourse with a person or animal other than through the means of
penetration with a penis into the female vagina is unnatural and
criminalised under Section 104 of Act 29. Such situations include sodomy
and bestiality which is carnally knowing an animal or where a person
allows an animal to carnally know that person.

The right to privacy; non-discrimination and liberty

(33) The rights as guaranteed under Chapter five (5) of the 1992
Constitution headed “Fundamental Human Rights” are, in the language
of Article 33(5) not exhaustive. These rights include such rights and
freedoms, which are inherent in a democracy and intended to secure the
dignity and freedom of man. Article 12(1) of the 1992 Constitution
provides that, the rights and freedoms as guaranteed under the
Constitution are to be respected and upheld by all persons including the
executive, the legislature and the judiciary. Article 12(2) of the
Constitution however, restricts these rights from being absolute. It

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 provides as follows: “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.” (Emphasis added). From the above provision, the
rights guaranteed under Chapter 5 of the constitution are subject to the
respect for the rights of others, and secondly, the public interest.

(34) In his invaluable book, “A Handbook of the Constitutional Law of

Ghana and its History” (Black Mask Publications, 2021) Sir Kofi Kumado
rightly posits in our view at pages 217-218 that, apart from clause 2 of
Article 12 of the 1992 Constitution, the limitations to individual rights
must pass a triadic test being that: the limitations must be shown to be
prescribed by law; reasonable and necessary in a free and democratic
society.
The Right to Personal Liberty;

(35) The right to personal liberty has found guaranteed constitutional

expression under Article 14 of the 1992 Constitution. The Article
provides as follows:

(1) “Every person shall be entitled to his personal liberty and no person
shall be deprived of his personal liberty except in the following cases and
in accordance with procedure permitted by law-
(a) in execution of a sentence or order of a court in respect of a
criminal offence of which he has been convicted; or

(b) in execution of an order of a court punishing him for contempt

of court; or

(c) for the purpose of an bringing him before a court in execution

of an order of a court; or

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 (d) in the case of a person suffering from an infectious or
contagious disease, a person of unsound mind, a person
addicted to drugs or alcohol or a vagrant, for the purpose of his
care or treatment or the protection of the community ; or

(e) for the purpose of the education or welfare of a person who has
not attained the age of eighteen years; or
(f) for the purpose of preventing the unlawful entry of that person
into Ghana, or of effecting the expulsion, extradition or other
lawful removal of that person from Ghana or for the purpose of
restricting that person while he is being lawfully conveyed
through Ghana in the course of his extradition or removal from
one country to another; or
(g) upon reasonable suspicion of his having committed or being
about to commit a criminal offence under the laws of Ghana…”

(36) This court in the cases of MARTIN KPEBU (NO.1) VS. ATTORNEY-
GENERAL (NO.1) [2015] DLSC 3031; MARTIN KPEBU (NO.2) VS.
ATTORNEY-GENERAL (NO.2) [2015-2016] 1 SCGLR 143; MARTIN KPEBU
(NO.3) VS. ATTORNEY-GENERAL (NO.3) [2020] 152 GMJ 97; GORMAN
VS. REPUBLIC [2003-2004] 2 SCGLR; DODZIE SABBAH VS. REPUBLIC
[2015] GHASC 133 has expounded on this right, which primarily deal
with the constitutional or unconstitutional restrictions on the movement
of the individual freely in a democratic state.

The Right to Privacy

(37) The enjoyment of the right to “Privacy” as a human right covers

various facets of the right in respect of a person’s home, property,
correspondence or communication. Article 18(2) provides that :
“No person shall be subjected to interference with the privacy of his
home, property, correspondence or communication except in
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 accordance with law and as may be necessary in a free and
democratic society for public safety or the economic well-being of the
country, for the protection of health or morals, for the prevention of
disorder or crime or for the protection of the rights or freedoms of
others.”

(38) In RAPHAEL CUBAGEE VS. ASARE & ANOTHER [GHASC] 14 DATED

28TH FEBRUARY 2018, this Court opined an exposition of the privacy
right of individuals per Pwamang JSC as follows:
“Privacy is so broad a constitutional right that it defies a concise and
simple definition. It comprises a large bundle of rights some of which
have been listed in the article as privacy of the home, property, and
correspondence or communication. This list is not exhaustive and the
full scope of the right of privacy cannot possibly be set out in the text
of the Constitution. However, under the right to privacy is covered an
individual’s right to be left alone to live his life free from unwanted
intrusion, scrutiny and publicity. It is the right of a person to be
secluded, secretive and anonymous in society and to have control of
intrusions into the sphere of his private life. See the Unreported
Judgment of Supreme Court dated 20th December, 2017 in Suit
No.CA/J4/31/2015; MADAM ABENA POKUA VS. AGRICULTURAL
DEVELOPMENT BANK. Privacy is a very important human right that
inheres in the individual and ensures that she can be her own person,
have self-identity and release her self-worth. It guarantees personal
autonomy for the individual and without it public authorities would
easily control and manipulate the lives of citizens and undermine
their liberty. It is one of the most widely demanded human rights in
today’s world for the simple reason that advancements in information
and communication technology have made it extremely easy to
interfere with privacy rights.
(39) As provided under Article 12(2), the Constitution 1992 recognises
that, the right to privacy is not absolute. The constitution dispels the

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 thinking of absolutism in the enjoyment of rights by subjecting them to
the safety or wellbeing of the public; the protection of health or morals;
prevention or disorder of crime as well as the protection of the rights of
others.

(40) Undoubtedly, the constitution recognises that, a person’s right to

privacy can be compromised to avoid the prevention of a crime. Further,
the person’s’ right to privacy can also be restricted to protect the morals
of the public and public health. Clearly, for one to assert and claim an
enjoyment of the right to privacy, the person must demonstrate that, he
is not caught in the web of exceptions, from prevention of crimes;
prevention of the corruption of morals; as well as protection of public
health.
Freedom against discrimination; right to equality

(41) Article 17 of the 1992 Constitution provides the constitutional threshold in

asserting equal treatments to all persons. It provides as follows:
(1) “All persons shall be equal before the law.

(2) A person shall not be discriminated against on grounds of

gender, race, colour, ethnic origin, religion, creed or social or
economic status.

(3) For the purposes of this article, “discriminate” means to give

different treatment to different persons attributable only or
mainly to their respective descriptions by race, place of origin,
political opinions, colour, gender, occupation, religion or creed,
whereby persons of one description are subjected to disabilities
or restrictions to which persons of another description are not
made subject or are granted privileges or advantages which are
not granted to persons of another description.”

Page 19 of 57
 (4) Nothing in this article shall prevent Parliament from enacting
laws that are reasonably necessary to provide -
(a) “for the implementation of policies and programmes
aimed at redressing social, economic or educational
imbalance in the Ghanaian society.

(b) for matters relating to adoption, marriage, divorce,

burial, and devolution of property on death or other
matters of personal law;

(c) for the imposition of restrictions on the acquisition of

land by persons who are not citizens of Ghana or on the
political and economic activities of such persons and for
other matters relating to such persons; or

(d) for making different provisions for different communities

having regard to their special circumstances not being
provision which is inconsistent with the spirit of this
Constitution.

(5) Nothing shall be taken to be inconsistent with this article which

is allowed to be done under any provision of this Chapter.”

(42) Thus, the constitution frowns upon giving different treatments to

different persons only based on their race, place of origin, political
opinion, colour, gender, occupation, religion or creed. This court
expounded on the scope and import of the Article 17 provisions in the
seminal case of NARTEY VS. GATI [2010] SCGLR 745. Regarding the
meaning of equality, His Lordship Prof. Date-Bah JSC speaking for the
court expressed himself as follows:
“[E]quality before the law requires equal treatment of those
similarly placed, implying different treatment in respect of

Page 20 of 57
 those with different characteristics. In simple terms, equals
must be treated equally, while the treatment of unequals must
be different. The law must be able to differentiate between
unequals and accord them the differentiated treatment which
will result in enabling them, as for as practicable, to attain the
objective of equality of outcomes or of fairness. If the
differentiated legal rights arising from such an approach to the
law were to be struck down as not conforming with the
constitutional prescription that all person are equal before the
law, it would be thoroughly counterproductive.”

