15 March, 2023
Hon. Godfred Yeboah Dame, Attorney General and Minister of Justice
Office Of The Attorney General And Ministry Of Justice,
Hon. Kwame Anyimadu-Antwi, Chairman Committee on Constitutional, Legal and Parliamentary Affairs
Hon. Ursula Owusu-Ekuful, Minister of Communications and Digitalisation
Re: The ‘Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021’ threatens digital rights
Dear Hon. Dame,
We, the undersigned organisations, are writing to you to highlight how the ‘Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021’ will impact the digital rights of Ghana’s LGBTQ+ community, and to share our recommendations.
Analysis of the anti-LGBTQ bill against international human rights standards
Categorising the existence of LGBTQ+ people and labeling consensual intimacy between LGBTQ+ individuals as deviant is a legacy of colonialism, which has since been codified into vague morality laws criminalizing certain sexual acts as ‘unatural’. The ‘Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021’ will continue a pattern of dehumanising and silencing LGBTQ+ people, isolating them from support networks. It will also minimise, and even cover up, human rights violations. When it comes to the online experiences of LGBTQ+ people in Ghana, the bill will impact digital rights in the following ways:
Content moderation and intermediary liability
Subclause 12 (1) prohibits individuals from using social media platforms to produce, publish or disseminate content promoting activities prohibited by the bill. These include issues such as allyship, advocacy, public displays of affection, and gender expression not aligned with the gender assigned at birth.
Subclauses 12 (4) and 13 (2) of the bill state that social media companies will be held criminally liable for any such content being produced, published and disseminated on their platforms, and that they will be absolved from liability only if able to demonstrate that they exercised a reasonable degree of diligence to prevent this from occurring. In practice, such an intermediary liability regime will create legal uncertainty for all actors. Several expert organisations have warned that social media companies are likely to take an overcautious approach, removing or restricting content assessed solely against their terms of service, in order to avoid liability.
According to Principle 31 of the Declaration of Principles of Freedom of Expression and Access to Information in Africa, 2019 and Principle 1 of the Manila Principles, intermediaries should be shielded from liability for third-party content. Civil society organisations such as Access Now and the Electronic Frontier Foundation have warned that attributing liability in this way leads to legitimate content being censored and sets a concerning precedent of government overreach and manipulation of content moderation systems to control public discourse and suppress social movements.
In his 2018 recommendations on the promotion and protection of the right to freedom of opinion and expression (A/HRC/38/35), the UN Special Rapporteur discouraged governments from demanding proactive content monitoring and filtering, since such measures amount to ex ante censorship and violate people’s right to privacy.
The proponents of this bill have clearly stated that their ambition is to criminalise LGBTQ+ people and LGBTQ+-related activities, allegedly in order to protect children. They have further claimed that censoring LGBTQ+ advocacy and people is necessary to defend or uphold public morality.
Principle 38 of the African Commission of Human and People’s Rights’ Declaration of Principles of Freedom of Expression and Access to Information in Africa prohibits states from interfering with people’s right to seek, receive and impart information by removing or blocking content, unless such measures meet the criteria of proportionality and necessity prescribed by international human rights law. The rights to freedom of expression and access to information are established in Article 19 of the International Covenant on Civil and Political Rights (ICCPR). While we acknowledge that these rights can be limited under the justification of protecting public morality, we would also highlight that, as reiterated by the Human Rights Committee in General Comment No.34, the concept of public morality is not based on any single tradition and must be understood in light of the universality of human rights and the principle of non-discrimination.
In fact, this bill will interfere with the ability of the Ghanaian public, civil society and the international community to document human rights violations and hold the government accountable. Such limitations will directly affect the work of international human rights bodies, such as the United Nations Office of the High Commissioner on Human Rights, who rely on national civil society organisations’ findings to track discrimination against LGBTQ+ people.
Finally, while protecting children online is vital, legal experts have pointed out that banning LGBTQ+ issues from public discourse or media coverage is neither proportionate nor justifiable as a response. Doing so interferes with all children’s rights to information and to be heard, and with LGBTQ+ children’s right to self-determination. The UN High Commissioner has reiterated that access to online information is essential for LGBTQ+ people’s ability to freely form opinions about their identities.
The right to hold an opinion without interference is provided for in the first paragraph of Article 19 of the ICCPR. This right is further strengthened in the UN’s General Comment No.34, on Article 19 (CCPR/C/GC/34), which states that criminalising having an opinion is incompatible with the non-derogable protections enshrined in paragraph 1 of Article 19. The Comment further states that stigmatising, harassing, arresting or imprisoning a person on the basis of opinions they hold violates Article 19.
Breaches of privacy rights
If passed, this bill would codify certain online actions as offences against public morality and bring them within the scope of cybercrime. Suspects’ privacy rights could therefore be restricted during ongoing criminal investigations.
