Legislating Identity: A Critical Analysis of the Anti-LGBT Bills in Kenya and Ghana Commentary
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Legislating Identity: A Critical Analysis of the Anti-LGBT Bills in Kenya and Ghana

Recent Afrobarometer survey data (Round 8, 2019-2021) paints a stark picture with 86% of Kenyans and 93% of Ghanaians expressing intolerance towards the LGBT community. This high level of intolerance exists despite the Universal Declaration of Human Rights guaranteeing non-discrimination based on sexual orientation. Furthermore, across Africa, laws criminalizing consensual same-sex sexual activity remain commonplace. Contrarily, South Africa stands as a notable exception with its recognition of same-sex relationships (1997) and same-sex marriages (2006). This commentary delves into the recent discourse surrounding anti-LGBT legislation in Ghana and Kenya, exploring the complex interplay between cultural norms, legal frameworks, the global push for human rights, and the implications of anti-LGBT legislation on the community.

The Ghanaian Experience

The debate over LGBT rights in Ghana is complex, entwined with passionate sentiments and well-ingrained cultural and socio-religious norms. Recently, Ghanaian MPs unanimously passed the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill. The bill seeks to establish criteria for proper human sexual rights and to protect traditional Ghanaian family values, while simultaneously prohibiting LGBT activities. It also forbids any type of LGBT advocacy or propaganda, as well as providing protection and support to individuals, including children, affected by or affiliated with LGBT concerns. This legal proposal is consistent with the attitudes of many Ghanaians, as evidenced by a 2014 Afrobarometer survey, in which 86% supported government action to prohibit same-sex partnerships.

The interpretation section (Section 2) of the bill delineates Ghanaian family values, emphasizing the sanctity of marriage between individuals of opposite genders, with gender being recognized as assigned at birth. Additionally, Section 10 prohibits public displays of affection among LGBT individuals and cross-dressing. Section 11 declares marriages within LGBT relationships null and void, with foreign same-sex marriages unenforceable in Ghana, prescribing a one to three-year jail term for participation in such unions. Sections 17 and 18 further restrict adoption and foster care for LGBT individuals, while Section 13 criminalizes the promotion, sponsorship, or advocacy of LGBT rights, punishable by imprisonment, with a specific prohibition against advocacy targeting children. Moreover, Section 15 mandates the dissolution of LGBT groups and organizations, while Section 22 criminalizes extrajudicial actions toward LGBT persons, penalized with a fine or a six-month to three-year jail term.

Interestingly, the bill argues that globalization and acculturation, in the context of LGBT rights, are threats to Ghanaian identity and sovereignty. It emphasizes safeguarding traditional values. Further, it argues that human rights, while fundamental, are not absolute. Thus, it claims, the state’s regulation of sexual behavior is justified for public safety, economic well-being, and morality (as found in Article 17 of the 1992 Constitution).

A Case of Majoritarian Rule Wrought by Socio-Cultural and Religious Beliefs

Society and culture appear to encompass critical aspects of the ongoing discourse surrounding LGBT rights in Ghana. Despite international legal trends favouring the expansion of such rights, the entrenched societal attitudes fueled by traditional and religious power structures in Ghana present formidable obstacles. The data from the Round 8 Afrobarometer survey, a credible source due to its methodology (nationally representative sample, low margin of error), paints a jarring picture that shows that less than 10% of Ghanaians tolerate same-sex relationships. Furthermore, according to a 2014 Afrobarometer study, Ghanaians were more likely to accept neighbours living with HIV/AIDS than those who identify as LGBT.

This highlights a crucial but often overlooked factor in the global push for LGBT rights in Africa: a majority of Africans are comfortable with being uncomfortable with the philosophical underpinnings of progressive rights. This comfort stems from an understanding of identity that, on some utopian level, also encompasses the right to resist what they are not interested in. This “will” is reflected in the legislators they elect to formulate policies that advance their interests. This underscores a deep-rooted resistance to LGBT rights within the populace, which cannot be disregarded in any legislative or policy discussion. Thus, attributing anti-LGBT views solely to prejudice overlooks the complex interplay between cultural norms and political authority in Ghana.

