By Her Honour Judge Sedinam Awo Kwadam (Mrs.)
1st September, 2025.
ABSTRACT
The legal status of sex toys in Ghana remains unsettled, straddling the intersection of morality, obscenity, personal autonomy, and public order. While Ghana’s Criminal and Other Offences Act, 1960 (Act 29) criminalizes the sale or public exhibition of “obscene objects,” the absence of a statutory definition creates interpretative ambiguity. This paper examines whether sex toys fall within the scope of “obscene objects,” balancing moral regulation against constitutional protections for privacy, dignity, and sexual autonomy. It examines the statutory provision, Ghanaian judicial approaches to obscenity, and comparative jurisprudence from the United States, the United Kingdom, Canada, India, and South Africa. The paper highlights two competing views: one advocating for a morality-based, expansive reading of obscenity, and another urging a narrower, functionality-based interpretation to avoid unjustifiable intrusions into private life, and ultimately concludes that Ghana should adopt a legislative clarification excluding non-pornographic, privately used sexual aids from the ambit of obscenity, ensuring legal certainty, safeguarding constitutional rights, and aligning with evolving international human rights standards.
INTRODUCTION
Disclaimer
This paper is a scholarly analysis of Ghana’s obscenity laws as they relate to the regulation of sexual wellness devices. The scenario described herein is fictional and intended solely to illustrate the practical implications of statutory vagueness; any resemblance to actual persons, living or deceased, is purely coincidental. The paper does not promote, advertise, or encourage the use, sale, or distribution of any specific product. Rather, it examines the constitutional, legislative, and human rights dimensions of the subject matter from an academic perspective, intending to foster informed legal debate and policy reform. Readers who may be sensitive to or triggered by discussions of sexual wellness devices are advised to skip directly to the immediate, non-italicized section of this paper. This paper does not constitute legal advice.
Imagine this scenario:
A man, married with two young children, is involved in a devastating car crash that leaves him partially paralyzed. Months of rehabilitation gradually restore his ability to walk, but the accident permanently impairs his sexual function; he can no longer achieve an erection. Amid his emotional and physical recovery, a close friend visits and discreetly gifts him a modern sexual wellness device. With openness and mutual consent, he and his wife incorporate the device into their intimate life. This adaptation preserves their conjugal relationship, prevents emotional estrangement, and stabilizes the family unit. The man knows, in a tangible, lived way, that this small object has saved his marriage and shielded his children from the strain of a fractured home. One afternoon, however, while browsing online legal resources, he comes across Section 281 of Ghana’s Criminal and Other Offences Act, 1960 (Act 29), which criminalizes the making, possession, or distribution of “obscene objects.” The statute offers no guidance on what, precisely, constitutes “obscene.” He begins to worry: could this intimate tool, which resembles an innocuous rose-shaped massager, be deemed illegal?
This lived reality encapsulates the precise legal conundrum this paper seeks to highlight: the absence of statutory clarity as to what qualifies as an “obscene object,” and whether contemporary sexual wellness devices, often designed to resemble household items or aesthetic objects, fall within the ambit of what is defined as “obscene objects” under Ghana’s obscenity laws.
Ghana’s obscenity laws remain rooted in colonial-era frameworks shaped by Victorian moral codes. Although the 1992 Constitution guarantees privacy and dignity, the statutory language of obscenity has hardly evolved, creating legal uncertainty. The trade, importation, and possession of sex toys thus occupy an ambiguous space, neither explicitly banned for private use nor clearly permitted, yet susceptible to moralistic enforcement under broad prohibitions on “obscene” objects. This uncertainty, reinforced by section 281(1) of the Criminal and Other Offences Act, 1960 (Act 29), is compounded by the absence of a statutory definition of “obscene.” Interpretation has therefore been left to shifting common law principles and community standards. The ambiguity is increasingly problematic as sexual wellness devices, ranging from therapeutic handheld massagers to vibrators styled as roses, lipsticks, vegetables, or candles, become more visible in Ghana’s retail and digital markets. This paper employs a doctrinal approach, drawing on the statutory text, case law, and constitutional provisions, alongside comparative common law jurisprudence and international human rights norms recognizing sexual health as part of the right to health. It interrogates whether Ghana’s current legal framework truly extends to the possession, sale, and use of such devices, and whether the prevailing statutory vagueness is compatible with Articles 18 and 33 of the 1992 Constitution.
