Supreme court upholds law criminalising anal sex, says it is constitutional

The Supreme Court of Ghana has upheld Section 104(1)(b) of the Criminal Offences Act, 1960 (Act 29), an already existing law which criminalises anal sex, declaring it constitutional. The seven-member panel, led by Justice Paul Baffoe-Bonnie, unanimously dismissed a writ challenging the law’s constitutionality on Wednesday, 24 July 2024.

The panel, which included Justices Amadu, Gaewu, Adjei-Frimpong, Lovelace-Johnson, Kulendi, and Darko Asare, affirmed the constitutionality of the law. The court did not provide the full reasoning behind its decision, stating that the detailed judgement would be available at the court’s registry in ten days.

The writ was filed by Dr Prince Obiri-Korang, a lecturer at the University of Ghana Law School. He argued that Section 104(1)(b) violated several constitutional rights, including the right to privacy under Article 18, the right against discrimination under Article 17, and the protection of personal liberties under Article 14.

Section 104(1)(b) of Act 29 criminalises “unnatural carnal knowledge” of a person aged 16 and above, even with their consent, categorising it as a misdemeanour. Additionally, Section 104(2) defines “unnatural carnal knowledge” as sexual intercourse in an unnatural manner or with an animal.

Dr Obiri-Korang contended that the law was unconstitutional and breached fundamental human rights. However, the Supreme Court disagreed, dismissing his claims and upholding the law. The court asserted that Section 104(1)(b) did not infringe on the rights to privacy, non-discrimination, or personal liberties as argued by the plaintiff.

This ruling has significant implications for the legal landscape in Ghana, particularly about the ongoing debate surrounding the Anti-LGBTQ bill. The decision to uphold the constitutionality of Section 104(1)(b) could bolster the bill, which seeks to impose stricter regulations on LGBTQ activities in the country.

The Supreme Court’s affirmation of Section 104(1)(b) as constitutional reinforces the legal framework against certain sexual activities in Ghana, setting a precedent that may influence future legislative and judicial actions concerning LGBTQ rights and related legal challenges.