December 18, 2024
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This original jurisdiction suit challenged the constitutionality and legislative process of Ghana’s Human Sexual Rights and Family Values Bill, passed by Parliament on 28 February 2024 but not yet assented to. The plaintiff, a Ghanaian citizen, argued the Bill criminalizes same-sex relations and related advocacy, violates rights under Articles 12, 15, 17, 18, 21 and 33(5), and that Parliament breached Article 108 by proceeding on a private members’ bill with financial implications without the Speaker’s determination, as well as Articles 102/104 quorum requirements. The Supreme Court, led by Prof. Mensa-Bonsu JSC, held that a bill is not an “enactment” under Article 2(1) and that courts may not prematurely interfere in law-making. Orders restraining the Speaker or President were refused as impracticable under Article 106; Article 108 does not require a fiscal impact report, and the quorum claim failed for lack of evidence. Concurring opinions by Ackah-Yensu JSC and Adjei-Frimpong JSC agreed in dismissal.
PROF. MENSA-BONSU (JSC)
... "Then lest he may, Prevent. And since the quarrel
Will bear no colour for the thing he is, Fashion it thus: that what he is, augmented
Would run to these and these extremities
And therefore think him as a serpent's egg
Which, hatched, would as his kind grow mischievous -
And kill him in the shell"
William Shakespeare 'Julius Caesar' Act 2 Scene 1
The plaintiff, a citizen of Ghana who, in a pre-emptive strike, has invoked the original jurisdiction of the Supreme Court under Article 2(1) and Article 130 of the Constitution of Ghana, 1992, to challenge the constitutionality of the 'Human Sexual Rights and Ghanaian Family Values Bill, 2021' ("the Bill") as passed by Parliament in 2024. The plaintiff says he is seeking to uphold the fundamental human rights and freedoms guaranteed under the Constitution of the Republic of Ghana, 1992, and contends that the Bill, as passed by Parliament violates certain provisions in the Constitution of Ghana, 1992. In ringing tones, the plaintiff declares his purpose in paragraph 3 of his amended Statement of Case filed on 21st November, 2024 thus:
"My Lords, this case comes before the Supreme court not as an inquiry into the moral judgments surrounding sexual relationships within our society, nor does it seek to traverse the deeply personal and varied landscape of human sexuality through the lens of judicial scrutiny. Rather, at its core, this action embodies a profound constitutional inquiry, inviting the honourable Court to properly delineate the boundaries of legislative power as enshrined in our nation’s supreme legal document. It is a call to action for the judiciary to affirm its indispensable role in our democracy by making a definitive determination on the precise scope and limits of the Parliaments authority to legislate on matters that touch upon the fundamental human rights and freedoms of the individual.”
Fine words of purpose! However, putting it thus simply obscures the real significance of this suit which has at its core, the concept of separation of powers; and the scope of the powers of each arm of government in the legislative process.
On 28th February, 2024 the Parliament of Ghana passed a bill known as the ‘Human Sexual Rights and Family Values Bill 2021.’ The Bill began its life as a Private Members Bill. It was therefore subject to provis