Abstract
Nigeria’s Same Sex Marriage (Prohibition) Act was signed into law in January 2014, leading to a hailstorm of reactions. This article examines the role that culture and morality play in shaping Nigerian society and law, focusing on the enduring victimization of the sexual minority. It examines the background to Nigeria’s anti-gay law, noting the strong support of the Nigerian people for this law and the condemnation this action has received from human rights groups and the international community. The article discusses Nigeria’s contravention of international human rights obligations as a result of its stance on same-sex relationships, noting the existence in the country, prior to this law, of previous laws criminalizing same-sex relationships. The article discusses the causative effects of this law on Nigeria’s gay community and draws examples from other African countries to show that Nigeria is not alone in its homophobic stance. The protection of gay rights in South Africa as an exception is also discussed. The article postulates reasons why the Same Sex Marriage (Prohibition) Act should be repealed or why, at least, a compromise should be reached. It then concludes with suggestions on ways to uphold the rights of the sexual minority in Nigeria.
Keywords
Introduction
On 7 January 2014, Nigeria’s President signed into law, the Same Sex Marriage (Prohibition) Act of 2013, also known as the ‘anti-gay law’, sparking a worldwide outcry. There were two clear schools of thought on the subject: the Nigerian majority in support of the Act and local and international observers who were against it.
Background to the Same Sex Marriage (Prohibition) Act of 2013
The Same Sex Marriage (Prohibition) Act had been in the pipeline for almost a decade. As far back as 2006, a similar law had been muted but had been unceremoniously abandoned after widespread condemnation. The victory recorded by anti-gay activists by way of the Bill’s abandonment was however short-lived. In 2008, the Same Gender Marriage Prohibition Bill was placed before Parliament, with proposals including the prohibition of same-sex marriage and jail terms for offenders and their supporters. After a series of amendments, the end result was the 2013 Act.
Although the general sentiment in Nigeria was support for the law, it met with some opposition, both for its violation of gay rights, and, owing to the belief that there were more urgent matters to tackle, such as poverty and corruption. On the international scene, calls were made for its withdrawal. 1
Section 1 of the Act prohibits marriage contracts or civil unions between persons of the same sex in Nigeria, irrespective of where they were contracted. Thus, same-sex unions contracted by Nigerian citizens in foreign countries or of foreigners contracted outside Nigeria were rendered void. This creates problems for gay foreigners living in Nigeria; for example, the law will affect a gay foreign diplomat or entrepreneur living in Nigeria whose home country recognizes same-sex unions. For good measure, sections 3 and 7 of the Act emphasize that only the union between a man and a woman would be recognized in Nigeria.
Section 5(1) famously prescribes a 14-year jail term for offenders. The Act further prohibits the formation of ‘gay clubs, associations or organizations’; It prohibits direct or indirect public show of affection by people in same-sex relationships (section 4(1) and (2)); and notoriously targets members of the wider population who officiate, witness or support same-sex marriages or who support gay societies. Section 5(2) and (3) prescribes 10-year jail terms for all these other offences. This is tantamount to using scare tactics to discourage the society from associating with people in same-sex relationships.
The reaction of the international community to the new law was immediate. Countries such as the United States, Canada and the United Kingdom expressed their dissatisfaction with the passing of the law. 2 Canada promptly cancelled a scheduled visit by the Nigerian President. 3
The prohibition and criminalization of same-sex relationships and marriages under previously existing laws in Nigeria
Although attention has more recently been drawn to Nigeria’s anti-gay culture because of the 2013 Act, provisions criminalizing same-sex relationships have long been in existence in Nigeria. These will be reviewed below.
The Nigerian Criminal and Penal Codes
Nigeria’s Criminal and Penal Codes had criminalized homosexuality long before the 2013 Act came into being, and thus in reality, there was no urgent or compelling need to introduce the Act. Proponents of the 2013 anti-gay law may hinge its justification on the need to address the ‘bigger issue’, as the Criminal and Penal Codes were limited to the practice of homosexuality and did not address gay marriages. However, the prohibition of homosexuality under both Codes effectively addressed the issue of same-sex marriage, since the criminalization of homosexuality implied the criminalization of gay marriage. Hence, legislating to specifically prohibit gay marriage was unnecessary. Conversely, legislation prohibiting same-sex marriage could be justifiable in a country which though tolerant of same-sex relationships, finds it important to set boundaries.
The Criminal Code Act is applicable in the Southern part of the country, whilst the Penal Code Act is applicable in the North. The relevant provisions of the Criminal Code are sections 214, 215 and 217, which are found under Chapter 21 of the Code (not surprisingly captioned ‘offences against morality’). Section 214 of the Criminal Code prohibits carnal knowledge against the order of nature and prescribes a 14-year jail term, whilst attempts to commit such an offence attracts 7 years under section 215. Section 217 further prohibits procuring another male for same-sex activities, or attempting to do so, and attaches a 3-year sentence to these offences. The Penal Code carries weightier penalties. In terms of section 284, ‘carnal knowledge against the order of nature’ is punishable with 14 years imprisonment. Further, in terms of section 405(2)(e), a male cross-dresser or one who practices sodomy as a profession is a ‘vagabond’ and may be given a jail term of up to 2 years, a fine, or both under section 407.
