The Baldy Center Podcast

The Baldy Center for Law and Social Policy at the University at Buffalo

Episode #41

Podcast recording date: 4/3/2024

Host-producer: Logan

Speaker: Theophilus Coleman

Contact information: BaldyCenter@buffalo.edu

Transcription begins.

Logan:

Hello and welcome to The Baldy Center for Law and Social Policy podcast. I'm your host Logan. On this week's episode, we are joined by Dr. Theophilus Coleman, visiting assistant professor in the UB School of Law. In today's episode, we discuss this forthcoming book chapter titled “Ghana's Proposed Anti-LGBTQ+ Bill and its implication on academic freedom and institutions of higher learning,” as well as the various other implications the proposed legislation may have on LGBTQIA+ individuals within the country or otherwise. We learn about the impacts of and views on Western influence in Ghana as well as the relationship between religion and law in the country. Here is Dr. Coleman. Thank you so much for joining us today. I really appreciate your time. As always, I like to start off with a brief introduction about where you're from, your academic journey, educational background, and such.

Theophilus:

Thank you very much for the invitation. And hi, my name is Theophilus Edwin Coleman and I currently teach employment law and conflict of laws at UB School of Law. I'm from Ghana. I did my first degree at the University of Ghana in Accra, and then that was a Bachelor of Arts in political science and information studies. From there, I went to University of Cape Coast to study law. After that, I went to Johannesburg, University of Johannesburg to do my master's in international commercial law and then my doctorate. Through that, I got opportunity to also go to the Hague Academy of International Law in the Netherlands and do some internship at the Permanent Bureau of the Hague Conference on private international law. So that is primarily my academic background and my academic journey.

Logan:

Walk us through your forthcoming book chapter, which is titled “Ghana's Proposed Anti-LGBTQ+ Bill and its implication on academic freedom and institutions of higher learning’” why you chose this topic, and how this relates to your primary research focuses.

Theophilus:

So let me first say that my primary research focuses are in labor and employment law, conflict of laws, international commercial law, and then African legal philosophy. But for some reason I got drawn into human rights and it's because of the interplay and the interrelationship of most of these primary research areas and how now they are interrelated with human rights. The discourse, for instance, in conflict of law, there is now the dimension of the human rights aspect of conflict of loss. Also in labor law, human rights plays a very important role, instances of discrimination among other things. So this topic in particular, which is the implication or the impact of the anti-LGBTQ+ bill that was proposed by some section of members of parliament as a way of quelling LGBTQ+ activities in Ghana triggered some interest. And the interest was really fascinating. One day I was sitting off social media working on some manuscript, and then a friend of mine sent to me the bill as it was presented in parliament that, no, I should have a look and then give my opinion. But when I was looking at it, I saw that no, fundamentally there were some things wrong, but something wrong with the memorandum, the argument advance, the extent of the logical consistency of the memorandum in and of itself, the law where it is coming from, largely influenced by the legal position in Uganda, among other things. And so my initial reaction was from a labor and employment law perspective, how would such a law positively foster discrimination against people at the workplace? That was my initial reaction. But upon reading further, I realized that no, there are certain limitations that the law, the bill sort of tries to push. And one of those limitations were on academic and academics. And obviously being an academic I felt fundamentally triggered, let me put it that way. I felt fundamentally triggered. So I decided to put together this piece to highlight because on the face of the bill, it is not apparent. It is when you read the bill and the line of objectives that it seeks to achieve that you see that no, there is a goal to quell all sort of discussions, be it academic or social discussions on LGBTQ+ activities in Ghana. So that is what necessitated the book chapter.

Logan:

And before we dive even further into the discussion for your forthcoming book chapter, I wanted to perhaps discuss a bit of historical, cultural, and religious background on Ghana to help establish some context for the book chapter and the broader scope of your research.

Theophilus:

