For the latter part of 2022 and into 2023, the realities of the economic hardship spurred on by inflation, high unemployment, and a fast-depreciating Ghanaian cedis (at one time the worst currency in the world) shifted the attention of Ghanaians from their preoccupation with LGBTQ+ rights and identity matters. Even try as they could, proponents of the draft bill “Proper Sexual Rights and Ghanaian Family Values Bill 2021” in parliament and their acolytes could not regain the traction of the previous year in their attempt to continue making this matter a central issue with the Ghanaian population. So, what happened? What led to a drastic disinterest in an albeit topically and highly charged ‘politicized’ matter upon which some folks had started hanging their political fortunes? There were even presidential forecasts in the lives of some anti-LGBTQ+ proponents. But the economy does not lie. In the face of a fast-depreciating Cedi setting Usain Bolt-like type of records and sky-rocketing fuel prices,  the Clintonian retort “It’s the economy stupid” became the lived reality of Ghanaians as the economic tsunami which hit the country in early 2020 and late 2021 all but reduced the country’s fortunes to a beggar’s pittance. The effect on the lining of individuals’ pockets all but wiped away any anger or hostility towards the country’s sexually different community. Men, women, and children were about their economic lives as they navigated the vagaries of a Cedi economy on their Pesewas salaries.

Salaries like the Cedis were fast losing value in terms of the basket of goods one could purchase. Yet many politicians still tried to yoke their relevance within the socio-political space and, more importantly, within the democratic and governance sphere on this matter. Arguments of secularism and constitutionalism began to assume communitarian and religious dimensions. It was even reported that an individual well vexed and heavily doused in the “spirit” had challenged the secularist nature of the state and Constitution itself and has advanced their own definition of religious pluralism as what secularism implies. But where the economy has spoken, not even hollers of LGBTQ+ can save the politician’s day. Karl Marx, that crazy old man who has made the lives of many students miserable in social theory was proved right that what keeps the ‘superstructure’ (ideological underpinnings of society to include politics, religion etc.)  functional in any society is the functional imperative of the ‘substructure’ (economy). And when the economy goes berserk, try what you may, nothing in the superstructure can cover or hide the economic hardships that people will experience within the state or society. And it so happened that within this economic turmoil, slowly and gradually, LGBTQ+ discourses began to fade into the abyss to be added to the many to-do things that had at one-time stoked our collective imaginations but faded into blackness, as Jay-Z will say.

And so it was that LGBTQ+ began to assume obscurity in the national news and the population’s memory, fading into blackness and a state of general amnesia. Occasionally, the men in long white robes, defenders of the nation’s soul, and shepherds of the state or what Foucault will describe as ‘economists of souls’ will try to stir the hearts of their ‘faithful’ and remind them of the impending ‘Sodom and Gomorrah’ that is about to be unleashed upon the flock. But a hungry man is always an angry man, and more importantly, a hungry and broke man is all about his bread and butter. The obsessional indulgence with what another man did with another man is nothing comparable to staring at the price of petrol at 17 Cedis per litre at the gas station. A mathematically three raised to the power whatever in percentage increase in fuel costs alone, not forgetting corresponding increases in other utilities. But alas, the promise of an IMF bailout and the droppage of some coins from our international friends was refreshing in giving hope to the wobbly economy. A brief moment of stability, where the cedis assume a shaky but stabilized stature among its international fraternity. In all of these moments, the brothers and sisters of the LGBTQ+ community enjoyed some relative peace despite the many attempts by the chief umpire at the Umofia House of Representatives to resurrect their matter.

And then came Kamala Harris, the Vice-President of God’s own country. The only country whose trust in God is so strong that they decided to put him on the almighty dollar so they can keep him (God) in their pockets. The very dollar that, despite our “Beyond Aid” mantra, we have been globe-trotting and mightily chasing the IMF to give to us (like our very existence depends on it). The declared panacea to all our problems. Vice-President Harris wasted no time airing her grievances. Stereotypical of Americans, she spoke her mind on the very first day of her visit and said it as it is: the American way. Mincing no words, neither stuttering nor even batting an eye, she stated her position and that of her government: “I feel very strongly about the importance of supporting the freedom and the fighting for equality among all people, and that all people be treated equally. I will also say that this is an issue that we consider, and I consider to be a human rights issue, and that will not change.” In response, the President of the Republic pivoted to the position that the anti-LGBT bill was championed by “only a hand full of MPs.” And even in the event that the bill is passed, its ratification into law rests with him (President). There have been times I doubted the bona fides of the President’s human rights record on other matters, but I believe on this matter of LGBTQ+, the President gets it. And I applaud him for his vocality on the matter. It might make him unpopular or even alienate him from his conservative constituency, but on this matter of rights, the President gets it: human rights should not be contingent on any other socio-cultural or political construction except one’s humanness.

