Dr. Prince Obiri-Korang v. Attorney General (J1/18/2021) [2024] GHASC 21 (24 July 2024)

Material Facts:

The plaintiff invoked the original jurisdiction of the Supreme Court for a declaration that the criminalisation of unnatural carnal knowledge in Section 104(1)(b) of the Criminal and Other Offences Act 1960 (Act 29) , which includes acts such as penetration per anus, the penetration of the female genitalia or male/female rectum with an inanimate object, fellatio (head or blowjob), and cunnilingus (oral sex performed on a vulva and/or vagina), is unconstitutional because it violates the right to personal liberty in Article 14, among others.

Issues:

Whether or not Section 104(1)(b) of Act 29 contravenes the provision on the right to personal liberty enshrined in Article 14(1) of the 1992 Constitution of Ghana by criminalising unnatural carnal knowledge between adults in seclusion.

Arguments of the Plaintiff

That the right to liberty in Article 14 encompasses the right to sexual autonomy, as all adults of consenting age are entitled to complete liberty over the most intimate decisions relating to their personal lives, including the choice of a partner.

Holdings:

Section 104(1)(b) of Act 29 does not contravene the right to personal liberty in Article 14.

Ratio Decidendi:

It is essential to note that:

Whereas, the enjoyment and ventilation of human rights have been guaranteed under the 1992 Constitution, just as in all civilized nations across the world, these rights, freedoms and liberties are not at large absolute and without limits.

…

Article 12(1) of the 1992 Constitution provides that, the rights and freedoms as guaranteed under the Constitution are to be respected and upheld by all persons including the executive, the legislature and the judiciary. Article 12(2) of the Constitution however, restricts these rights from being absolute. It provides as follows: “Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.” (Emphasis added). From the above provision, the rights guaranteed under Chapter 5 of the constitution are subject to the respect for the rights of others, and secondly, the public interest .

When human rights are being limited, however, they must be limited in accordance with the constitution. The question is whether the limitation on the right to personal liberty by the criminalisation of unnatural carnal knowledge in Section 104(1)(b) of Act 29 is in accordance with the Constitution.

Their lordships do not understand the plaintiff’s submissions within the meaning of the phrase “personal liberty” as used in Article 14(1) . In light of the provisions in Article 14(1)(a)-(g) , personal liberty, if contextually construed,

Pertain to the free physical movement of the person, subject to such restrictions against any liberties as sanctioned by law or the constitution itself.

In the cases of Martin Kpebu (No. 1) vs. Attorney General (No. 1) [2015] DLSC 3031 ; Martin Kpebu (No. 2) v. Attorney-General (No. 2) [2015-2016] 1 SCGLR 143 ; Martin Kpebu (No. 3) Vs. Attorney-General (No. 3) [2020] 152 GMJ 97 ; Gorman vs. Republic [2003-2004]. 2 SCGLR; Dodzie Sabbah Vs. Republic [2015] GHASC 133, the Supreme Court expounded on this right,

Which primarily deal with the constitutional or unconstitutional restrictions on the movement of the individual freely in a democratic state.

Even if personal liberty was construed to encompass sexual autonomy as urged by the plaintiff, he has failed to demonstrate that the criminalisation of unnatural carnal knowledge does not fall within the exceptions under Article 14(1) of the 1992 Constitution .

In a concurring judgement, Kulendi JSC, on the right to personal liberty, also advanced that:

The right to personal liberty is no license to endorse all forms of indecency. Just as acts such as coitus in public, distribution of pornography and the like cannot be endorsed on the basis of personal liberty, so also, can we not endorse acts of unnatural carnal knowledge on the basis of personal liberty.

Principles in Case:

1. The right to personal liberty in Article 14 primarily deals with the constitutional or unconstitutional restrictions on the movement of the individual freely in a democratic state.

2. Like other rights, the right to personal liberty is not absolute and is subject to the respect for the rights of others, and secondly, the public interest.