It is Sunday late August and the weekend carnival that is the beginning of the end of Accra’s week-long Chale Wote Street Arts Festival is on full display. In one of the alleyways of Jamestown (the rundown British colonial quarter of the city where the carnival takes place), women dance suggestively with each other. A man wearing a rainbow train and a vertical ponytail tries to weave through the crowd, abruptly stopped by festival revelers for photographs.
Aside from the murals and music, a present fixture at the festival is the city’s queer subculture. Cross dressing, drag and other aspects of gay culture are proudly on show here but as dusk sets on the annual festival, and so it does to this celebration of pride and a rare public safe space for a people relegated to the doldrums of underground parties—at least until next year, hopefully. That is because outside the confines of this festival, the mob stopping to pose with rainbow-vertical-ponytail-man could be the same ones turning on him the next Monday if he walked on the streets dressed like that.
One of the toxic legacies of British colonization is its 19th century anti-gay laws in colonial territories and societies where there were none. Last month, India became the 18th member of the Commonwealth to decriminalize homosexuality thanks to a landmark ruling by its Supreme Court annulling an old British colonial law. It still leaves 35 Commonwealth countries (many in Africa) that maintain laws criminalizing consensual sex between adults of the same gender and Ghana is one of them.
When Nana Akufo-Addo and his New Patriotic Party won strongly at the December 2016 general elections, many in human rights advocacy expressed optimism that the West African nation, often described as a beacon of democracy on the continent, would see an expansion of personal freedoms. After all, many of the rights Ghanaians enjoy today were won because of the activism of president Akufo-Addo either on the streets or in the courts as an esteemed human rights lawyer.
In a November 2017 interview with Al Jazeera, the president said the decriminalization of homosexuality was “bound to happen” if advocacy increased with a critical mass of people demanding rights. The 74-year old president cited his own upbringing in Britain at a time when homosexuality was still illegal and the changes that have occurred there in his lifetime due to concerted activism.
U-Turn
The reason the local LGBT movement is underground and not publicly vocal in their calls for decriminalization or even marriage equality could be explained by the threat of violence—real and perceived, as protection from the police is not always guaranteed. Although not actively enforced, the anti-gay law prevents LGBT Ghanaians from reporting instances of homophobic violence.
Before long, pressure from religious authorities and deliberate misinterpretation by political opponents forced “bound to happen” to a government position that said it will never happen because “gayism and lesbianism are un-Ghanaian’’—drowning any hopes for the LGBT community in the country.
The president has consistently failed to censure members of his party who have expressed vile homophobic rhetoric—chiefly the speaker of parliament Mike Oquaye. He has called for further criminalization, told off an Amnesty International delegation, knowingly conflated homosexuality with bestiality and has threatened to resign if any bill to amend the British colonial era law is brought before the house. An outspoken law lecturer, Moses Foh-Amoaning, is planning on starting a gay conversion therapy while others have called for gay activism to be declared a treasonable offence.
Homophobic rhetoric spread by senior government officials and religious figures embolden homophobic mobs says Wendy Isaack of Human Rights Watch. “Even if the president makes a u-turn on recognising or decriminalizing same-sex conduct, at a minimum, the government needs to speak strongly against these kinds of homophobic utterances which lead to violence and to call out religious, political and other leaders who make these statements,” Isaack told Quartz.
In January, Isaack authored an 82-page report report documenting cases of discrimination and violence targeted LGBT Ghanaians. The report was especially critical of government officials and influential societal leaders for contributing to a climate of heightened homophobia and the incitement of violence. Its recommendations to the government included a repeal of the penal code and legislation that prohibits all forms of discrimination.
See you in court
Isaack concedes that Ghana’s MPs will not decriminalize homosexuality anytime soon and the political cost means the executive stance will not change quickly enough or be unwavering. It leaves the courts as the next viable and perhaps only hope left for the LGBT community. It is in line with a government commission set up in 2011 to suggest updates to Ghana’s 1992 constitution. The commission recommended the Supreme Court as the best place for a determination.
Ghana has a strong history of constitutional litigation which keeps the Supreme Court fairly busy all year round. The courts also have a history of progressiveness and armed with case law from fellow Commonwealth jurisdictions the view shared by Isaack is that if “the movement mobilized and went to court, they would be successful.” Trinidad and Tobago, Bermuda, Belize and recently India, that have all used the judiciary to repeal colonial era penal codes.
But decriminalization is not “the silver bullet”, Isaack says. “We know, in the African context that at the top of the list is protecting people from violence because of their sexual orientation and gender identity…The other is also to recognize that beyond decriminalization, people being able to mobilise and assemble as LGBT individuals is also a fundamental human rights and must be protected. So even though we call for decriminalization we are not saying that is the only solution.”