Yes, and it's very interesting. Traditionally, the Ghanaian society has been religiously tolerant towards different religious groupings, but what our constitution does not do is to create that strict separation between the state and the church. Majority of Ghanaians, over 80% are Christians. The next largest religious grouping is the Muslim and then it continuous. But the fact that there are a lot of Christians in Ghana and there's this proclivity of religious influences, does not necessarily mean that our law or our constitution sort of gives that stamp, or approval, for one, or Christian society in particular. Our constitution and our courts in particular have emphasized it even though the constitution is not clear as to the strict division between the church and the state as exist in the US, our courts have emphasized that Ghana is governed by the laws of Ghana and not the teachings and dogmas of a particular religion. This mainly underscores the secular nature of the Ghanaian society. And very recently our Supreme Court even made that assertion about a secular nature of the Ghanaian society. And that is very important. It's important because the uniqueness of the current constitution as we have, that is the Fourth Republican Constitution of Ghana or popularly known as the 1992 Constitution, is the longest constitution that we've had since 1957 when Ghana gained its political independence from Britain. So there are some positives from this constitution, and we do not want to sort of mire it by privileging one particular religion over the other. We want to, and we are, almost every Ghanaian, proud of the decree of religious tolerance. And I'm sure the parliamentarians and the offices at the parliament will tell you that is one thing that Ghanaians are proud of. Unfortunately, there's this, in fact, with this particular debate on LGBTQ+ activities and their rights, it has assumed a very uncomfortable religious twist. And this is because the sponsors of the bill mainly parliamentarians, a section or a group of parliament. And I need to explain the technicalities of the bill because currently it is in court. Under the constitution of Ghana, Article 108 allows for a group of members of parliament or any member of parliament to sponsor what is called a private member's bill. Traditionally a bill emanates from the executive, so either the president or a member of the executive or the cabinet under the authority of the president. It goes through parliament and then it goes back to the president for assent. This is done particularly because of the nature of enforcement of the law in Ghana because the rule is that whenever a bill is a private member's bill, it should not impose any financial burden on the state. So this particular bill has certain peculiarities that on the one hand it's cause for criminal sanctions, incarceration, which if you look at it in and of itself, once you think of incarceration, it imposes financial burden on the state. So technically there are certain constitutional issues that still needs to be addressed within the framework of the bill. But one of the features of this bill is that it is a private member's bill. It is a group of parliamentarians who decided that this is important for purposes of advancing the cultural objectives of Ghana. But in as much as it's a group of parliamentarians and you see it in a memorandum, the bill is largely influenced by para Christian groups, particularly the rightwing Christian groups. So one cannot sort of de-link the extent of religious influence over such a bill, even though our law isn't supposed to be like that. And I wrote one article on it, a co-authored article where I spoke about the fact that the very source of this law sort of blurs the line in terms of the extent of influence religious entities have over politicians. And this particular debate has led to so many issues. For instance, there is a chairman for church that has about 3 million members in Ghana, one of the most popular churches in Ghana who openly said that if members of parliament vote against this bill, they will instruct their members to vote against those members of parliament. So clearly you see that there's this push by religious entities to ensure that the dogmas and the teachings as pertained in the holy book, that is the Bible or the Quran, permits through the law, but that is not what our courts fundamentally stand for. So that line has been blurred, and it has also been blurred by politicians, most of which would want sort of political figures from members of churches. So at the moment it is like the moral entrepreneurs, as some academics will call them, who are hell bent on supposedly pushing the moral agenda of ensuring that certain lifestyle as they call it, which is being imposed by morally depraved Western countries as they describe it in the memorandum of the bill, are not realized or actualized within the framework. So the religion and state relationship, the church state relationship has really in this debate been blurred. And another person will argue that the politician themselves have blurred it because for instance, the current president of Ghana made reference of the fact that okay, he had a vision that he has to build a cathedral for God if he wins the elections. So if the president is building an interdenominational church, the political entity, the government mainly using government funding means that literally the line has been blurred. But these are some of the issues that are still in court. We are trying to see the position of the courts whether they will be very firm to stamp authority on it, to create that clear distinction between the state and the church in particular. But I need to emphasize the churches and religious groups, I need to emphasize, have played important role in ensuring the stability of Ghanaian democracy and ensuring that there's discourse. We even have the Muslim Council, the Christian Council, they have ensured that there's tolerance, religious tolerance. So on the one hand, there are some benefits in their existence in terms of the democratic cohesiveness within the Ghanaian states. But on the other hand, in terms of certain debates, I think the line has been completely blurred.

Logan:

Could you provide a brief summary of the proposed bill titled “Promotion of Proper Human Sexual Rights and Ghanaian family Values Bill of 2021”?

