The Supreme Court has ruled that the statute in place, which criminalizes unnatural sexual relations and forbids anal sex for both heterosexuals and homosexuals, does not violate the 1992 Constitution.

On Wednesday, July 24, 2024, a seven-member panel of the court dismissed a suit that contested the constitutionality of Criminal Offences Act, 1960 (Act 29) Section 104 (1) (b), which criminalizes sexual intercourse in an unnatural manner even when two consenting adults are involved. The decision was made unanimously.

According to Section 104 (1) (b) of Act 29, anyone who is 16 years of age or older and has unnatural carnal knowledge with another person, even with that person’s agreement, is guilty of a misdemeanor. The country’s laws stipulate that this offense has a maximum sentence of three years in jail.

Fit

Section 104 (1) (b) of Act 29 violated Article 14 (1) of the 1992 Constitution, according to Dr. Prince Obiri-Korang, a law lecturer at the University of Ghana. He claimed that this provision “deprived homosexuals of the liberty to select their intimate sexual partners and their right to engage in intimate sexual conduct without state interference.”

Again, he claimed that Act 29’s Section 104 (1) (b) violated adults’ right to privacy and was therefore unconstitutional because it discriminated against adults based on their sexual orientation, in violation of Article 17 (2) of the 1992 Constitution, as well as Article 18(2) of the 1992 Constitution.

Therefore, the plaintiff sought the court to declare that Section 104 (1) (b) of Act 29 violated the aforementioned constitutional principles and was, therefore, unconstitutional. The plaintiff had invoked the Supreme Court’s original jurisdiction to interpret and execute the 1992 Constitution.

Nothing worthy

But the Supreme Court, led by Justice Paul Baffoe-Bonnie, dismissed the lawsuit after concluding that it lacked merit. “The action is without merit. The court ruled that given the circumstances, the entire claim is dismissed because it fails.

The decision’s complete justification, which the court stated will be placed at the Court’s Registry in ten days, was not read by the court. Justices Avril Lovelace Johnson, Issifu Omoro Tanko Amadu, Emmanuel Yonny Kulendi, Ernest Gaewu, Yaw Darko Asare, and Richard Adjei-Frimpong were among the other panelists.

Strange Sexual Wisdom

Three sections make up Act 29’s Section 104. First, it is illegal for anyone to have unnatural carnal knowledge of a person under the age of sixteen (Section 104 (1) (a)). This type of offense is classified as a first-degree felony, meaning that the maximum sentence for incarceration is 25 years, with a minimum of five years.

Act 29’s Section 104 (1) (b) constitutes the second portion, which forbids consenting individuals from having unnatural carnal knowledge. This particular provision, which is a misdemeanor, is what Dr. Obiri-Korang wants the Supreme Court to rule is unconstitutional.

Act 29’s Section 104 (1) (c) constitutes the final piece of the law, further making it illegal for anybody to engage in sexual activity with an animal.

Act 29’s Section 104(2) provides the following definition of unnatural carnal knowledge: “sexual intercourse with a person in an unnatural manner or, with an animal.” Act 29 does not, however, define what constitutes “unnatural manner” sex.

The meaning of carnal knowledge, or natural sex, has been defined by the court through judicial interpretation in cases. Carnal knowledge is defined as “the penetration of a woman’s vagina by a man’s penis” by the Supreme Court, speaking through Justice Jones Dotse in an appeal against a rape conviction in the case Gligah & Atizo v. The Republic.

Once more, the Supreme Court ruled in Banousin v. The Republic, citing the same Justice Dotse, that “under sections 98 and 99 of Act 29, carnal knowledge can qualify to be the female sex organs called the vulva and the vagina that are normally penetrated into during sexual act.”

Case statement

Dr. Obiri-Korang claimed in his statement of case, which he used to defend his lawsuit, that the wording of Section 104 (1) (b) of Act 29 and its applicability touched not just homosexuals but also women who used vibrators and dildos for self-gratification.

“Penetration per anum, penetration of the female genitalia or male/female rectum with object, fellatio, and cunnilingus are examples of unnatural carnal knowledge that are not limited to homosexuals.”

The petitioner further contended that it was implausible for the government to justify the morality-protecting purposes of Section 104 (1) (b) of Act 29. The case statement continued, “This is because it is necessary to distinguish between ‘public morality’ and ‘private morality’ when it comes to morality.”

What he meant to say was that letting the government define “private morality could lead to an unjustifiable breach of individual privacy.”

Defense Statement

Godfred Yeboah Dame, the Attorney-General and defendant in this case, denied the plaintiff’s allegation, arguing that Act 29’s Section 104 (1) (b) was not discriminatory or unlawful because it made no reference to any specific sexual orientation.

Additionally, the Attorney General contended that the statute could not constitute a violation of privacy because it lacked the specific clause interfering with people’s privacy.

Promotion

The A-G stated in its statement of defense that “Section 104 (1) (b) of Act 29 does not authorise anyone to enter another person’s bedroom for the purpose of ascertaining whether there have been an unnatural carnal knowledge.”