Menu

Criminalising Same-Sex Relationships in Nigeria 02 Apr 2014

In many respects, Nigeria is known for its lawlessness. Laws are kept in Nigeria, more in the breach than in obedience. Drivers casually ignore traffic rules. Government officials routinely pocket public funds with impunity. Few people bother to pay their taxes. In the midst of this free-for-all, the Nigerian legislature decided to address an issue that is not pressing in Nigeria but is currently on the front-burner in European and American circles: the issue of same-sex marriage.
     
While there has been intense lobbying for legalising same-sex marriages in the West, nobody has lobbied for it in Nigeria. Homosexuals have been in Nigeria since there was Nigeria. No allegation of criminality has been traced to them.  But, as if afraid that the Western trend is bound to land sooner than later on Nigerian shores, the usually indolent Nigerian legislators decided to pass legislation pre-empting the importation of demands for legalising homosexual marriages into Nigeria. But then, in their usual gauche fashion, they went the whole hog and decided to criminalise homosexuality in its entirety.

Same Sex Prohibition Act

The Same Sex (Marriage) Prohibition Act signed into law by President Goodluck Jonathan on 7th January, 2014 bans same-sex marriages in Nigeria. According to the law, “a marriage contract or civil union entered into between persons of same sex is prohibited in Nigeria and shall not be recognised as entitled to the benefits of a valid marriage.”

It states further that “a marriage contract or civil union entered into between persons of same sex shall not be solemnized in a church, mosque or any other place of worship in Nigeria; no certificate issued to persons of same sex in a marriage or civil union shall be valid in Nigeria; only a marriage contracted between a man and a woman shall be recognised as valid in Nigeria.”

The new law further stipulates that: “a person who registers, operates or participates in gay clubs, societies or organizations, or directly or indirectly makes public show of same-sex amorous relationship in Nigeria commits an offense and is liable on conviction to a term of 10 years."  Anyone convicted of entering into a same-sex marriage contract or civil union faces up to 14 years' imprisonment.
Disclaimer

Let me start by saying I am not a homosexual. Neither do I believe in homosexuality. Indeed, in the main, I don't understand it. But then there are so many things I don't understand.  I am a Christian, and the story of God creating Adam and Eve, as opposed to Adam and Steve, makes perfect sense to me. There is logic to heterosexuality in the construction of men and women, making them anatomically compatible for the procreation of children and the preservation of the species.  Since that is the preeminent situation, homosexuality seems abnormal to me, if I am permitted to define normality as something found in the preponderant number of human-beings.

Having said that, however, I cannot but admit that human-nature has a nagging tendency to get things wrong quite often. As a result, we have people with varying degrees of deformity and handicaps.  We have men who seem to be born in the body of women and vice-versa. We even have cases of Siamese twins who are born with two heads in one body; and with two people sharing organs. For this reason, it does not make sense to me to criminalise a tendency simply because we don't understand it or don't like it.

Cheap popularity

The Same Sex Act has been a tonic for a Nigerian government starved of popular approval. Since passing the law, the government has received congratulatory messages from all and sundry in Nigeria.  Many seemed inclined to give President Jonathan a national merit award for this singular piece of Machiavellian legislation.

Polls released by NOI, an opinion research organisation established by Nigeria's finance minister, Ngozi Okonjo-Iwealla, found that as many as 92% of Nigerians are in support of the Same Sex Marriage Prohibition Act.  As a matter of fact, just 1% of those polled strongly opposed it.   The Pew Research Centre, an American public opinion research group, also found that 98% of Nigerians believe homosexuality should be rejected.  The Nigerian objection was apparently the highest of any of the countries Pew surveyed.

Furthermore, Amnesty International found that the Nigerian position is the predominant African position. It discovered that as many as 38 African countries, amounting to about 70% of the continent, criminalize homosexual activity.  In short, Nigeria is in very good African company in this matter.

Human rights violations

It would have been understandable if the Nigerian government simply defined marriage strictly in terms of the union of one man and one woman, thereby shutting the door to same-sex marriages. But to deny homosexuals the right of assembly, and to criminalise homosexuality even where it finds expression in private among consenting adults, is a gross violation of the fundamental human rights of a significant, even if minority, segment of the population.

Those who have been congratulating the Nigerian government for banning same-sex marriage in Nigeria are short-sighted. They fail to recognise that the law sets a bad precedent for government violation of freedom of assembly.  The same whip that has been used here to flog homosexuals today will be applied with the same impunity to others in the future.

The Same Sex Prohibition law violates several universally recognized fundamental rights enshrined in the Constitution of the Federal Republic of Nigeria (CFRN). These include the right of association guaranteed for “every person” under section 40; the right to freedom of expression, 'including freedom to hold opinions and to receive and impart ideas and information without interference,' guaranteed under section 39; the right to freedom from discrimination under section 42, which provides that no one shall be discriminated against on the basis of the circumstances of birth.; and the right to freedom from unequal treatment which is guaranteed under the preamble, which declares that the Constitution is based on the principle of equality and justice.

