1. * LLB CANDIDATE (GHANA)
 LL.B CANDIDATE (GHANA)
We aregrateful to Dr. Abdul Baasit Aziz Bamba and Mrs.Anna Fordjuor, Partner, AB & David Law, for their
insightful reviewand comments.
A LOOK INTO THE
LAWS ON
HOMOSEXUALITY
AND SAME-SEX
MARRIAGE IN
GHANA, USA AND
SOUTH AFRICA
Kwabena Amponsah Asare (0240811252)* and Sybil Quaye(0248400531)
August 20, 2016

2. ‘Marriage is the means of forming a family unit. Its effect is to unite a man and a woman in wedlock
and to bestow upon them the status of husband and wife, with all the rights and obligations
attendant upon that status’.
- Akua Kuenyehia.1
I. INTRODUCTION
News of the legalization of same sex marriage in all the states of America spread like wild
fire after the pronouncement of the decision by the United States Supreme Court in the landmark
case of Obergefell v. Hodges.2 Out of nine judges, five were in favor of the legalization.3 The
majority held that, state same-sex marriage bans are a violation of both the Fourteenth
Amendment's Due Process Clause and Equal Protection Clause.
The news was received with mixed reactions as those in favor rejoiced4 and those against,
lamented and worried about its effect and implications on the future of America.5 Reasons given
by the Court for its decision included the right to personal choice inherent in personal autonomy,
right to marriage, safeguard for children and families and lastly recognition of marriage as the
keystone to a Nation's social order. Even though the dissenting judges posed cogent arguments in
support of their positions, the fact still remains that, rights accorded to same sex couples have
1 Akua Kuenyehia ‘Women and Family Law in Ghana: An Appraisal of Property Rights of Married Women’. UGLJ
[1986-90] VOL. XVII 72—99
2 576 U.S. 14-556 (2015)
3 Majority opinion held by Justice Anthony Kennedy,Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia
Sotomayor, and Elena Kagan. Dissenting opinion held by Chief Justice Roberts, Justice Scalia, Justice Thomas and
Justice Alito
4 Ariane de Vogue and Jeremy Diamond, “Supreme Court rules in favor of same-sex marriage nationwide” Cable
News Network (CNN) (June 27, 2015), online: CNN <http://edition.cnn.com/2015/06/26/politics/supreme-court-
same-sex-marriage-ruling/ > (last visited on 7th January, 2016)
5 “US gay marriage: Texas pushes backagainst ruling” British Broadcasting Corporation (BBC) (29 June 2015)
online: BBC <http://www.bbc.com/news/world-us-canada-33314220> (last assessed on 7th January, 2016)

3. gradually increased over a period of time and such pronouncement by the US Supreme Court was
almost inevitable.
In Africa, South Africa was the first country to legalize same sex marriage. The
legalization took place in 2005 in the case of Minister of Home Affairs and Another v Fourie
and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and
Others6 followed by the Civil Union Act which gave it a statutory effect. South Africa remains
the only independent State to legalise same sex marriage, although some Spanish and French
colonies in Africa, such as Ceuta and Melilla have legalized it too.7
This article will assess the decision in Obergefell v Hodges preceded by an analysis of
the legal history of homosexuality in the United States. The South African decision legalizing
same-sex marriage will also be discussed. Lastly, the article explores the topic of homosexuality
and same-sex marriage within the context of the Ghanaian legal system as well as arguments for
and against its legalization.
II. Definition of Homosexuality
According to the Collins dictionary, first edition, a homosexual is one who is sexually
attracted to a person of the same sex. Homosexuality is defined as the sexual attraction a person
has for another person of the same gender8.
6 [2005] Constitutional Court of South Africa (ZACC) 19, 2006 (3) [Butterworths] Constitutional Law Reports
(BCLR) 355
7 Wire Services, “Spain approves liberal gay marriage law” Tampa Bay Times (July 1, 2005), online:
<http://www.sptimes.com/2005/07/01/Worldandnation/Spain_approves_libera.shtml > (last assessed on 7th January,
2016)
8 Nana Ama Bonsu, “Homosexuality and the Law in Ghana:What Way Forward?” GhanaWeb “Homosexuality and
the Law in Ghana: WhatWay Forward?” (June 17, 2011),online:
<http://www.ghanaweb.com/GhanaHomePage/NewsArchive/Homosexuality-and-the-Law-in-Ghana-211710 > last
visited:January 7, 2016