Theophilus:

So the bill is promotion of proper sexual human rights and Ghanaian family values. But when it was passed to an act, the name changed. It is now “Sexual Human Rights and Ghanaian Family Values Act” awaiting to be assented and become law. We don't know when it'll be, but fundamentally the bill seeks to advance Ghanaian family values with understanding that the family is the fundamental social unit of the Ghanaian society. And it is a unit between a man and a woman in a lifelong relationship. So that is the basic objective that the bill seeks to advance, that this is the very family unit that is our cultural values, and that is what we seek to advance. And what it seeks to do among other things is to one, render marriages of same sex couple or any person in the LGBTQ+ community null and void and of no effect. And any priest or any person who even witnesses or who oversees such marriage would potentially also have certain, could face criminal sanctions. It prohibits adoption of children. The social agencies that are taxed in terms of children in their welfare, such as the social welfare, in terms of child adoption, among other things, have an obligation to ensure that whoever is coming to adopt a child, they should scrutinize to ensure that they are a man and a woman in or married among other things, and it cannot be between persons of the same sex. And it recognizes the chieftaincy institution as the ultimate source of power within Ghanaian communities. So you can just report instances or issues even to the extent of suspicion of any form of same sex relationship to the chief based on which the police will be made aware and then arrest and all those things could be affected. It also bans retrospectively any group or association that has the mission of promoting LGBTQ+ activities and a breach of these duties will come with criminal sanctions.

Logan:

And this is not the first anti-LGBTQ law to be passed within Ghana. Ghana's 1960 Criminal Code Section 104, ‘unnatural carnal knowledge’, amongst other laws have been interpreted to cover the prohibition of homosexuality. And in your book, you talk about the opening of the LGBTQ+ Advocacy Center in Ghana back in 2021 and how this caused the recent pushback from the Ghanaian people to revisit the country's laws. Why do you think the law or laws already established within the country are now perceived as insufficient when it comes to LGBTQ rights within Ghana?

Theophilus:

So to answer this question, I need to provide a little bit of history. The pushback has existed since 2005, where 2005, 2006, where the Ghana Lesbian and Gay Association announced that they wanted to organize an international conference in Ghana some way back around 2006 thereabout, which caused huge uproar. Now I need to also applaud Ghanaians because typically Ghanaians have lived with gay people with homosexuals without necessarily judging who they are. So it's not like traditionally Ghanaians have been very vindictive towards LGBTQ+ people. Just that now with a little bit of sensationalism and it's taking that under tone of political choice, has taken it to another dimension of different conversation completely. But traditionally, most Ghanaians, we have even a term to describe people like that. For instance, we have Kojo Besia, like a guy who has feminine tendencies. So it's not like it is new within the Ghanaian system, but most Ghanaians, according to some research conducted feel that, for instance, the opening of the advocacy center was one way of, and that advocacy center was really launched at a blind side of Ghanaians. So one day most many people woke up and then saw that on the European Union official Facebook page, they mentioned that, okay, an advocacy center has been opened in Ghana. This really fueled some sort of backlash and uproar because typically there's this misconception that homosexuality, lesbian rights, among other things, are lifestyles from Western countries that is being pushed to African countries. So it is that misconception, that misconception really exists. So the moment an advocacy center of that nature is opened with ambassadors from let's say the European Union and also the Australian ambassador was there, among other things, it sort of concretized the misconception that this is really an agenda that is being pushed by most Western countries and not necessarily a conversation that is organically grown within Ghana that for Ghanaians to accept that these are part of us, so we should respect and accept. So that misconception really exists, and it has existed since 2006. In 2008, another issue came up where the former British Prime Minister sort of conditioned financial support with respect for LGBTQ+ activities where our late president retorted and he said that no, he will not accept it. He will not accept any financial aid if it is based on such condition. 2011, the discussion again came up when the constitution was up for review. The issue about whether or not sex should be included in the non-discrimination clause also led to certain debates about whether that could be interpreted to mean recognition of LGBTQ+ rights. Anytime the debate comes up, it takes a different dimension of uproar. But with the 2021 launch of the advocacy center, that was literally the stroke on the camel’s back that made many Ghanaians feel like no, the existing law basically deals with sort of private morality, and that the advocacy center, the form of advocacy, the agenda that has to be pushed is more or less like Ghanaians accepting publicly. So that also led to that pushback from Ghanaians. So on the one hand, any logical assessment could be, one can conclude that maybe tactically the community should have let the conversation develop organically and not necessarily involve the dignitaries that were involved of which fueled the assertion that no, this is an agenda that is being pushed by Western countries, which is false by the way. Because anthropological studies show that homosexual relationships even existed before the ‘unnatural carnal knowledge’ provision was introduced in 1960. The ‘unnatural carnal knowledge’ provision was just taken from the previous criminal ordinance of 1892, which was introduced by the British colonial government. So one can see that no, this is something that existed before. And obviously you do not make law to criminalize an action that is nonexistent. You make law to prohibit an action that is existent. So once anthropologically, and studies even exist in terms of same sex marriage in Ghana, there are some tribes or ethnic groups that really for purposes of same sex marriage, it was present, research had been conducted. As for the sexual undertone of whether there was sexual relationship in such marriages, there are some speculations. But, in some ethnic groups in furtherance of that consummation of friendship, such relationships were allowed. But with the advocacy center many felt that no, this is not just about unnatural carnal knowledge. And when we say carnal knowledge and the Ghanaian law, we are basically talking about sexual relationship between a man and a woman for purposes of a penis, if I should put it that way, to a vagina. So even between a man and a woman, any other form of relationship, sexual relation that does not conform over the statutory definition could also constitute unnatural carnal knowledge. But with this bill, they felt it should be treated as a whole from marriage to adoption of children, to associations, among other things, advocacy, social media. This is more comprehensive according to the sponsors of the bill, which I disagree with most of the things in the bill by the way. I need to put that on record and merely disagreeing with most of the things in the bill comes at a cost.

