Anti-Gay Bill: Court Shoots Down NDC

President Akufo-Addo

 

A High Court in Accra yesterday dismissed a motion seeking to compel President Akufo-Addo to receive the Anti-LGBTQI+ Bill passed by Parliament within seven days.

The mandamus application filed by Member of Parliament (MP) for South Dayi, Nelson-Rockson Dafeamekpor, essentially sought to speed up the process of passing the bill into a law, regardless of the President insisting that no action would be taken on it until a case challenging the bill at the Supreme Court is dealt with.

The National Democratic Congress (NDC) MP was asking the court to force Parliament to transmit the bill to the President within seven days after which the President  has seven days to either assent to it or not.

Justice Ellen Mireku, the presiding judge, in her ruling indicated that there are currently two writs before the Supreme Court challenging the passage of the bill, hence the High Court could not grant the mandamus request.

Parliament on February 28, 2024 passed the Proper Human Sexual Rights and Ghanaian Family Values Bill, often referred to as the Anti-LGBTQI+ 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 LGBTQI sexual acts, as well as those who promote the rights of gay, lesbian or other non-conventional sexual or gender identities in   Ghana.

The passage of the bill was met with mixed reactions as while many have welcomed it, some groups, including the Commission on Human Rights and Administrative Justice (CHRAJ) have raised concerns about the possible abuse of the rights of these people.

Other international bodies, including the US Embassy in Ghana have all expressed condemnation for the passage of the bill and called for reconsideration.

There are currently two writs before the Supreme Court seeking to quash the bill on grounds that its passage was in contravention of the 1992 Constitution and is discriminatory.

The Supreme Court is yet to fix a date for the hearing of both cases as many Ghanaians and the international community wait keenly to see the decision of the court.

 

Mandamus

Mr. Dafeamekpor on March 25, 2024 filed the application at the High Court seeking to compel Parliament to transmit the bill to the President and also for the President to revive it and take an action on it.

He sought, among others, a declaration that per Article 106(1) and (7) of the Constitution, a President can only assent to or refuse to assent to a bill within seven days, unless the bill has been referred to the Council of State.

He also sought a declaration that the President cannot prevent Parliament from transmitting a bill that has been passed to him.

The MP also wanted a declaration that a letter dated March 18, 2024, addressed to the Clerk of Parliament and signed by the Secretary to the President, Nana Bediatuo Asante, is in contravention of the constitution, hence the President must withdraw the letter.

Sylvia Adesu, a Chief State Attorney, opposed the application yesterday and argued that the court did not have the power to compel neither Parliament to send the bill to the President nor did it have the power to compel the President to assent to it.

She said the MP’s application is premature and the court cannot poke its nose into the affairs of what is happening between Parliament and the President.

She further argued that the application did not meet the requirement of a mandamus as the letter relied upon by the applicant did not indicate that either Parliament or the President needed to be compelled to perform their duties.

“If there is an injunction pending before your superiors how should the High Court overreach the powers of the Supreme Court?” She queried.

Nii Kpakpo Samoa Addo, counsel for the MP, in a rebuttal said we operate under the supremacy of the constitution and at all material times the cardinal principle has been that all organs of state must operate within the ambit of the constitution.

He said the argument before the court was in relation to the conduct of the Speaker of Parliament and the President regarding the transmission and receipt of the bill, hence the court has jurisdiction and not the Supreme Court.

Justice Mireku, in her ruling, held that the court had jurisdiction in the matter but indicated that mandamus is a matter of discretion and not as of right.

She said there are two cases at the Supreme Court challenging the constitutionality of the bill, hence it was the considered view of the court that the Supreme Court should be allowed to determine the cases and if it finds merit in them, “then so be it.”

The judge added that it was inappropriate to compel the Speaker and the President for these reasons, and subsequently dismissed the application.

 

BY Gibril Abdul Razak

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