4. III. The American Position
The first case in US history to consider the issue of homosexuality is Bowers v
Hardwick.9 Michael Hardwick had been caught in flagrante delicto by a police officer in bed with
another man performing oral sex. He was charged with sodomy but the charge was dropped
because the warrant had expired. He sued Michael Bowers, the Attorney General of Georgia State,
for a declaration that the Georgian state sodomy law was invalid. It was held that the Georgian
law which criminalized homosexual acts was Constitutional as the Due Process Law10 ‘right of
privacy’ under the Fourteenth Amendment to the United States Constitution did not prevent the
criminalization of activities of homosexuals engaged in private setting between two consenting
adults. Chief Justice Warren Burger recounted the history of negative attitudes toward homosexual
sex, citing Sir William Blackstone’s depiction of sodomy as “a crime not fit to be named”.11 Burger
concluded, “To hold that the act of homosexual sodomy is somehow protected as a fundamental
right would be to cast aside millennia of moral teaching.”12
In 1996, the issue again was considered in the case of Romer v Evans.13 In that case,
Colorado voters, by an initiative approved an amendment to the Colorado state Constitution
(Amendment 2) that would have prevented any city, town, or county in the state from taking any
9 478 U. S. 186 (1986)
10 All persons born or naturalized in the United States,and subject to the jurisdiction thereof, are citizens of the
United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process oflaw; nor deny to any person within its jurisdiction the equal protection of the laws.
11 Sir WilliamBlackstone, Commentaries on the Laws of England (Oxford: Clarendon Press,1769), Vol. IV, pp. 215
12 478 U. S. 186 (1986) at 197
13 517 U. S. 620 (1996)

5. legislative, executive, or judicial action to recognise homosexuals as a protected class. The
amendment stated:
“Neither the State of Colorado, through any of its branches or departments, nor any of its agencies,
political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute,
regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct,
practices or relationships shall constitute or otherwise be the basis of or entitle any person or class
of persons to have or claim any minority status, quota preferences, protected status or claim of
discrimination. This Section of the Constitution shall be in all respects self-executing.”
That amendment was approved by a vote of 53% to 47%. The respondents, who included
aggrieved homosexuals and municipalities, commenced this litigation in state court against
petitioner state parties to declare Amendment 2 invalid and enjoin its enforcement. It was held
that, the Court will uphold a law that neither burdens a fundamental right nor targets a suspect
class so long as the legislative classification bears a rational relation to some independent and
legitimate legislative end. It was stated that Amendment 2 was at once too narrow and too broad,
identifying persons by a single trait and then denying them the possibility of protection across the
board. This disqualification of a class of persons from the right to obtain specific protection from
the law was unprecedented and is itself a denial of equal protection in the most literal sense.
Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and
lesbians shall not have any particular protections from the law, is so far removed from the reasons
offered for it, i.e., respect for other citizens' freedom of association, particularly landlords or
employers who have personal or religious objections to homosexuality, and the State's interest in
conserving resources to fight discrimination against other groups, that the amendment cannot be
explained by reference to those reasons.

6. In 2003, the ruling in Bowers v Hardwick was overturned in Lawrence v Texas.14 John
Lawrence, a gay 55-year-old medical technologist, was hosting two gay friends, Tyron Garner, age
31, and Robert Eubanks, 40, at his apartment in Texas. Lawrence and Eubanks had been friends
for more than 20 years. Garner and Eubanks had a stormy on-again off-again romantic relationship
since 1990. The couple decided to spend the night. Eubanks left to purchase a soda from a nearby
vending machine and shortly returned. Irate that Lawrence had been flirting with Garner, he called
the police and reported "a black male going crazy with a gun" at Lawrence's apartment. Houston
police entered Lawrence’s apartment and saw him and Garner, engaging in a private, consensual
sexual act. The petitioners were arrested and convicted of deviate sexual intercourse in violation
of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual
conduct. The petitioners did not contest the charge and after being fined, the case travelled to the
Supreme Court where the issues in contention were:
1. Whether the petitioners' criminal convictions under the Texas "Homosexual Conduct"
law—which criminalises sexual intimacy by same-sex couples, but not identical behavior
by different-sex couples—violate the Fourteenth Amendment guarantee of equal
protection of the laws?
2. Whether the petitioners' criminal convictions for adult consensual sexual intimacy in their
home violate their vital interests in liberty and privacy protected by the Due Process Clause
of the Fourteenth Amendment?
3. Whether Bowers v. Hardwick should be overruled?
14 539 U.S. 558 (2003)

