A Justice of the Supreme Court, Justice Yonni Kulendi, has said that the Apex Court “cannot by ‘peer pressure’ be cajoled into adopting” the practices of homosexuality from 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 criminalized homosexuality.

The Apex Court on July 24, 2024, affirmed that provisions in the Constitution that incriminate homosexuality or unnatural carnal knowledge (anal sex) are 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, among other things, sought a pronouncement on Section 104(1)(b) of the Criminal and Other Offences Act 1960 (Act 29) as constitutional or otherwise.

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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 of those societies, Ghana as a nation, and for that matter this (Supreme) Court, cannot by ‘peer pressure’ be cajoled into adopting a 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 cite and refer to the Constitution of other states as well as their case law to persuade us on what the law is or ought to be in Ghana.

“Our duty as judges and the oath that 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 of propriety and/or normalcy on our laws and established social structures,” the Supreme Court judge said in a 57-page judgment released on August 13, 2024.

“We must, therefore, as judges, avoid any extent of judicial activism that will mislead us into assuming the role of Parliament,” Justice Kulendi stated while pointing 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 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 of Ghana.

“The Plaintiff’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 is 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 its 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. A declaration 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. A declaration 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 to engage in intimate sexual conduct without state interference.