SKY VRS PARLIAMENT OF GHANA (J1/09/2024) [2024] GHASC 66 (18 December 2024)

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IN THE SUPERIOR COURT OF JUDICATURE THE SUPREME COURT ACCRA - AD 2024

Coram

LOVELACE-JOHNSON, (MS) JSC (PRESIDING) PROF. MENSA-BONSU (MRS) JSC ACKAH YENSU, (MS) JSC ASIEDU, JSC GAEWU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC

WRIT No: J1/09/2024

18TH DECEMBER, 2024.

RICHARD SKY …. PLAINTIFF VRS.

1. PARLIAMENT OF GHANA …. 1ST DEFENDANT

2. ATTORNEY GENERAL …. 2ND DEFENDANT

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Judgment

PROF. MENSA-BONSU (JSC)

… “Then lest he may, Prevent. And since the quarrel Will bear no colour for the thing he is, Fashion it thus: that what he is, augmented Would run to these and these extremities And therefore think him as a serpent’s egg Which, hatched, would as his kind grow mischievous – And kill him in the shell” William Shakespeare ‘Julius Caesar’ Act 2 Scene 1

Introduction

The plaintiff, a citizen of Ghana who, in a pre-emptive strike, has invoked the original jurisdiction of the Supreme Court under Article 2(1) and Article 130 of the Constitution of Ghana,1992, to challenge the constitutionality of the ‘Human Sexual Rights and Ghanaian Family Values Bill, 2021’ (“the Bill”) as passed by Parliament in 2024. The plaintiff says he is seeking to uphold the fundamental human rights and freedoms guaranteed under the Constitution of the Republic of Ghana,1992, and contends that the Bill, as passed by Parliament violates certain provisions in the Constitution of Page 3 of 97

Ghana,1992. In ringing tones, the plaintiff declares his purpose in paragraph 3 of his amended Statement of Case filed on 21st November, 2024 thus:

” My Lords, this case comes before the Supreme court not as an inquiry into the moral judgments surrounding sexual relationships within our society, nor does it seek to traverse the deeply personal and varied landscape of human sexuality through the lens of judicial scrutiny. Rather, at its core, this action embodies a profound constitutional inquiry, inviting the honourable Court to properly delineate the boundaries of legislative power as enshrined in our nations supreme legal document. It is a call to action for the judiciary to affirm its indispensable role in our democracy by making a definitive determination on the precise scope and limits of the Parliaments authority to legislate on matters that touch upon the fundamental human rights and freedoms of the individual.”

Fine words of purpose! However, putting it thus simply obscures the real significance of this suit which has at its core, the concept of separation of powers; and the scope of the powers of each arm of government in the legislative process.

FACTS AND BACKGROUND On 28th February, 2024 the Parliament of Ghana passed a bill known as the ‘Human Sexual Rights and Family Values Bill 2021.’ The Bill began its life as a Private Members Bill. It was therefore subject to provisions in article 106 of the Constitution, 1992, regarding the legislative processes, but also the specific constitutional provisions under article 108 of the Constitution, 1992. The plaintiff contends in paragraph 6 of his Statement of Case that the substance of the Bill “proposes to criminalize same-sex sexual relationships, expanding the scope of criminalization to include not only those who identify as lesbian, gay, Page 4 of 97

bisexual, transgender, queer, or pansexual, but also allies and advocates for sexual and gender minorities’ rights.” Consequently, he concludes that the Bill violates the fundamental human rights and freedoms guaranteed under the Constitution of the Republic of Ghana. The Bill, as required under article 106 (1), has not yet been assented to by the President, nor have the law-making processes set down under article 106(7) (8) (9) and (10) under the Constitution, been fully exhausted.

The plaintiff has, nevertheless, initiated this legal action in the Supreme Court to challenge the constitutionality of the Bill and truncate the legislative process because “allowing potential constitutional violations by Parliament to go unchallenged would contravene the foundational tenets of the Constitution” (emphasis supplied).