7. On June 26, 2003, the Supreme Court, on a 6–3 majority decision, struck down the Texas statute.
Five justices held it violated due process guarantees, and a sixth, Sandra Day O'Connor, held it
violated equal protection guarantees. The Court held that homosexuals had a protected liberty
interest to engage in private, sexual activity; that homosexuals' moral and sexual choices were
entitled to Constitutional protection; and that moral disapproval did not provide a valid justification
for Texas's law criminalizing sodomy. Justice Kennedy stated, "The petitioners are entitled to
respect for their private lives. The State cannot demean their existence or control their destiny by
making their private sexual conduct a crime." Justice Sandra Day O'Connor filed a concurring
opinion in which she offered a different rationale for invalidating the Texas sodomy statute. She
disagreed with the overturning of Bowers—she had been in the Bowers majority—and disputed
the court's invocation of due process guarantees of liberty in this context. She was of the opinion
that the law should be struck out because it criminalised male-male but not male-female sodomy
thus violating the equal protection clause15 under the Fourteenth Amendment to the US
Constitution. O'Connor upheld that a sodomy law that was neutral both in effect and application
might be constitutional.
So too in 1996, Congress passed the Defense of Marriage Act (DOMA), defining
marriage for all federal law purposes as “only a legal union between one man and one woman as
husband and wife.” In 2013, in the case of United States v. Windsor,16 DOMA was invalidated
to the extent it barred the Federal Government from treating same-sex marriages as valid even
when they were lawful in the State where they were licensed. Edith Windsor and Thea Spyer,
15 The clause is located at the end of Section 1 of the Fourteenth Amendment to the US Constitution. ‘All persons
born or naturalized in the United States,and subject to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process oflaw; nor deny to any person within its jurisdiction the equal protection of the laws’.
16 570 U. S. 12-307 (2013)

8. a same-sex couple living in New York, were lawfully married in Ontario, Canada, in 2007. New
York State recognised the marriage in 2008 following a court decision. Spyer died in 2009, leaving
her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving
spouses. She was prevented from doing so by Section 3 of DOMA which provided that the term
"spouse" only applied to marriages between a man and woman. The Internal Revenue
Service which found that the exemption did not apply to same-sex marriages, denied Windsor's
claim, and compelled her to pay $363,053 in estate taxes. Windsor filed a lawsuit against the
federal government in the U.S. District Court for the Southern District of New York, seeking a
refund because DOMA singled out legally married same-sex couples for "differential treatment
compared to other similarly situated couples without justification.
The Court held section that 3 of DOMA was unconstitutional as it prevented the federal
government from treating state-sanctioned heterosexual marriages differently from state-
sanctioned same-sex marriages in that its unusual deviation from the tradition of recognizing and
accepting state definitions of marriage operates to deprive same-sex couples of the benefits and
responsibilities that come with federal recognition of their marriages. It contrived to deprive some
couples married under the laws of their State, but not others, of both rights and responsibilities,
creating two contradictory marriage regimes within the same State. It also forced same-sex couples
to live as married for the purpose of state law but unmarried for the purpose of federal law, thus
diminishing the stability and predictability of basic personal relations the State has found it proper
to acknowledge and protect.

9. In 2015, the landmark case of Obergefell v Hodges,17 the fundamental right to marry
was guaranteed to same-sex couples by the United States Supreme Court which had the effect of
legalizing same sex marriages in all the states. This overturned the case of Baker v Nelson.18 The
petitioner James Obergefell, a plaintiff, met John Arthur over twenty years ago. They fell in love,
started a life together and established a lasting relationship. In 2011, Arthur was diagnosed with
amyotrophic lateral sclerosis, ALS. This disease was terminal and had no cure. The couple decided
to commit to one another, resolving to marry before Arthur dies. They traveled from Ohio to
Maryland, where same-sex marriage was legal. As it was difficult for Arthur to move, the couple
were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Arthur passed
on three months subsequently. The issue was that as Ohio law did not permit Obergefell to be
listed as the surviving spouse on Arthur’s death certificate, by statute, they must remain strangers
even in death. Obergefell instituted an action demanding that he be shown as the surviving spouse
on Arthur’s death certificate. Also, joined to the case were several petitioners with similar
petitions.
In arriving at it decision the Court acknowledged the right to marry which was protected
by the Constitution.19 It was stated that, there are four principles and traditions which demonstrate
that the reasons marriage is fundamental under the Constitution apply with equal force to same-
sex couples.
17 576 U. S. 14-556 (2015)
18 Two gay student activists, Richard Baker and James Michael McConnell, applied for a marriage license
in Minneapolis. The clerk of the Hennepin County District Court, Gerald Nelson, denied the request on the sole
ground that the two were of the same sex. The couple filed suit in district court to force Nelson to issue the
license. The U.S. Supreme Court issued a one-sentence orderstating "The appeal was dismissed for want of a
substantialfederal question.Since the case came to the Court through mandatory appellate review, the summary
dismissal was considered a decision on the merits of the case.
19 Cases like Loving v. Virginia,388 U. S. 1 at 12 which invalidated bans on interracial unions,and Turner v. Safley,
482 U. S. 78 at 95, which held that prisoners could not be denied the right to marry were cited in support.

