The Supreme Court has ruled that the existing law criminalizing unnatural sexual intercourse, including anal sex for both heterosexual and homosexual individuals, does not breach the 1992 Constitution.
On Wednesday, July 24, 2024, a unanimous seven-member panel of the court dismissed a challenge to the constitutionality of Section 104 (1) (b) of the Criminal Offences Act, 1960 (Act 29). This section criminalizes sexual intercourse in an unnatural manner, even if both parties consent.
Section 104 (1) (b) of Act 29 states that anyone aged 16 or older who engages in unnatural carnal knowledge, even with consent, is committing a misdemeanor punishable by up to three years in prison.
Dr. Prince Obiri-Korang, a law lecturer at the University of Ghana, had argued that Section 104 (1) (b) violated Article 14 (1) of the 1992 Constitution by infringing on individuals’ rights to choose their sexual partners and engage in intimate conduct without state interference. He also claimed that the section violated Article 18(2) by interfering with personal privacy and Article 17 (2) by discriminating based on sexual orientation.
The Supreme Court, led by Justice Paul Baffoe-Bonnie, found the suit without merit and dismissed it. The court’s detailed reasoning will be made available in 10 days. The panel also included Justices Avril Lovelace Johnson, Issifu Omoro Tanko Amadu, Emmanuel Yonny Kulendi, Ernest Gaewu, Yaw Darko Asare, and Richard Adjei-Frimpong.
Section 104 of Act 29 is divided into three parts:
- Section 104 (1) (a) makes it a crime to have unnatural carnal knowledge of a person under 16 years old, classifying it as a first-degree felony with imprisonment ranging from five to 25 years.
- Section 104 (1) (b) criminalizes unnatural carnal knowledge between consenting adults, treating it as a misdemeanor. This was the specific section Dr. Obiri-Korang challenged as unconstitutional.
- Section 104 (1) (c) defines it as a misdemeanor to engage in sexual intercourse with an animal.
Section 104 (2) describes unnatural carnal knowledge as “sexual intercourse with a person in an unnatural manner or with an animal,” but does not define what constitutes “unnatural manner.”
Judicial interpretations have clarified carnal knowledge. In Gligah & Atizo v The Republic, Justice Jones Dotse defined it as “the penetration of a woman’s vagina by a man’s penis.” Similarly, in Banousin v The Republic, Justice Dotse noted that carnal knowledge involves the penetration of the female sex organs, specifically the vulva and vagina.
In his case statement, Dr. Obiri-Korang argued that Section 104 (1) (b) of Act 29 affects not only homosexuals but could also impact women using dildos and vibrators. He contended that the term “unnatural carnal knowledge” might encompass various acts such as anal penetration, the use of objects on genitalia or rectums, fellatio, and cunnilingus, which are not exclusive to homosexuals.
Dr. Obiri-Korang also challenged the government’s justification that the law was necessary to protect morality, stating that there is a distinction between ‘public morality’ and ‘private morality.’ He argued that allowing the government to define ‘private morality’ could lead to unwarranted intrusions into individual privacy.
The Attorney-General, Godfred Yeboah Dame, countered Dr. Obiri-Korang’s claims, arguing that Section 104 (1) (b) of Act 29 is neither discriminatory nor unconstitutional as it does not specify any particular sexual orientation. The Attorney-General also contended that the law does not breach privacy, as it does not authorize any form of surveillance into people’s private lives.
“Section 104 (1) (b) of Act 29 does not grant anyone the right to invade another’s privacy to determine if there has been unnatural carnal knowledge,” the Attorney-General stated in the defence.
