1. Background
The Criminal Offences Act, 1960 (Act 29) of Ghana criminalises certain sexual acts deemed “unnatural carnal knowledge” under Section 104. The law has three key subsections:
- Section 104(1)(a): Criminalises unnatural carnal knowledge of a person under 16 years without consent. This is a first-degree felony, punishable by 5–25 years imprisonment.
- Section 104(1)(b): Criminalises unnatural carnal knowledge between consenting adults aged 16 or above. This is a misdemeanour, punishable by up to 3 years imprisonment.
- Section 104(1)(c): Criminalises sexual intercourse with an animal (bestiality), also a misdemeanour.
“Unnatural carnal knowledge” is defined in Section 104(2) as “sexual intercourse with a person in an unnatural manner or, with an animal.”
Judicial interpretation in prior cases has clarified that “carnal knowledge” in the natural sense means penetration of the vagina by a penis. Any other form of sexual intercourse, such as anal sex, oral sex, penetration using objects, or bestiality, falls under “unnatural” and is criminalised.
This statutory provision, especially Section 104(1)(b), has long been criticised by human rights advocates for its impact on sexual privacy, autonomy, and LGBTQI+ rights. In August 2021, Dr. Prince Obiri-Korang, a law lecturer at the University of Ghana, challenged the constitutionality of Section 104(1)(b) before the Supreme Court.
2. The Case
Title: Dr Prince Obiri-Korang v Attorney-General
Writ No.: J1/18/2021
Date of Judgment: 24 July 2024
Coram: Justice Paul Baffoe-Bonnie (Presiding), Justices Avril Lovelace Johnson, Issifu Omoro Tanko Amadu, Emmanuel Yonny Kulendi, Ernest Gaewu, Yaw Darko Asare, and Richard Adjei-Frimpong.
Plaintiff’s Reliefs Sought:
- A declaration that Section 104(1)(b) is unconstitutional as it unlawfully and arbitrarily interferes with the privacy of all adults, contrary to Article 18(2) of the 1992 Constitution.
- A declaration that it is discriminatory, contrary to Article 17(2), as it unjustifiably discriminates against persons based on sexual orientation.
- A declaration that it deprives homosexuals of liberty under Article 14(1) by preventing them from engaging in intimate consensual sexual activity with partners of their choice.
a. Overreach into Private Life
- The term “unnatural carnal knowledge” encompasses not only homosexual acts but also heterosexual acts such as anal sex, oral sex (fellatio and cunnilingus), and penetration with objects (including dildos and vibrators). These acts may occur in private between consenting adults.
- The state should not legislate morality in the sphere of private consensual acts—distinguished from public morality—as argued by philosophers like John Stuart Mill and H.L.A. Hart, and as recommended by the 1957 Wolfenden Report.
b. Discrimination
- Although the law is neutral on its face, its enforcement disproportionately affects homosexual men (for whom anal sex is a primary form of sexual expression) and stigmatizes LGBTQI+ persons.
- Heterosexuals retain access to their preferred sexual expression (penile-vaginal intercourse), so the law creates inequality in practice.
c. Violation of Liberty
- The right to liberty under Article 14 should encompass sexual autonomy, including the choice of intimate partner and sexual acts between consenting adults.
d. Harm Principle
- Laws should only criminalise conduct that causes harm to others. Private consensual sexual activity between adults, absent harm, should not be criminalised.
4. Defendant’s (Attorney-General) Arguments
The Attorney-General, Godfred Yeboah Dame, countered as follows:
a. Constitutional Alignment
- The Constitution allows restrictions on privacy to protect public health, morals, and prevent crime. Criminalising unnatural carnal knowledge reflects Ghanaian societal morals and values, which overwhelmingly reject homosexuality.
b. Non-Discriminatory Application
- Section 104(1)(b) applies to all persons—heterosexual or homosexual—who engage in unnatural carnal knowledge. The law does not single out sexual orientation.
- Article 17(2) does not list sexual orientation as a protected ground against discrimination; adding it would require constitutional amendment.
c. Privacy Not Violated
- The law criminalises the act but does not authorise bedroom surveillance or intrusion.
d. Health Concerns
- Certain forms of unnatural carnal knowledge, such as anal sex, can pose health risks, including increased transmission of sexually transmitted infections.
5.1 Jurisdiction
The Court confirmed its jurisdiction under Articles 2(1) and 130(1) to test the constitutionality of legislation.
5.2 Key Findings
- On Privacy (Article 18(2)):
- Privacy is not absolute; it can be lawfully restricted for public morals, prevention of crime, or protection of health.
- Since unnatural carnal knowledge is a crime under Ghanaian law, privacy rights cannot be invoked to protect acts that are themselves criminal.
- Section 104(1)(b) is consistent with Article 18(2).
- On Equality and Non-Discrimination (Article 17(2)):
- The term “person” in Section 104(1)(b) is broad and not limited to homosexuals; it covers all adults.
- The law criminalises the act regardless of the genders of the participants.
- Sexual orientation is not a constitutionally protected category under Article 17(2).
- On Personal Liberty (Article 14(1)):
- Liberty, in constitutional terms, primarily concerns freedom of physical movement, subject to lawful restrictions.
- Even if extended to sexual autonomy, restrictions are valid if they fall within the exceptions in Article 14(1), including for the prevention of crime.
5.3 Conclusion
- Section 104(1)(b) is not unconstitutional.