10. The first reason being that the right to personal choice regarding marriage is inherent in
the concept of individual autonomy. This abiding connection between marriage and liberty is why
Loving v Virginia20 invalidated interracial marriage bans under the Due Process Clause. Decisions
about marriage are among the most intimate that an individual can make. This assertion holds true
for all persons, whatever their sexual orientation.
A second reason is that the right to marry is fundamental because it supports a two-person
union unlike any other in its importance to the committed individuals. Same-sex couples have the
same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere
freedom from laws making same-sex intimacy a criminal offense.
A third reason given for protecting the right to marry is that it safeguards children and
families and thus draws meaning from related rights of childrearing, procreation, and education.
Without the recognition, stability, and predictability marriage offers, children suffer the stigma of
knowing their families are somehow lesser. They also suffer the significant material costs of being
raised by unmarried parents, relegated to a more difficult and uncertain family life. It was viewed
that the marriage laws at issue thus harm and humiliate the children of same-sex couples. This
however did not mean that the right to marry is less meaningful for those who do not or cannot
have children. Precedent protects the right of a married couple not to procreate, so the right to
marry cannot be conditioned on the capacity or commitment to procreate.
The last reason given for safeguarding marriage was that marriage is a keystone of the
Nation’s social order. States have contributed to the fundamental character of marriage by placing
it at the center of many facets of the legal and social order. It was the view of the court that there
20 388 U. S. 1, 12

11. was no difference between same- and opposite-sex couples with respect to this principle, yet same-
sex couples were denied the constellation of benefits that the States have linked to marriage and
are consigned to an instability many opposite-sex couples would find intolerable.
It was also held that the right of same-sex couples to marry is also derived from the
Fourteenth Amendment’s guarantee of equal protection. It was found that the challenged laws
burdened the liberty of same-sex couples and therefore abridged the central precepts of equality.
The marriage laws at issue were in essence unequal, in that, same-sex couples were denied benefits
afforded opposite-sex couples and were barred from exercising a fundamental right, which is the
fundamental right to marry.
From the foregoing, homosexuality in the United States have evolved quite
considerably. Through the case of Bowers v Hardwick to Romer v Evans, the United States
Courts were reluctant to recognize homosexual rights. The US Supreme Court decision of
Lawrence v Texas overruled and recognized homosexual rights and this was buttressed in United
States v Windsor. The groundbreaking decision of Obergefell v Hodges has gone a step further
and legalized same-sex marriage in all the states of America.
IV. The South African Position
The Constitutional court of South Africa decided in the consolidated cases of Minister of Home
Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v
Minister of Home Affairs and Others on the legality of same-sex marriages and homosexual

12. relationships. Both cases involved different set of facts, but they embodied the same issue at law,
hence their consolidation.
In Minister of Home Affairs and Another v Fourie and Another, the applicants, two
females, had been in a love relationship for over a decade, with the knowledge of friends and
family. They sought to publicly declare their relationship and to register themselves as married
couples. They were however restricted from doing so, as the laws of South Africa excluded them
from publicly celebrating their love and commitment to each other in marriage, to which they
claimed to be unfair and unconstitutional. They contended that the exclusion stemmed from the
Common Law definition of marriage, which provides that, marriage in South Africa is “a union of
one man with one woman, to the exclusion, while it lasts, of all others.”21
In Lesbian and Gay Equality Project and Others v Minister of Home Affairs and
Others (hereinafter called the Equality Project case), the applicants challenged section 30(1)
of the South African Marriage Act,22 which provided that a minister of religion who is designated
as a marriage officer may follow the marriage formula usually observed by the religion
concerned.23 The appellants argued that, for a marriage to be formalised and rendered as legal, the
Act must be invoked. The marriage formula, as approved, was that the marriage officials must
present to the parties the following question: “Do you A.B…call all here present to witness that
21 As propounded by Innes CJ in Masha Ebrahim v Mahomed Essop 1905 Transvaal Supreme Court Reports (TS) 59
at 61. In certain cases,the exclusion is deemed to be for life as seen in Hyde v Hyde and Woodmansee 1866 LR 1 P
and D 130 at 133
22 Act 25 of 1961
23 Section 30(1) of Act 25 provides,“Any marriage officer designated undersection 3 may follow the marriage
formula usually observed by his religious denomination or organization if such marriage formula has been approved
by the Minister . . . .”