This paper argues that, under a strict construction of Ghana’s obscenity provisions, the possession, sale, and use of sex toys should not fall within the scope of criminal prohibition. The argument rests on three interrelated grounds. First, the legislative history of “obscene objects” indicates a targeted concern with pornographic texts, images, and visual representations rather than mechanical devices designed for sexual stimulation. Second, the principle of legality, nullum crimen sine lege, requires criminal offences to be defined with precision and certainty, a threshold unmet by the vague statutory language in question. Third, the rapid evolution of sexual technologies, coupled with shifting cultural understandings of sexuality, highlights the inadequacy of mid-twentieth-century formulations to regulate contemporary practices, making any extension of obscenity law to sex toys constitutionally suspect in the absence of explicit legislative reform.
Ultimately, it is submitted that in the absence of a clear statutory definition, Ghanaian courts should lean towards interpreting “obscene objects” restrictively, excluding therapeutic handheld massagers, “roses” (clitoral suction stimulators designed in the shape of a rose), lipstick-shaped, pen-shaped, vegetable-shaped and candle-shaped vibrators, as well as other mechanical sexual wellness aids of an aesthetic nature and designed in the form of everyday household or personal items, from criminal sanction. Rather than subsuming sexual wellness products under antiquated prohibitions, Parliament should consider a rights-sensitive regulatory model that situates them within the frameworks of consumer protection, health regulation, and taxation. Such an approach would better harmonize statutory law with constitutional guarantees of dignity and privacy while also generating economic and fiscal benefits through the formalization of a currently ambiguous market.
2. HISTORICAL AND LEGISLATIVE BACKGROUND AND THE PROBLEM OF VAGUENESS
2.1. Colonial Origins
Obscenity law in Ghana derives from British colonial legislation, particularly the Obscene Publications Act 1857 (Lord Campbell’s Act), which empowered magistrates to seize materials deemed immoral, albeit without proof of harm. This framework, imported into the Gold Coast’s 1892 Criminal Code Ordinance, privileged collective morality over individual rights. Lacking a statutory definition, courts relied on the English Hicklin test, which defined obscenity by its potential to corrupt “susceptible” audiences. This preventive and subjective approach fostered broad censorship, often at the expense of personal rights. Even after independence and beyond 1992, Ghana retained this inherited regime within Act 29, which preserved the colonial assumptions without adapting them to constitutional protections of privacy and dignity, even after 1992. The continued absence of clear definitions leaves individuals like the man in our scenario vulnerable to uncertainty, as in the case of private sexual wellness devices, which could be criminalized based solely on speculative moral judgments.
2.2 Current Statutory Framework
Section 281(1) of Act 29 prohibits the making, possession, or distribution of “obscene objects.” It provides:
“Any person who—
(a) for the purposes of or by way of trade, or for the purposes of distribution or public exhibition, makes, produces, or has in his possession of any one or more obscene writings, drawings, prints,
paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films, or any other obscene objects; or
(b) for any of the purposes above mentioned, imports, conveys, or exports, or causes to be imported, conveyed, or exported, any of the said obscene matters or things, or in any manner whatsoever, puts any of them into circulation; or
(c) carries on or takes part in any business, whether public or private, concerned with any of the said obscene matters or things, or deals in any of the said matters or things in any manner whatsoever, or
distributes any of them or exhibits any of them publicly; or makes a business of lending any of them; or
(d) advertises or makes known by any means whatsoever, with a view to assist in the said punishable circulation or traffic, that a person is engaged in any of the above punishable acts, or advertises or makes known how or from whom any of the said obscene matters or things can be procured either directly or indirectly, shall be guilty of a misdemeanour.”