Logan:

And to switch gears a little bit, a main topic of discussion within your book chapter is the infringement of academic freedom that comes with this new bill. Could you briefly explain these new implications on academic freedom that the new bill would introduce?

Theophilus:

Okay, so to do that, let me, I already mentioned briefly what the bill seeks to do. The bill is not just restricting fundamental rights, it is ascribing penal sanctions for all forms of activities attributed to LGBTQ+ activities. So it can include a social media post that is directly aimed at changing opinion in Ghana. So obviously that is a restriction of freedom of expression. Now, when the bill was proposed, the most important thing that got the attention of academics was the limitation of freedom of speech, including academic freedom, freedom of expression as well. But as I said earlier, on the face of the bill, you wouldn't see it directly that this is what the bill is trying to do. But if you break it down, then you see that no, academics are under obligation to ensure that the values espoused in the bill are held. So the bill starts with an obligation imposed on certain categories of persons, including the courts, constitutional bodies, the National Commission for Civic Education, which is mandated to advance human rights activities and human rights education in Ghana, and also the main commission taxed to promote human rights activities in Ghana called CHRAJ.  These are some of the entities that the obligation has been imposed on to ensure that the values in the bill are upheld. So the question then becomes that if I'm a teacher and I fail to uphold the values espoused in the bill, potentially I could go to jail for two to four months or be fined for it. So that is the back door way of limiting academics from engaging in such discussions. But sometimes when we think of academic freedom in Ghana, we think only from the perspective of teachers, academic freedom is all encompassing, and it includes students. So a student must also, if they want to engage in a topic that they're interested in, they should not in any way be prohibited. So if as a professor, I am approached by a student that I want to conduct research into this topic because of the positive obligation imposed on me by the bill, I cannot do that. And also the negative obligation emanating from the bill to the effect that I cannot do anything that is contrary to the spirit and the values of the bill, I cannot do that as well. The only way that I can do that is when I know that the studies by the students, or even as an academic, my research only fosters the aim of the bill. That is the only way that I can do that. But that in and of itself also creates this unidimensional approach or that pigeonhole discussion that the only form of discussion that one can engage in, even if there are incontrovertible evidence to show that no, the basis of your discussion is completely flawed, you cannot do that because that goes contrary to the provisions of the bill. So that in and of itself is where I felt that no, this is the extent of inhibition that is being imposed on academics. So it wasn't really surprising that as part of the lawmaking process when they submitted it to the attorney general for review, the attorney general made certain categorical statements, that the path that we are moving on is one that is somewhat tricky because it can open the government of Ghana to unwarranted litigation because obviously once the bill is passed, one of the ways is to challenge it to the court, and you are imposing financial burdening in and of itself on the state to do that. So this is how I believe the nature of the bill, how it is being presented, the obligations imposed on certain categories of individuals intrude into this hallowed right, that academics and students have to engage in research activities and to engage in, obviously the university is a marketplace for ideas. So if the university is indeed a marketplace for ideas, we should have that liberty and autonomy to advance those ideas without the fear of being penalized, being fined, or being sent to jail, whether by front door or back door.

Logan:

I pulled up an interesting quote from your chapter that was from the sponsors of the bill, which said, “we believe it is right for the parliament to actualize the intentions of the framers of the Constitution by providing a legal framework for the promotion of values that define our nationhood.” Could you elaborate more on what they mean by this and how the promotion of the values that define our nationhood or Ghanaian's nationhood could inherently infringe upon academic freedom?

