The Home Office operational guidelines on Ghana updated on 26thSeptember 2007 states:
There is no legislation in Ghana explicitly prohibiting homosexuality. However, section 104 of the Ghanaian Criminal Code, last amended in 2003, states that ‘whoever has unnatural carnal knowledge – (a) of any person of the age of sixteen years or over without his consent shall be guilty of a first degree felony and shall be liable on conviction to imprisonment for a term of not less than five years and not more than twenty-five years; or (b) of any person of sixteen years or over with his consent is guilty of a misdemeanour.’ Few have been prosecuted in Ghana for homosexual acts, but a pastor was scheduled to stand trial in 2005 having been charged with having sex with a male student aged eighteen and in March 2006, media sources reported that an Austrian man was facing deportation after having been arrested for participating in homosexual activities
Ghana is a deeply religious country in which homosexuality is often seen as an imported foreign lifestyle choice and a moral aberration. A gay social life exists, mostly in the form of house parties and a few gay-friendly clubs in Accra, but gay men face widespread discrimination, as well as extortion attempts and police harassment. For example, there was widespread public outcry during 2006 against an international lesbian and gay conference scheduled to take place in Accra in September 2006. Strong public opposition to the event and to gay men and lesbians more generally was reflected in vehement letters to the editor, radio call-in shows, comments posted on the Internet, and in public speeches given by government officials. The Government banned the conference after local religious leaders united to protest the planned event.
Gay men encounter police harassment in Ghana and it has been reported that those who have sought the assistance of the police have been threatened with imprisonment. In the light of this and section 104 of the Ghanaian Criminal Code, it is unlikely that gay or bisexual men would be able to seek and receive adequate protection from the state authorities.
The Constitution provides for freedom of movement and the Government generally respects these rights in practice. In 2006, security officers manned checkpoints nationwide to prevent smuggling, seize illegal weapons, and catch criminals, although many were unmanned during daylight hours. In 2006, the police erected security checkpoints and conducted highway patrols in response to an upsurge in highway robberies, and police roadblocks and car searches were a normal part of nighttime travel in larger cities. The police administration acknowledges that some officers occasionally erect illegal barriers to solicit bribes from motorists. During the year, the Regional Police Commanders monitored the activities of police personnel working at the checkpoints. It is therefore practicable for claimants who have a localized well-founded fear of mistreatment from non-state agents to relocate to other parts of Ghana. Whether it is unduly harsh to expect them to do so depends on the individual circumstances of the case.
In conclusion, a man who is perceived to be gay may encounter societal discrimination and harassment in Ghana. However, there is no evidence that gay or bisexual men generally will be at real risk of treatment that would cross the threshold of persecution or Article 3 treatment. A person is not a refugee solely because section 104 of the Ghanaian Criminal Code prohibits certain homosexual acts. The claimant would need to demonstrate that there are strong grounds for believing that they personally would be at risk of treatment that would pass the threshold for persecution or Article 3 ill treatment.
Considerations will include the extent to which an individual would be perceived to be gay, for example through dress, behaviour or demeanour. A further important consideration will be whether the claimant has been subject to persecution in the past. Although this is not determinative, in the absence of a material change in circumstances, such a history will be strongly indicative of a well-founded fear of future persecution. The absence of such a history does not of itself mean that there will not be a well-founded fear in the future, but it is clearly an important consideration.
Where a gay or bisexual man is able to establish a real risk of persecution or Article 3 treatment in their home area, the lack of evidence that there is a sufficiency of protection for gay and bisexual men means that sufficiency of protection should not be relied upon to refuse such claims. However, serious ill-treatment of gay men in Ghana does not appear to be a widespread issue and in most cases a gay man who encounters difficulties in one area is likely to be able to relocate elsewhere in Ghana, for example to Accra, which has a gay social scene and gay friendly clubs. If however a gay or bisexual man does establish that they personally have a well-founded fear of mistreatment and that there are reasons why they could not avoid the threat by internal relocation or it would be unreasonable for them to do so, a grant of asylum or humanitarian protection may be appropriate.
The fact of being a gay or bisexual Ghanaian man will not of itself mean that a claimant would be persecuted, or that the claim may not be certified as clearly unfounded. However, claims from gay or bisexual Ghanaian men should not be certified on the basis of sufficiency of protection. A claim may be certified on the basis of internal relocation where it is clear that it would not be unduly harsh for him to relocate.