Anti-LGBTQ Case: Supreme Court Strikes Out Review

 

The Supreme Court (SC) has struck out a review motion seeking to overturn its decision dismissing a legal challenge against the passage of the Proper Human Sexual Rights and Ghanaian Family Values Bill (2024), often referred to as the Anti-LGBTQ Bill.

This follows a decision by the applicant, Richard Dela Sky, to withdraw the motion rather than pursuing it further.

The application was challenging the December 18, 2024, unanimous decision of the apex court which held that the court did not have jurisdiction to overturn an Act of Parliament which has not completed.

His lawyer, Paa Kwesi Abaidoo, who withdrew the case, indicated that they have decided to “let the sleeping dog lie” hence their decision to discontinue the challenge against the court’s earlier judgement.

An enhanced nine-member review panel of the court presided over by Justice Paul Baffoe-Bonnie, subsequently struck out the review motion as withdrawn.

Some members of the panel were not pleased with the decision, given that it could have been withdrawn earlier, thereby avowing the circumstance of an enhanced panel being empanelled to hear the matter.

“You have nine of us panelled only for you to tell us you are no longer interested. It is not right. Is it fair?” Justice Henrietta Mensa-Bonsu, a member of the panel queried.

The panel, made up of Justices Paul Baffoe-Bonnie (president), Avril Lovelace Johnson, Amadu Tanko, Henrietta Mensa-Bonsu, Yonny Kulendi, Samuel Asiedu, Ernest Gaewu, Richard Adjei-Frimpong, and Yaw Asare Darko, struck the case out as withdrawn.

The court also held that the applicant being a lawyer knows that he ought to have been in court despite the discontinuation of the case.

That notwithstanding, the court decided to waive the award of cost against him given the fact that the case is one of public interest.

Mr. Abaidoo told reporters after the court proceedings that President John Dramani Mahama has indicated that the bill will be reintroduced by the Executive, hence making his client’s position totally moot.

Earlier Decision

Richard Dela Sky, in his writ, was challenging the constitutionality of the passage of the bill and sought the Supreme Court to declare the bill null and void.

He also contended that the passage of the bill violates provisions of the 1992 Constitution, particularly Articles 33(5), 12(1) and (2), 15(1), 17(1) and (2), 18(2), and 21(1) (a) (b) (d) and (e) of the Constitution.

He averred that provisions in the bill raise profound concerns regarding the potential infringement of the fundamental human rights and freedoms guaranteed to every Ghanaian by the constitution.

Decision

The seven-member panel made up of Justices Avril Lovelace Johnson, Henrietta Mensa-Bonsu, Barbara Ackah-Yensu, Samuel Asiedu, Ernest Gaewu, Yaw Asare Darko, and Richard Adjei-Frimpong, in a unanimous decision held that the invocation of the interpretive jurisdiction of the court is premature as there is nothing on which to hang the exercise of the judicial review jurisdiction of the Supreme Court.

“Until there is Presidential assent, there is no Act of Parliament over which the Supreme Court can exercise its original jurisdiction to strike down if found to be inconsistent with the 1992 Constitution. The plaintiff’s action is therefore dismissed,” the court added.

BY Gibril Abdul Razak

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