By virtue of section 296 of the Criminal Procedure Act, 1960 (Act 30), the penalty for a misdemeanour, where no specific punishment is provided, is a term of imprisonment not exceeding three years.
3. THE JURISPRUDENTIAL GAP AND PHILOSOPHICAL CRITIQUE OF SECTION 281(1) OF ACT 29
3.1 Epistemic Indeterminacy of “Obscene”; Binary Morality or a Spectrum of Moral Tolerance?
Section 281(1) of the Act 29 prohibits, among others, the making, possession, or distribution of “obscene objects,” yet it operates within a profound definitional void. The statute does not guide as to what constitutes “obscene,” presupposing the existence of a knowable category without articulating its foundational criteria.
This legislative silence compels inquiry: is obscenity an intrinsic, objective quality inherent in an object, or merely a label projected by prevailing cultural norms, political authority, or social anxiety? Or perhaps, Morality.
But what is “moral”?
Natural law posits morality as a fixed and universal essence, a higher law discernible by reason and binding upon all. Legal positivism, by contrast, conceives morality as a contingent construct, defined by the commands of recognized authority and thus subject to historical and cultural variation. Even within a positivist framework, grave questions remain unanswered: who, in a pluralistic society, holds the rightful authority to define morality? Can morality be weighed, numbered, and fixed, and if so, to what acceptable sigma may society endure deviation from its norms without collapse? Must morality be conceived as a rigid binary, a realm of absolutes, of zeros and ones? Or may fragments of “immorality” coexist with “morality,” the living order of our common life?
By leaving these questions unresolved, Section 281(1) does not merely outlaw obscenity; it cloaks it in mystery. It makes of it not a clear legal command but a riddle, wrapped in a puzzle, inside an enigma. It hangs suspended, between law and culture, between power and conscience, between rival visions of the good. And in that suspension lies danger: for law undefined is law unchained, and law unchained is justice betrayed.
Further, by leaving the definitional essence of “obscenity” suspended in abstraction, Section 281(1) functions less as a clear prohibition than as a site of unresolved philosophical contestation.
3.2 The Constitutional and Human Rights Context of Section 281(1)
At the core of Ghana’s 1992 Constitution lies the cardinal principle of nullum crimen sine lege, no crime without law within the context of criminal law. This principle demands that criminal prohibitions be defined with precision and that penalties be clearly prescribed in written law. It is a constitutional guarantee against arbitrariness, anchoring fairness, legality, and predictability in the criminal legal process. Vague or indeterminate offences are unconstitutional because they deprive citizens of the ability to order their conduct with certainty and leave punishment to subjective discretion. Section 281(1) of Act 29, which criminalizes dealings in “obscene objects” without defining “obscenity,” exemplifies such impermissible vagueness. By delegating to judges, jury, prosecutors, and police the task of supplying personal moral meanings to an undefined term, it substitutes opinion for law, undermining the very foundation of legality and eroding the rule of law.
The constitutional implications extend beyond the principle of legality to the protection of substantive rights. Article 18(2) guarantees the right to privacy, shielding individual autonomy from unjustified intrusion. It is submitted that choices concerning intimacy, health, and conjugal life fall squarely within this protected sphere. Criminalizing the private use of sexual wellness devices, absent demonstrable public harm, amounts to an illegitimate arrogation of state power over intimate life, rendering the restriction constitutionally indefensible. As the South African Constitutional Court observed in Teddy Bear Clinic v Minister of Justice [2013] ZACC 35, criminalization of consensual sexual conduct corrodes autonomy and diminishes self-worth. That reasoning resonates in Ghana’s constitutional order: reducing therapeutic or intimate devices to objects of criminal suspicion invades privacy and erodes personal freedoms.
