SC can’t be ‘cajoled’ to adopt humosexuality stance -Kulendi 

The seven-member panel, held in the case filed by Dr Prince Obiri-Korang held that specifically that Section 104(1)(b) of Act 29 is not discriminatory against homosexuals nor infringes on their rights to privacy.

The Supreme Court of Ghana has upheld Section 104(1) of the Criminal Offences Act, 1960(Act 29) as constitutional and non-contradictory of the 1992 Constitution.

The seven-member panel, held in the case filed by Dr Prince Obiri-Korang held that specifically that Section 104(1)(b) of Act 29 is not discriminatory against homosexuals nor infringes on their rights to privacy.

In his suit against the Attorney General, the plaintiff averred among others that 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.

He added that the purpose of section 104 of Act 29 is the determination of a sense of private morality, which in his opinion is wholly misplaced. This, he argued, is neither the essence nor purpose of criminal law.

Dr.Korang further argued that section 104 (1) (b) of the Criminal Offences Act of Ghana contravenes the letter and spirit of Article 18(2) of the Constitution that seeks to protect the privacy of persons resident within Ghana.

In his concurring majority opinion dismissing the suit, Kulendi JSC stated emphatically 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.”

He added that;

“Ghana as a nation, and for that matter this Court, cannot by “peer pressure” be cajoled into adopting a 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.”

The court thus established 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 because of such proscription.

He further held that 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.

In the end, it was held 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.”