In the context of the peculiar facts of the instant action, the critical
interrogatory provoked is; whether, Section 104(1)(b) of Act 29 in the
manner it has been formulated pursues different treatments to
“persons” who have unnatural carnal knowledge of others?

EVALUATION

(43) It has not been lost on us that, in recent times, there is an increase in
the public discourse on the legality of homosexual acts and the extent of
their legality or justification under our legal system. The discourse is
varied, and ranges from rights of homosexuals to marry; sexual
exploitation of homosexuals; freedom of homosexuals to express and
propagate their orientations and beliefs in the society without any
restrictions. Indeed, in contemporary times, global developments
particularly in the Western world have seen some remarkable decisions
from constitutional courts including those of the Commonwealth. There
is also a pattern of deliberate legislation in some jurisdictions to
proscribe homosexual actives:

THE UNITED STATES

(44) Arguably, the United States is in the lead role in most states in the
proclamation and upholding of certain rights of homosexuals. This is

Page 21 of 57
 reflected in various decisions by the Supreme Court of the United States.
In OBERGEFELL VS. HODGES 576 US 644 [2015], the United States
Supreme Court per a majority decision 5-4 upheld the rights of same sex
couples to marry. In this case, Justice Kennedy in support of the majority
decision observed that:
“It is demeaning to lock same-sex couples out of a central
institution of the Nation’s society, for they too may aspire to the
transcendent purposes of marriage.”

(45) Before this decision, the United States Supreme Court had decided in
US VS. WINDSOR 570 US 744 [2013] that, the Federal Estate Tax
Exemption for surviving spouses must be available to lawfully married
same-sex spouses. The court found as unconstitutional, the Defense of
Marriage Act in defining “marriage” and “spouse” to exclude lawfully
married same – sex couples for the purposes of the federal law. The court
also pronounced in LAWRENCE VS. TEXAS 539 US 558 [2003], that the
liberty protected by the Constitution allows homosexual persons the
right to choose to enter upon relationships in the confines of their homes
and their own private lives and still retain their dignity as free persons.
In 2020, the court found as unlawful an employer dismissing an
individual merely for being gay or transgender as violating Title VII in
the case of BOSTOCK VS. CLAYTON COUNTY 590 US644 [2020].

INDIA

(46) Following the trends in the United States, the Indian Supreme Court
has also upheld as discriminatory laws criminalising sex among
homosexuals. In NAVTEJ SINGH JOHAR & ORS. VS. UNION OF INDIA
[2018] 10 SCC, the Supreme Court of India struck down Section 377 of
the Indian Penal Code (IPC) as unconstitutional and thus decriminalised
all consensual sex among adults, including homosexual sex. The court in
this case emphasised that the Lesbian/Gay/
Bisexual/Transgender/Queer (LGBTQ) community are equal citizens and

Page 22 of 57
 hence they cannot be discriminated against in law, based on their sexual
orientation or gender. Similarly in NALSA VS. UNION OF INDIA AIR 2014
SC 1863, the Supreme Court upheld the right of transgender persons to
decide on their gender and directed state agencies to recognise gender
identities of persons such as male, female or a third gender.
Furthermore, in KS PUTTASWAMY VS. UNION OF INDIA [2017] 10 SCC
1, the Supreme Court of India upheld the right to privacy as a
fundamental right under the Constitution which cannot be trampled
upon by the government intervention. Indeed, in 2018, the Supreme
Court again did recgonise the right to choose a person’s partner as part
of the fundamental right to liberty and dignity in SHAFIN JAHAN VS.
UNION OF INDIA AIR [2018] SC 1933.

(47) The emerging crucial interrogatories are;

(i) First, should the seeming acceptance of these sexual
orientations and practices involving unnatural carnal knowledge in the western
world or other countries of the world necessarily sanction a recognition in the
Ghanaian legal system and practice of same.

(ii) Second, the law being a tool for social engineering, must
our unique traditional and cultural identity cognizant under our constitutional
framework be compromised in favour of alien cultural values?

(48) My Lords, a major challenge with the efficacy of laws in legal systems,
particularly those made in African States, is the problem with the
transposition and translation of laws from foreign lands into our legal
systems without modifications or exceptions. This challenge is manifest
per the consequences of such legislations made, as the resultant effect
cascades into unexpected and undesirable outcomes. This observation,
does not downplay the acceptance of certain rules, principles, and
practices into our law making process, if they are consistent with, and

Page 23 of 57
 justified within the context of relevant social factors prevailing at a
particular time in our legal system.

(49) To borrow from sociological legal theory, laws made, must connect
and be in tune with the developments in society; such that they can serve
meaningful social purposes. The law’s utility thus become waste, if it is
just a transposition of alien cultural values or ideas which have no
foundation at all with the peculiar social factors in our legal system.
Indubitably, modernism, western ethnocentric ideas and dependency
theories of development in appropriate situations may impact on the
legislative process. However, such legislations, as has been historically
decided must not take precedence over the supremacy of our 1992
Constitution, which is the bedrock of our existence as a democracy and
as a people with a common destiny.

(50) While we commend the exposition of the distinction between public

and private morality using western ideas in legal philosophy in the
Plaintiff’s statement of case, we fail to see the proper application of the
distinction to the facts of the instant action. We therefore deem it
pertinent, to emphasise the specific context of the question this action
provoked. In our view, the Plaintiff’s action is urging or seeking a carte
blanche prayer for recognition of ‘every’ right of homosexuals. The action
simply seeks to question the constitutionality of Section 104(1)(b) of Act
29 in the context of the provisions of Articles 14(1); 17(2) and 18(2) of
the 1992 Constitution.

(51) It is important to also caution against adjudicating over certain issues

which are merely academic but have found place in the statements of
case put forth by the parties and the memorandum of issues filed. Thus
a causal reading of the reliefs sought by the Plaintiff, and the statements
of case filed by the parties will reveal an invitation to the court to
pronounce on whether the practices of homosexuals are constitutional.
Page 24 of 57
 Yet, the main question provoked for determination is whether Section
104(1)(b) of Act 29 is unconstitutional within the true meaning and
effect of Articles 14(1), 17(2), and 18(2) of the 1992 Constitution. It is
difficult therefore, to appreciate the relevance of the 4th and 5th issues
as set down in the joint memorandum of issues filed; which are:
“whether or not personal liberty under Article 14(1) of the 1992
Constitution of Ghana can be extended to include the choice of a sexual
partner” and “whether or not unnatural carnal knowledge is harmful to
persons who practice same”. These issues in our view, merely seek an
opinion and the resolution of same are intended to answer academic
questions. As this court does not answer by hypothetical questions
which do not address real, genuine live issues, we decline to determine
same.

(52) The issues we deem relevant to a determination of this action are as

follows:-
(a) “Whether or not Section 104(1)(b) of the Criminal and Other
Offences Act (Act 29) of 1960 contravenes the provision on the
right to privacy enshrined in Article 18(2) of the 1992
Constitution of Ghana, by criminalising unnatural carnal
knowledge between consenting adults in seclusion.

(b) Whether or not Section 104(1) (b) of the Criminal and Other
Offences Act (Act 29) of 1960 contravenes the provision on the
right to equality and non-discrimination enshrined in Article
17(2) of the Constitution of Ghana 1992, by criminalising
unnatural carnal knowledge between consenting adults in
seclusion.

(c) Whether or not Section 104(1) (b) of the Criminal and Other
Offences Act (Act 29) of 1960 contravenes the provision on the
right to personal liberty enshrined in Article 14(1) of the 1992

Page 25 of 57
 Constitution of Ghana by criminalising unnatural carnal
knowledge between adults in seclusion.”

(53) Before dealing with the above issues, we wish to express our outright
rejection of the Plaintiff’s proposition that it is not the function of the
state to, through law making interfere with the private lives of the
individuals. Whereas, the function of the criminal justice system is to
assert the state’s revulsion against public injury, the determinant of
whether a conduct should be criminal or not is not solely contingent on
whether it takes place within the public or the private space. That is, any
conduct albeit even taking place in private between two consenting
adults may be deemed injurious to the society to the extent that the
social factors peculiar to that society frown upon such conduct. Hence,
once the test of legality is met in terms of Articles 19(5) and 19(11) of
the Constitution 1992, criminalising such conduct and to the extent that,
same is not adverse to the constitutional consistency, the state’s
objection and sanctioning regime will not render the offence
unconstitutional.