Niklaus Luhmann, the German sociologist and system theorist (he can be very confusing) in discussing rights, argued that human rights are principally protective rights with the sole purpose of protecting within the democratic space the individual’s sphere of freedom against any excessive claims from society. But most importantly, human rights function to protect not just against political power but against any social system with ‘totalizing’ tendencies in ways that make the individual a property of ideology and, secondly, a property of society. And irrespective of which social system or society one finds themselves in, human rights are rights one possesses because they are human, period! And I believe that the President gets it, just as he got it right the first time with the Aljazeera interview in 2017 and gotten it right with the Kamala Harris engagement on the matter. As a matter of fact, I think this should be a straightforward matter of comprehension for any first-year law student. Constitutionally, this brouhaha over LGBTQ+ rights is a non-starter. This is because irrespective of one’s social standing within the country, the Constitution, the country’s ‘only’ macro human rights document, are explicitly clear on the rights guaranteed to every Ghanaian citizen.

Article 12 (2) of the provisions of fundamental human rights and freedoms of the 1992 Constitution states that “Every person [emphasis] 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.” The charter does not begin by saying ‘some persons’. Straight out of the gate, the Constitution states its non-discriminatory stance and declares “EVERY PERSON.” A powerful intro to set the stage for whom these rights apply. As it reads, the constitution de-conditions or de-links the enjoyment of rights from any socially created attribute, be it of race, politics, gender, or religion. It clearly stipulates that irrespective of or ‘whatever’ social categorization an individual belongs to or identity they possess, e.g., be it religious, political, tribal, etc.,  is not grounds enough to deny them access to the fundamental rights as enshrined within the provisions of the 1992 constitution. This is clearly stated, and no amount of pretzel-twisting and interpretation of the guarantees of rights changes its meaning, even outside of a juridical interpretation. This is precisely why I believe that talking about LGBTQ+ rights in themselves is a misnomer because the Constitution itself does not make any special provisions for any specific group of individuals or community and is very generic in its application. If the Constitution is understood to be the macro and only document that ‘confers the status of rights’ on citizens and individuals in the state, this unnecessary contestation over LGBTQ+ rights will be moot. I am no lawyer, but adopting only a legalistic approach to making meaning of the Constitution outside its social, political and, importantly, historical considerations does not lend itself to a good understanding of the law.

The framers of the 1992 Constitution, seemingly aware of the many flaws within the human rights provisions inherent within the previous constitutions, especially the 1969 and 1979 constitutions, ensured that the 1992 Constitution became the most expansive human rights document the country has ever had. One cannot discount the role that the excesses of the PNDC played in this regard. The public whipping of women, the stripping of women in public places, debasing them of their dignity, the denial of access to justice, the lynching and arbitrary killing of citizens etc., were all well critical in the expansiveness of human rights provisions under the 1992 constitution. The whole idea was never again should any citizen, person, or individual of the state suffer such grave human indignity because of who or what they may be perceived to be. It is why I find it ironic that many acclaimed lawyers in Ghana, who should at least know and understand the historical considerations that birthed these rights, have taken up the cudgel to debase the rights and dignity of Ghanaian citizens just because they are sexually different. In fact, the 1992 constitution makes no such provision between heteronormative and non-heteronormative distinctions in its declaration of rights, which seems to be lost on many. The Constitution as it stands today is gender-neutral, identity-neutral, religion-neutral, tribal-neutral and neutral in all aspects of its application in any way that one can think.

But anti-LGBTQ+ proponents have challenged the provisions of article 12(2) by raising argumentation on the public charge inclusion or what many regurgitate as the “subject to respect for the rights and freedoms of others and for the public interest.” An interesting insertion within the provisions of article 12. Unfortunately, this phrase has been extrapolated beyond its considerate interpretation to mean within discourse that, in the enjoyment of rights by ordinary Ghanaians, that rights and freedoms should be subjected to the whims of the larger public. This is essentially a ‘totalizing’ mindset that makes each individual a property of the majoritarian ideology and, in a sense, espoused by Luhmann, a property of society. This techno-rational one-dimensional way of thought or herd mentality implies that none of us can indeed be who we are or seek to be outside of what our society wants us to be. And in my many research and readings surrounding human rights in Ghana and Africa, I find this to be the crux of the confusion from which the LGBTQ+ rights discourse has emerged. The argument that the individual by him/herself, even within the modern democratic governance system, cannot have rights outside of the communitarian ideology of ubuntu. In effect, our personal lives could and can constantly be invaded and violated so that society can satisfy itself that we are doing what it expects from us.