Moreover, the institution of chieftaincy, deeply embedded in Ghana’s constitutional framework under Chapter 22 of Ghana’s Constitution and historically leveraged by colonial powers, remains a potent force shaping societal values. As custodians of customary law and practices, traditional leaders wield significant influence over public opinion and can impede legislative progress toward recognizing LGBT rights. The National House of Chiefs’ comment in the memorandum to the anti-LGBT bill exemplifies this stance, arguing that LGBT identities are alien to Africa. However, scholars like TE Coleman, EY Ako and JG Kyeremateng refute this claim in their editorial in the African Human Rights Journal. They argue that homosexuality has existed in Africa historically, citing Marc Epprecht’s research on pre-colonial societies that embraced same-sex relationships. Suffice to say, Western advocacy for LGBT rights is often conflated with the misconception that it is an external influence bringing homosexuality to Africa.

A majority of traditional societies in Ghana, however, have refused to budge in their resistance to LGBT rights. This intransigence is exemplified by a recent incident involving arrests at a so-called purification ceremony following a lesbian wedding ceremony held in the Eastern Region town of Kwahu. Belief in gods and ancestral connections to communities still very much persists and for a people—an overwhelming majority whose very identity and pulse thrives in ancestral worship—the belief of gods and taboos, merely arguing that their actions are prejudicial will not suffice as it has been their custom and practice passed down from generations.

Religion also wields significant influence. In Ghana, all major religious factions seem united in their intolerance of homosexuality. The paradoxical nature of religion being both integral to Ghanaian society and potentially discriminatory to the LGBT community suggests that appealing solely to abstract human rights principles may not be enough to overturn the bill.

The Global Push for LGBT Rights

Ghana’s finance ministry released a report in early 2024, stating the nation stands to lose $3.8 billion if the proposed anti-LGBT rights bill is assented into law by the president. Human Rights Watch also advised President Nana Akufo-Addo not to assent to the bill. In response, the president issued a statement delaying his signing of the bill due to a legal challenge currently before the Ghanaian Supreme Court on the bill’s constitutionality. This move reflects the delicate balance between democratic principles and the protection of minority rights, as the judiciary becomes the arbiter of legality and justice. The bill’s ambiguous wording raises concerns, as it could be interpreted in ways that incite witch-hunting and harassment toward LGBT people. Given Ghana’s utilization of the modern purposive approach to constitutional interpretation, such ambiguity may not bode well for the LGBT community. Ultimately, the question arises: should the law reflect the will of the majority, or should it safeguard the rights of all citizens, even if they are a minority? This dilemma lies at the heart of democracy, where the rule of law must navigate between the demands of public opinion and the imperative to protect fundamental freedoms. Ghana finds itself at a crossroads where economic considerations clash with social and cultural values. As Ghana awaits the Supreme Court’s decision, the nation stands at a pivotal moment in its democratic journey, where the resolution of this debate will shape its societal fabric for years to come.

The Kenyan Discourse

Round 8 of the Afrobarometer survey from 2019–2021 indicates that only 10% of Kenyans are tolerant of the LGBT community. This slow uptake is attributable to the prevalent conservative social attitudes that are reinforced by religion and culture. Kenya’s current LGBT legal landscape is also characterised by ambiguity. Recent events, such as the Supreme Court’s approval of an LGBT organisation’s application to register as an NGO, suggest that acceptance and recognition of LGBT people may be growing. Nonetheless, the legal system is still unclear, as colonial-era statutes that are still in place today, such as the Penal Code, vaguely criminalise “unnatural sexual offences” without specifically mentioning same-sex relationships or marriages. These provisions have been used to condemn LGBT groups and individuals. Nyali MP Mohammed Ali summarised this position by stating:

Sections 162[a] and [c], 163 and 165 of our Penal Code criminalise homosexuality and so do our faith and values which we must not move away from, for we risk disintegrating our core family structures and falling deep into irredeemable mistakes that will cost us and the generations to come.

As a result, the condition of LGBT rights is currently in flux, reflecting national discussions about human rights and recognition of minority identities.