(54) Without a doubt, every criminal law regime is hugely augmented and
sharpened by morals, especially public morality. However, the test of a
crime, is not primarily because same is malum in se but rather, whether
the state, through the instrumentality of law making, designates the
conduct as prohibited and expresses a penal consequence for it’s
occurrence. As opined by Lord Atkin in PROPRIETARY ARTICLES TRADE
ASSOCIATION VS. ATTORNEY-GENERAL FOR CANADA [1931] AC 310:
“…Criminal law connotes only the quality of such acts or omissions as
are prohibited under appropriate penal provisions by authority of the
State. The Criminal quality of an act cannot be discerned by intuition:
nor can it be discovered by reference to any standard but one: Is the
act prohibited with penal consequences? Morality and criminality are
far from co-extensive; nor is the sphere of criminality necessarily part
Page 26 of 57
 of a more extensive field covered by morality unless the moral code
necessarily disapproves all acts prohibited by the State, in which case
the argument moves in a circle. It appears to their Lordships to be of
little value to seek to confine crimes to a category of facts which by
their very nature belong to the domain of ‘criminal jurisprudence’; for
the domain of criminal jurisprudence can only be ascertained by
examining what acts at any particular period are declared by the
State to be crimes, and the only common nature they will be found to
possess is that they are prohibited by the State and that those who
commit them are punished.”
Issue (1)
Whether or not Section 104(1)(B) Of The Criminal And Other Offences
Act (Act 29) Of 1960 Contravenes the provision on the right to privacy
enshrined in Article 18(2) of the 1992 Constitution Of Ghana, by
criminalising unnatural carnal knowledge between consenting adults
in seclusion.

As already pointed out under Article 18(2) of the 1992 Constitution,

a person’s enjoyment of the right to privacy is not absolute. While a
person is free to enjoy his or her privacy, same is subject to the law
and if necessary in a free and democratic society for purposes of the
constitutional provision which reads: “No person shall be subjected
to interference with the privacy of his home, property,
correspondence or communication except in accordance with law and
as may be necessary in a free and democratic society for public safety
or the economic well-being of the country, for the protection of health
or morals, for the prevention of disorder or crime or for the protection
of the rights or freedoms of others”. Therein lies the Plaintiff’s hurdle
in the reliefs sought in this action.

(55) It is the Plaintiff’s case that, the state cannot be concerned with what
two consenting adults do in private, including acts of unnatural carnal

Page 27 of 57
 knowledge. For purposes of arguments, what Plaintiff seeks to pursue,
is that the state should not involve itself with conducts in private which
are criminal. It is not uncommon that, most crimes are committed in
private. To accept the Plaintiff’s proposition, is to relegate as
unconstitutional all acts legislated as crimes and committed in private.
Such a position clearly is incongruous and does not accord even with the
definition of a crime.

(56) As already observed, to pronounce a crime as unconstitutional is to

test it’s legality against constitutional tenets and this test in our view
has not been satisfied in this matter. Article 18(2) of the 1992
Constitution has made it clear that, a person’s privacy can be
compromised for the prevention of a crime. Thus, it is circular to urge
this court to declare conducts which violates the provisions of a statute
though same is not inconsistent with the constitutional provisions.
Therefore on the peculiar facts of the matter before us and from our
application of the law and other relevant legal principles, we do not find
Section 104(1)(b) of Act 29 as a provision which violates the right to
privacy of the individual under Article 18(2) of the Constitution, 1992.
Issue (2)
Whether or not Section 104(1) (b) of the Criminal and Other Offences
Act (Act 29) of 1960 contravenes the provision on the right toe equality
and non-discrimination enshrined in Article 17(2) of the Constitution of
Ghana, 1992 by criminalising unnatural carnal knowledge between
consenting adults in seclusion.

(57) As per the test of discrimination already espoused above, particularly

in the NARTEY VS. GATI case, (supra) a person contending to have been
discriminated against is under obligation to demonstrate to the court,
how the person has been treated unequally from persons within the
same similarly placed situation as that person. Within the context of the
impugned provision, does it reveal that, the provision has been designed

Page 28 of 57
 to target only homosexuals as the Plaintiff appears to be urging? At the
risk of sounding repetitive, Section 104(1)(b) of Act 29 (as amended)
provides that: “A person who has unnatural carnal knowledge of another
person of not less than sixteen years of age with the consent of that
other person commits a midsdeamour”

(58) Clearly, the above provision does not appear to limit the word
“person” to only heterosexual persons or homosexuals but covers all
persons. The only limitation is the age factor, being for those not less
than sixteen years of age. Thus, acts of unnatural carnal knowledge, can
be committed between a male and a female; and as conceded by the
Plaintiff through the anus. Therefore, the legislature, found as abhorrent
sexual intercourse not in the natural way hence criminalising same. If
the provision sought to have suggested that, a person within the
provision is a homosexual in the person of gay or a lesbian, then, the
Plaintiff’s case of alleged discrimination would have been conceivably
persuasive. Even then, there will be the need to demonstrate whether
such proscription is not justified in terms of the exceptions discussed
under the enjoyment of rights. We find no such justification. Accordingly,
the relief sourght by the Plaintiff to pronounce as unconstitutional
Section 104(1)(b) of Act 29, on the basis that, same is discriminatory in
terms of Article 17(2) of the Constitution 1992 is totally misconceived.
Issue (3)
Whether or not Section 104(1) (b) of the Criminal and Other Offences
Act (Act 29) of 1960 contravenes the provision on the right to personal
liberty enshrined in Article 14(1) of the 1992 Constitution of Ghana by
criminalising unnatural carnal knowledge between adults in seclusion.

(59) On this issue, the Plaintiff tried painstakingly to assert that, the
deprivation of homosexuals from engaging in acts of unnatural carnal
knowledge is an infringement of the personal liberty of the individual.
We find it difficult to appreciate such submission within the meaning of

Page 29 of 57
 the phrase personal liberty as provided for under Article 14(1) of the
1992 Constitution. The arguments under this issue by the Plaintiff are
far-fetched, speculative and remote and we shall not burden ourselves
with any detailed evaluation of same.

(60) Suffice it however to say that, under Article 14(1)(a)-(g) of the 1992
Constitution, the individual’s liberty if contextually construed, pertain to
the free physical movement of the person, subject to such restrictions
against any liberties as sanctioned by law or the constitution itself.
Granted for the sake of argument that, the personal liberty of the
individual can be construed to encompass the situation the Plaintiff has
urged on us, the Plaintiff has failed to demonstrate that, the
criminalisation of unnatural carnal knowledge does not fall within the
exceptions under Article 14(1) of the Constitution, 1992.

CONCLUSION

(61) Upon our consideration of the submissions of both parties in their

respective statements of case, we find that, Section 104(1)(b) of Act 29
is not discriminatory against homosexuals; neither does it infringe on
the privacy of individuals, be they homosexuals or practitioners of other
forms of sexual orientation which involve unnatural carnal knowledge
however described. Accordingly, the criminalization of acts of unnatural
carnal knowledge, under Section 104(1)(b) of the Criminal and Other
Offences Act, 1960 (Act 29) is in our view, not inconsistent with the
letter and spirit of the 1992 Constitution. It is therefore, not
unconstitutional.

(62) In the premises, the Plaintiff’s action wholly fails, and we dismiss
same.

Page 30 of 57
(SGD) I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)

(SGD) P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)

(SGD) A. LOVELACE-JOHNSON (MS.)