Just like I like to remind the many individuals I banter on this subject, if we were still living under mechanical solidarities of chieftain societies, where the ‘society is the individual’, as Durkheim posits, then one can excuse the invasion of people’s privacy and rights within such societies. But in the organic solidarity of modern society, where the ‘individual is the society’, and democracy is about the ‘cult of the individual’, human rights are what protect the weak, the ‘other‘ and the different from the abuse of the powerful and from social systems (societies) that seek to command a totalizing effect on individuals’ rights. And this, I believe the President gets and understands. A belief of his that seems to pitch him at odds with the pressures and expectations of the majoritarian religious bloc that seeks to drive him towards a specific predetermined outcome. A push that seeks to get him to conform to specific narration concerning the constitutional matter of rights being negotiated within religio-cultural discourses outside the confines of the constitutional provisions on rights. An outcome, however, that does not sit in law but is filled with affective rational and highly charged emotional attachments to uncontested notions of heterosexuality. This brings me to the core question at the heart of contestation that seems never to be addressed but is constantly debated: what are LGBTQ+ rights anyway?

The phrase LGBTQ+ rights have been loosely thrown around, yet many people, including proponents of the anti-LGBTQ+ bill intending on criminalizing an ‘identity’, have yet to explain what they understand LGBTQ+ rights actually to mean. The perennial assumption within the Ghanaian public space is to link LGBTQ+ rights to homosexuality or gay sex. And that general preoccupation with the homoerotic act has singlehandedly come to define the objectivity of human rights, a constitutional provision that should, in its application, never be contingent on any other attribution or construction except for the humanness of the individual. It is why whenever the matter has been discoursed in the Habermasian public sphere (which is supposed to be a place of deliberation), the general default retort  is that “LGBTQ+ is against the law, against our religion and our culture.” The law referenced in this instance is the 1960 Criminal Code (Act 29) section 104, commonly called the “unnatural carnal knowledge law.” An ambiguous phrase that successive Attorney Generals within the Fourth Republic have struggled to define and clarify its operational application. But let us assume for argumentation purposes that the criminal law of section 104 actually proscribes homosexuality as a criminally sanctioned act.

There are problems with this argument. The first and most crucial issue is that the 1992 constitution and the 1960 Criminal Code are two very separate documents, each performing specific but interdependent functions for maintaining the Ghanaian social order. But the lack of separation of these two documents has largely conflated the difference between what constitutional rights are on the one hand and what criminal acts are on the other hand. And though they may sometimes seem interchangeable, the Constitution and the criminal law/code are not the same and perform different functions, with the criminal law being the set of rules that are useful in governing the behaviour of the people. But regardless of which angle one looks at the issue, Ghana’s fourth republic has only one macro document that confers rights on its citizens – THE 1992 CONSTITUTION. I may not be a lawyer nor a law student; however, I know, having researched over the years, that the 1960 Criminal Code that has often been touted and used as a standpoint to criminalize homosexuality DOES NOT IN ANYWAY CONFER RIGHTS on anybody in Ghana, that is an exclusive function of the Constitution alone. At best, in terms of function and application, the criminal code is subject to the provisions of the macro constitutional document and not the other way around. And that explains why even armed robbers are guaranteed their constitutional right (Miranda Rights) of due process before the law when arrested for committing a crime. It is why it is untenable for the police to brutalize and beat up a criminal even when he/she has been caught committing a crime. That right, even to a criminal, is sacrosanct and inalienable to their person as a human being. This is why the Constitution and the Criminal Code are said to be instrumental rational in their application, and not dependent on people’s affective rational or emotional feelings. And to hear learned persons sit in media spaces and argue on LGBTQ+ rights while quoting the criminal law/code to rationalize their position in making claims of rights denial for people who identify as LGBTQ+ amounts to either an ignorance of an understanding of the fundamental rights within the 1992 Constitution and the 1960 criminal code or plainly a case of intellectual dishonesty or a pivot to parochial interests that may in themselves be rewarding (and in some cases financially) to specific individuals.

