By Prof Henry Kwasi Prempeh
Once upon a time in human history and society, consensual sexual relations, including procreation, between persons of different “races” was proscribed as “miscegenation”, because it was deemed offensive to the “natural order of things”.
The legal proscription of miscegenation found support and justification at the time in some Christian doctrine, as it does today on the fringes of that religion. (Chattel slavery, too, enjoyed support and protection from both law and religious doctrine at various times in history).
In places like the American South and South Africa, where such laws existed well into the second half of the 20th Century, associations and groups like the National Association for the Advancement of Colored People (NAACP) and the African National Congress (ANC), bringing together persons who were victimized by or simply opposed such racist laws and societal norms, were formed for the express purpose of, among other things, getting such laws abolished.
Is it now being contended then, that, civic groups and associations like the NAACP and ANC, comprising persons who rejected the racist order and orthodoxy of their times, were or should have been deemed illegal associations in their respective jurisdictions merely because they sought to get the system to change so as to make lawful that which at the time had been proscribed by racist laws?
Is an “LGBT Office” or Association per se illegal–they say it’s even a threat to “National Security”–merely because an existing law (with origins in colonial era legislation), which finds support among certain faith communities, proscribes so-called “unnatural carnal knowledge”?
Assuming, for the sake of argument, that such a law is deemed not unconstitutional by a contemporary court (btw, apex courts in a number of common law jurisdictions like India and Belize have recently invalidated similiarly worded statutes), how exactly does one go from saying that such a law is not unconstitutional, to then saying that, persons not otherwise engaged in the proscribed conduct may still not band together as an association even to advocate the repeal of such a law or to protest abusive use of such law to target and harrass persons on the assumption that they may be predisposed to engage in such conduct (whatever that means)?
If I am free to advocate the abolition or repeal of a certain criminal statute, does my right to such advocacy, which is a form of permissible free speech, become unlawful merely because I have joined together or associated with another person or other persons to pursue that same advocacy and other related issues of mutual interest?
Aren’t others just as free to band together in counter-advocacy in support of the status quo? Please don’t come here with the pedestrian “Association of Rapists” or “Association of Armed Robbers” analogies being bandied about. I have heard them. They are as silly as they are inapposite. At the minimum, a “rapist” is one who has committed or been convicted of the crime of rape, and an “armed robber” one who has committed or been convicted of the crime of “armed robbery”.
What exactly is the crime a gay person has committed or been convicted of? Or are we now being invited to criminalize the status or identity of being gay without any relationship to or proof of criminal conduct?
What would be the constitutional or jurisprudential basis for such a proposition? Can Rastafarians not advocate or band together to advocate the decriminalization of weed smoking? Or is being a Rastafarian by itself an illegal status?
By the way, is it still a part of Ghanaian “culture” for two men or two women to be seen in public holding hands? Or did that, too, just become some imported or exported “Western” cultural practice?
Any more legal arguments? Or have we now officially traded in our constitutional republic for a theocracy ruled by or at the pleasure of a conclave of self-appointed mullahs and high priests?
The author, Prof Henry Kwasi Prempeh, is Executive Director of the of Ghana Center for Democratic Development (CDD-Ghana).