Micro country-level research on why Ghana continues to hold on to a colonial-era law that criminalises sex between consenting adults of the same sex is critical to understanding the unique phenomena of homophobia and violations of sexual minority rights in Ghana. Ghana has not decriminalised the offence of ‘unnatural carnal knowledge’, a law that targets homosexual sex, which it inherited from British colonial administrators in 1892, despite calls by international human rights bodies and Ghana’s own admission that such laws fuel violations of sexual minority rights. The fundamental barriers to the decriminalisation of consensual same-sex sexual acts between adults in private in Ghana are religion, culture, and politics. Through the lens of decolonisation, Sankofa, as well as purposive and transformative constitutionalism theories, the thesis argues that the current religious, cultural and governance architecture in Ghana are colonial legacies that subjugated indigenous religious, cultural, and governmental institutions and replaced them for more than a century with Victorian-era structures and institutions of the colonial administrators. In order to overcome this colonial-era law, structures, and barriers to decriminalisation, which many Ghanaians unknowingly or mischievously claim as their own, there is a need for the decolonisation of colonial-era thinking and structures.
The 1992 Constitution of Ghana provides for a Bill of Rights, an independent judiciary, and the Supreme Court of Ghana, whose jurisprudence upholds the rights of individuals to non-discrimination, dignity, privacy, and association. Apart from religion, culture, and politics, a major obstacle to decriminalising sodomy law in Ghana is the legal culture and socio-political environment in Ghana. The judiciary is part of a society that abhors homosexuality and proclaims that because most Ghanaians oppose same-sex relationships, Ghana should not amend its Constitution to embrace sexual minority rights. The Supreme Court has declared laws that are inconsistent with constitutional rights to non-discrimination, association, dignity, and privacy as unconstitutional. Although the Constitution of Ghana does not prohibit discrimination based on sexual orientation, the Supreme Court can overcome the barriers of religion and culture by extending its jurisprudence on the right to non-discrimination, association, dignity, and privacy to include sexual minority rights. Through a broad, purposive, and transformative approach to interpreting the Bill of Rights, the Supreme Court can draw a line between Ghana’s colonial past and the present era of constitutionalism and constitutional rights by declaring sodomy law as unconstitutional. The Supreme Court may also overcome the negative limitations of the current Ghanaian legal culture and socio-political pressure by looking to pre-colonial Ghanaian cultures that embraced same-sex sexuality for guidance. Like the proverbial Sankofa bird, the Supreme Court may, besides looking back to pre-colonial Ghanaian cultures, also fly forward to adopt decisions of foreign domestic and international courts of this modern era to endorse constitutional morality over majority morality in a Ghanaian secular state. / Thesis (LLD)--University of Pretoria, 2021. / University of Pretoria, Postgraduate Merit Award (Academic Associate) / Centre for Human Rights / LLD / Unrestricted
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:up/oai:repository.up.ac.za:2263/82603 |
| Date | January 2021 |
| Creators | Ako, Ernest Yaw |
| Contributors | Viljoen, Frans, ernestyawako@hotmail.com |
| Publisher | University of Pretoria |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Rights | © 2019 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
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