The Writ

The plaintiff is before this Honourable Court to invoke the interpretative and enforcement jurisdiction of the Supreme Court in a pre-emptive move to challenge the power of Parliament to make certain types of law. Specifically, the plaintiff seeks the interpretation of articles 12, 15, 17, 18, 21, 106, 33(5) and 108 of the Constitution of Ghana,1992, and his prayer is that the entire Bill be struck down as unconstitutional, null and void. He seeks the following reliefs:

“a. A declaration that upon a true and proper interpretation of Article 33(5) of the Constitution of 1992, in the light of Articles 12(1) and (2), 15(1). 17(1) and (2), 18(2) and 21(1)(a)(b)(d) and (e) of the Constitution, the passage of the “The Human Sexual Rights and Family Values Bill, 2024” by Parliament on 28th February 2024 contravened the Constitution and is to that extent null, void and of no effect. Page 5 of 97

b. A declaration that Parliament exceeded its authority under Article 106(2) and 108(a)(ii) of the Constitution, in passing “The Human Sexual Rights and Family Values Bill,2024” as same imposes a charge upon the Consolidated Fund or other public funds of Ghana. c. A declaration that the Speaker of Parliament contravened Article 108(a)(ii) of the Constitution, in light of Article 296(a)(b) and (c), by admitting and allowing Parliament to proceed upon and pass “The Human Sexual Rights and Family Values Bill,2024” into law as the same imposes a charge upon the Consolidated Fund or other public funds of Ghana. d. A declaration that upon a true and proper interpretation of Article 102 and 104(1) of the Constitution, Parliament lacked the requisite quorum to pass “The Human Sexual Rights and Family Values Bill,2024”. e. An order restraining the Speaker of Parliament and the Clerk of Parliament from presenting “The Human Sexual Rights and Family Values Bill,2024” to the President for his assent. f. An order restraining the President of the Republic from assenting to “The Human and Sexual Values Bill ,2024” as such action will directly contravene the Constitutional safeguards of liberties and rights of Ghanaians. g. An injunction barring any attempts to enforce the provisions of “The Human Sexual Rights and Family Values Bill,2024” particularly those criminalizing samesex relationships and related advocacy efforts. h. Such further orders or directions as to this Honourable Court may seem meet.

CAPACITY OF PLAINTIFF Page 6 of 97

As is required of constitutional litigation under the Constitution of Ghana, 1992, the plaintiff must establish his or her capacity to bring the suit and to invoke the original jurisdiction of the Supreme Court, as established under article 2(1) of the Constitution 1992. In his amended Statement of Case filed on 21st November, 2024, the plaintiff submitted in paragraph 10 of his statement of case that “he is a citizen of the Republic of Ghana, maintaining a residence in Ghana, and is a lawfully registered voter”, thus entitled to invoke the original jurisdiction of the Court pursuant to articles 2(1) (b) and 130(1) (a) of the Constitution of Ghana, 1992.”, The plaintiff cites David Kwadzo Ametefe v The Attorney-General and Martin Alamisi Amidu Writ No J1/3/2017; Unreported. It is also true, as the plaintiff points out, relying on Tuffour v Attorney General [1980] GLR 637 at 667, that a plaintiff need not have a personal interest beyond the commitment to the Constitution itself. All of these issues are well established and in a long line of authorities.

The point is made quite eloquently in Sam (No.2) v Attorney General [2000] SCGLR 305 [1999-2000] 2 GLR 336 by Ms Akuffo JSC (as she then was) when she restated the legal position at pp. 371-372 thus: -

“Every citizen of Ghana, by virtue of such citizenship, has an innate interest in the integrity of the supreme law of the land, the national constitution. As such, therefore any perceptible insistency or contravention in any enactment or act or omission of any person with the constitution constitutes a sufficient occasion for the invocation of article 2…. In the context of article 2(1) therefore there can never be an officious bystander or nosy busybody. Every Ghanaian is and must be an interested party.” See also: Amidu (No. 2) v Attorney-General, Isofoton S.A. and Forson (No 1) [2013-2014] 1 SCGLR 167 at 180 per Date-Bah JSC.