Limitations must therefore pursue a legitimate aim, employ narrowly tailored means, and avoid unnecessary overreach. Section 281(1) of Act 29 fails these three tests. Its undefined prohibition lacks a demonstrable legitimate aim, indiscriminately intrudes into private consensual conduct that causes no public harm, and vests unbounded discretion in enforcement agencies. It is, therefore, disproportionate and unconstitutional.
The absence of judicial clarification aggravates the problem. In Miller v California, 413 US 15 (1973), the U.S. Supreme Court confined obscenity to materials that appeal to prurient interest, depict sexual conduct in a patently offensive manner, and lack serious literary, artistic, political, or scientific value. Devices used privately for therapeutic, marital, or intimate purposes plainly fall outside this scope. Their inclusion within the ambit of “obscene objects” highlights the dangers of transplanting outdated moral categories into contemporary constitutional contexts.
That danger is rooted in the paternalistic origins of Act 29. Section 281(1) reflects the moral conservatism of the early post-independence era, when law was a vehicle for enforcing prevailing social norms rather than protecting individual autonomy. Yet the constitutional and international legal orders have since shifted. Article 17 of the International Covenant on Civil and Political Rights prohibits arbitrary interference with privacy, while the African Charter on Human and Peoples’ Rights places dignity and autonomy at the center of legal protection. By criminalizing harmless, consensual conduct within the private sphere, as in the case of sexual wellness devices, Section 281(1) is rendered inconsistent both with Ghana’s constitutional guarantees and with its international obligations.
Reform is thus a constitutional imperative. Parliament must revisit Section 281(1) of Act 29 to cure this deficiency. The term “obscene objects” requires a precise statutory definition, rooted in a harm-based framework rather than moral paternalism. Explicit exemptions should be made for therapeutic and sexual wellness devices as legitimate tools of health and intimacy. Any residual criminal liability must be narrowly confined to demonstrable harms, such as exploitation of minors, rather than sweeping bans untethered from constitutional values. Without such reform, Section 281(1) will persist as an anachronistic relic, vulnerable to constitutional challenge, corrosive of fundamental freedoms, and out of step with both Ghana’s 1992 Constitution and the broader trajectory of modern human rights law.
4. FUNCTIONAL DESIGN VS. OBSCENITY: WHY FORM AND CONTEXT MUST DEFINE LEGAL STATUS
The fundamental flaw in applying Section 281(1) of Act 29 to sexual wellness devices lies in its failure to distinguish between three critical legal elements:
1. an object’s primary design function,
2. its potential ancillary uses, and
3. the commercial intent behind its distribution.
This analytical lacuna creates an untenable legal paradox that threatens both constitutional rights and rational governance.
4.1 The Design-Use Dichotomy in Obscenity Law
The danger of Ghana’s current obscenity framework lies in its boundless elasticity: by privileging speculative sexual uses over an object’s fundamental design, the law risks collapsing into absurdity. If obscenity turns not on purpose but on potential, then the net of criminal liability can be cast infinitely wide. Medical devices such as vaginal dilators, though visually resembling certain sexual wellness products, are unequivocally medical and therapeutic in function, and it is this purpose, not hypothetical misuse, that justifies their legal acceptance. The same holds for everyday household items: showerheads, bidets, and massage oils are all susceptible to alternative sexual applications, yet no serious legal system treats them as contraband. Pushed to its logical extreme, the interpretive method would even ensnare natural objects, vegetables, fruits, and other commonplace items, whose conceivable sexual uses cannot possibly warrant their classification as obscene objects. Such reductio ad absurdum exposes the conceptual instability of an approach untethered from objective purpose, rendering enforcement arbitrary and irrational. The South African Constitutional Court’s landmark decision in Case v Minister of Safety and Security (1996) articulated the crucial principle that “the law must regulate based on actual harm, not speculative morality.” This conceptual foundation demands a nuanced inquiry across three interrelated dimensions.
