Ghana’s Constitutional Evolution Since 1960: A Comparative Analysis of the Country’s Equality and Anti-Discrimination Legal Provisions

Richard Obeng Mensah ORCID iD

Issue: Vol.3  No.7  July 2022  Article 1 pp. 256-268
DOI : https://doi.org/10.38159/ehass.2022371 |   Published online 6th July 2022.
© 2022 The Author(s). This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).

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Ghana has had four republican constitutions since it attained independence on 6th March 1957. Ghana’s first republican constitution arguably provided for fundamental human rights and freedoms. The 1992 Constitution also guarantees equality before the law. However, Article 17(4) of the 1992 Constitution allows the Parliament of Ghana to make certain laws which might be advantageous to a certain class of people as far as it conforms to the provisions of the Constitution. A group of Parliamentarians in 2021 introduced a Bill in the Parliament of Ghana to criminalize LGBTQI+ groups and related activities since the Criminal Offences Act 1960 (Act 29) does not expressly refer to them. The Bill has fuelled debates on the discrimination or otherwise of LGBTQI+ persons in Ghana and the criminalisation of their activities. Using a comparative and doctrinal legal research approach, this paper analyses Article 17 of the 1992 Constitution of Ghana in the context of Ghana’s constitutional evolution since 1960. The paper reveals that a comparison of the legal provisions on equality and discrimination in the various constitutions of Ghana since 1960 shows that the relevant provisions on the right to equality before the law and freedom from discrimination have undergone significant changes. The paper also shows that, unlike the 1969 and 1979 Constitutions, the 1992 Constitution does not list ‘sex’ or ‘sexual orientation’ or both as prohibited grounds for discrimination.

Keywords and Phrases: Ghana, Constitutional Evolution, Equality and Freedom from Discrimination, 1992 Constitution.

Constitutions
The 1960 Constitution of Ghana.
The 1969 Constitution of Ghana.
The 1979 Constitution of Ghana.
The 1992 Constitution of Ghana.

Statutes
Interpretation Act 1960 (CA 4), as repealed by Interpretation Act 2009 (Act 792).
Criminal Offences Act 1960 (Act 29) as amended.
The Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill 2021.

Cases
CHRAJ v Ghana National Fire Service [Suit No. HR 00063/2017].
Nartey v Gati [2010] SCGLR 745.
New Patriotic Party v Inspector-General of Police [1993-94] 2 GLR 459, SC.
Re Akoto and 7 Others [1961] GLR 523.
Targhuy v Achimota School [Suit No. HR/0055/2021].
R v Allen (1848-50) 3 COX CC 270.

Books & Edited Volumes
Adjei DD, Constitutional Law of Ghana: Evolution, Theory and Practice, Buck Press Ltd 2020.
Mensah RO, “Constitutional Boundaries to Human Rights in Ghana: Measuring the Scope of Private and Public Interests in the ‘Right’ to Sexual Orientation” in Michael Addaney (eds), Women and Minority Rights Law in Africa: Reimagining Equality and Addressing Discrimination, Eleven International Publishing 2019.
Gyandoh Jr. S.O and Griffith J in Kofi Kumado and SO Gyandoh Jr. (eds), Sourcebook of the Constitutional Law of Ghana, 2nd ed, vol 1 part II, Black Mask Limited 2009.
Bimpong-Buta S.Y, The Role of Supreme Court in the Development of Constitutional Law in Ghana ,1st ed, Advanced Legal Publications, 2007.

Journals Articles
Acemoglu D and Wolitzly A, ‘The Theory of Inequality Before the Law’ The Economic Journal, 131, (2020):1429.
Bingham L, ‘The Rule of Law’ Cambridge Law Journal 66, no. 1 (March 2007): 72.
Rutherglen G, ‘Discrimination and Its Discontents’ Virginia Law Review 81 no.1 (1995): 117.
Winter Jr R. K., ‘Changing Concepts of Equality: From Equality Before the Law to the Welfare State’ Washington University Law Review (1979): 743.
Atuguba R, ‘Homosexuality in Ghana: Morality, Law, Human Rights’ Journal of Politics and Law; 12, no. 4 (2019).
Lord Bingham, “The Rule of Law,” Cambridge Law Journal 66, no. 1 (March 2007): 72.

Conference Paper
Mensah RO, ‘Ghana’s Constitutional Evolution since 1960: Comparative Analysis of the Country’s Equality and Anti-Discrimination Law Provisions’ in Inequality in a Time of Global Crisis: What have we Learned about Effective and Proportionate Response’ (Cape Town, 2021)>https://www.law.berkeley.edu/research/berkeley-center-on-comparative-equality-anti-discrimination-law/ourannual-conference-programs/Official Report
Constitutional Review Commission, ‘From a Political to a Developmental Constitution’ (2011) Constitutional Commission Review 626 >https://s3.amazonaws.com/ndpc-static/CACHES/NEWS/2015/07/22//CRC+Report+2011.pdf< accessed 28 June 2021.
Bureau of Democracy, Human Rights, and Labor, “2021 Country Reports on Human Rights Practices: Ghana”, (United States Department of State) >https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/ghana/< accessed 1 May 2022.

Websites
African Commission on Human and Peoples’ Rights, ‘African Charter on Human and Peoples’ Rights’ (African Commission on Human and Peoples’ Rights (ACHR) 2021)>https://www.achpr.org/legalinstruments/detail?id=49< accessed 10 July 2021.
Thompsell A, ‘A Brief History of Ghana since Independence” (October 2019) >https://www.thoughtco.com/brief-history-of-ghana-3996070< accessed 6 July 2021.
United Nations, ‘Universal Declarations of Human Rights’ (United Nations) >https://www.un.org/en/about-us/universal-declaration-of-human-rights< accessed 10 July 2021.
Nana Dr. S. K. B. Asante, KNUST Faculty of Law Forum for Current Legal Issues, “The 1992 Constitution, Law and Development: Agenda for Reform”. >https://www.facebook.com/lawknust/videos/1054623068798991/< accessed 30 April 2022.
Human Dignity Trust, “Types of criminalisation” >https://www.humandignitytrust.org/country-profile/ghana/< accessed 1 May 2022.
British Library, “Wolfenden Report, 1957”, >https://www.bl.uk/collection-items/Wolfenden-report-conclusion< accessed 3 May 2022.

Richard Obeng Mensah is an assistant lecturer at the Private Law Department, Kwame Nkrumah University of Science and Technology, Kumasi – Ghana; where he teaches Intellectual Property Law, Comparative Law, and Legal Writing & Study Skills. His research interests include energy security, climate change, human rights, intellectual property rights, comparative law, and corruption and good governance. He has published in these areas among others. His ongoing doctoral research, at the Faculty of Law, KNUST, focuses on clean energy generation in Ghana. Richard holds a Bachelor of Laws (LLB) degree from KNUST, Qualifying Certificate in Law (QCL/BL) from the Ghana School of Law, and a Master of Laws (LLM) degree in Energy Law from the University of Aberdeen, Scotland, United Kingdom. He is a private legal practitioner and a member of the Ghana Bar Association and Advocates Africa/International.

Mensah R.O., “Ghana’s Constitutional Evolution Since 1960: A Comparative Analysis of the Country’s Equality and Anti-Discrimination Legal Provisions,” E-Journal of Humanities, Arts and Social Sciences 3, no.7 (2022):256-268.  https://doi.org/10.38159/ehass.2022371

© 2022 The Author(s). Published and Maintained by Noyam Publishers. This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).