Chief Justice Gertrude Torkornoo
The Supreme Court has set July 17, 2024, to give its rulings on two separate applications seeking to restrain Parliament from transmitting the Proper Human Sexual Rights and Ghanaian Family Values Bill, commonly referred to as the Anti-LGBTQ Bill, to the President for possible assent into law.
Dr. Amanda Odoi and broadcast journalist, Richard Dela Sky, have filed two separate suits before the court challenging the constitutionality of the bill passed by Parliament in February 2024.
They both attached applications for interlocutory injunction pending the final determination of the suits, arguing primarily on the ground that consideration was not given to the financial implication of the bill on the Consolidated Fund and the public purse.
Richard Sky, in his suit, is challenging the constitutionality of the processes leading to the passage of the bill, and argues that it also infringes on human rights provided by the 1992 Constitution.
Bill
Parliament on February 28, 2024 passed the Proper Human Sexual Rights and Ghanaian Family Values Bill, often referred to as the Anti-LGBTQ Bill, which introduced further punishment for gay activities in the country.
The bill, among other things, advocates prison terms for those who take part in LGBTQ sexual acts, as well as those who promote the rights of gay, lesbian or other non-conventional sexual or gender identities in Ghana.
The bill is yet to be transmitted to the President for a possible assent as a result of the two suits filed before the Supreme Court.
Interlocutory Injunctions
Counsel for Dr. Odoi, Dr. Ernest Ackon, moving his motion for an interlocutory injunction argued that the bill was not introduced by or on behalf of the President but is a Private Members Bill.
He said per Article 108 of the 1992 Constitution, Parliament should not have proceeded with such a bill if it imposes financial obligation on the Consolidated Fund or other public funds.
He said when the bill was first introduced, it was not accompanied with a fiscal impact analysis and in spite of the Attorney General’s advice, Parliament proceeded to pass the bill without the analysis in flagrant breach of Article 108 of the Constitution.
He refuted claims by counsel for the Speaker that the President had already indicated his unwillingness to assent to the bill, and argued that a letter written by Secretary to the President only stated that the President will not take any steps until the suits are determined, so as not to prejudice the work of the court or undermine the authority of the Supreme Court.
Dr. Ackon further argued that the Speaker will not suffer any hardship or inconvenience if the application is granted, but on the other hand the applicant and every Ghanaian will continue to endure blatant breach of the 1992 Constitution if it is refused.
He added that the remedy for a violation of the constitution does not lie with the President but lies with the court and, therefore, “we must not wait for the President to remedy this violation.”
Counsel for Richard Sky, Paa Kwesi Abaidoo, on his part argued that the Speaker breached the constitution when he admitted the bill in the first place, and added that but for the pendency of the suit, the President would or is at liberty to assent to it to become a law.
AG Stays Neutral
The Attorney General and Minister for Justice, Godfred Yeboah Dame, stated he was neither in support of the interlocutory application nor against them, but urged the court to consider the issues of constitutional breaches raised.
He said the 1992 Constitution itself sets out matters that Parliament is prohibited from considering, and in so far as there is payment or withdrawals from Consolidated Fund, the Speaker ought to have had recourse to the provisions of Article 108 of the Constitution.
He said the Speaker, in making a determination under Article 108, ought to have a written evidence so that the determination can be ascertained when it becomes necessary.
Mr. Dame argued that the Speaker was bound by Article 296 to give a reasoned ruling to rationalise his reasons as to why that determination was made.
He averred that these financial provisions are so important to the nation, and the 1992 Constitution has deliberately inserted them and seeks to centralise the management of the public purse and, therefore, any withdrawal from the public purse must be done based on the decision of the executive.
Mr. Dame further pointed out that there was no basis for Parliament to proceed because there was no fiscal impact analysis attached to the bill, and such an omission cannot be cured by the President presenting the bill back to Parliament, stressing that what it means is that the nation would have to live with that unconstitutionality, which is a huge scar on the country.
Parliament/Speaker
Counsel for Parliament and the Speaker, Thaddeus Sory, opposed the applications and argued that the work of Parliament was not yet complete as the transmission of the bill to the President is also part of that process.
He said the applications before the court are similar to the previous one which was dismissed by the court in July 2023, noting that the only difference in it is that they are seeking to restrain a different stage of the process.
He also argued that the Speaker did not have to write his opinion with respect to Article 108, adding that there must be a clear distinction between an Act of Parliament that is allegedly not in compliance with law, from a Constitutional Provision which has been allegedly violated.
Mr. Sory added that the President after receiving the bill can decide to return it to Parliament or forward it to the Council of State, hence, there was no need to restrain Parliament from transmitting the bill to the President.
The court, presided over by Chief Justice Gertrude Torkornoo and assisted by Justices Mariama Owusu, Henrietta Mensa-Bonsu, Ernest Gaewu and Yaw Darko Asare, adjourned the case to July 17, 2024, to give separate rulings on the two applications.
BY Gibril Abdul Razak