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CAPACITY OF THE DEFENDANTS The plaintiff has initiated this action against the institution of Parliament as 1st defendant. Anticipating a challenge of sorts to this manner of proceeding, he justifies the selection of the entire Parliament as 1st defendant in his statement of case thus:

“it is imperative, therefore, to address the jurisdictional and procedural propriety of citing Parliament, an independent constitutional body established under article 93(2) as 1 st defendant in adherence to principles of judicial efficiency and constitutional fidelity” (paragraph 12)

He concludes in para 16 of his amended Statement of Case that

“the involvement of Parliament as a defendant is indispensable for the just, full and final resolution of this case. This approach ensures the principles of accountability, transparency and justice are upheld, in accordance with the Constitution. It is therefore respectfully posited that this Honourable Court admits the necessity of Parliament’s inclusion as a party to this action, enabling a thorough examination and adjudication of the constitutional matters at hand, in service of the lofty ideals of our constitutional democracy.”

No doubt, these are fine words, but do they suffice to show that the institution of Parliament is the proper defendant in a suit which claims, among other things, to be challenging the manner of exercise of the Speaker’s constitutionally mandated duty? It is unclear that a sufficient case has been made to include the entire institution of Parliament as 1st defendant.

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With respect to the 2nd defendant, there certainly is no doubt about the competency of the 2nd defendant to be so cited, relying on article 88 of the Constitution, 1992.

SUMMARY OF PLANTIFF’S CASE AND LEGAL ARGUMENTS: Plaintiff has presented his case under three main themes or “planks”: Violation of Human Rights; Unauthorized Imposition of a Financial Burden Through a Private Member’s Bill and the Non-Compliance with Quorum Requirements.

Violation of Human Rights The plaintiff discusses the bundle of rights under chapter 5 of the Constitution of Ghana,1992. Specifically, Article 12(protection of fundamental human rights); Article 15(the inviolability of personal dignity); Article 17(prohibition against discrimination); Article 18(privacy safeguard); Article 21(freedom of expression, association and speech) and Article 35(other universal rights not provided for in the Constitution,1992). The plaintiff further in his discussion suggests that the Bill in its current state violates all these rights protected by the Constitution, 1992.

The plaintiff indicated specific clauses in the Bill which violate the Constitutional rights stated supra and how Parliament passing the Bill under its legislative process under Article 106 of the Constitution 1992 violates these aforementioned rights.

Non-Compliance with Article 108 The Plaintiff contends that the Speaker of Parliament failed to exercise proper discretion under Article 296 of the Constitution,1992 when the Bill was going through the legislative Page 9 of 97

process, without due obedience to Article 108 of the Constitution 1992. It is the Plaintiff’s contention that being a Private Member’s Bill, same has financial implications in its implementation, and therefore imposes a charge on the consolidated fund or public purse. This, the plaintiff views as constitutionally untenable, and a wrongful exercise of discretion by the Speaker of Parliament, by not giving an opinion to that effect as provided under article 108 of the Constitution, 1992.

Non-Compliance with Quorum Requirements Plaintiff says here that Parliament violated the Constitution by not satisfying the prescribed quorum as provided for in Article 104(1) of the Constitution of Ghana,1992. This breach in the view of the Plaintiff is a deviation from the principles of legislative function. The plaintiff’s evidence of lack of quorum is a video broadcast purported to have been taken during the voting process to pass the Bill. This the plaintiff contends is a constitutional violation for this Honourable Court to resolve.