First, the object’s primary function: is it inherently designed for sexual stimulation, or does it serve a legitimate therapeutic or non-sexual purpose, such as muscle relaxation? Second, its commercial presentation: packaging, marketing strategies, and the retail context, whether offered in a pharmacy, medical supply shop, or an adult novelty store, shape how the product is framed and understood in the public sphere. Third, the user’s intent: an item employed privately for therapeutic relief and sexual wellness occupies a wholly different normative space than one displayed publicly or marketed to provoke sexual titillation. Taken together, these criteria establish a principled and legally coherent framework for distinguishing between legitimate products and genuinely obscene materials, steering the law away from moral panic and toward rational adjudication.
4.2 The Community Acceptance Test
In comparative obscenity jurisprudence, the “community acceptance test” assesses whether material offends the moral sensibilities of a reasonable person within a given community. The idea behind it is that criminal liability for obscenity should not be based on abstract moralism but on whether society at large would reasonably find the material intolerable. This means that the threshold for obscenity is intended to reflect a collective standard of tolerance, not the hypersensitivity of the most easily offended or self-righteous.
While prima facie this appears to be a reliable method of assessing morality because it ties legality to what society accepts, its application is inherently fluid, as moral standards are never monolithic but shift across time, place, and social groups. What shocks one community may be ordinary in another. Likewise, what shocks a community at one moment in time may later be accepted as social attitudes evolve. This fluidity underscores the imperative, articulated by the Indian Supreme Court in S. Khushboo v. Kanniammal & Anr. (2010) 5 SCC 600, that legal standards of morality must evolve to reflect contemporary social realities and cannot be held hostage to anachronistic or hypersensitive objections.
In Ghana, applying an unmoored community test to objects like sexual wellness devices exposes serious conceptual and constitutional challenges. Critically, even the meaning of “community” itself is contested: should it reflect conservative rural norms, liberal urban values, or, as Khushboo suggests, a progressive, rights-based standard grounded in the 1992 Constitution and Ghana’s international human rights obligations? Following the precedent of Khushboo, a modern and constitutional approach to the community acceptance test, even if adopted, must be explicitly anchored in constitutional values of privacy. Interpreting “community” as an inclusive and pluralistic constitutional community, rather than as a proxy for the loudest voices, would align Ghana’s jurisprudence with the guarantees in Article 18 of its Constitution and its international commitments, thereby safeguarding individual diversity and autonomy against the imposition of a single, state-sanctioned morality.
5. COMPARATIVE AND INTERNATIONAL PERSPECTIVES
The global trend in obscenity regulation has shifted from Victorian moral policing to frameworks that balance public order with sexual autonomy, privacy, and health. In contrast, Act 29, with its vague ban on “obscene objects” under Section 281(1), remains rooted in colonial-era ambiguity, equating private intimacy aids with obscenity. Comparative approaches in the UK, South Africa, India, and Canada show how modern laws distinguish public harm from private consensual conduct, offering Ghana a clear roadmap for reform grounded in constitutional and human rights standards.
5.1 United Kingdom: Contextualizing Obscenity Through Judicial and Legislative Evolution
As the origin of Ghana’s obscenity laws, the UK’s Obscene Publications Act (OPA) 1959 offers a useful benchmark for reform. While retaining the “deprave and corrupt” test, the OPA includes two safeguards absent in Ghana. First, Section 4 introduces the “Public Good” defence, exempting works with genuine literary, artistic, scientific, or social merit. This holistic approach, affirmed in R v Penguin Books Ltd [1960] (the Lady Chatterley’s Lover case), prevents suppression based on isolated explicit passages. Secondly, UK prosecutorial policy limits obscenity prosecutions to extreme pornography involving violence, coercion, or gross indecency, and explicitly excludes sexual wellness devices such as vibrators and massagers. Ghanaian law lacks both statutory defences and prosecutorial safeguards, leaving individuals vulnerable to arbitrary enforcement. Items considered legitimate health products in the UK may be criminalized under Section 281(1) of the Act 29 as “obscene objects.” This gap reflects outdated statutory language and conflicts with evolving understandings of sexual health, autonomy, and family life. The UK model illustrates how obscenity laws can target genuine harm without criminalizing private, therapeutic intimacy aids.