- It does not discriminate on the basis of sexual orientation.
- It does not violate the right to privacy or personal liberty.
- The Plaintiff’s action was dismissed in its entirety.
Comparison of Arguments and Supreme Court Findings – July 24, 2024 Ruling on Unnatural Carnal Knowledge (Section 104(1)(b) of Act 29)
| Issue | Plaintiff’s Arguments (Dr. Obiri-Korang) | Attorney-General’s Arguments | Supreme Court’s Findings |
|---|---|---|---|
| 1. Right to Privacy (Art. 18(2)) | – Section 104(1)(b) unlawfully invades privacy of consenting adults. – “Unnatural carnal knowledge” includes anal sex, oral sex, and penetration with objects; should not be state’s concern if done in private. – State should not legislate private morality; only public morality matters. | – Privacy is subject to protection of morals, prevention of crime, and public interest. – Ghanaian society rejects homosexuality. – Law targets the act, not bedroom surveillance. | – Privacy is not absolute; can be restricted for morals, health, and crime prevention. – If the act is criminal, privacy rights cannot protect it. – Section 104(1)(b) is consistent with Art. 18(2). |
| 2. Equality & Non-Discrimination (Art. 17(2)) | – Law disproportionately impacts homosexuals as anal sex is a primary form of sexual expression for them. – Heterosexuals retain access to their preferred sexual expression (penile-vaginal). | – Section 104(1)(b) applies to all persons regardless of sexual orientation. – Sexual orientation is not a listed ground in Art. 17(2); adding it needs constitutional amendment. – Differentiation is justified by public morals. | – Provision is neutral—covers all adults, not just homosexuals. – No discrimination under Art. 17(2). – Sexual orientation is not constitutionally protected. |
| 3. Personal Liberty (Art. 14(1)) | – Liberty includes sexual autonomy and choice of intimate partner. – Criminalising acts between consenting adults violates liberty. | – Liberty under Art. 14 concerns physical freedom, subject to lawful restrictions. – Harm may result from unnatural acts, including health risks. | – Liberty refers mainly to freedom of movement; even if extended to sexual autonomy, it can be lawfully restricted for crime prevention. – No violation of Art. 14(1). |
| 4. Scope of “Unnatural Carnal Knowledge” | – Includes anal sex, oral sex, penetration with objects, and acts not exclusive to homosexuals. – Criminalising such acts in private is overbroad. | – Any sexual act outside penile-vaginal penetration is “unnatural.” – Applies equally to heterosexual and homosexual participants. | – Judicial precedents define “natural” as penile-vaginal penetration. – “Unnatural” includes anal sex, oral sex, penetration with objects, and bestiality. – All remain criminal offences under Act 29. |
| 5. Constitutionality of Section 104(1)(b) | – Violates privacy, equality, and liberty; is unconstitutional. | – Reflects public morals; consistent with constitutional provisions; non-discriminatory. | – Not unconstitutional. – Does not discriminate on sexual orientation. – Does not violate privacy or liberty rights. – Plaintiff’s action dismissed in full. |
6. Acts Deemed “Unnatural Carnal Knowledge”
Based on statutory definition, judicial precedents, and Court interpretation, the following acts constitute “unnatural carnal knowledge” under Ghanaian law:
- Anal sex (penetration per anum) — regardless of participants’ genders.
- Penetration of the female genitalia or male/female rectum with objects — e.g., dildos, vibrators, sex toys.
- Oral sex — including fellatio (oral stimulation of a penis) and cunnilingus (oral stimulation of the vulva or vagina).
- Bestiality — sexual intercourse with animals.
The law applies equally to heterosexual and homosexual conduct.
7. Implications of the Ruling
7.1 Legal
- Confirms continued enforceability of Section 104(1)(b).
- Expands judicial clarity on what constitutes “unnatural” sexual intercourse.
- Reinforces that Ghana’s Constitution permits moral-based restrictions on privacy.
7.2 Societal
- Maintains the criminalisation of key sexual acts, irrespective of consent or sexual orientation.
- Upholds prevailing Ghanaian societal and cultural norms in law-making.
7.3 For LGBTQI+ Community
- The ruling solidifies the legal basis for prosecuting consensual same-sex sexual acts.
- The Court’s reasoning leaves little room for a constitutional challenge unless Parliament amends the law or the Constitution is revised to include sexual orientation as a protected ground.
7.4 Advocacy and Policy
- Human rights advocates must engage in strategic litigation as well as legislative reform for any prospect of decriminalisation.
- Public education on sexual health and rights will need to address the stigma reinforced by such rulings.
8. Conclusion
The July 24, 2024 Supreme Court ruling in Dr. Prince Obiri-Korang v Attorney-General is a landmark affirmation of Ghana’s position on unnatural carnal knowledge. It upholds the constitutionality of Section 104(1)(b) of Act 29, confirming that:
- Anal sex, oral sex, and penetration with objects remain criminalised for both heterosexuals and homosexuals.
- The law is not unconstitutional, does not discriminate based on sexual orientation, and does not violate privacy or liberty rights.
- Privacy rights in Ghana are subject to public morals and crime prevention, as defined by law.
The ruling reflects a broader judicial stance that Ghana’s legal system will preserve and enforce moral norms embedded in statutory law, even against evolving international human rights trends.
Below is a full copy of the Supreme Court of Ghana ruling on Dr. Prince Obiri-Korang Vs Attorney General
Rightify Ghana 