(JUSTICE OF THE SUPREME COURT)

(SGD) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)

(SGD) Y. DARKO ASARE

(JUSTICE OF THE SUPREME COURT)

(SGD) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)

Page 31 of 57
CONCURRING OPINION
KULENDI JSC:

INTRODUCTION:

1. I have carefully perused the erudite opinion of my venerable and respected

brother Amadu JSC, and while I fully agree with his reasoning and resultant
conclusions, I wish to submit this concurring opinion, which in my considered
view, offers additional insight to the conclusions reached by this Court and
addresses certain nuances implicated by the instant suit. In order to
contextualize this concurring opinion it is necessary to reiterate the reliefs
sought by the Plaintiff and offer a synopsis of the respective arguments
canvassed by the parties to this dispute.
2. The Plaintiff, a citizen of the Republic, has invited this Court to exercise its
original jurisdiction pursuant to articles 2(1) and 130 of the Constitution and to
declare section 104 (1)(b) of the Criminal Offences Act, 1960 (Act 29) which
criminalizes all forms of unnatural carnal knowledge, and in his opinion,
homosexuality for that matter, as unconstitutional and consequently null, void
and of no effect.

3. In considering this writ, I could not help but reminisce on the statement of an
eminent jurist, Oliver Wendell Holmes, Jr. in The Path of the Law (Harvard Law
Review, vol. 10, no. 8, 1897, pp. 457,-478) where he wrote:

“The law is the witness and external deposit of our moral

life. Its history is the history of the moral development of
the race. The practice of it, in spite of popular jests, tends
to make good citizens and good men. …”

In his treatise, The Common Law (1881), he is noted to have stated;

“The life of the law has not been logic: it has been experience.
The felt necessities of the time, the prevalent moral and political
theories, intuitions of public policy, avowed or unconscious,
even the prejudices which judges share with their fellow-men,
have had a good deal more to do than the syllogism in

Page 32 of 57
 determining the rules by which men should be governed. The
law embodies the story of a nation’s development through many
centuries, and it cannot be dealt with as if it contained only the
axioms and corollaries of a book of mathematics”

4. Whereas the invocation of our original jurisdiction is not unusual, the subject
matter of this present case is novel, and borders on the moral fabric, values,
rights and functionalism of law and society.

RELIEFS:
5. The reliefs specifically sought by the Plaintiff, per his writ, filed on the 26 th of
August 2021, are as follows:

a. A declaration that section 104 (1) (b) of the Criminal Offences Act (Act 29)
1960 is ultra vires Article 18 (2) of the Constitution of Ghana in so far as the
said section will lead to the unlawful and arbitrary interference of the privacy
of all adult persons living in Ghana.

b. A declaration that, section 104 (1) (b) of the Criminal Offences Act of Ghana
is ultra vires Article 17(2) of the Constitution of Ghana, in so far as the said
section arbitrarily and unjustifiably discriminates against persons based on
their sexual orientation.

c. A declaration that, section 104 (1)(b) of the Criminal Offences Act of Ghana
is ultra vires Article 14(1) of the Constitution of Ghana, in so far as the said
section arbitrarily deprives homosexuals of their liberty to select their
intimate sexual partners and their right to engage in intimate sexual conduct
without state interference.

PLAINTIFF’S CASE:
6. The Plaintiff anchors the above reliefs on the contention that section 104 (1)
(b) of the Criminal Offences Act of Ghana contravenes the letter and spirit of
Article 18(2) of the Constitution. It is argued that privacy is essential to all

Page 33 of 57
 persons and that Article 18(2) of the Constitution seeks to protect the privacy
of persons resident within Ghana.

7. According to the Plaintiff, the nature, nuance and peculiarities of an individual’s

sexual dispositions, executed in the privacy of his bedroom ought not be the
preoccupation of our criminal law and as such the criminalization of “unnatural
carnal knowledge” is an affront to the spirit and purpose of Article 18(2) of the
Constitution. The Plaintiff contends that the purpose of the said section is the
determination of a sense of private morality, which in his opinion is wholly
misplaced. This, he argues, is neither the essence nor purpose of criminal law.

8. The Plaintiff, in aid of his case, cites the works of distinguished legal
philosophers; such as John Stuart Mill and H.L.A Hart in his bid to distinguish
the realms of private and public morality. Further, extensive reference is made
to the ‘Report of the Departmental Committee of Homosexual Offences and
Prostitution in Great Britain’, which was published on 4th September, 1957 and
has been famously dubbed as ‘The Wolfenden Report’. Purporting to rely on
the strength of these authorities, the Plaintiff contends that section 104 (1) (b)
of Act 29, which seeks to legislate into matters within the realm of private
morality, in contradistinction with public morality, is an unjustifiable breach of
a person’s right to privacy.

9. Particularly, the Plaintiff urges this Court to adopt the counsel of the Wolfenden
Report and reproduces the following portion of the report for our consideration:
“that unless a deliberate attempt is to be made by society, acting
through the agency of the law to equate the sphere of crime with that
of sin, there must remain a realm of private morality and immorality
which is, in brief and crude terms, not the law’s business”

10.On this foundation, the Plaintiff argues that the personal and private nature of
moral and immoral conduct places a corresponding personal and private
responsibility on the individual for his or her own actions and ought not incite

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 the threat of punishment from the law. In preemptive rebuttal to the State’s
justification of the adverse social repercussions of such actions, the Plaintiff
argues that actions such as fornication and adultery evoke equal moral
opprobrium and cause even greater harm to the society, and yet such acts are
not proscribed by threat of criminal sanction. In consequence of the foregoing,
the Plaintiff argues that it is in the domain of the church and not the state, to
be guardians of private morality, and to deal with sin.

11.Significantly, the Plaintiff concedes that it is justifiable to criminalize acts that

border on public morality such as, the offence of gross public indecency,
engaging in sexual intercourse in public or the distribution of pornographic
content, (see sections 278, 280 and 281 respectively of the Criminal Offences
Act, 1960 (Act 29). However, he argues that this justification for the legal
incursion into the sphere of morality cannot be similarly deployed in relation to
personal and private intimate sexual preferences such as same sex relations or
homosexuality, masturbation, and oral sex. The Plaintiff submits that generally,
the law should not be concerned with private consensual sexual activities
undertaken between adults unless and until some harm, or threat of harm is
occasioned by reason of such conduct.

12.On this score, the Plaintiff posits that in enacting legislation to create offences,
Parliament ought to be guided by the harm principle and that legislation that
seeks to create offences or crimes must, by jurisprudential reasoning, be limited
to enactments that prevent persons from causing harm to themselves or
others. He cites “The Declaration of the Rights of Man and of the Citizen”, set
by France's National Constituent Assembly in 1789, amongst others, to justify
this harm principle. He relies on John Stuart Mill’s work “On Liberty” wherein
the distinguished author posits that “the only purpose for which power can be
rightly exercised over any member of a civilized community against his will, is
to prevent harm to others.”

Page 35 of 57
13.The Plaintiff contends that the right to privacy, as enshrined in Article 18(2) of
the Constitution embodies in it a recognition that adults have a right to a sphere
of private intimacy and autonomy which can be pursued without needless
interference from the society, government or State. Within this domain of
private autonomy, according to the Plaintiff, is situated the sexual orientation
and activities of the individual. Therefore, where consenting adults, in
expression of this right to privacy, opt to participate in a preferred sexual
activity and no threat of harm is posed to any of the participants of the said
act, any societal invasion of that personal precinct, by the threat of punishment,
will be a breach of their privacy.

14.The Plaintiff makes reference to a judgment of the High Court of Botswana

dated 11th of June, 2019 entitled Letsweletse Motshidiemang vrs.
Attorney General & Lesbians, Gays and Bisexuals of
Botswana (Legabibo), where the court found as unconstitutional, sections
of the Penal Code which criminalized same sex relations or the attempt of same.
On the strength of this authority he has contended that like heterosexuality,
homosexuality is equally natural and reflective of expression of choice and that
homosexuality is not a physical or mental illness but natural variations of
expression and free thinking. In support of this position, he refers us to page 2
of the Report of the American Psychological Association Taskforce on
Appropriate Therapeutic Responses to Sexual Orientation (2009).

15. In conclusion, the Plaintiff submits that the criminalization of homosexuality

perpetuates stigma, vilification and hostile discrimination against homosexuals
and is therefore a disincentive to homosexuals from accessing health
facilities. Thus, section 104 (1) (b) of Act 29 by which Parliament sought to
criminalize unnatural carnal knowledge between consenting homosexuals is
ultra vires the Constitution.