5.2 South Africa: Constitutionalizing Sexual Autonomy and Dignity
Post-apartheid South Africa offers a strong constitutional model for balancing obscenity regulation with fundamental rights. The Constitutional Court has emphasized that sexual autonomy is integral to dignity, as in Teddy Bear Clinic v Minister of Justice (2013). The Court held that moral disapproval alone cannot justify criminal sanctions without demonstrable harm.
Legislatively, South Africa’s Films and Publications Act regulates explicit media but exempts sexual health devices, recognizing that not all sexual objects are obscene. By contrast, Ghana’s section 281(1) of Act 29 fails to distinguish between harmful exploitation and legitimate therapeutic or relational aids, risking overbroad criminalization. South Africa’s example shows that dignity and privacy should guide Ghanaian obscenity laws. Narrow, precise definitions are needed to target genuine harm while protecting consensual, dignity-affirming intimacy from unnecessary criminal intrusion.
5.3 India: Rejecting Colonial Tests for Modern Standards
India’s Supreme Court has dismantled colonial-era obscenity doctrines, most notably in Aveek Sarkar v State of West Bengal (2014), where it abandoned the 19th-century Hicklin test, which judged obscenity by its tendency to “deprave and corrupt”, in favour of a contemporary “community standards” approach. This shift requires courts to weigh social attitudes, artistic value, and evolving morals, consequently protecting expression from Victorian-era constraints. For Ghana, the lesson is clear: judicial willingness to move beyond the Hicklin legacy can ground obscenity law in constitutional guarantees of dignity, privacy, and equality, steering it from colonial moral paternalism toward modern, rights-sensitive adjudication.
5.4 Canada: The “Community Tolerance” Standard
In R v Butler [1992] 1 SCR 452, the Canadian Supreme Court adopted a “community tolerance” standard, holding that obscenity must be judged by what society would tolerate others being exposed to, not by subjective moral disapproval. This excluded consensual adult sexual activity in private from criminal sanction. The approach was strengthened in R v Labaye [2005] 3 SCR 728, where the Court tied obscenity to demonstrable harm, rejecting the idea that mere offensiveness justified prohibition. For Ghana, this reasoning is instructive. The 1992 Constitution guarantees privacy (Art. 18) and family life (Art. 28), protecting consensual adult intimacy from state interference. Unlike Canada’s harm-based standard, Section 281(1) of Act 29 provides no clear definition of “obscene objects,” inviting vagueness, potential disproportionate enforcement, and moral paternalism. By failing to distinguish harmful materials from private sexual wellness devices, the provision intrudes unnecessarily on constitutionally protected individual rights.
5.5 Ghana’s Path Forward
The man in our beginning scenario embodies the real human cost of legislative inertia. While comparable jurisdictions treat his rose-shaped intimacy device as lawful and regulate it under health or consumer safety frameworks, in Ghana, it remains seemingly criminalized under the vague wording of section 281(1) of Act 29.
To resolve this unfortunate legal quagmire in Ghana’s obscenity laws as they relate to sexual wellness devices, the legal framework should adopt a contextual functionality test. This would evaluate the design and intended purpose of a product, its marketing and sales environment, and actual patterns of use, thereby distinguishing therapeutic health devices from objects whose sole or predominant purpose is to arouse prurient interest. Such a test would ensure that regulation responds to genuine social concerns rather than speculative or moralistic anxieties.
