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Ghana’s brazen move to outlaw LGBTQI groups is the latest attack on freedom of association in Africa

Ghana’s brazen move to outlaw LGBTQI groups is the latest attack on freedom of association in Africa
Alex Kofi Donkor, director of LGBT+ Rights Ghana, says the bill is 'sensationalist' and 'incredibly absurd for a 21st-century democratic country. The bill proposes to criminalise and imprison people simply for identifying as 'lesbian, gay, bisexual, transgender, transsexual, queer, questioning, an ally, asexual or pansexual'. (Photo: Supplied)
Ohotuowo Ogbeche
By Ohotuowo Ogbeche
15 Jul 2024
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African LGBTQI people should not have to choose between life in the shadows and decades-long court battles to earn the simple right to associate freely.

The fundamental freedoms of assembly, expression and association for queer individuals are under siege. These are sentiments Graeme Reid, an expert on protection against violence and discrimination based on sexual orientation and gender identity, shared in a statement during Pride Month at the 56th session of the Human Rights Council, highlighting the alarming expansion of restrictions on these essential human rights.

This hostile environment, coupled with a rise in inflammatory rhetoric, poses significant challenges for marginalised communities, making it increasingly difficult for them to advocate for their rights. 

The critical issues surrounding the freedom of assembly, expression and association for lesbian, gay, bisexual, transgender, intersex and queer people do not receive enough attention to expose the urgent need for inclusive laws and protections to safeguard these fundamental rights.

Reid’s statement echoes the sentiments expressed in Outright International’s reports and observations regarding the latest attack on freedom of association in Africa. 

Ghana’s assault on freedom


Alex Kofi Donkor, director of LGBT+ Rights Ghana (Photo: Supplied)



Ghana, once considered a beacon of democracy, is the latest example of a brazen assault on this fundamental freedom. 

On 28 February 2024, its parliament passed the draconian Human Sexual Rights and Family Values Bill 2021. The Bill outlaws not only being LGBTIQ but also being an “ally.” Forming, operating, or registering any “group, society, association, club, or organisation” that supports LGBTQI people or advocates for their rights is punishable by up to five years in prison. 

The Bill prohibits “propaganda, advocacy, support, and other promotional activities” related to same-sex intimacy, gender nonconformity, and gender-affirming care.

Shockingly, it even tramples on a right that has been a cornerstone of democracy – the right to speak up against laws perceived to be unjust and to endeavour to shift public opinion.

It imposes a 10-year prison sentence on anyone who “engages in, participates in, promotes, or supports an act… aimed at changing public opinion towards an act prohibited under this Act.” 

The Bill further imposes a legal duty on all members of society to report LGBTQI people, allies, and anyone engaged in LGBTQI civic organising to the relevant authorities. 

It remains to be seen whether President Nana Akufo-Addo, who has said the Supreme Court should first rule on the Bill’s constitutionality, will give his assent to this dangerous legislation. 

While the Bill is not yet law, its mere existence has already stifled freedoms and imperilled public safety. Its tabling contributed to arrests of and violence against LGBTQI people in Ghana. 

Demonisation


Anti-rights actors have used the media to demonise and misinform people about LGBTQI, contributing to an information imbalance in a context within which LGBTQI organisations are forced to work in secrecy, with one reporting that facility managers refuse to rent out spaces for LGBTQI activists to hold workshops.

Ghana’s case is extreme. On the African continent, only Uganda and Nigeria explicitly criminalise queer organising through direct legal prohibitions on “gay clubs” (Nigeria) or “promotion of homosexuality” (Uganda), placing them among the world’s worst offenders concerning LGBTQI freedom of association – a club that Ghana appears determined to join. 

Uganda’s Court of Appeal has also recently held that an LGBTQI organisation, Sexual Minorities Uganda, seeks to promote rights criminalised by law and, as such, cannot be legally registered. But across the continent, activists struggle to organise, battling danger, social stigma, arbitrary denials of rights and implicit prohibitions. 

The situation in Ghana is not an isolated case. 