13. you take C.D as your lawful wife (or husband)?” To this the appellants contended that, the
reference to wife (or husband) in the Act was unconstitutional as it excluded same-sex couples.
The High Court, presided over by Roux J in Minister of Home Affairs and Another v
Fourie and Another held the applicants to be restricted from marrying because they had not
challenged the constitutionality of the Marriage Act.24 The majority in the Supreme Court of
Appeal agreed with the decision of Roux J and held that there must be a challenge to the
constitutionality of the Marriage Act before a pronouncement can be made. The court however
tasked that the common law position should be developed to embrace same-sex couples.25
The Equality Project case was on the other hand, was originally billed for the High Court
and it was to challenge the Marriage Act. However, the plaintiff applied for the matter to be
consolidated with Minister of Home Affairs and Another v Fourie and Another and heard
together by the Constitutional Court. The Constitutional Court held, in a unanimous decision that,
the common-law definition of marriage was contrary to the Constitution of South Africa and
therefore, invalid to the extent that it did not allow same-sex couples to enjoy certain benefits
accorded to heterosexual couples. From this, the Court ruled that same-sex couples were entitled
to marry. It was further declared by the court that the exclusion from Section 30(1) of the Marriage
Act of the words “or spouse” after the words “or husband” to be inconsistent with the Constitution
to the extent of such inconsistency.
The ruling of the Constitutional Court was based on section 9 of the South African
Constitution, 1996,26 especially on the right to equal protection and benefit of the law as well as
24 [2002] Gauteng Province of South Africa High Court Cases (ZAGPHC) 1
25 [2004] Supreme Court of Appeal of South Africa Cases (ZACC) 132
26 Section 9 provides as follows:

14. the express prohibition on all forms of discrimination, including discrimination based on sexual
orientation. In his lead judgment, Sachs J held that the Common Law and section 30(1) of the
Marriage Act deprived same-sex couples of equal protection and benefit of the law, in
contravention with Section 9(1) of the Constitution, and taken together resulted in same-sex
couples being subjected to unfair discrimination by the State, in conflict with section 9(3) of the
Constitution.27 The phrase “sexual orientation” as used in section 9(3) of the 1996 Constitution
was interpreted by the Constitutional Court of South Africa in the case of National Coalition for
Gay and Lesbian Equality v Minister of Justice28 to apply equally to the orientation of persons
who are bi-sexual, or transsexual as well as to the orientation of persons who might on a single
occasion only be erotically attracted to a member of their own sex.
According to the learned Judge, the common-law definition of marriage and section 30(1)
of the Marriage Act were unconstitutional to the extent that they made no appropriate provision
for gay and lesbian people to celebrate their unions in the same way that they enabled heterosexual
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality
includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality,
legislative and othermeasures designed to protect or advance persons,or categories of persons,disadvantaged by
unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone
on one or more grounds,including race, gender, sex, pregnancy,marital status,ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience,belief, culture, language and birth. (4) No person may unfairly
discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the
grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
27 Paragraph 78 of judgment
28 [1998] Supreme Court of Appeal of South Africa Cases (ZACC) 15

15. couples to do.29 This violation of the equality and dignity rights of same-sex couples was not
justified as contemplated in section 3630 of the Constitution.31
V. The Ghanaian Position
The term ‘homosexuality’ stretches beyond intimacy between persons of the same sex but it
involves amorous feelings between persons of the same sex. This sexual attraction may or may not
lead any physical sexual activity and in the event that sexual activity occurs, it does not mean it
would further lead to penetrative sex. Also, it is possible that there can be unnatural carnal
knowledge between members of the same sex although neither is a homosexual. In her article,
‘Homosexuality and the Law in Ghana’,32 Nana Ama Bonsu explains how in situations where
members of opposite sexes are unavailable, such as in schools and prisons, people may be driven
by a need to satisfy their libido by engaging in such acts as homosexuals would. However, this
does not make them homosexuals.
The law in Ghana however does not criminalise feelings but acts or omissions and so a
person would not be guilty of having feelings of love towards a member of the same sex. Also, the
29 Paragraph 82 of judgment
30 Section 36 provides as follow:
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and
freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the
purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its
purpose; and (e) less restrictive means to achieve the purpose.
31 Paragraph 113 of judgment
32 Nana Ama Bonsu, “Homosexuality and the Law in Ghana” GhanaWeb “Homosexuality and the Law in Ghana”
(June 22, 2011), online: < http://www.ghanaweb.com/GhanaHomePage/NewsArchive/Homosexuality-and-the-Law-
in-Ghana-211710 > last visited: January 7, 2016