SUMMARY OF 1ST DEFENDANT’S CASE AND LEGAL ARGUMENTS The 1st defendant contends that the plaintiff’s prayer for a declaration that upon a true and proper interpretation of Article 33(5) of the Constitution 1992, in the light of Articles 12(1) and (2), 15(1). 17(1) and (2), 18(2) and 21(1)(a)(b)(d) and (e) of the Constitution,1992, the passage of the “The Human Sexual Rights and Family Values Bill,2024” by Parliament does not properly invoke the jurisdiction of the Court.

The 1st defendant contends that the plaintiff does not demonstrate in his Statement of Case how the Bill contravenes the said provisions of the Constitution in Articles 12(1) and (2), 15(1). 17(1) and (2), 18(2) and 21(1)(a)(b)(d) and (e) of the Constitution. Further, that Page 10 of 97

the plaintiff’s claim that the Speaker of Parliament contravened Article 108(a)(ii) of the Constitution by not exercising the discretionary powers as provided in Article 296(a) (b) and (c), is unfounded. He adds that the plaintiff’s contention that the 1st defendant by admitting and allowing Parliament to proceed upon and pass “The Human Sexual Rights and Family Values Bill, 2024” into law is improper, as the Bill constitutes a charge upon the Consolidated Fund or other public funds of Ghana. This, the 1st d efendant also submits, has no foundation in any of the constitutional provisions on which the plaintiff seeks reliefs. This is on account of the fact that he fails to point at any part of the Bill which makes provision for the matters set out in article 108, such as that the Bill may be said to be one that “imposes a charge upon the Consolidated Fund or other public funds of Ghana”.

Essentially, the 1st defendant contends that the plaintiff’s discussions under the three headings in his Statement of Case, are silent on his legal argument as to the meaning he puts to these provisions in contention, in order to establish that there is, indeed, an issue of rival meanings put on the same provision. Therefore, they do not pass the test set out on constitutional interpretation and enforcement in Ex parte Akosah supra. The plaintiff, according to the 1st defendant, did not show where the words of article 108 of the Constitution 1992 are either imprecise or unclear or unambiguous ; neither does the plaintiff’s case raise any question relating to any conflict between Parliament or any other institution. Further, the 1st Defendant says that the plaintiff has not fulfilled that duty imposed on every plaintiff in such a suit as this to demonstrate to the Court that its jurisdiction has been properly invoked.

Finally, the 1st defendant says that the plaintiff failed to exhibit any evidence to support his claim that there was no quorum during the passage of the Bill by Members of Parliament under articles 102 and 104(2) of the Constitution of Ghana,1992. In the view Page 11 of 97

of the 1st defendant, it was not sufficient for the plaintiff to allege that he saw low numbers in a video. It is therefore the 1st defendant’s prayer that the declaratory reliefs being sought by the plaintiff must fail since they do not invoke the Honourable Court’s exclusive original jurisdiction.

SUMMARY OF 2ND DEFENDANT’S CASE AND LEGAL ARGUMENTS The 2nd defendant submitted that the plaintiff has invoked the Supreme Court’s jurisdiction to determine whether or not the 1st defendant complied with the provisions of Article 108 of the Constitution 1992 and to that extent, rendered the passage of the Bill null, void and of no effect. The response of the 2nd defendant was canvassed along the lines of the three themes under which the plaintiff organized his argument.

The 2nd defendant contends that the plaintiff’s claim that the Bill violates some human rights provision of the Constitution 1992 invokes the enforcement jurisdiction rather than the interpretation jurisdiction. The 2nd defendant holds the view that the reliefs being sought by the plaintiff are at variance with his legal arguments. Otherwise put, the plaintiff’s reliefs do not advance any argument on the true and proper interpretation of Article 33(5) of the Constitution,1992. The 2nd defendant remains of the view that since the plaintiff’s reliefs amount to the enforcement of human rights, the High Court is the proper forum to resort to, as provided by Article 33(3) of the Constitution of Ghana,1992 and same must be dismissed citing the decision in Bimpong-Buta vs General Legal Council and Others [2003-2004] 2 SCGLR 1200 to buttress his argument.