When parliamentarian Peter Kaluma submitted the Family Protection Bill/Linda Jamii Bill in February 2023, it marked a significant legislative hurdle for the protection of LGBT rights in Kenya. While the proposed legislation appeared to be geared at protecting the family institution, it sparked deep alarm among the LGBT community and human rights organisations. Among its provisions, the law seeks to criminalise homosexuality and same-sex marriages, as well as limit actions considered to promote homosexuality. Advocates of the bill, including members of Parliament and religious organisations, defend its provisions by citing Article 45 of the Kenyan Constitution, which emphasises the importance of the family as the foundation of society and underlines the necessity for its protection. Other arguments for Kenya’s anti-LGBT Bill are based on the notion that limitations on rights and freedoms are required to achieve the act’s aims. These objectives include safeguarding the well-being of individuals, families, and the nation for the benefit of future generations; protecting public safety, order, health, and morals; maintaining the sanctity and honour of families; and ensuring the protection of vulnerable groups such as children, persons with disabilities, older members of society, youth, and other vulnerable people from harmful sexual exploitation and indoctrination.

The statute defines “male” and ‘female” in biological terms, effectively precluding discussions of transgender identity. Furthermore, it precisely defines marriage as a partnership between a man and a woman, whether monogamous or polygamous. Section 4 of the act expressly prohibits homosexuality, defining the offence as engaging in a sexual act with someone of the same sex, with sexual relationships further defined in Section 4(2). Notably, the penalty for this violation varies by gender, with males receiving heavier punishments than females, as detailed in Section 4(4). The reason for this disparity is not specifically addressed. The minimum sentence for homosexuality is ten years in prison, or twenty years if the victim did not consent.

In addition to outlawing homosexuality, Section 6 of the act specifically stipulates that the legislation applies to same-sex marriages as well. This matches the provisions of the Ghanaian bill. Moreover, the act delves into a contentious realm by criminalising cross-dressing, categorising it as a significantly indecent act. This clause indicates a cultural discomfort or aversion to gender expression that differs from customary norms. Furthermore, the act prohibits not only same-sex partnerships and gender expression but also sex reassignment prescriptions and surgeries. This clause not only limits access to critical medical interventions for transgender people, but it also fosters stigma and marginalisation of gender-varied populations. Thus, the anti-LGBT bill reveals a legislative landscape that not only fails to recognize the rights and identities of LGBT individuals but actively works against their autonomy and well-being, perpetuating discrimination and injustice.

Implications of Anti- LGBT laws on the community

Brian Macharia of the Gay and Lesbian Coalition of Kenya (GALCK) noted that LGBT individuals have suffered injustice in a number of ways but cannot report them due to the provisions of the penal code that have been used to blackmail, assault and discriminate against them. The anti-LGBT legislation in Kenya will likely jeopardize LGBT people’s reproductive health rights. This is because it promotes prejudice and stigma, rendering LGBT people reluctant to seek reproductive health services and obtain competent care for fear of being judged. Furthermore, the bill will limit the availability of critical reproductive health information to LGBT people, making them more vulnerable to unwanted pregnancies, unsafe abortions, and sexually transmitted illnesses. Biased views among healthcare providers can also lead to service denial or insufficient care, further exacerbating the problem.

Moreover, the Family Protection Bill threatens to aggravate homophobia and fuel sexual violence against Kenya’s LGBT+ population. By criminalising LGBT identities and relationships, the law promotes societal stigma and discrimination while legitimising discriminatory attitudes and behaviours. This legislative validation of homophobia further allows individuals to commit acts of violence and harassment against LGBT people with impunity. Furthermore, the bill’s punitive measures targeting LGBT people foster a sense of fear and vulnerability, discouraging them from seeking help and protection when they are victims of sexual abuse. As a result, the bill will contribute immensely to continuing cycles of oppression and injustice.

The path forward for both nations

It seems that both countries find themselves at a crossroads where democratic principles intersect with cultural conservatism, posing profound implications for minority rights and societal cohesion. As Kenyans and Ghanaians await the outcome of their respective anti-LGBT bills, both governments and citizens must engage in discussions that foster understanding and courteous communication, while also guaranteeing accuracy and clarity. To address the bills’ issues, the focus should be on protecting the rights of all individuals, especially those in the LGBT community, by carefully considering and potentially amending elements that may perpetuate stigma and marginalisation. This calls for active participation in debate among policymakers, civil society organisations, and the general public in order to identify common ground and ensure that any approved legislation prioritises equality and fairness for all individuals, regardless of sexual orientation or gender identity.

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