16. law in Ghana does not criminalise kissing, fondling, groping and the like between members of the
same sex.
The closest Ghanaian law comes in tackling the issue of homosexuality is found in section
104 of the Criminal Offences Act, Act 29. It states:
(1) A person who has unnatural carnal knowledge
(a) of another person of not less than sixteen years of age without the consent of that other person
commits a first degree felony and is liable on conviction to a term of imprisonment of not less than
five years and not more than twenty-five years; or
(b) of another person of not less than sixteen years of age with the consent of that other person
commits a misdemeanour; or
(2) Unnatural carnal knowledge is sexual intercourse with a person in an unnatural manner or,
with an animal.
Section 99 of the same Act also provides that unnatural carnal knowledge is complete on proof of
the least degree of penetration.
From this it can be observed that unnatural carnal knowledge involves the penetration of
the penis into an orifice of the human body which is not the vagina. With it being very limited in
scope it does not cover non-penetrative acts such as kissing, fondling, mutual masturbation and so
on. Another observation is that, two women engaging in sexual activity is not caught by this
provision as the female anatomy lacks a penis to perform any form of penetration. However two
males engaging in sexual activity involving penile penetration will be criminally culpable under
this provision.

17. Does this therefore mean that homosexuality as it refers to males is criminalised in Ghana?
It is our humble opinion that it does not. This is because homosexuality in its entirety involves the
feeling sexually attracted to a member of the opposite sex. If such feeling does not lead to the
carnal knowing of each other unnaturally, then no crime is committed.33 It also stands that, lesbians
can never be held criminally culpable for either engaging in activities of a homosexual nature or
for having unnatural carnal knowledge.
In Ghana, there are three forms of marriages recognized by law.34 There are marriages
according to the various types of customary law, marriage according to the rites of Mohammedan
law35 and marriage under the provisions of the Marriage Ordinance36.37
One of the essentials for a valid customary marriage is an agreement between the parties
to live as man and wife. 38 Other essentials include the consent of the family of the man that he
should have the woman to be his wife; that consent may be indicated by the man's family
acknowledging the woman as wife of the man; consent of the family of the woman that she should
be joined in marriage to the man; that consent is indicated by the acceptance of drink from the man
or his family, or merely by the family of the woman acknowledging the man as the husband of the
woman; and consummation of the marriage, i.e. that the man and woman are living together in the
sight of all the world as man and wife. From this it can be seen that this type of marriage is between
a man and a woman and therefore a similar relationship between a man and a man or a woman and
a woman would not be deemed a valid customary marriage under the laws of Ghana.
33 Article 19(5) of the 1992 Constitution of Ghana, Tsatsu Tsikata v AG [2003-2004] SCGLR 1068
34 Ekow W. C. Daniels,“The Legal Position Of Women Under Our MarriageLaws” [1972] UGLJ Vol IX No. 1
35 This is regulated by the Marriageof Mohammendans Ordinance,CAP 129 as amended.
36 This is regulated by the MarriageOrdinance,CAP 127 as amended.
37 Ibid at30
38 Adinkrah Kofi Oti Essentials Of A Customary Marriage: A New Approach [1980] VOL. XII RGL 40, Yaotey v. Quaye
[1961] 2 G.L.R. 573.

18. Under Ordinance Marriages, one of the requirement for a valid marriage is the publication
of bans. Under section 18(1) of the Marriage Ordinance, 1951 (Cap 127), it is said to be in this
form:
‘I publish the banns of marriage between (name of intended husband) of (state place of
residence, as in notice) bachelor (or widower, as the case may be), and (name of intended wife) of
(state place of residence, as in notice) spinster (or widow, as the case may be)’.
Here too, it can be observed that the intended matrimony is to between a man and a
woman, who after the required ceremonies would be recognized as husband and wife.
Every Mohammedan marriage contracted in Ghana is to be registered.39 Under section 6
of the Marriage of Mohammendans Ordinance, CAP 129, ‘The bridegroom, the bride’s wali,40 two
witnesses to the marriage, and a Mohammedan priest licensed under section 3 shall as soon as
conveniently may be, and before the expiration of a week after the celebration of the marriage,
attend at the office of the District Commissioner for the purpose of registering the same’.
Therefore, for a Mohammedan marriage to be considered valid under the laws of Ghana,
there must be firstly, a bride and a bridegroom. This suggests that this type of marriage can only
be between a man and a woman.
To this end, it can be seen that Ghanaian marriage laws currently do not allow same sex
marriages.
VI. Arguments For The Legalisation Of Homosexuality In Ghana
39 Section 5 of Marriageof Mohammendans Ordinance,CAP 129 as amended
40 In Muslimmarriages,the marriagecontractis signed not by the brideand groom but by the bride’s wali (tpically
the father or failingthata paternal grandfather or brother of the bride) and the bridegroom. Wali means a male
custodian.

