An existing law that criminalises unnatural sexual intercourse and makes it unlawful for both heterosexuals and homosexuals to have anal sex does not breach the 1992 Constitution, the Supreme Court has declared.
In a unanimous decision on Wednesday, July 24, 2024, a seven-member panel of the court dismissed a suit challenging the constitutionality of Section 104 (1) (b) of the Criminal Offences Act, 1960 (Act 29), which makes sexual intercourse in an unnatural manner a crime even if it involves two consenting adults.
Pursuant to Section 104 (1) (b) of Act 29, any person of 16 years and above who has unnatural carnal knowledge of another person, even with the person’s consent, commits a misdemeanour, which, under the laws of the country, carries a term of imprisonment not exceeding three years.
The suit was initiated by a Law lecturer at the University of Ghana, Dr Prince Obiri-Korang, who argued that Section 104 (1) (b) of Act 29 violated Article 14 (1) of the 1992 Constitution as it “deprived homosexuals of the liberty to select their intimate sexual partners and their right to engage in intimate sexual conduct without state interference”.
Again, he was of the contention that Section 104 (1) (b) of Act 29 interfered with the privacy of adults and was, therefore, unconstitutional as it violated Article 18(2) of the 1992 Constitution, while it also discriminated against adults on the basis of their sexual orientation, which was a breach of Article 17 (2) of the 1992 Constitution.
The plaintiff, who invoked the original jurisdiction of the Supreme Court to interpret and enforce the 1992 Constitution, therefore, urged the court to make a declaration that Section 104 (1) (b) of Act 29 violated the above constitutional provisions and was thus unconstitutional.
However, the Supreme Court presided over by Justice Paul Baffoe-Bonnie, held that the suit had no merit, and subsequently dismissed it. “There is no merit in the action. In the circumstances, the whole action fails and same is dismissed,” the court held.
The court did not read the full reasoning for its decision, which it said would be deposited at the Court’s Registry in 10 days. Other members of the panel were Justices Avril Lovelace Johnson, Issifu Omoro Tanko Amadu, Emmanuel Yonny Kulendi, Ernest Gaewu, Yaw Darko Asare and Richard Adjei-Frimpong.
Unnatural Carnal Knowledge
Section 104 of Act 29 is in three parts. First, Section 104 (1) (a) makes it a crime for anybody to have unnatural carnal knowledge of a person below 16 years. Such a crime is a first-degree felony, which carries a term of imprisonment of not less than five years and not more than 25 years.
The second part is Section 104 (1) (b) of Act 29, which makes it a crime for consenting adults to engage in unnatural carnal knowledge. This offence is a misdemeanour and was the specific provision that Dr Obiri-Korang wanted the Supreme Court to declare as unconstitutional.
Section 104 (1) (c) of Act 29, which is the last leg of the provision, further makes it a misdemeanour for any person to have sexual intercourse with an animal.
With regard to the definition of unnatural carnal knowledge, Section 104 (2) of Act 29 defines it as, “sexual intercourse with a person in an unnatural manner or, with an animal.” Act 29 is, however, silent on the meaning of sex in an “unnatural manner”.
The court, through judicial interpretation in cases, has explained carnal knowledge, which naturally is sex. In the case Gligah & Atizo v The Republic, the Supreme Court, speaking through Justice Jones Dotse in an appeal against a rape conviction, defined carnal knowledge as, “the penetration of a woman’s vagina by a man’s penis”.
Again, in Banousin v The Republic, the Supreme Court, speaking through the same Justice Dotse, held that “It is the female sex organs called the vulva and the vagina that are normally penetrated into during sexual act which can qualify to be carnal knowledge under section 98 and 99 of Act 29.”
Statement of case
In his statement of the case to support his suit, Dr Obiri-Korang averred that the wording of Section 104 (1) (b) of Act 29 and its applicability affected not only homosexuals but could even affect females who used dildos and vibrators to please themselves.
“The term unnatural carnal knowledge may include penetration per anum, the penetration of the female genitalia or male/female rectum with object, fellatio and cunnilingus, all of which are not exclusive to homosexuals.”
The plaintiff further argued that the justification by the government that Section 104 (1) (b) of Act 29 was justifiable to protect morality was untenable. “This is because when it comes to morality, there is the need to distinguish ‘public morality’ from ‘private morality,” the statement of the case added.
He said allowing the government to dictate what constituted “private morality could lead to an unjustifiable breach of individual privacy”.
Statement of defence
The Attorney-General, Godfred Yeboah Dame, who was the defendant in the action, rejected the plaintiff’s averment and submitted that Section 104 (1) (b) of Act 29 could not be said to be discriminatory and unconstitutional as it made no mention of any particular sexual orientation.
Also, the A-G argued that the law could not be a breach of privacy as it did not contain that particular provision for the interference of people’s privacy.
“Section 104 (1) (b) of Act 29 does not authorise anyone to enter another’s bedroom for the purpose of ascertaining whether there has been an unnatural carnal knowledge,” the A-G argued in its statement of defence.
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