Parliament is expected to forward the Human Sexual Rights and Family Values Bill, 2025, to President Mahama for assent later this month after lawmakers approved the legislation on May 29.
Once the bill reaches the President, he will be required to make a constitutional decision—either sign it into law or refer it back to Parliament for reconsideration.
Article 106 governs the legislative process and provides the mechanism through which the President may return a bill to Parliament with a memorandum stating his objections or concerns. Parliament may then reconsider the bill and, under certain circumstances, repass it with the requisite two-thirds majority.
One possible basis for invoking Article 106 relates to concerns about whether all parliamentary procedures were properly followed during the bill’s consideration. Speaker Alban Bagbin already raised concerns about procedural irregularities during the legislative process.
More recently, President Mahama has also expressed concerns similar to those previously raised about the legislative process. However, those claims remain disputed. Majority Chief Whip, Rockson-Nelson Dafeamekpor, has consistently argued that Parliament fully complied with all constitutional and procedural requirements regarding quorum, voting and the passage of the bill.
Beyond the procedural debate, attention is increasingly turning to Article 108 of the Constitution, which presents a more complex and unresolved constitutional question.
Rooted in the Westminster principle known as the “financial initiative of the Crown,” Article 108 prohibits Parliament from proceeding with any bill that imposes a charge on public funds, increases public expenditure or creates financial obligations for the state unless it is introduced by, or on behalf of, the President.
The key question, therefore, is whether the Human Sexual Rights and Family Values Bill, 2025 imposes financial obligations significant enough to trigger Article 108.
Supporters of the bill maintain that Article 108 should be interpreted narrowly. In their view, the provision applies only to legislation that directly creates financial obligations, such as establishing new state institutions or authorising expenditure from the Consolidated Fund. They argue that any financial implications arising from the bill are merely incidental because implementation would largely rely on existing state structures.
Critics disagree. They contend that provisions including prison sentences of up to 10 years, public education programmes, rehabilitation mechanisms and institutional monitoring would inevitably require substantial public spending. According to this argument, the bill’s impact on national expenditure is neither incidental nor minimal, making Article 108 applicable.
The debate is further complicated by the absence of a definitive ruling from the Supreme Court on the scope of Article 108.
In December 2024, the Court dismissed pre-enactment challenges brought by Richard Dela Sky and Amanda Odoi against an earlier version of the bill that had been passed by Parliament in February 2024. The Court held that judicial intervention would be premature before the legislative process had been completed.
However, the Court did not rule on whether the bill complied with Article 108, nor did it endorse Parliament’s interpretation of the provision. As a result, the constitutional question remains unresolved.
Recent actions by the Executive branch have also elevated the significance of Article 108. Under the administration of Nana Addo Dankwa Akufo-Addo, the provision was increasingly treated as a constitutional limitation on Private Members’ Bills with financial implications for the state.
In 2023, President Akufo-Addo declined to assent to both the Witchcraft Accusation Bill and the Armed Forces Amendment Bill, citing concerns under Article 108. His objections were based on procedure rather than policy, arguing that legislation with fiscal consequences required executive sponsorship.
Similarly, during parliamentary consideration of the Human Sexual Rights and Family Values Bill in 2023, then Attorney General and Minister for Justice, Godfred Yeboah Dame, cautioned that the bill, introduced as a Private Member’s Bill, could potentially violate Article 108 of the 1992 Constitution.
Whether one agrees with President Akufo-Addo’s position or Dame’s legal interpretation, both reflect an emerging constitutional view that legislation carrying significant financial consequences should not proceed without executive involvement.
For that reason, invoking Article 108 would not amount to creating a new constitutional doctrine. Rather, it would reinforce an interpretation that has gained support across different political administrations.
That said, previous executive actions do not definitively settle the meaning of Article 108, nor do they automatically establish that the Human Sexual Rights and Family Values Bill, 2025 falls within its scope. They do, however, strengthen the argument that President Mahama would be relying on an established constitutional concern rather than advancing a novel or politically expedient objection.
Article 108 also intersects with Article 106 in a significant way. If President Mahama returns the bill to Parliament under Article 106 and cites Article 108 as the basis for his decision, Parliament could attempt to repass the legislation with the constitutionally required two-thirds majority.
Even then, a critical legal question would remain: can a bill that may have suffered an Article 108 defect at the time of its introduction be cured through the reconsideration process under Article 106?
For many constitutional observers, this unresolved issue may provide President Mahama with his strongest legal basis for returning the Human Sexual Rights and Family Values Bill, 2025 to Parliament. Unlike concerns over parliamentary procedure, Article 108 raises a substantive constitutional question that has yet to be conclusively settled by the courts.
The author, William Nyarko, is the Executive Director of the Africa Centre for International Law and Accountability (ACILA).