19. The 1992 Constitution of Ghana under chapter 5 guarantees fundamental human rights for
all persons. Under Article 17, it is stated that ‘all persons shall be equal before the law’. It further
provides in clause 2 that ‘a person shall not be discriminated41 against on grounds of gender, race,
colour, ethnic origin, religion, creed or social or economic status.’ The ‘Oxford Dictionary of
Current English’ (third edition) defines ‘gender’ as the state of being a male or female. Article
17(2) therefore means that under the 1992 Constitution, which is the supreme law of Ghana42, all
laws are to apply equally to both male and female and that there should be no discrimination on
the basis of gender.
From the analysis above concerning section 104 of the Criminal Offences Act, 1960 (Act
29), it can be deduced that differential treatment of the law is accorded to females to the
disadvantage of their male counterparts, who would be found criminally culpable if caught
engaging in homosexual activity involving unnatural carnal knowledge. It can therefore be
submitted that section 104 violates article 17(2) of the Constitution and therefore the law should
be made to apply equally to both genders preferably to allow males to participate in carnally
knowing each other unnaturally.
Another argument in support of legalization of homosexuality in Ghana is to allow the
law to develop and reflect modern standards of fundamental human rights. To borrow the words
of Justice Kennedy in Obergefell v Hodges43, ‘the generations that wrote and ratified the Bill of
Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its
41 For the purposes of this article,"discriminate"means to give different treatment to different persons
attributableonly or mainly to their respective descriptions by race,placeof origin,political opinions,colour,
gender, occupation,religion or creed, whereby persons of one description aresubjected to disabilities or
restrictions to which persons of another description arenot made subjector aregranted privileges or advantages
which are not granted to persons of another description. Article17(3) of the 1992 Constitution of Ghana.
42 Article1(2) of the 1992 Constitution
43 576 U.S. 14-556 (2015)

20. dimensions, and so they entrusted to future generations a charter protecting the right of all persons
to enjoy liberty as we learn its meaning’. Same also, it can be said that the framers of Ghana’s
Constitution did not have in mind all the rights the fundamental human rights could cover at the
time of drafting. It is not possible for the lawmaker to envision every problem that could possibly
occur so as to make provisions for it.
It is likewise conceivable that practices or beliefs that we once thought were ‘right’ and
therefore allowed could in the future be regarded as a violation of fundamental human rights.
Before the advent of colonialism, practices such as panyarring and human sacrifices were
allowed44. With time such practices along with Female Genital Mutilation and Widowhood rites
have been abolished in Ghana as seen in Article 26(2) of the 1992 Constitution of Ghana.45 As
the Constitution is to be considered as if it were a living organism capable of growth and
development,46 it should be amended to grant marriage rights to same sex couples to reflect
evolving conceptions of international human rights law. 47
Lastly, legalizing homosexuality in Ghana would contribute to the nation’s development.
In the recent census of 2012, the estimated population of Ghana is 25,000,000. Rapid population
growth rate is among the factors that contribute to the persistence of poverty and
underdevelopment in Ghana.48 If the laws of Ghana are amended so as to allow same sex
44 These acts were abolished by the Bond of 1844 which was signed between the British and some eight Fante
(Coastal chiefs)
45 All customary practices which dehumaniseor are injuriousto the physical and mental wellbeing of a person are
prohibited.
46 Per Sowah in Tuffour v AG (1980) GLR 637 at 647
47 “Helfer addresses evolution of international lawand LGBT human rights”Duke Law News (20th September, 2012)
online:https://law.duke.edu/news/helfer-addresses-evolution-international-law-and-lgbt-human-rights/ (last
visited:26th January,2016)
48 Report of the National Population Council Ghana titled Ghana's Development Agenda and Population Growth:
The Unmet Need for Family Planning,February 2006.

21. marriages, it would decrease population growth which would in turn promote economic
development. This is because same sex couples are incapable of natural procreation. Most usually
adopt and few have kids via in vitro fertilization. Same-sex couple should be allowed to adopt kids
under the Childrens’ Act, 1998 (ACT 560) so as to be able to cater for the needs of children without
guardians. This provides the child with proper education opportunities and shelter and reduces the
tendency of such kids to lead impoverished lives on the streets in order to cater for their daily
needs.
VII. Arguments against the Legalisation of Homosexuality in Ghana.
Non-discrimination based on gender as used in Article 17(2) of the Constitution relates to
treatment of persons based on their sex, that is, whether they are males or females. It is used in the
context where certain opportunities which are available to all persons are segregated based on
one’s gender. Moreover, Section 104 is not in violation of Article 17 of the Constitution because
it does not discriminate between males and females but it merely describes unnatural carnal
knowledge. Although, female homosexual activity may not be captured within the literal
interpretation of the said section, it does not seek to discriminate between males and females. There
is a difference between discrimination based on sex and discrimination based on sexual orientation.
For instance, there is deemed to be discrimination based on sex if differential rights are accorded
to the various genders such as voting right which were accorded to males and not females.
Discrimination based on sexual orientation is rather based on the differential rights accorded to
one based on his sexual preference, whether heterosexual or homosexual. On this score,
proponents of this argument may submit that if the framers of the 1992 Constitution sought to