Secondly, the sexualization of LGBTQ+ rights discourses exposes the hypocrisy of our society. To hear matters of rights being discussed on the airwaves and in the media in such sexualized manners gives the impression that gay people are demanding for right to have open sex in the streets. I once asked a colleague who identifies strongly with the sexualized notion of rights as to whether ‘us straight people’ have sex in the open and the streets for us to become so preoccupied with imagining that LGBTQ+ rights are all about SEX. And this goes back to the question I asked earlier, what are LGBTQ+ rights, anyway? To answer that question, I will digress a bit to give context to what I am about to say. Just last week, I was in a heated discussion with some critically minded individuals on a professional WhatsApp platform discussing Kamala Harris’s LGBTQ+ statement to the President. Many of the discussants were of the view that LGBTQ+ rights were unlawful, illegal etc.

In the course of our discussion, a discussant dropped a discretion advice video of a supposed LGBTQ+ person, who has been stripped naked, was being mobbed and beaten and being abused and violated in so many un-imaginary ways. So, I posed a question to the group and asked, “What crime has this person committed that his self and dignity have to be so violated and abused? Then the narrative began to change; one lady said this was barbaric and primitive, another chimed in “this is bad, he is a human being”, another also said “this is not right! Being gay is not criminal,” someone also said, “regardless of what he may have done, he is still a human being and deserves his dignity as a human being.” But what struck me most was the post from a dear friend who held strong anti-LGBTQ+ positions. That individual said, “Maybe we go overboard sometimes. I really do not support violence against homos . . . it is NOT right” (their exact words, not mine). That last statement I brought to everyone’s attention was the reason why talks of LGBTQ+ rights have become topical in our state. The fact that a Ghanaian citizen could be so beaten, disgraced, abused, violated and even, in some places, killed because of who or what they identify as is what LGBTQ+ rights are. I could go on and on about the lack of freedom of self-expression, the lack of protection from the state as citizens, and the fear of discrimination. That is what LGBTQ+ rights are. It has never been about sex because if it was, we should equally be violent and angry towards men who patronize their women anally. But where lies the outrage in that context? We may pretend and stick our heads in the ground like the Ostrich for all we care, but our society has always known of the existence of this community. We do not need Kamala Harris to come and tell us what we already know about this community. And that is why I find the ongoing attempts in parliament to proscribe sanctions against people who identify as sexually different to be very problematic and ludicrous in an avowed secular and democratic society where the rule of law is paramount to the state’s very existence. How do we even start to criminalize an individual’s ‘identity’? What message are parliamentarians sending to the citizens of the state? That the state sanctions the arbitrary discrimination of its citizens based on their sexual proclivities? What kind of sexual politicization of rights is this?

And just like I told my discussants on that WhatsApp platform, a lot of the time when we are thinking about rights, especially LGBTQ+ rights, we are so emotional about it that we forget and are unconscious of the many spaces in which we have been minoritized and how unpleasant those experiences were to us. This is why as citizens of the state, we need to rethink our position on this issue, devoid of the emotions, affectivities, and attachments to what we know or have been socialized into. It is a slippery road when we believe we are in the majority and can thus start tinkering with the human rights provisions within our Constitution. It is a very slippery road. One that, once we embark on, might cause us great harm in the future. Democracy is not all about the rule of the majority; it is a system of compromise governance with the aim of building consensus for social and political action within the polity to solve our collective problems for the state’s development. When we begin to start chasing these rabbit holes for political expediency today, we may end up mortgaging the very rights that sustain our democracy in the future. And this I believe the President Nana Akufo Addo gets. Considering his earlier life and upbringing in The United Kingdom, I believe it is a déjà vu moment for him all over. And to give him credit, he has tactfully manoeuvred this terrain with an open mind because he has already seen the future.

On the substantive matters of human rights, the 1992 Constitution, I believe, is very explicit and clear on the matter. The Constitution under Chapter 5 does not discriminate in the provisions of rights as enshrined. Neither does it seek to alienate a proportion of the citizenry from full access based on whom it perceives them to be. This makes the whole LGBTQ+ rights matter an unnecessary distraction and moot, as the Constitution is non-discriminatory in its guarantees of rights. Rights are the bedrock upon which every democracy rests, and we cannot begin to tinker with them and take them out of our democratic establishment. And although we may be a highly religious people (I wonder why we are yet so CORRUPT), our system of political organization is neither based on the Bible nor the Quran; it is based on the tenets of freedom, egalitarianism, and rights. And our President gets it! Kudos to you, your Excellency!

19 April 2023

About the Writer:

Mr. Michael Augustus Akagbor is a researcher with interest in the areas of  Social Justice, Democracy & Law, Gender systems, Indigenizing African Knowledge Systems, Religion and Development. He holds an MPhil in Sociology from the University of Ghana and an M.A. in Socio-Legal Studies from York University, Canada.

His email address is: Mdekased15@hotmail.com