Three legal logics cited by Dr. Obiri Korang, a law lecturer, to invoke the powers of the Supreme Court of Ghana to legalize homosexuality and other forms of unnatural carnal sex were shot down one after the other by the court in the concurring opinion of Justice Yonny Kulendi.

The law lecturer, after citing numerous foreign authorities, based his argument on the right to privacy, consent between adults, and freedom of choice, in so far as no one is forced into the act or is hurt as a result.

The lawyer told the Supreme Court that “unnatural carnal knowledge” happens in a private context or place and is beyond the view of the public; hence it ought not to be criminal.

Firstly, he argued that the constitutional protection of privacy under Article 18(2) should be extended to the act because the space in which it happens is not within the public domain and that the public is not in any danger by acts that are beyond the view of members of the public.

Secondly, the lawyer or plaintiff argued that because the homosexual act or the unnatural carnal act is undertaken between consenting adults in a particular association or relationship, it should be unacceptable for the law to interfere. He argues that the consent of the persons involved in the act sufficiently operates to legitimize the conduct.

Thirdly, the lawyer argued on choice. The plaintiff, in advancing this argument, contends that on the account of enforcing individual autonomy, a person should be free to choose how to conduct his/her life.

Court thrashes arguments

Writing the concurring opinion on behalf of his seven colleagues who served on the panel chaired by Justice Paul Baffoe-Bonnie, with Justices Imoro Amadu Tanko, Avril Lovelace-Johnson, Ernest Gaewu, Yaw Darko Asare, and Agyei-Frimpong as members, Justice Kulendi said the three arguments by the lawyer are flawed.

Privacy as a factor

The learned Justice Kulendi said, “if the ‘private context’ or ‘place’ of the performance of an act automatically insulates the said act from legal scrutiny, through the invocation of the right to privacy, we might by this same logic constitutionalize all unlawful acts committed in private places.”

He added: “Ostensibly, acts committed in private spaces, such as the possession and/or use of illegal drugs, do not escape the law merely by virtue of the fact that they are committed in private and are, on face value, victimless. I hasten to observe that only the most crude of offenders attempt engaging in their criminal activities within the open glare of the public or in public spaces, and to decriminalize such activities on the basis of the place is to empty the potency and purpose of our criminal laws. It would therefore occasion an inconsistency for the law to intrude into private spaces for legal scrutiny, save for persons committing unnatural carnal knowledge.”

“Simply put, I am of the opinion that the ‘private context’ or ‘place-focused’ argument lacks merit, is misleading, and is an insufficient justification for the extension of the constrained constitutional protection of privacy to outlawed sexual activity. Judicial blessing or protection for any activity simply because it occurs in a private space is a retrogressive rationalization for constitutional protection of the right to privacy.”

Consent in unnatural carnal knowledge

The court, in the concurring opinion of Justice Kulendi, said it is of the considered opinion that this argument is insufficient.

“I note that in our Republic, consent has not been a magical, automatic legitimizing tool for all acts, relationships, or associations. In other words, there is no freedom to engage in any act proscribed by law simply because the said act involves two or more consenting adults.”

“A look at criminal conspiracy sets the legal foundation to contradict such propositions. Limiting the argument to voluntary sexual conduct between consenting adults in order to craft a right or expand the right to privacy to protect homosexual conduct begs the question. It is noteworthy that consenting adults are prosecuted for engaging in incest, bigamy, and other sexual crimes because the law does not recognize consent as an exculpating defence to such crimes. Consent is not always a justification or defense to crime. Thus, our courts have repeatedly held that one cannot, in the estimation of the law, give his/her consent to suffer unlawful harm. Similarly, the consent of an adult to engage in unnatural carnal knowledge cannot justify the legalization or decriminalization of that offence.”

Right of choice and individual autonomy

The lawyer or plaintiff, in advancing this argument, told the court that every Ghanaian should be free to choose how to conduct his/her life [insofar as no one is hurt or harmed]. He argued that if someone chooses to have unnatural carnal knowledge, the law must protect the person’s choice.

The Supreme Court, speaking via Justice Kulendi, said “…this choice is particularly important when it aids with personal definition of self. It is the person’s choice and that must be accorded legal protection in furtherance of the values of individual autonomy. The weakness of this argument is simply that the significance of ‘choice’ does not necessarily warrant protection of the choice by law. Individual choice is not the sole determinant of constitutional protection of individual autonomy. If it were so, we would constitutionalize the right to suicide, the right to consent to grievous bodily harm, the right to commit incest, abortion, etc. We think that in conceptualizing rights, choice simpliciter lacks the credit and value to be elevated to the status of a constitutional right.”