A Justice of the Supreme Court, Justice Yonni Kulendi has said, the Apex Court “cannot by ‘peer pressure’ be cajoled into
adopting” practices of homosexuality of other countries.
According to him, the Constitution of Ghana is “supreme and not subservient to the constitutions, and laws of other nations and jurisdictions.”
Justice Yonni Kulendi made this known in his concurring opinion of a seven-member panel of the Supreme Court which unanimously dismissed a writ filed by a law lecturer on the constitutionality or otherwise of the constitutional provisions that criminalised homosexuality.
The Apex Court on July 24, 2024 affirmed that provisions in the Constitution that incriminate homosexuality or unnatural canal knowledge (Anal sex) is lawful.
The panel of seven chaired by Justice Paul Baffoe-Bonnie declared that, “Section 104(1)(D) of Act 29 is not discriminatory against homosexuals; neither does it infringe on
the privacy of individuals, be they homosexuals or practitioners of other
forms of sexual orientation which involve unnatural carnal Knowledge
however described.”
The panel which also includes, Justice Avril Lovelace-Johnson, Justice Omoro Amadu Tanko, Justice Ernest Gaewu, Justice Yaw Darko Asare and Justice Agyei-Frimpong said that, “the criminalization of acts of unnatural carnal knowledge, under Section 104(1)(b) of the Criminal and Other Offences Act, 1960 (Act 29) is in our view, not inconsistent with the letter and spirit of the 1992 Constitution.”
“It is therefore, not unconstitutional,” the panel said and on that premise, dismissed, the Plaintiff’s action in its entirety.
The Plaintiff, Dr. Obiri-Korang, a law lecturer sued the Attorney General and was amongst other things sought a pronouncement on section 104(1)(b) of the Criminal and Offences Act 1960 (Act29) as constitutional or otherwise.
Concurring opinion
Justice Yonni Kulendi, a member of the panel in his concurring opinion said, “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 or those societies, Ghana as a nation,
and for that matter this (Supreme) Court, cannot by ‘peer pressure’ be cajoled into adopting 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.
“Our duty as judges and the oaththat we swore before assuming office was not
to uphold the laws of other nations or their case law.
“Our oath is to uphold the Constitution and laws of the Republic of Ghana. Thus, we shall neither engage in legislative drafting nor usurp the lawmaking powers of Parliament in order
to substitute our wisdom for that of the lawmakers by superimposing foreign
perceptions or propriety and/or normalcy on our laws and established social structures,” the Supreme Court judge said in a 57-paged judgment released on August 13, 2024.
“We must therefore, as judges, avoid any extent of judicial activism that wil mislead us into assuming the role of Parliament,” Justice Kulendi stated while point to the case of Republic v Fast Track High Court, Accra; Ex parte Daniels [2003-2004] SCLR 364 at p.370.
Conclusion
In his conclusion, he said reiterated that, “in respect of the issue that was set down for
determination in this suit, that section 104 (1) of Act 29 which criminalizes unnatural
carnal knowledge does not contravene the Constitution of the Republic or Ghana.
“The Plaintift’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.
“Indeed, it I s fundamentally poles apart from Ghanaian family values. Our constitutional provisions derive their purpose and values from our traditions, customs
and culture,” Justice Yonni Kulendi said while dismissing the action in it’s entirety.
Relief sought
- Dr Obiri-Korang, the Plaintiff per his writ filed on August 26, 2024 specifically sought the following reliefs;
a. A declaration that section 104 (1) (b) of the Criminal Offences Act (Act 29) 1960 is ultra vires Article 18 (2) of the Constitution of Ghana in so far as the said section will lead to the unlawful and arbitrary interference of the privacy of all adult persons living in Ghana.
b. Adeclaration that, section 104 (1) (b) of the Criminal Offences Act of Ghana is ultra vires Article 17(2) of the Constitution of Ghana, in so far as the said section arbitrarily and unjustifiably discriminates against persons based on their sexual orientation.
c. Adeclaration that, section 104 (1)(b) of the Criminal Offences Act of Ghana is ultra vires Article 14(1) of the Constitution of Ghana, in so far as the said section arbitrarily deprives homosexuals of their liberty to select their intimate sexual partners and their right toengage in intimate sexual conduct
without state interterence.
Source: Kumasimail.com