What this means is that, not just homosexuals, but rank and file Nigerians, are endangered by this law. Those congratulating the government for passing it are apparently oblivious to this.

Implications for AIDS patients

In Nigeria, laws are made without due cognisance being given to its wider ramifications. The Same Sex Prohibition Act is a good example in this regard.  After South Africa, Nigeria is the country with the highest number of HIV/AIDS patients in the world. Instead of passing a bill to ensure that AIDS sufferers would not be discriminated against, Nigeria, in a characteristically self-defeating fashion, passed a bill that ensures those suffering from AIDS would be the victims of violence and discrimination.

The Nigerian law is disastrous for those living with AIDS. Under the law, those treating people with AIDS also become liable to criminal prosecution, for they could easily be said to be abetting or associating with homosexuals.  By driving homosexuals underground, the law aggravates the public health of Nigerians, ensuring that they will not sign up for HIV educational programmes, and will run away from health-care services.

In short, the law deals a serious blow to efforts aimed at addressing the serious problem of HIV/AIDS in Nigeria.

Impracticability

In many respects, the law does not make practical sense. How can you prove in a court of law that a man is a homosexual? In Nigeria, heterosexual men sometimes walk holding hands. Are we to presume henceforth that people doing this are homosexuals and should go to jail for ten years? If two men or women are living together in the same house, would we then conclude that they must be homosexuals?  This kind of law that is virtually impracticable to implement judiciously is only useful for jungle justice.

Already, the application of this law has made a mockery of Nigeria's criminal justice system. People have been arrested randomly over nothing beyond mere allegation of being homosexual. There have even been physical attacks of alleged homosexuals, sometimes by mobs of hooligans. The law has opened up all grounds for the blackmailing of innocent citizens as homosexuals and the extortion of money from them on the threat of accusing them to be homosexuals.  This has introduced yet another ugly side to the face of Nigeria to the international community.

Immediately the law was passed, Bauchi State was one of the first to swing into action. A number of young men were promptly arrested on grounds of being homosexuals and were arraigned to court.  As the accused appeared in court, thousands of anti-homosexual hooligans gathered throwing stones at them and demanding immediate death penalty for them. In the mayhem that ensued, the lawyers for the defendants could not submit bail applications for their clients. Neither were the defendants able to give any testimony.  The police had to fire shots in the air in order to return the men to prison.
In Bauchi as in some other states in Northern Nigeria where Shariah law is in operation, the defendants face not just 14 years imprisonment, but death by stoning if convicted.

International outrage

As can be expected, the law has been greeted with outrage from the West. U.S. Secretary of State, John Kerry, declared that the law: “dangerously restricts freedom of assembly, association, and expression for all Nigerians."  The American Ambassador to Nigeria, James Entwistle, threatened that the United States might have no choice but to scale down its support for HIV/AIDS and anti-malaria programmes as a result of the passing of the legislation.

For its part, a spokesman for the British High Commission in Nigeria said: "The U.K. opposes any form of discrimination on the grounds of sexual orientation."   He maintained that the law: “infringes upon fundamental rights of expression and association which are guaranteed by the Nigerian Constitution and by international agreements to which Nigeria is a party.”

United Nations Secretary-General, Ban Ki-Moon, also expressed fears that the law “may fuel prejudice and violence.”

Increasingly, undeclared sanctions against Nigeria are being put in place as a result of this new law. Nigerians don't seem to realise that the law might make the Nigerian president and key government officials personae non grata in European and American capitals. They may not be allowed to visit Western countries.

Already, the visit of President Goodluck Jonathan to Canada was summarily cancelled. The cancellation came barely one week after the law came into effect.  While no statement was made directly to that effect, it is widely believed that the cancellation came as a reaction to Nigeria's passage of the Same Sex Prohibition law.

Conclusion

If, as studies show, as many as 10% of every population in the world is homosexual, the Nigerian government should be congratulated for making 10% percent of its population criminals by an act of law. It is telling that these “criminals” cannot change their criminality. To all intents and purposes, they are criminals by nature for life.

Nigerian legislators are very good at their joblessness. There are all kinds of legislation they need to pass but fail to pass, such as the Petroleum Industry Bill.  Instead, they pass legislation prohibiting same-sex marriage, which was illegal in Nigeria anyway. They criminalize a non-criminal act.  They then receive back-slaps and congratulations from a Nigerian populace that is unaware it is laying the foundation for the abrogation of its rights in the future.

We have not heard the last of the Same Sex Prohibition Act in Nigeria.  I am convinced that when Nigerians finally recognise its full public policy implications and when the Nigerian government starts to reap the consequential international implications, nobody will tell us before we will quickly repeal this odious discriminatory anti-human rights law.

This article was published in Financial Nigeria magazine, April 2014 edition.