Reid’s statement highlights the disturbing trend of increasing restrictions on fundamental freedoms for LGBTQI individuals, with at least 60 UN member states restricting freedom of expression and 59 restricting freedom of assembly. 

The rise in hostile rhetoric used to justify these restrictions further exacerbates the challenges marginalised individuals face while advocating for their rights.

Tolerance vs intolerance


In 2023, Outright International published a report on The Global State of LGBTIQ Organising: The Right to Register and the Freedom to Operate, analysing the extent to which LGBTQI activists can enjoy this right. Among 47 sub-Saharan African countries, we found that only five – Botswana, Cabo Verde, Lesotho, Seychelles and South Africa – allow LGBTQI organisations to register and operate openly. 

Angola and Mozambique have made gestures toward allowing LGBTQI organisations to register, but activists continue to report obstacles. In 32 other sub-Saharan African countries, LGBTQI organisations exist, but they cannot register openly. In eight countries, including Chad, Gabon and South Sudan, Outright has been unable to identify any LGBTQI organisations at all.

Laws in 25 sub-Saharan African countries criminalise same-sex intimacy, thwarting the ability of LGBTQI advocacy groups to demand rights protections. In Senegal, for instance, an activist told Outright that frequent arrests on charges of same-sex conduct hindered movement-building and impacted morale, rendering “us illegal entities in a country that is supposed to be free.”

Where freedom of association seemingly exists for LGBTQI people in Africa, it has often been hard-won. The Botswana group, Legabibo, won the right to registration in 2014. The state appealed, but the Court of Appeals upheld the ruling in 2016. In Kenya, where the NGO Board refused to register the National Gay and Lesbian Human Rights Commission, the group sought redress in court in 2013. Its battle for basic rights lasted 10 years, with repeated appeals from the government, until the February 2023 Supreme Court decision that the NGO Board acted discriminatorily.

The country’s vice-president criticised this decision; protests broke out based on “moral” hysteria, and a member of parliament challenged the decision, which the court dismissed.

The commission is now undergoing the registration process in what will be a test case of Kenya’s willingness to uphold the rule of law. Meanwhile, parliament is considering two harmful new Bills: the proposed Family Protection Bill 2023, expanding existing criminalisation of same-sex acts, and a constitutional amendment Bill outlawing “illegal groups such as gay coalitions.” 

Similarly, Eswatini’s Registrar of Companies refused to register Eswatini Sexual and Gender Minorities (ESGM) in 2019, after which the organisation approached the court to set this decision aside. Upon appeal, the Supreme Court in June 2023 declared the registrar’s decision void based on the approach being outside his powers. Presently, the Ministry for Commerce, Industry and Trade has refused to register the organisation because the NGO’s name and objectives allegedly offend the customary principles preserved “in our Swazi law and custom that a man and a woman shall start and maintain a love relationship.” 

As the organisation again had to approach the court, four UN Special Procedures mandate holders issued a communication to the Eswatini government in November 2023 demanding an explanation on how the refusal to register ESGM complies with international human rights law.

Funding, recognition hurdles


Where LGBTQI people cannot register and operate organisations, movements are stunted by a lack of access to sustainable funding and formal recognition, contributing to great difficulty in advocacy amid institutionalised and social discrimination. 

The right to freedom of association is fundamental; more so, it profoundly impacts the ability of people to enjoy other rights, including equality, dignity, wellbeing and freedom from discrimination. When deprived of exercising this right, marginalised populations become further so. 

African LGBTQI people should not have to choose between life in the shadows and decades-long court battles to earn the simple right to associate freely. 

To fully protect communities and actualise rights guaranteed internationally and under national constitutions, governments must leave no one behind – including LGBTQI people.

Individuals, policymakers and allies should speak up for inclusive laws in Ghana, Uganda and elsewhere that protect LGBTQI people’s rights to freedom of association and civic participation. DM

Ohotuowo Ogbeche is a writer, lawyer, researcher, feminist, and LGBTIQ rights advocate from Nigeria. As Outright International’s global researcher, she designs and conducts research geared towards the promotion of LGBTIQ persons’ rights worldwide.

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