Law enforcement in Ghana already uses tactics such as device searches and entrapment to obtain digital evidence, including pictures and private messages from social media platforms and dating apps, which are then used to arrest and charge LGBTQ+ people under Section 104 (2) of the Criminal Offences Act, 1960. Section 18 (2) of the Constitution should protect LGBTQ+ people against privacy breaches. However, the right to privacy can be limited if deemed necessary to protect public morals. This limitation is also mentioned in Subsection 17 (1) (b) of the Right to Information Act, which limits people’s protection against unreasonable disclosure of confidential personal information if there is evidence of an imminent and serious threat to public morals.
The limitation of the right to privacy and protection from unreasonable disclosure will allow law enforcement and whoever the law categorises as opinion leaders, political leaders or customary leaders to breach the privacy of people suspected of undermining ‘proper human sexual rights and family values’. This not only leaves them with no protection against breaches of privacy by law enforcement, it also leaves them unprotected against doxxing by members of the public.
Such actions will put the rights of both LGBTQ+ people and the general public at risk. As stated by the UN High Commissioner for Human Rights, “The right to privacy is central to the enjoyment and exercise of human rights online and offline. It serves as one of the foundations of a democratic society and plays a key role for the realisation of a broad spectrum of human rights”.
The right to privacy established in Article 17 of the ICCPR applies to all and should be immune from unlawful or arbitrary interference. In General Comment No. 16 (1988), the UN Human Rights Committee clarified that arbitrary interference includes legally-enabled interference, when it conflicts with the ICCPR’s provisions, aims and objectives. In Communication No. 1361/2005, X v Colombia, the Human Rights Committee stated that discrimination on the basis of sexual orientation falls under prohibitions against discrimination laid out in Article 26 of the ICCPR. Limiting the right to privacy on the grounds of gender identity and sexual orientation is therefore inconsistent with international human rights standards.
Promotion of online intolerance online
The bill will oblige all public and educational institutions to promote ‘proper human sexual rights and family values’. This includes promoting discredited psychiatric and medical concepts that pathologize LGBTQ+ people and aim to legitimise conversion therapy as a cure for queerness. It will also push the false narrative that LGBTQ+ people are predators or groomers who coerce economically disadvantaged or vulnerable people into changing their sexuality.
An openDemocracy investigation recorded 138 instances of misleading, inaccurate or hateful online reports and posts targeting LGBTQ+ people in Ghana. Such stigmatisation fuels online intolerance against LGBTQ+ people and forces LGBTQ+ Ghanaians to self-censor their online expression to avoid being profiled, harassed, doxxed, or criminally prosecuted. Limiting access to accurate information that dispels misconceptions about LGBTQ+ people will exacerbate the violence and discrimination that they already face.
The Bill would contravene guidance from the UN Human Rights Council’s Resolution (A/ HRC/47/16) on the promotion, protection and enjoyment of human rights on the Internet, which encourages states to “address disinformation and advocacy of hatred constituting incitement to discrimination, hostility or violence, in order to ensure the full enjoyment of human rights”.
We are deeply concerned by Attorney General Hon. Godfred Yeboah Dame’s legal opinion on the bill, which supports the ban on LGBTQ+ content. This directly conflicts with the African Commission on Human and Peoples’ Rights’ Resolution on the protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity (ACHPR/Res.275(LV) 2014). This Resolution calls on African states “to ensure that human rights defenders work in an enabling environment that is free of stigma, reprisals or criminal prosecution as a result of their human rights protection activities, which also includes the promotion of LGBTQ+ rights”.
We echo the sentimentsof the Ghana Commission on Human Rights and Justice, which has warned that this bill will jeopardise Ghana’s regional and international reputation. The bill will further set a concerning precedent that enables government overreach, putting the digital rights of all Ghanaians at risk. As government officials, it is your duty to safeguard the accountability mechanisms that ensure Ghana’s government adheres to its obligations to protect and promote human rights.
We therefore recommend that:
- The Committee on Constitutional, Legal and Parliamentary Affairs recommend that Parliament of Ghana reject the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 in its entirety.
- The Parliament of Ghana reject the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill, 2021 in its entirety.
- The Attorney General revises his position on Clauses 12 and 13 of the bill, and recommends that the Parliament should reject the bill in its entirety.
- Members of Parliament safeguard LGBTQ+ people’s human rights by submitting a petition to repeal Section 104 (2) of the Criminal Offences Act, 1960.
With this in mind, we ask for your support in calling for Ghana’s parliament to reject this draconian bill and commit instead to protecting the human rights of people in Ghana.
Access Chapter 2, South Africa
ARTICLE 19 Eastern Africa
ARTICLE 19 West Africa
Centre for Popular Education and Human Rights, Ghana (CEPEHRG)
Electronic Frontier Foundation
Lake Region Womxn Health and Equal Rights, Kenya
LEHA – Kenya
National Gay and Lesbian Human Rights Commission (NGLHRC)
Ranking Digital Rights
Robert F Kennedy Human Rights
The Collaboration on International ICT Policy for East and Southern Africa (CIPESA)
The Initiative For Equal Rights (TIERs), Nigeria