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Law & Morality in Africa Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History SJD Dissertations Academics 4-30-2018 Law & Morality in Africa: Towards a Rational Public Policy Framework for Regulating Intimate Human Conduct in Ghana Kwaku Agyeman-Budu Follow this and additional works at: https://ir.lawnet.fordham.edu/sjd Recommended Citation Agyeman-Budu, Kwaku, "Law & Morality in Africa: Towards a Rational Public Policy Framework for Regulating Intimate Human Conduct in Ghana" (2018). SJD Dissertations. 9. https://ir.lawnet.fordham.edu/sjd/9 This Dissertation is brought to you for free and open access by the Academics at FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in SJD Dissertations by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. LAW & MORALITY IN AFRICA: TOWARDS A RATIONAL PUBLIC POLICY FRAMEWORK FOR REGULATING INTIMATE HUMAN CONDUCT IN GHANA Kwaku Agyeman-Budu Fordham University School of Law LAW & MORALITY IN AFRICA: TOWARDS A RATIONAL PUBLIC POLICY FRAMEWORK FOR REGULATING INTIMATE HUMAN CONDUCT IN GHANA By Kwaku Agyeman-Budu Submitted on April 30, 2018 to the Graduate Committee of the International and Non-J.D. Programs Office of Fordham University School of Law in Fulfillment of the Requirements for the Degree of Doctor of Juridical Science (S.J.D.) We, the dissertation Committee for the above candidate for the Doctor of Juridical Science (SJD) Degree, hereby recommend acceptance of this dissertation Dissertation Adviser: ___________________________ Professor Paolo Galizzi ___________________________ Professor Tracy Higgins ___________________________ Professor Jeanmarie Fenrich 2 ACKNOWLEDGEMENT First and foremost, I thank God for bringing me this far in my academic career. Without mercy and favour I would not have been able to achieve all that I have in such a short period of time. My sincerest gratitude also goes to the entire academic community of Fordham University School of Law. In particular, I want to thank Professor Paolo Galizzi, my SJD dissertation supervisor and adviser who has been such a wonderful inspiration in my academic journey so far. His guidance and patience throughout my SJD experience at Fordham Law made the journey worthwhile. My sincere thanks also goes to Professor Tracy Higgins and Professor Jeanmarie Fenrich, my other SJD Committee members, who provided me with useful feedback and comments as I developed my dissertation. The Leitner Center for International Law & Justice also deserves special mention because they have been my family since my LL.M days in 2011/2012, and they continue to support my work in various ways – for which I am forever grateful. To Toni Fine and the entire program staff at the International & Non-JD Office, a big thank you to you all for your support and friendship over the years. Finally, I want to thank my family – Mr. Kwame Agyeman-Budu (my father); Her Ladyship (Mrs.) Rita Agyeman-Budu (my mother); my brothers, Nana Sarpong and Agya Yaw – you have been my strength and encouraged me through it all – God richly bless you. Last but not the least, my greatest thanks goes to my wife, Bettina Agyeman-Budu, who believed in me even when I doubted myself. Without her support, encouragement and prayers I would not have gotten this far. Thank you for your love and patience. This is dedicated to you. 3 LAW & MORALITY IN AFRICA: TOWARDS A RATIONAL PUBLIC POLICY FRAMEWORK FOR REGULATING INTIMATE HUMAN CONDUCT IN GHANA Kwaku Agyeman-Budu* ABSTRACT1 Law and morality have always been uneasy bedfellows; for whose morality should the law protect and enforce? Is there a collective form or sense of morality that societies accept and agree to be bound by at any particular point in time? If so, how is this done? What does morality even mean? And should the law concern itself with enforcing religious and/or cultural moral codes in the modern secular State? These and other questions have been at the heart of philosophical and jurisprudential debates concerning the intersection between law and morality and its impact on public policy from time immemorial. This dissertation is therefore an attempt to revisit and review the concept of morality from the perspective of law and public policy in a modern African State. The main focus of the dissertation is to examine and evaluate the moral content and underpinnings of the offence of sex work in Ghana, and propose a new neutral form of “morality” that is more rational, devoid of stigma and is incapable of being used as justification for criminalization of the conduct of persons who are the subject matter of the offence in question. Ultimately, the dissertation proposes a new approach to dealing with criminal offences that involve the balancing of individual autonomy of action and the legitimate State interest in regulating the scope and extent of such conduct or actions, since the old approach has not only failed, but has also led to the proliferation of sex work in Ghana over the years. * Doctor of Juridical Science (S.J.D.) Candidate and Doctoral Fellow, Fordham University School of Law. 1 The S.J.D. dissertation project of the author focuses on the intersection between law and morality in 1 The S.J.D. dissertation project of the author focuses on the intersection between law and morality in Africa, and proposes a new approach to dealing with criminal offences (like sex work), which involve the balancing of individual autonomy and legitimate State interest in regulating such conduct in Ghana. 4 Table of Contents CHAPTER ONE – INTRODUCTION ........................................................................................ 8 A. OVERVIEW OF DISSERTATION TOPIC ....................................................................................... 8 B. JUSTIFICATION FOR THE STUDY ............................................................................................. 13 1. Reasons for pursuing the topic .......................................................................................... 14 i) Interest and Knowledge Gap .......................................................................................... 14 ii) Law Reform ................................................................................................................... 15 iii) Contribution to Scholarship ........................................................................................... 22 2. Relevance of the topic in Ghana ........................................................................................ 23 i) Legislative and Policy Reform ....................................................................................... 23 ii) Enforcement and Realization of Fundamental Human Rights ...................................... 23 iii) Reference Materials for the teaching of Law ................................................................. 25 C. METHODOLOGY & STRUCTURE OF DISSERTATION ................................................................. 25 1. Research Questions ........................................................................................................... 25 2. Challenges ........................................................................................................................ 26 3. Dissertation Structure ....................................................................................................... 27 CHAPTER TWO – LITERATURE REVIEW ......................................................................... 29 A. WHAT IS LAW? ...................................................................................................................... 29 B. WHAT IS MORALITY? ............................................................................................................. 51 C. THE LAW AND MORALITY DEBATES ...................................................................................... 59 D. SEX WORK, THE LAW AND MORALITY .................................................................................. 71 CHAPTER THREE – THEORETICAL FRAMEWORK: A NEW MORALITY ............... 85 A. SEXUAL MORALITY GENERALLY ........................................................................................... 88 1. Religion and Sexual Morality ............................................................................................ 97 i) Christianity and Sexual Morality ................................................................................... 99 ii) Islam and Sexual Morality ........................................................................................... 106 2. The Ghanaian Cultural Conception of Sexual Morality .................................................. 110 3. Feminism and Sexual Morality ....................................................................................... 116 B. LESSONS FROM THE MAKING OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS ......... 125 C. TOWARDS MORAL NEUTRALITY .......................................................................................... 141 1. Human Dignity ................................................................................................................ 145 2. Individual Autonomy ....................................................................................................... 154 3. Equality ............................................................................................................................ 157 D. THE DIGNITY, INDIVIDUAL AUTONOMY
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