LGBTQ+ Bill: UG Sch. of Law Prof. Kwadwo Appiagyei-Atua writes

PROPER HUMAN SEXUAL RIGHTS AND GHANAIAN FAMILY VALUES BILL, 2021 – SOME REFLECTIONS

1. Reaction to the bill has seen two main camps emerging – the pro-moralitycamp (in support of the bill) and the pro-rights camp (against the bill).

2. The main arguments of the pro-morality camp are:

• LGBTQ+ is not part of our culture. We know culture is dynamic and culture has evolved with time, through local and foreign influences, such as slavery/slave trade, colonialism, globalisation, etc.

• Moral grounds – it is not in line with the Bible. It will bring the wrath of God on Ghana

• Rights exclusion – rights are not absolute. Rights enjoyment are subject to public morality and security. Some rights can be discarded.

3. The pro-rights camp also argue:

• LGBTQ+ is a human rights issue.

• Ghana cannot remain in isolationist mode. We are part of the international community. We need to conform our practices to the international standard.

• What constitutes cultural/moral values is not the preserve of a particular section of the society to determine

My responses

1. The pro-morality camp is mainly represented by the church and to a lesser extent, the mosque and culture. Their position reflects a dereliction of duty and the passing of its core responsibility of preaching the word of God/Allah to save souls, including members of the LGBTQ+ community. For a long time, many churches, have focused their core message on prosperity, to the neglect of preaching for moral purity of the society. Many church leaders are accused of breaking down family values, by having affairs with church members, asking ladies to submit their underwear for ritual purposes, invading radio stations to commit assault and battery, etc. If the church had focused on its core message, perhaps we would not have been where we are today. However, what the church is not getting is that LGBTQ practice has been prophesied to become part of the evolving culture. It is not something that we can legislate against to stop it.

2. LGBTQ+ has been isolated as the most devious sin but that is not what the Bible says. The Bible is clear that all sin is sin and, generally speaking, all sins are equal. If I commit adultery, fornication, lying, killing, insulting my neighbour, neglecting to help a friend in need, they are all sins which can land me in hell if I don’t repent of them. 3. It is nowhere stated in the Bible that homosexuality practice will be punished more severely. Why has the church turned a blind eye to corruption, fraud, nepotism, cronyism, mismanagement, various forms of injustices and all of a sudden taken keen interest in homosexuality? Is it a diversionary tactic? Similar to African political leadership blaming colonialism for the mess we live in but, behind the scenes, courting favour with the sons and daughters, grandsons and granddaughters of the colonialists at the expense of the citizenry? Isn’t the church doing same by cozing off with the political elite at the expense of their membership and all their attention is about how to milk them through all dubious means of fund-raising which are not prescribed in the Bible?

3. The argument that homosexuality is alien to the Ghanaian culture is false. In the pre-colonial era, certain ethnic groups, had varied forms of gay and lesbian practices in their communities. This viewpoint is buttressed by the fact that the colonial authorities deemed it fit to introduce laws on sodomy, for instance, which we find in our criminal law books today, as a means of quell these practices because they did not meet the “natural justice, good conscience and equity” test. If today, that practice may not be in existence anymore, the pro-rights should not begrudge it if the evidence supports it. However, it should accept that as a confirmation of dynamic quality and nature of culture. It is also to say that cultural practices which die away could get resurrected from different sources or through different means. Therefore, if homosexuality is back one way or the other, the pro-morality camp should see it as part of the cultural evolution that every community experiences.

4. One of the functions of law is that it’s a means of social engineering. It can be used to control social behaviours which are considered as not in the best interest of the society to be allowed to flourish. However, there are processes to follow to make sure the law can realise its objectives. There has been a number of laws enacted to deal with, for example, different forms of gender-based violence in the Ghanaian society, such trokosi, widowhood rites, female genital mutilation, etc which have not worked. We have the Legal Reform Commission which can be used to address this LGBTQ+ matter.

5. It is also important to draw the line between the actual act of homosexuality and the expression of that act. The two are not the same but they have been used to discriminate against the LGBTQ+ community on both grounds. The religious people can justify their opposition to LGBTQ+ on the grounds that the Bible forbids the practice and calls it a sin. However, expression of sexuality (such as simply identifying as an LGBTQ+ through one’s style of dressing) can be misinterpreted as sinful while it may be not.

6. Equally importantly, discrimination against the LGBTQ+ community has extended not just to the actual practice but also to the fact that such persons cannot be allowed to work and mix up with the community because of their sexual preferences. That attitude is actually sinful on the part of the religious community to do. This is where the evangelistic role of the church comes in, to provide an opportunity to use the Bible, for instance, to bring such people to God.

7. There are different forms of LGBTQ+ practices. Some go to the extent of proposing same sex marriages, adoption, etc. The church can demand criminalisation of some of these aspects of LGBTQ+ practices. However, to extend the criminalisation of the sexual practice when the act is not done in the park for all to see but in the bedroom – a private place – and expect the police to arrest and punish is to be asking too much on the police to perform. That is not to say the religious community cannot condemn that practice. Yes, it is a sin and it can condemn it but to go beyond that will be violating the right to privacy and other rights related to due process, for example.

8. The UN General Assembly has come up with some declarations which support a cultural relativist approach to the LGBTQ+ issue. Which means that the pro-morality camp could argue for limitations on the enjoyment of LGBTQ+ practice as a right. However, it does not call for such a radical approach as we find it in the bill. In fact, the bill’s references to public international law and international human rights, such as the notion of sovereignty, self-determination and the criminalisation of rights are very weak.

9. One may ask, have the churches and the mosques made conscious efforts to teach the subject of homosexuality as a topic in Bible class, in marriage counselling sessions, etc? This is an important responsibility on the religious groups to fulfil because most members have been fed misinformation and half-truths about the subject and their views are ill-informed. That is recipe for chaos and may result in vigilante justice being meted out against the LGBQT+ community, which will drive the practice underground and result in more disastrous consequences for the society.

10. The pro-morality camp should affirm the claims of equality between the sexes, freedom of choice, and the right of all persons to express their identity. At the same time, the pro-rights group should recognise the validity of the moral argument based on the Bible or Quran seeing the practice as a sin.

Source: africaneditors.com/Professor Kwadwo Appiagyei-Atua UG School of Law