The Supreme Court has ruled that a law criminalizing unnatural sexual intercourse, including anal sex between both heterosexuals and homosexuals, does not violate the 1992 Constitution. The court dismissed a suit challenging Section 104 (1) (b) of the Criminal Offences Act, 1960 (Act 29).
Supreme Court Dismisses Challenge to Law Criminalizing Unnatural Sexual Intercourse
In a unanimous decision on Wednesday, July 24, 2024, a seven-member panel of the Supreme Court dismissed a suit challenging the constitutionality of Section 104 (1) (b) of the Criminal Offences Act, 1960 (Act 29). This law criminalizes sexual intercourse in an unnatural manner, even between consenting adults. According to Section 104 (1) (b) of Act 29, any person aged 16 and above who engages in unnatural carnal knowledge, even with consent, commits a misdemeanour punishable by up to three years in prison.
The Suit
The challenge was initiated by Dr. Prince Obiri-Korang, a law lecturer at the University of Ghana. Dr. Obiri-Korang argued that Section 104 (1) (b) of Act 29 violated Article 14 (1) of the 1992 Constitution, as it deprived homosexuals of the liberty to choose their sexual partners and engage in intimate conduct without state interference. He further contended that the law infringed on adults’ privacy, violating Article 18 (2) of the Constitution, and discriminated against adults based on sexual orientation, breaching Article 17 (2).
Dr. Obiri-Korang invoked the Supreme Court’s original jurisdiction to interpret and enforce the Constitution, urging the court to declare Section 104 (1) (b) unconstitutional.
Supreme Court’s Decision
Justice Paul Baffoe-Bonnie, presiding over the case, held that the suit lacked merit and dismissed it. “There is no merit in the action. In the circumstances, the whole action fails and same is dismissed,” the court ruled. The court will deposit the full reasoning for its decision at the Court’s Registry within 10 days.
Other members of the panel included Justices Avril Lovelace Johnson, Issifu Omoro Tanko Amadu, Emmanuel Yonny Kulendi, Ernest Gaewu, Yaw Darko Asare, and Richard Adjei-Frimpong.
Unnatural Carnal Knowledge
Section 104 of Act 29 has three parts. Section 104 (1) (a) criminalizes unnatural carnal knowledge of a person below 16 years, a first-degree felony punishable by 5 to 25 years in prison. Section 104 (1) (b) criminalizes unnatural carnal knowledge between consenting adults, the specific provision challenged by Dr. Obiri-Korang. Section 104 (1) (c) makes it a misdemeanour to have sexual intercourse with an animal. The law defines unnatural carnal knowledge as “sexual intercourse with a person in an unnatural manner or, with an animal.”
Statement of Case
Dr. Obiri-Korang argued that the wording of Section 104 (1) (b) affected not only homosexuals but also females who used dildos and vibrators. He contended that “unnatural carnal knowledge” could include anal sex, penetration of genitalia or rectum with objects, fellatio, and cunnilingus. He also argued that government justification of the law on moral grounds was untenable, as it failed to distinguish between public and private morality.
Statement of Defence
Attorney-General Godfred Yeboah Dame, defending the law, argued that Section 104 (1) (b) did not mention any specific sexual orientation and therefore was not discriminatory or unconstitutional. He contended that the law did not breach privacy as it did not authorize any invasion of private spaces to enforce it.