Theophilus:

So that statement actually is in furtherance of Article 39 of the 1992 Constitution of Ghana. So in our constitution, we have the directive principles of state policy of which sort of becomes that aspirational guide, even though our courts have pronounced that the provisions are presumptively justiciable in and of itself. So the sponsors of the bill relying on Article 39 of the Constitution to say that the cultural values of Ghana should be incorporated into the national fabric of Ghanaian society. So it is based on that, that they feel that the law in and of itself is sufficient. But one thing must be very clear, when you are advancing the cultural values of Ghana, they are certain substantive rights that one must be careful not to infringe. One, it is more of a balance, a balancing act. And in an article published by the African Human Rights Law Journal, we raised some arguments that Article 39 of our Constitution prescribes a procedure of incorporating national cultural values into national planning and the national fabric of Ghanaian life. And the procedure in the provision Article 39 is through formal and informal education. So fundamentally, the basis, again, as I said, of the sponsors of the bill saying that they're advancing the provisions of Article 39, in my view, is flawed. Because if the Constitution prescribes a procedure through which you can advance cultural and social values of Ghana, it is not through criminal code. It is not by imposing criminal sanctions on people. The Constitution itself is fundamentally clear that use education whether formal or informal. So now the burden falls on constitutionally mandated institutions such as the National Commission for Civic Education to advance those cultural values and not necessarily through a privately sponsored bill that imposes criminal sanctions including imprisonment on people. So that provision, that statement in and of itself is constitutionally flawed because it is a complete mischaracterization of the procedure prescribed by the Constitution. So in and of itself, once it is flawed, the argument cannot move forward as to how it'll impact because they clearly ignored the procedure and still went ahead to impose those obligations on those categories of persons including teachers.

Logan:

And for a final question, if this bill were to be passed into law, what kind of precedent do you think this would set for any future legislation against LGBTQ+ rights or otherwise?

Theophilus:

I have my own fear about how we are enabling private members in a context of sections of parliament to get up, make up a law, and criminally impose sanctions. I have my fear. And I believe that this is possibly one of the issues that I would definitely reflect on from a juris prudential standpoint, having regards to our traditional African values, among other things, of how in furtherance of cohesiveness in Ghanaian society should we limit the extent to which private members in parliament can make a law. I believe that the operationalization of Article 108, which empowers section members of parliament, a section of members of parliament to present a bill, I believe you should operate in a very constricted scope by restricting the criminal sanctions that can come out of it. Now, if this bill is passed, basically we are setting the precedent that a member of parliament with the sponsorship of any group can push by just being a member of parliament and getting support of their colleagues can push to advance any course of action irrespective of the criminal implication. So that is fundamentally my fear from it. And once it is passed, I think that there are certain social implications which we haven't really done research into. The first will be the coping mechanism that the LGBTQ+ community would decide to adopt, to avoid imprisonment. Would they possibly marry to cover up their sexual orientation? That is the possibility. And I expected that a bill of such nature would one, provide detailed account and not just a shallow exposition of why certain group of people should be put to, should be incarcerated nearly because of their sexual orientation. So fundamentally, I have a problem with the very nature of Article 108 of our constitution, which allows private members to do that. I believe going forward, if there is any form of constitutional review or if there is any form of judicial interpretation, the court cannot do that, by the way, because that might mean intruding into the power of the legislature and separation of powers might come in over there. But if there is that possibility for us to restrict the scope so that that position only applies purposely to advance development and not to impose criminal sanctions, I'll be extremely happy. But for now, once it is assented to which currently we are at that stalemate, as I told you, we will set very bad precedent in terms of group of people who might have their own beliefs, who might have their own moral dogmas, among other things, to feel that it is time to impose criminal sanctions so long as they can fund it in certain sections of Ghanaians, including teachers. And I am completely opposed to that.

Logan:

Thank you so much for your time. This has been a very interesting conversation. I definitely learned a lot, so I really appreciate you coming in and speaking to us about this.

Theophilus:

Thank you very much.

Logan:

That was Dr. Theophilus Coleman, and this has been The Baldy Center for Law and Social Policy Podcast produced by the University at Buffalo. Let us know what you think by visiting our X, formerly Twitter, @Baldy Center, or emailing us at baldycenter@buffalo.edu. To learn more about the center, visit our website, buffalo.edu/baldycenter. The theme music for the season was composed by Matias Homar. My name is Logan and on behalf of The Baldy Center, thank you for listening.

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