22. proscribe any discrimination based on sexual orientation, they would have taken a clear stance on
it as done in the South African Constitution.49
The preamble of the 1992 Constitution gives an indication that the Constitution was
enacted by the people of the Ghana50 and in the name of the Almighty God from whom all authority
is derived51. It embodies the will of the people and mirrors their history.52 As pointed out in Justice
Sowah’s ruling in Tuffour v Attorney General53, account must be taken of these principles in an
effort in bringing the Constitution into conformity with the needs of time.
From the foregoing, it seems the people of Ghana subscribe to the natural law theory by
reference to a divine being. A major proponent of this theory is John M. Finnis. According to
Finnis, homosexual activity prevents individuals from realising real human goods and damages
them morally54. From this, he argues that homosexual marriage seem to not achieve these goals
because it does not achieve procreation and engaging in them are against one of the basic goods55
or several of them.56 Therefore, since marital goods - such as procreation - are only open to
heterosexuals, same sex marriages are merely futile attempts to attain goods that are simply not
open to homosexuals. In this regard, the 1992 Constitution prohibits homosexual activities because
it is based on natural law principles. Therefore, it will be against the spirit of the Constitution to
legalize homosexuality in an effort to make it reflect evolving conceptions of international human
rights law, because this will be contrary to the will of the people.
49 Section 9
50 Preamble to the Constitution,1992 “IN THE NAME OF THE ALMIGHTY GOD, We the People of Ghana…”
51 Sallah v Attorney General (1970) 2 G&G (2d) 1319
52 Tuffour v Attorney General (1980) GLR 637 at 647
53 (1980) GLR 637 at 647
54 Jolene Chow, “EvaluatingThe Arguments AgainstHomosexual Relationships”2003 UCL JurisprudenceReview,
235
55 These goods includeplay and companionship, friendship,knowledge, love and artistic aesthetic experiences.
56 J. M. Finnis,'Law, Morality,and Sexual Orientation' (1994) 69 Notre Dame Law Review, 1049

23. It is true that Ghana is currently facing economic problems. The factor of population
growth partly being a contributor to this issue. While it is advisable for the government to make
measures that would put the population in check, it should not to do at the expense of our rich
culture and values. These days there are so many family planning methods available such as birth
control pills, condoms, birth control patch, cervical cap, Depo-Provera, outer course and others.
These methods have proven quite effective over the years when used correctly. This issue can also
be best resolved by educating the public on the effects of increased population growth.
Also, it is ideal for a child to have both a father and a mother. This is the natural way of
things as it is only a mother that can provide breast milk for the child. In the same way, it is only
the father who can give proper guidance on how men are to behave in the society. A child having
two mothers and two fathers will not only be confused but ridiculed by his class mates. This can
greatly disturb the child and can have the effect of hindering his development academically. It is
therefore pleaded that although legalization of homosexuality can decrease the nation's population
growth thereby alleviating the pressures on the economy, it is not the best as it would wage
problems in other areas.
VIII. Conclusion
Many countries have legalized same-sex marriages. The decision in Obergefell v Hodges
has steered several countries to look into their family laws. In Africa, South Africa remains the
only country that has legalised same sex marriage. It is our considered opinion that Ghana’s stance
on homosexuality be made clear enough in our statute books to forestall any future suits bordering
on the matter. This is because the crime of unnatural carnal knowledge does not fully encompass
the full range of activities associated with homosexuality for both males and females.

24. However, it is our opinion that it would take a long time for Ghana to legalise
homosexuality. Taking a look at America for example, it took over forty years for the courts to
begin to slowly grant rights to homosexual couples since Baker v Nelsonin 1971. With such rich
culture in Ghana which vehemently disapprove of such sexual conduct, the process to legalization
of homosexuality may be slower. Even if there are legitimate constitutional basis warranting such
legalization, it is more certain than not that such basis would be disregarded as it would not reflect
the will of the people. If such stance was not clear before, it certainly became perspicuous when
President Mills stated, in response to the United Nations Secretary General’s call on African
leaders to respect gay rights, that, ‘Africans and Ghanaians for that matter frown on homosexuality
and if the people do not wish to legalize homosexuality, no responsible leader will go against the
wishes of the people’.57
57 “Ghana still frowns athomosexuality –President Mills”(January 31,2012),Vibe Ghana:<
http://vibeghana.com/2012/01/31/ghana-still-frowns-at-homosexuality-president-mills/ >(lastvisited February 5,
2016)