Page 36 of 57
DEFENDANTS CASE
16.The Attorney General, the Defendant herein, is opposed to the present action
and has filed a Statement of Case pursuant to the orders of this Court dated
10th February, 2022. It is argued by the Defendant that Article 18 of the 1992
Constitution, which guarantees the right to privacy is mindful of the protection
of morals and the prevention of disorder or crime. The Defendant submits that
Article 18 provides for a justified curtailment of the right to privacy when it
comes to the prevention and the protection of morals amongst others. It is
contended that the Constitution must be interpreted to reflect the popular
consciousness of the people of Ghana, the peculiarities of our national identity,
our historical antecedents, socio-cultural dispositions and moral convictions.

17.On this premise, the Defendant further argues that the Ghanaian society frowns
upon homosexuality in all forms, shapes and expressions. In proof of this, the
Defendant cites various research papers including Anarf & Gyasi-Gyamerah,
2014; Essien & Aderinto, 2009; Gyasi-Gyamerah & Akotia, 2016; Oti-Boadi,
Agbakpe, & Dziwornu, 2014 and urges that all these papers are unanimous in
the position that, notwithstanding Western activism for the recognition and
acceptance of same sex relations in Africa, prevailing sentiments toward
lesbian, gay, bisexual, and transgender (LGBT) persons in Ghana remain
overwhelmingly negative. In consequence of the near unanimous public
condemnation and disapproval of these acts, the Defendant argues that the
law, being a function of the society, ought to reflect the values of the society.

18.Reference has been made to the judgment of the Kenyan High Court dated 24th
May, 2019 in the consolidated cases of EG & 7 ors v. Attorney General,
DKM & 9 ors (Interested Parties)[Suit No.: 150 of 2016; Katiba
Institute & Anor (Amicus Curia)[Suit No. 234 of2016] where a three-
member panel unanimously held that sections of the Kenyan Penal code which
criminalized private consensual sex between adult persons of the same sex did
not violate the rights of LGBTQ Kenyans to non-discrimination, health, freedom
of conscience, belief, human dignity, privacy etc.

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19.Defendant further cites a statement from the Office of the President wherein,
the Director of Communications is said to have issued an official communique
from the President denouncing same-sex relations and emphatically stating:
‘It will not be under his presidency that same sex marriage will be
legalized in Ghana.’
Further reference has been made to some other members of the political class
in Ghana denouncing homosexuality.

20.The Defendant contends that the values, principles and culture of the Ghanaian
public is subsumed under the concept of “public interest” and thereby serves
as an overarching fetter on the exercise of the rights enunciated in Chapter 5
of our Constitution. In consequence, the Defendant argues that, the specific
scope of the individual rights enumerated under Chapter 5 of the Constitution
must be balanced by the necessity to preserve prevailing national values,
principles and culture. In this regard, the Defendant argues that given the social
deprecation of homosexuality and its associated conduct, the criminalization of
unnatural carnal knowledge, in a bid to preserve the social, moral and cultural
identity of the Ghanaian people, cannot be branded as unconstitutional.

21.The Defendant asserts that section 104(1)(b) of Act 29 does not authorize any
person to enter another’s bedroom to ascertain whether acts of unnatural
carnal knowledge are being performed and therefore the argument that the
said section infringes a person’s privacy is misplaced.

22.On the issue of discrimination, the Defendant strenuously contends that the
language of Article 17(2) does not factor in homosexuality or sexual orientation
as one of the various heads under which a person may not be discriminated
against. Consequently, the Defendant submits that discrimination, on the basis
of sexual orientation, in the context of our Constitutional framework, is not
illegal per se. Further and in the alternative the Defendant contends that
assuming without admitting that the said section is discriminatory of

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 homosexuals, there is legal justification for such discrimination. To buttress this
point, the Defendant cites Date Bah JSC. in the case of T.T. Nartey v. Godwin
Gati 2010 SCGLR 74 as follows:
“ the concept of equality embodied in article 17 is by no means self-
evident. To our mind, it is clear what article 17 does not mean. It
certainly does not mean that every person within the Ghanaian
jurisdiction has, or must have, cxactly the same rights as all other
persons in the jurisdiction. Such a position is simply not practicable.
Soldiers, policemen, students and judges, for instance, have certain
rights that other persons do not have. The fact that they have such rights
does not mean that they are in breach of article 17. The crucial issue is
whether the differentiation in their rights is justifiable, by reference to
an object that is sought to be served by a particular statute,
constitutional provision or some other rule of law."

23.Defendant also contends that same sex activity of homosexuals have serious
health implications and are often an efficient mode of sexually transmitted
diseases, thus the Plaintiff’s assertion that no harm is caused to persons
engaged in acts of homosexuality or other forms of unnatural carnal knowledge
is untrue and unfounded.

ISSUES FOR DETERMINATION:

24. The following issues were set down for our determination by the parties per
their joint memorandum of agreed issues pursuant to Rule 50 of the Supreme
Court Rules, 1996 ( C.I. 16):

1. Whether or not Section 104 (1) (b) of the Criminal Offences Act (Act 29)
of 1960 contravenes the provision on the right to privacy enshrined in
Article 18(2) of the 1992 Constitution of Ghana, by criminalizing
unnatural carnal knowledge between consenting adults in seclusion?

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 2. Whether or not Section 104 (1) (b) of the Criminal Offences Act (Act 29)
of 1960 contravenes the provision on the right to equality and non-
discrimination enshrined in Article 17(2) of the Constitution of Ghana,
1992 by criminalizing unnatural carnal knowledge between consenting
adults in seclusion?

3. Whether or not section 104 (1) (b) of the Criminal Offences Act (Act 29)
of 1960 contravenes the provision on the right to personal liberty
enshrined in Article 14 (1) of the 1992 Constitution of Ghana by
criminalizing unnatural carnal knowledge between adults in seclusion?

4. Whether or not personal liberty under Article 14 (1) of the 1992

Constitution of Ghana can be extended to include the choice of a sexual
partner?

5. Whether or not unnatural carnal knowledge is harmful to persons who

practice same.

25. Although the parties have jointly filed the above memorandum of agreed
issues for determination by this Court, I note that a memorandum of agreed
issues does not bind the Court. Further, this Court will not be swayed into a
rote determination of issues set by parties where the determination of same
will not, in the opinion of the Court, resolve the substantial matters in
controversy. Otherwise, we will be engaging valuable judicial resources in
fruitless and pointless academic exercises.

26.Consequently, after a careful consideration of the contentions by the parties in

this suit, I am of the considered opinion that this suit can be completely and
effectively determined by the resolution of only one issue:
“Whether or not section 104(1)(b) of 29 which criminalizes sexual
intercourse between members of the same sex, within the context of
unnatural carnal knowledge, is unconstitutional?”

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 27.On this note, I deem all other issues jointly filed by the parties as superfluous
for the purposes of the resolution of the dispute.

SCOPE OF THE IMPUGNED LEGISLATION

28.Section 104 (1) of the Criminal Act, 1960 (Act 29), which the Plaintiff brands as
unconstitutional, provides as follows:
“Unnatural carnal knowledge
(1) A person who has unnatural carnal knowledge
(a) of another person of not less than sixteen years of age without the consent
of that other person commits a first-degree felony and is liable on conviction to
a term of imprisonment of not less than five years and not more than twenty-
five years; or
(b) of another person of not less than sixteen years of age with the consent of
that other person commits a misdemeanour; or
(c) of an animal commits a misdemeanour.”

29.Section 104(2) of Act 29 defines unnatural carnal knowledge to be sexual

intercourse with a person in an unnatural manner or with an animal. Section
99 of Act 29 lends more insight into the above definition by providing that proof
of the “least degree of penetration” shall be sufficient to establish the offence
of unnatural carnal knowledge.

30.The Plaintiff takes issue with these provisions on grounds that the effect of
these sections is to deny homosexuals the right to engage in sexual intercourse
with individuals of the same sex, as same would constitute unnatural carnal
knowledge. To that extent, the Plaintiff alleges that the said section is
unconstitutional as it infringes on the liberty and privacy of homosexuals and
perpetuates discrimination against them.

