Ghana’s Supreme Court has been thrust into the spotlight after the president passed up responsibility for legislation that could see people jailed for up to three years for identifying as LGBTIQ+.

The future of the Human Sexual Rights and Family Values Bill now rests with the judiciary, despite it having been approved by Parliament on 28 February, three years after it was first introduced.

The Office of the President has refused to take receipt of the bill – the necessary next step for it to be officially signed into law – citing two ongoing lawsuits challenging its constitutionality.

In his only public comments since the bill passed, President Nana Akufo-Addo suggested the fate of the country’s queer community lies in the hands of the Supreme Court, saying: “It would be as well for all of us to… await the decision of the court before any action is taken.”

Gay sex was already illegal in Ghana, and punishable by up to three years in prison, under harsh colonial-era laws introduced by the British. But these laws were vague and have been firmed up and expanded upon by the draconian new bill, which makes it a crime to simply identify as LGBTIQ+ and imposes a jail term of up to five years for forming or funding LGBITQ+ groups.

Some 59% of Ghanaian voters support the new bill, according to a poll by Global Info Analytics earlier this month. The 2020 Afrobarometer report found around 90% of Ghanaians do not tolerate LGBTIQ+ people, with 86% saying they approve of criminalising same-sex relationships. Akufo-Addo himself voiced strong opposition to legalising gay marriage in 2021, despite having previously said a move to decriminalise homosexuality in Ghana was “bound to happen”.

There are currently two separate lawsuits challenging the anti-LGBTIQ+ bill at the Supreme Court. One, from academic and gender activist Amanda Odoi argues that it breaches government procedure, as Article 108 of Ghana’s constitution states that only the executive can introduce a bill that will impose a cost on the state. (Policing the bill would force the state to incur new costs.)

On these grounds, the law may be on Odoi’s side. Akufo-Addo has already set a precedent of rejecting private members’ motions by refusing assent to bills that would leave the state picking up new costs, including one that would have replaced the death sentence with life imprisonment (that particular bill, which was passed by Parliament in July last year, seems to have been quietly put on ice).

The other lawsuit, from journalist and lawyer Richard Dela Sky, claims the law is an affront to the human rights of Ghana’s LGBTIQ+ community and violates protections made in the constitution, including over freedom of speech, expression, assembly, association, and freedom from discrimination on the basis of gender, creed or social or economic status and rights to human dignity.

Odoi is optimistic that the legal challenges may have positive outcomes. “We began a process of testing our courts on this issue, and I want to remain hopeful that something good will come out of it.”

Sky agreed, telling openDemocracy: “The constitution, although silent on the matter [of LGBTIQ rights], implies that these rights are there and should be respected.”

He added that the bill will do more than threaten the rights of LGBTIQ Ghanaians because of the overall impact it will have on Ghana’s democratic credentials.

“It is imperative that we scrutinise and challenge any legislative action that appears to contravene the constitution to safeguard our democracy and the rights it guarantees to every citizen,” Sky said after filing his lawsuit.

It remains unclear when the Supreme Court will hear the cases relating to the bill, though it could take so long that the decision over whether or not to approve the bill becomes the next president’s problem. Akufo-Addo will leave office at the end of the year, as Ghana’s two-term presidential limit means he is not eligible to run in December’s general election.

None of the candidates running to succeed Akufo-Addo have made official statements setting out their positions on the bill. But the current favourite to win, John Mahama of the opposition party the National Democratic Congress, urged the president to accept it when speaking to religious leaders earlier this month.

Meanwhile, one of the legislators backing the bill, Rockson-Nelson Dafeamekpor, has launched a legal challenge to force Akfuo-Addo to take receipt of the bill, thus triggering processes that could see it become law.

‘They are all scared’

Five Ghanaian lawyers openDemocracy spoke with for this article agreed that the country’s Supreme Court largely has a good record on the enforcement of fundamental human rights and freedoms. Yet Kwadwo Appiagyei-Atua, a professor in international human rights law at the University of Ghana, does not expect the court to issue any ruling that fully decriminalises same-sex relations in Ghana.

Appiagyei-Atua does, however, think the Supreme Court will declare this bill “anti-human rights” – which would mean it could not become law. Pointing out that Article 33 of Ghana’s constitution says the rights outlined in Ghana’s laws are not exhaustive, the law professor suggested the court may do so by recognising new rights.

“The courts can rely on that provision in the constitution to say that even if we are not recognising gay rights, these people are human beings who are entitled to dignity,” he told openDemocracy.

Appiagyei-Atua fears that if the bill is not quashed by the Supreme Court, it could set Ghana back by centuries, to a time “when certain practices denied people their rights simply because they were considered deviants or were believed to have committed sins”.

He added that the bill tramples on the rights of not just queer people but Ghanaian society at large. For example, he said, “if you are a lecturer in the classroom and you want to discuss LGBTQ issues, you could fall foul of the law if you are reported by a student.”

Many members of Ghana’s queer community have little trust in the judiciary to quash the bill.

Openly trans musician and activist Angel Maxine told openDemocracy she finds it hard to separate the judges from the politicians who worked to pass the anti-gay law – feeling they are all members of the same establishment.

“From the politicians to the ministers to the judges, they are all the same,” Maxine said. “We can’t trust them and I don’t have confidence in them.”

Another LGBTIQ+ activist, who spoke to openDemocracy on the condition of anonymity, fearing persecution, expressed concern that the judges may be influenced by their religious beliefs.

“There is some hope that they will apply the law,” they said. “However, some people believe that, like most Ghanaians, they will make their religious beliefs determine their opinions, even if it doesn't align with the law.”

Even without having been signed into law, the bill is already severely impacting the lives of queer Ghanaians. Since it was introduced to Parliament in August 2021, LGBTIQ+ communities have said they have suffered an increase in violent attacks, blackmail and kidnappings. The morning after Parliament passed the bill saw alarming misinformation/disinformation from some media outlets, whose reporting wrongly suggested it had already become law – endangering the lives of LGBTIQ+ people.

Maxine has been forced to leave the country since the bill passed, fleeing to Germany in fear of her safety. She expects many other queer Ghanaians will be left with no choice but to do the same. But they would be the luckier ones, she said. “The people who don’t have the choice of leaving Ghana are terrified. They are all scared,” lamented the activist.

For now, Maxine is undeterred, continuing to campaign against the bill from Berlin. “It’s still ‘Kill the Bill,’” she said.