The Supreme Court has fixed the 27th day of July, 2024 to hand down its decision on the constitutionality of Ghana's criminal law against consensual gay, anal and any type of unnatural sexual intercourse. The apex court will be faced with pronouncing section 104(1)(b) of the Criminal and Offences Act 1960 (Act29) as constitutional or otherwise.

The Supreme Court Presided by the learned Baffoe-Bonnie J.S.C who was flanked by Amadu J.S.C., Gaewu J.S.C., Adjei-Frimpong J.S.C., to his left and Lovelace-Johnson J.S.C., Kulendi J.S.C., and Darko Asare J.S.C. to his right adopted the joint memorandum of issues of the Plaintiff, Dr. Prince Obiri-Korang, a lecturer of law at the University of Ghana School of law who represented himself.

The learned Chief State Attorney, the experienced Dr. Sylvia Adusu on behalf of the State raised no objections to the memorandum of issues filed by the Plaintiff except to be allowed to file witness statements by a medical doctor on the fifth issue which is to the effect of whether or not anal, gay and other unnatural sexual intercourse forms caused harm to others.

The Supreme Court in the voice of the President of the Panel raised issues with the fifth issue brought by the parties for determination and the need for a medical doctor to testify in support or otherwise of the issue. Justice Baffoe-Bonnie requested Counsel for the Attorney-General to offer compelling reasons for the need for a medical officer to testify. Justice Amadu Tanko followed up Justice Baffoe-Bonnie's query with further explanations suggesting that the Supreme Court per Dr. Obiri-Korang's issues is called upon to determine the constitutional legality of the section 104(1)(b) of Act 29 and not the health effects of same. The learned Chief State Attorney agreed with Justice Amadu indicating to the court the State had no issue if the said issue was struck out.

The respected Justice Kulendi took over from his brother Justice Amadu in testing the need for a medical doctor to testify in the matter. Unlike his brothers, he shot his question to the Plaintiff law lecturer who without hesitation agreed that the fifth issue was not important for the court to resolve the constitutional legality of section 104(1)(b) of Act 29.

The issues were thus adopted by the court save for the fifth which was struck out.

Grounds of unconstitutionality

The Plaintiff's complaint of unconstitutionality of section 104(1)(b) of Act 29 is grounded on the breaches of the said section to rights of privacy, non-discrimination and liberties of a person. In specific terms, the Plaintiff contends that section 104(1)(b) of Act 29 sins against Articles 18(2), 17(2) and 14(1) of the 1992 Constitution of the Republic of Ghana.

The impugned section of Act 29 reads as follows:

"104. Unnatural carnal knowledge

(1) A person who has unnatural carnal knowledge

(b) of another person of not less than sixteen years of age with the consent of that other person commits a misdemeanour"

The Plaintiff-Legal academic seeks to cause the Supreme Court to tow the line of Constitutional Courts in India and some parts of the Caribbean and other States with similar laws on unnatural sexual intercourse which have been pronounced on as unconstitutional which.

https://www.tiktok.com/@thelawplatform/video/7337323152269200646?is_from_webapp=1&sender_device=pc&web_id=7239416459838375429

Pre-Anti LGBTQ bill

This action of Dr. Obiri-Korang which began in 2021 predates the passage of the Anti-LGBTQ bill and the flurry of court actions at the Superior Courts following the passage and controversies surrounding the transmission of the bill and assent to same by the President.

The effect of the Dr. Obiri-Korang's reliefs and the decision to be made by the Supreme Court appear to have linkages to the Anti-LGBTQ bill which largely outlaws sexual and non-sexual conduct of persons in the line of LGBTQ+ activities.