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DETERMINATION
31.With the emergence of the gay rights movement and advocacy in many
jurisdictions, it is unsurprising that a case of this nature has come before this
Court for determination. It appears there is a global clamour for or against such
rights and the instant case, though limited in scope, is an attempt to underscore
our position within our fundamental legal values.

32.Notwithstanding the broad scope and variants of sexual conducts that are
proscribed under the umbrella term “unnatural carnal knowledge”, the parties
have by their arguments canvassed in support of their respective positions,
confined their discussions, and by extension ours, to a determination of the
constitutionality of the said crime, within the specific context of its
criminalization of sexual intercourse between members of the same sex.

33.I understand the case of the Plaintiff in many respects to mean that the criminal
law on the matters pleaded does not only sin against the Constitution, but also
creates moral ambiguity for the Republic. It is this ambiguity that needs to be
resolved by this Court. By this understanding there is a presumption in the case
of the Plaintiff that the philosophical justification for enacting section 104 of Act
29 is on a wrong footing, as it seeks to classify the private moral space of
individuals as public. This presumption concludes that matters of “carnal
knowledge”, whether natural or unnatural, do not belong to the public moral
space as to be justified by the public morality compass. They are private and
must remain so without interference from public moral prescriptions.

34.The ambiguity we are therefore faced with in the instant case is whether we
could, as a free Republic, accept or contemplate matters of unnatural carnal
knowledge, as forcefully urged by the Plaintiff, as private or public moral
matters. To the Plaintiff, these are private matters and must be put beyond the
reach of public scrutiny. To the Attorney General, this classification is erroneous
and that these matters are of a public moral concern and that by our very

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 nature as an independent legal system with constitutional values, we should
frown upon them by explicit positive law.

35.In an attempt by the Plaintiff to conceive and canvass a certain notion of the
right to privacy, I understand Plaintiff’s claims to entail at least the following
three important structural propositions, but which propositions in themselves,
when critically evaluated, have significant weaknesses:
(a) Place-focused: On this score, the Plaintiff asserts that because the act of
“unnatural carnal knowledge” happens in a private context or place and is
beyond the view of the public it ought not be criminal. A fortiori, the
constitutional protection of privacy under Article 18(2) should be extended
to the act because the space in which it happens is not within the public
domain. In consequence, the Plaintiff contends that the public is not in any
danger by acts that are beyond the view of members of the public.
However, the simple and obvious rebuttal to this proposition is that if the
“private context” or “place” of the performance of an act automatically
insulates the said act from legal scrutiny, through the invocation of the right
to privacy, we might by this same logic constitutionalize all unlawful acts
committed in private places.

Ostensibly acts committed in private spaces, such as the possession and/or

use of illegal drugs, do not escape the law merely by virtue of the fact that
they are committed in private and are on face value, victimless. I hasten to
observe that only the most crude of offenders attempt engaging in their
criminal activities within the open glare of the public or in public spaces and
to decriminalize such activities on the basis of the place is to empty the
potency and purpose of our criminal laws. It would therefore occasion an
inconsistency for the law to intrude private spaces for legal scrutiny save
for persons committing unnatural carnal knowledge.

Simply put, I am of the opinion that the “private context” or “place-focused”

argument lacks merit, is misleading and is an insufficient justification for

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 the extension of the constrained constitutional protection of privacy to
outlawed sexual activity. Judicial blessing or protection for any activity
simply because it occurs in a private space is a retrogressive rationalization
for constitutional protection of the right to privacy.

(b) Person-focused: Under this argument, the Plaintiff urges that because the
act is undertaken between consenting adults in a particular association or
relationship, it should be unacceptable for the law to interfere. Accordingly,
the Plaintiff argues that the consent of the persons involved in the act
sufficiently operates to legitimize the conduct. In this instance, priority is
on the person and not the place.

This Court is however of the considered opinion that this argument is

insufficient. I note that in our Republic, consent has not been a magical
automatic legitimizing tool for all acts, relationships or associations. In
other words, there is no freedom to engage in any act proscribed by law
simply because the said act involves two or more consenting adults.

A look at criminal conspiracy sets the legal foundation to contradict such

propositions. Limiting the argument to voluntary sexual conduct between
consenting adults in order to craft a right or expand the right to privacy to
protect homosexual conduct begs the question. It is noteworthy that
consenting adults are prosecuted for engaging in incest, bigamy and other
sexual crimes because the law does not recognize consent as an
exculpating defence to such crimes.

Consent is not always a justification or defense to crime. Thus, our Courts

have repeatedly held that one cannot, in the estimation of the law, give
his/her consent to suffer unlawful harm. Similarly, the consent of an adult
to engage in unnatural carnal knowledge cannot justify the legalization or
decriminalization of that offence.

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(c) Choice-focused: The Plaintiff in advancing this argument, contends that on
the account of enforcing individual autonomy a person should be free to
choose how to conduct his/her life. This argument is built on “choice”,
which must carry such a weight to aid the determination of individual
autonomy in a state. This choice is particularly important when it aids with
personal definition of self. It is the person’s choice and that must be
accorded a legal protection in furtherance of the values of individual
autonomy.

The weakness of this argument is simply that the significance of “choice”

does not necessarily warrant protection of the choice by law. Individual
choice is not the sole determinant of constitutional protection of individual
autonomy. If it were so, we would constitutionalize the right to suicide and
the right to consent to grievous bodily harm, the right to commit incest,
abortion etc. We think that in conceptualizing rights, choice simpliciter lacks
the credit and value to be elevated to the status of a constitutional right.

36.Further, I note that these structural propositions entailed in the Plaintiff’s

arguments were constructed on the Wolfenden Report of Britain which, in part,
extensively influenced the intellectual basis of the Plaintiff’s claims. It is
instructive to note that this Report resulted from a public engagement in 1957.
In fact, it was an amalgam of public opinion and witness testimonies by the
British and not Ghanaians. That being the case, it was not without a social and
cultural context. The social data which was gathered and used by the
Committee to ground its arguments and findings came from a particular
jurisdiction with cultural peculiarities which jurisdiction, despite certain
similarities proffers values extremely at variance with our Ghanaian culture and
society.

37.I am not, by this statement, suggesting that because the material context and
circumstances of the Report was foreign, it is in and of itself inapplicable to
Ghana. I am clear in my mind that comparative studies informs and aids an

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 understanding of one’s position. That notwithstanding, I must sound an
important cautionary rule on any attempt at a wholesale adoption of foreign
cultural context and peculiar social data which might not, I think, speak to our
national context, culture and tradition.

38.The hopes, collective aspirations, traditions, and values that our Constitution
mirrors represents the overall justiciable purpose that any interpretation by this
Court must find, uphold and enforce. Our judicial duty is better understood and
appreciated when we take constitutional interpretation not as an exercise of
uncovering global norms of interests but of ascertaining the true values,
traditions and aspirations at the core of our legal system. It is true that our
state, as an actor in global geopolitics, might be influenced by the claims and
cultures of other nations; but more importantly we also belong to a distinct
boat called; Ghana with a peculiar context and culture which must provide the
primary illumination to seeing what our Constitution entails.

39.Be that as it may, it would be unreasonable, I think, to operationalize and

interpret a constitutional value in this modern context by merely relying on
historical social data gathered several decades ago in a land foreign to ours.
Even in today’s illusion of universalization of values in the cargo of globalization,
state parochiality is not completely abandoned. Whilst we must never disregard
our interconnectedness, we cannot, under any circumstances, discount,
jettison, and alienate our individual identity. On that account, we must engage
the ideas in this “Wolfenden Report” with the reservations that can help
maintain this distinctness. It is profoundly wrong, I think, to suggest that
because there is some level of similarity in the words of a positive law from
different states, the interpretation of such words must be rationalized on the
same moral classification without regard to the legal, factual, cultural and social
circumstances of the state.

40.I note that even at the material time of publication of this report, European
nations were not unanimous in their approval or otherwise on the suggested

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 scope and content of what the Plaintiff describes as a private sphere of morality.
It is still the case today. So the impression should not be created that things,
controversies and moral discourses surrounding same sex relations and for that
matter unnatural carnal knowledge commands a certain universal voice of
acceptance. The world is still engaged in an on-going debate as to what level
of uniformity it could reach in respect of the legality and morality of this matter.
The controversy is not settled and therefore it cannot lightly be proposed that
Ghana must determine such a fundamental matter without recourse to our
peculiar circumstances molded by our culture, morality, values, traditions and
customs as a people.