Legislative reform could proceed along two complementary paths. First, Parliament could expressly exempt therapeutic sexual health devices from the ambit of obscenity laws. Second, the law could introduce precise statutory definitions that clearly differentiate legitimate sexual wellness products from genuinely and clearly defined obscene objects. Either approach would reduce vagueness, eliminate inconsistent enforcement, and secure greater protection for constitutional rights.
As the Supreme Court of India observed in Aveek Sarkar v State of West Bengal (2014) 4 SCC 257, “the law cannot operate as morality police for private lives.” Ghana’s regulatory approach must similarly move away from moralistic paternalism and toward evidence-based governance that respects individual autonomy, safeguards public health, and upholds public order.
At a minimum, the law should be able to distinguish innocuous sexual wellness devices, such as vibrators or therapeutic massagers, from clearly defined obscene objects, thereby reinforcing the rule of law and protecting constitutional rights. Legislative reform would not only promote clarity and fairness but also align Ghana with international best practices, while enabling the development of authentically African solutions that balance morality, public health, and human rights.
Concretely, Section 281(1) of the Criminal and Other Offences Act, 1960 (Act 29) should be amended to define an object as “obscene” only if it:
1. depicts or represents explicit sexual acts;
2. appeals predominantly to prurient interest; and
3. lacks serious medical, artistic, literary, or educational value.
Further, explicit exemptions should cover: (a) medical or therapeutic devices, (b) private adult possession, and (c) educational and health-related materials. Regulation could further include licensing sales through pharmacies and accredited health providers, and mandating age verification, requiring clear labeling and safety instructions. These measures would ensure consistency, reduce arbitrariness, and protect legitimate trade.
Finally, Ghana should replace the outdated community-acceptance test with a harm-based, rights-sensitive framework aligned with comparative jurisprudence and Ghana’s obligations under the ICCPR. Criminal liability should be anchored not in fluctuating standards of morality but in the protection of public order, health, and the rights of others. Together, these reforms would create a modern, coherent, and constitutionally faithful framework, balancing regulation with personal freedom and reaffirming Ghana’s commitment to promoting human rights.
6. CONCLUSION
The uncertainty surrounding sex toys in Ghana highlights the unresolved tension between colonial-era morality laws and contemporary constitutional protections of privacy, dignity, and autonomy. Section 281(1) of Act 29, which criminalizes “obscene objects” without definition, is outdated and vague. Its ambiguity risks arbitrary enforcement, undermines the rule of law, and conflicts with the 1992 Constitution. By extending criminal liability to private, consensual use of sexual wellness devices, the law also encroaches on rights to health and privacy. This overreach reflects paternalistic colonial standards rather than Ghana’s current social values or international human rights obligations. Comparative practice in countries such as South Africa, India, and Canada demonstrates a shift toward harm-based regulation, limiting criminal law to cases of demonstrable public harm rather than private moral disapproval. Reform is both possible and necessary. Parliament should: (i) adopt a clear, objective definition of “obscenity” that excludes sexual wellness products; (ii) incorporate a harm-based threshold restricting criminalization to cases of actual public harm; and (iii) provide statutory guidance for enforcement to avoid arbitrary seizures. Pending such reform, courts should interpret Section 281(1) narrowly, applying principles of constitutional supremacy to protect individual rights. At stake is more than statutory clarity: it is Ghana’s commitment to aligning inherited laws with its constitutional order.
That a husband and wife, seeking only to preserve the tenderness of their union through the aid of a simple mechanical device, should have to live under the shadow of criminal sanction is a burden far too cruel to impose. As seen in the opening scenario of this paper, the law transforms what is an act of love and survival into a source of fear and stigma, a weight no couple should ever be forced to carry.
Consequently, updating Section 281(1) of Act 29 to expressly exclude sexual wellness devices would move the legal framework beyond colonial moral policing and toward a rights-consistent model that respects both public morality and personal autonomy.