41.Contrary to the claims of the Plaintiff, this Report did not have immediate global
effect. Nearly 30 years after the Report was launched, the Supreme Court of
the United States in the case of Bowers vrs Hardwick, 1986 upheld a
Georgia law that criminalized certain homosexual acts. Before arriving at this
decision, the US Supreme Court pointedly disagreed with the Respondent in
that case that the Court's prior cases have construed the US Constitution to
confer a right of privacy that extends to sexual intercourse between members
of the same sex. Clearly, the history of this case and the primacy of the
conclusion reached by the Court deludes the global efficacy of the findings of
the Wolfenden Report.

42.Though Hardwick’s case has been subsequently overruled by the same Court
in Lawrence vrs Texas in 2003, the discourse is far from being settled as a
divided Court handed down the judgment to a deeply divided nation on the
subject matter. As a matter of fact, the majority in Hardwick categorically stated
that any claim to the effect that the Court’s previous cases stand for the
proposition that any kind of private sexual conduct between consenting adults
is constitutionally insulated from state proscription is unsupportable. The
Court's opinion, as contended by the majority was that:

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 “in Carey twice asserted that the privacy right, which the Griswold line
of cases found to be one of the protections provided by the Due Process
Clause, did not reach so far”.

43.Again, around the same period when the ideas as contained in the Wolfenden
Report were being evangelized across the globe, the experience in Canada
pointed to a different judicial radar and policy position. In 1967, the Supreme
Court of Canada in Klippert v The Queen [1967] SCR 822 refused to grant
a constitutional license to a consensual homosexual act. In this case, Everett
George Klippert was arrested and convicted for gross indecency after admitting
to engaging in consensual homosexual acts with other men. The Supreme Court
of Canada upheld his conviction, leading to a life sentence as a "dangerous
sexual offender." By upholding the conviction, it is evident that the distinction
between public and private morality, as urged by the Plaintiff in the instant
case, at least in this historical time in Canada, seemed blur. The policy
premonitions of the Wolfenden Report did not feature in the Canadian social
data that was considered by the Court.

44.I am aware that the same courts have changed their positions to state the
opposite. This fact illustrates to all concerned the fluidity and the continuous
flipping of the western stance on homosexual rights. It is important to state
these examples to show that one nation’s experience and history on
homosexual rights and conducts cannot be the yardstick for a Ghanaian position
on that subject matter. As their positions are moulded from prevailing values
and aspirations among their citizenry, this Court ought to project the sentiments
on this issue from the values and aspirations of the contemporary Ghanaian
citizenry.

45.I cannot overemphasize the cautionary remark of this Court, speaking per the
respected jurist, His Lordship Francois JSC, in the case of Kuenyehia v Archer
[1993-4] 2 GLR 525 at 561 where he said that:

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 “Any attempt to construe the provisions of the Constitution 1992...must
perforce start with an awareness that a constitutional instrument is a
document sui generis to be interpreted according to principles suitable
to its peculiar character and not necessarily according to the ordinary
rules and presumptions of statutory interpretation.”

46.Thus, after more than three decades of experience under the current 1992
Constitution, this case presents a rare opportunity to this court to re-state in
much more firm and certain terms, the culture and principle of constitutional
interpretation in this country. Barring all challenges, we have been progressive
enough and would not backslide to the terrains of naked literalism in service of
the law. The Constitution, I believe, is an amalgam of the nation’s hopes,
aspirations, values, customs and traditions [see Sowah JSC in Tuffuor v.
Attorney General GLR [1980] 637 @ 647-648]. By experience and through
history, our Constitution ushered in a new set of national values and principles
that must always be properly decoded, understood and enforced.

47.Where necessary, as a Court, we would draw on some benefits from or rely on

persuasive foreign jurisprudence in understanding our law and Constitution.
Nonetheless, we are mindful of our own experiences and aspirations at the core
of our constitutional values which must be upheld. Our aspirations are not
nurtured by foreign jurisprudence, neither are the veracity of our values
contingent upon such precedents. Regardless of the normative force of foreign
persuasive jurisprudence, we are the authors of our collective values and
aspirations as entailed in the Constitution. Therefore, the suitability of
persuasive foreign jurisprudence to our immediate needs depends on the
compatibility of their underlying principles, values and aspirations with ours as
a country. They must sit in well with our context. It is our peculiar values and
context that determine the application of such cases and not the other way
round.

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48.This Court would be vulnerable and risk illegitimacy if it resorts to judge-made
constitutional law with little or no cognizable roots in the architecture of our
values, customs and traditions. Our collective conscience as defined by our
traditions, culture and customs is imperative in understanding and upholding
our constitutional values. Our task therefore is not to permit the application of
bare precedents, without more. Our charge in constitutional interpretation
and/or enforcement is to give meaning to our Constitution that mirrors the
nation’s soul and consciousness. The discovery of the purpose of our
Constitution therefore is to have an intercourse with this popular consciousness.

49.Thus, any interpretation and/or enforcement of this Constitution must be done

in the context of the broader policy underpinnings, fundamental principles of
state policy enshrined in Chapter 6 of the Constitution and the objectives,
aspirations and goals as summarized in the preamble of the Constitution and
which find expression throughout the Constitution.

50.The standards inherent in the Plaintiff’s argument merely conduces to the

conclusion that since unnatural carnal knowledge, and for that matter
homosexuality, is between two consenting adults, in privacy and occasioning
no injury to a third party, the State has no business in regulating, let alone
criminalizing such a conduct. The State, by this position, would simply be
disabled from even investigating, considering and weighing the consequences
of such a conduct on the whole society. Undoubtedly, this is a strange and
retrogressive viewpoint in human rights and constitutional litigation. We should
observe that no State around the globe provides any glory to her citizens by
constitutionalizing rights without limitations.

51.In the interest of the society and progressive view of human rights protection
and enforcement, the rights of others or public interest are always considered
as disabling legal rules to mediate all rights discourses. These are protected
values sufficient to be considered by the Courts, state organs and rights bearers
in all their conduct. On the contrary, the Plaintiff has in this case thrown an
invitation to this Court, not only to shelve this long held limiting principle and

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 practice within the human rights framework, but also to completely obliterate
it from our legal system.

52.The Supreme Court of Singapore in the case of Ong Ming Johnson v

Attorney-General and other matters [2020] SGHC 63 while declining to
declare section 377A of the Penal Code, which criminalizes acts of "gross
indecency" – sex between consenting adult men – unconstitutional stated that:

“[i]n any case, I accept the defendant’s contention that, following the
Attorney-General’s position on s 377A, it would “naturally follow” that
any prosecution under other provisions which would contradict the non-
prosecution position for consenting male homosexual adults for their
sexual acts in private would likewise not be in the public interest.”

53.The rationalization in this regard rests on the need to balance individual

consensual acts and the public interest. Eschewing any notion of absolute
individual interest premised on consent, the Court readily granted protection to
public interest in a society even where same would amount to a curtailment of
an individual’s rights or freedom.

54.It is thus palpably inadequate for the Plaintiff to contend that the impugned
acts are basically “between consenting adults” and not done in the public, but
in private rooms. The sufficiency of such reasoning is on the premise that it is
not the business of the law to interfere with an adult life, especially where there
is consent. Hence , the definition of privacy, by the Plaintiff, rests on the pillars
of consenting adults acting in places beyond the reach of the public eye. By
this deduction, it is unreasonable to invoke religious taboos to regulate such a
private space. This is more problematic where there is religious pluralism as a
right in the country. The legitimacy of secular legislation, like Act 29, would

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 depend on whether Ghana as a state proffers some justification for its law
beyond its conformity to religious creed.

55.The Plaintiff, in his Statement of Case, at no time contemplated the probability

of an infant’s welfare being threatened by the conduct of an adult. That is to
say, the legality of an adult’s conduct is not sufficient to say that such a conduct
is full proof of all negative consequences on society. In criminology and criminal
law, indices of human conduct are crucial for legislation. In this regard, it would
not be prudent for the state to promote an adult behavior that has the current
to endanger the welfare of an infant.

56.The general implication of Plaintiff’s contention is to the effect that there is a

needless moral panic when the impugned criminal law provision seeks to lump
private morality into the same box with public morality. This implication, I
should observe, is a concealed effort to have this Court declare on homosexual
rights by seeking a broad construction of a constitutional right to privacy. It is
not a case, in our view, merely on the right to privacy, simpliciter.

57.The right to privacy would therefore not be construed by this Court on personal
simplified cords. As a matter of principle, I am minded to take into account the
constitutional injunction contained in Article 12 (2) to the effect 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.”

58.This provision, in part, makes it difficult to imagine a free-standing right in our

society or conceive of a discourse of human rights independent of the rights
and freedoms of others and the public interest. Similarly, Article 18(2) provides
a balancing test for the said right to privacy as follows:

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 “No person shall be subjected to interference with the privacy of
his home, property, correspondence or communication except in
accordance with law and as may be necessary in a free and
democratic society for public safety or the economic well-being of
the country, for the protection of health or morals, for the
prevention of disorder or crime or for the protection of the rights
or freedoms of others.”

59.Consistent with our constitutional values, the legislature necessarily intended

to treat unnatural modes of sexual intercourse as equally serious invasions of
public interest. The interest of the public must form part of the conceptual
context and scope for the right to privacy. This mediating value discounts the
Plaintiff’s proposed absolute nature of the right to privacy in our society.

60.Again, the 1992 Constitution in Article 28(1) (e), points to a certain notion and
character of our society that makes it difficult to conceive of a right to privacy
in a narrow sense. It states that:

“28(1) Parliament shall enact such laws as are necessary

to ensure that— … (e) the protection and advancement of
the family as the unit of society are safeguarded in
promotion of the interest of children.”

61. It is without a doubt that the nation state of Ghana values the family as the
unit of society and compels Parliament to enact such laws as are necessary to
ensure its protection. Similarly, indeed the state is mandated to ensure the
integration, protection, development and adaptation of appropriate customary
and cultural values of the people of Ghana. It is apparent that the Plaintiff has
not anchored his justification for judicial endorsement of homosexuality on
cultural values but merely on comparative authorities of other nations.

62. It is difficult to see how the family could be created through a mode of sexual
connection that threatens the most naturally ordained routes of conception. It

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 is equally uncertain as to how the family may exist with such engagements of
unnatural carnal knowledge in the name of upholding rights to privacy.

63.It appears that Ghana is not alone in upholding the moral fabric of society
through the family unit. Article 18 of the African Charter on Human Rights to
which Ghana is a signatory enjoins the protection of morals and traditional
values as follows:

“1. The family shall be the natural unit and basis of society. It shall be
protected by the State which shall take care of its physical health and
morals.
2. The State shall have the duty to assist the family which is the custodian
of morals and traditional values recognized by the community.”

64. Emphasis is placed here on the morals and traditional values recognized by
the community. It is without a doubt that the question of homosexuality borders
on morals and traditional values. The society’s denunciation is expressed in the
criminalization of not only homosexuality but all forms of unnatural carnal
knowledge stated in section 104 of Act 29. This denunciation finds further
expressions in other constitutional articles that promote family values. Thus, in
the terms explained by the Plaintiff in this case, it is without doubt that the
practice of homosexuality is unconstitutional. The criminalization of same
cannot therefore be said to be an affront to the Constitution of the Republic.

65.The Plaintiff has also contended that section 104 (1)(b) of Act 29 also
contravenes Article 17(2) of the constitution which said article provides for the
right to equality and non-discrimination. Article 17 (2) & (3) provides as follows:

“17(2) A person shall not be discriminated against on grounds of gender,

race, colour, ethnic origin, religion, creed or social or economic status.”

(3) For the purposes of this article, "discriminate" means to give different
treatment to different persons attributable only or mainly to their
respective descriptions by race, place of origin, political opinions, colour,
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 gender, occupation, religion or creed, whereby persons of one
description are subjected to disabilities or restrictions to which persons
of another description are not made subject or are granted privileges or
advantages which are not granted to persons of another description.”

66.The Plaintiff’s arguments in support of this contention reveals a fundamental

flaw in his deduction; he assumes as a foregone conclusion that the
Constitution recognizes homosexuals as a distinct group at law deserving of
some peculiar rights and protections by reason of their sexual preferences.
67.As I have found above, the historical, cultural and social context of our
Ghanaian society condemns same sex relations and it is this sense of
overwhelming disapproval which is manifested in the criminalization of the said
conduct. On that score, it is absurd for the Plaintiff to argue that individuals
who hold themselves out as being practitioners of an act proscribed by law, are
being discriminated against by reason of such proscription.

68.Further, the Plaintiff argues that section 104(1)(b) of Act 29 contravenes Article
14(1) of the constitution. The said article states as follows:

(1) Every person shall be entitled to his personal liberty and no

person shall be deprived of his personal liberty except in the
following cases and in accordance with procedure permitted by
law -...

(a) in execution of a sentence or order of a court in respect of a

criminal offence of which he has been convicted; or

(g) upon reasonable suspicion of his having committed or

being about to commit a criminal offence under the laws
of Ghana.

69.The right to personal liberty is no license to endorse all forms of indecency.

Just as acts such as coitus in public, distribution of pornography and the like

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 cannot be endorsed on the basis of personal liberty, so also, can we not endorse
acts of unnatural carnal knowledge on the basis of personal liberty.

70. Before our ink dries on the discussion of the matters implicated by the instant
suit, it is important to point out a few matters that are peculiar to our
constitutional dispensation as a nation.

71.I wish to state in emphatic terms that our Constitution is supreme and NOT
subservient to the constitutions, and laws of other nations and jurisdictions.
Whilst the constitutions and laws of other nations may have expressly legalized
homosexuality, glorified gay marriages and by way of affirmative actions,
promulgated legislation to propagate, outdoor, evangelize, preach and sell the
notions of homosexuality to every fabric of those societies, Ghana as a nation,
and for that matter this Court, cannot by “peer pressure” be cajoled into
adopting similar stance. Our Constitution is sui generis and the only one of its
kind. Thus, citizens who ply this Court must do more than merely citing and
referring to Constitutions of other states as well as their case law into
persuading us on what the law is or ought to be in Ghana.

72.Our duty as judges and the oath that we swore before assuming office was not
to uphold the laws of other nations or their case law. Our oath is to uphold the
Constitution and laws of the Republic of Ghana. Thus, we shall neither engage
in legislative drafting nor usurp the lawmaking powers of Parliament in order
to substitute our wisdom for that of the lawmakers by superimposing foreign
perceptions of propriety and/or normalcy on our laws and established social
structures. We must therefore, as judges, avoid any extent of judicial activism
that will mislead us into assuming the role of Parliament. [See Republic v Fast
Track High Court, Accra; Ex parte Daniels [2003-2004] SCGLR 364 at p.370].

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CONCLUSION:

In conclusion, I wish to reiterate, in respect of the issue that was set down for
determination in this suit, that section 104 (1) of Act 29 which criminalizes unnatural
carnal knowledge does not contravene the Constitution of the Republic of Ghana.
The Plaintiff’s conception of private morality as a ground to limit or expand the
constitutional right to privacy lacks sufficient context in the nation’s constitutional
architecture. Indeed, it is fundamentally poles apart from Ghanaian family values. Our
constitutional provisions derive their purpose and values from our traditions, customs
and culture. Consequently, the Plaintiff’s action fails in its entirety.

(SGD) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

COUNSEL
DR. PRINCE OBIRI-KORANG ESQ. APPEARS IN PERSON FOR THE
PLAINTIFF.
DR. SYLVIA ADUSU (CHIEF STATE ATTORNEY ) FOR THE DEFENDANT
WITH GEORGE TETTEH SACKEY (PRINCIPAL STATE ATTORNEY), TRICIA
QUARTEY ( PRINCIPAL STATE ATTORNEY ) & NANA KONADU FRIMPONG
(ASSISTANT STATE ATTORNEY) .

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