Shariah law
Apart from the Penal Code, Shariah law has been made applicable in 12 states in Northern Nigeria. 4 The Shariah Penal Codes prohibit same-sex relationships, for example, section 130, Zamfara Shariah Penal Code Law, although prescribed punishments vary. For instance, Kano (section 129) and Zamfara (section 131) consider marital status in prescribing punishments, with unmarried offenders liable to receive hundred lashes of the cane and 1 year imprisonment, and married offenders receiving the harshest punishment possible, namely, stoning to death. Kebbi (section 132) however makes no such differentiation, as all offenders are to be stoned to death. Bauchi (section 134) prescribes the death sentence but leaves room for reprieve by adding immediately after ‘or any other means decided by the state’. The Shariah codes also prohibit lesbianism (e.g. Zamfara, section 135).
Thus, it can be seen that criminalization of same-sex relationships in Nigeria did not begin with the 2013 Act. Other than specifically prohibiting same-sex marriages and gay associations, and imposing penalties on persons seen as aiding and abetting the solemnization of same-sex unions, the Act achieves no new purpose.
The aftermath of the new law
Long before the Same Sex Marriage (Prohibition) Act became law, there had been numerous recorded cases of victimization of suspected gay people in different parts of Nigeria. In its World Report, Human Rights Watch (2008, p. 142) noted the Shariah Courts’ enforcement of anti-gay laws and the government’s failure to act. Once the Act became law, there was a surge in the crackdown on suspected gay people who were routinely ‘arrested’ by the police and civilians alike and made to endure public shaming, such as being stripped naked, flogged and paraded round the community. 5 This amounts to flagrant disregard for their fundamental rights.
The Nigerian Constitution (section 34(1)(a)) and various international human rights instruments abhor the use of torture as a punitive or corrective measure. Article 1 of the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention against Torture) 1984 defines torture as any act by which severe mental or physical pain or suffering is intentionally inflicted so as to obtain information, to punish or for any other reason based on discrimination. The punishments described above which are being meted out to suspected gay people in Nigeria amount to torture and abuse of the victims’ fundamental rights and should not be allowed to continue.
Arguments purporting to justify homophobia in Nigeria
Nigeria can generally be described as, a homophobic nation. Well before homosexuality began to receive press attention in Nigeria, it was understood to be strange, disgusting and wrong. It is doubtful whether the acceptance of the rights of sexual minorities currently being experienced worldwide will have a significant effect on the mindset of the Nigerian people.
The general opinion in Nigeria, and, indeed, Africa, remains that homosexuality is against African culture and morality. This discrimination stems in part from the belief that everyone was born ‘straight’ and that homosexuality is a ‘practice’ to which people are lured (Mujuzi, 2011). No real effort is being made to understand gay people and their struggles. It is believed that taking time to understand them will sow the seeds necessary for change. Indeed, as stated by Justice Ackerman in the South African case of National Coalition for Gay and Lesbian Equality v. Minister of Justice, ‘To understand “the other” one must try as far as is humanly possible, to place oneself in the position of “the other”’. 6
Unfortunately, Nigeria and other countries discriminating against gay people have failed to realize the harmful effects of discrimination. Criminalizing sexuality can only lead to harm for the victim, and ultimately, society at large. For gay people, criminalization leads to serious psychological harm, increases society’s prejudice, justifies stigmatization and legalizes abuse. 7
It is important therefore to weigh the reasons adduced for justification against the harmful effects of discrimination. The influence of culture and morality on the criminalization of homosexuality in Nigeria will be discussed subsequently.
The influence of culture and morality on Nigerian law
Culture is the belief system of a group of people. It is the set of individual attributes that are subject to social influence (Axelrod, 1997). Culture has also been defined as ‘the shared patterns of behaviors and interactions, cognitive constructs and affective understanding that are learned through a process of socialization’. 8
Culture plays a major role in different aspects of Nigerian life and law. Nigerians from all walks of life mostly agree on homosexuality being alien to African culture and moral values. In a survey conducted by the Pew Research Centre (2013) on attitudes to homosexuality, it was reported that 98% of Nigerians were against homosexuality, the rationale being its incompatibility with cultural and moral values. 9 But the reliance on culture in campaigning against same-sex relationships is in itself a shaky venture, as Nigeria is a country with more than 200 ethic groupings with different cultures, and belief systems, many of which may not pass the morality test.
Culture wields a significant influence in Nigeria, permeating every area of social life. For instance, in spite of modernization, education and the impact of the women’s liberation movement, many Nigerians continue to practice polygamy, with some women condoning or encouraging it.
It is submitted that as significant as culture is in shaping a people’s beliefs, reliance on it must be done with thought for factors such as fairness to all (irrespective of gender or status), its effect on people, its applicability in present times and modern developments. It must not be used as a smokescreen to discriminate against the minority.
Criminalization of same-sex relationships in Africa
Nigeria is not alone in the criminalization of same-sex relationships. It has adequate company in Africa in the war against homosexuality. With the exception of South Africa, which has introduced legislation recognizing the rights of gay people, African countries continue to prohibit and criminalize homosexuality. The laws of most African countries criminalize same-sex relationships and attach stiff penalties for violation.
Putting an end to the criminalization of same-sex relationships remains a perpetual battle for treaty monitoring bodies. As it will be impossible to examine what obtains in all African states in this article, the discrimination against gay people in select African states will be discussed briefly below.
Kenya
Sections 162, 163 and 165 of Kenya’s Penal Code criminalize same-sex relationships. Section 162(a) and (c) prohibits carnal knowledge against the order of nature and prescribes a jail term of 14 years, whilst an attempt attracts a jail term of 7 years. Section 165 specifically targets gay men by prohibiting ‘gross acts of indecency’ between males, or the procurement of other males for that purpose, and the penalty is 5 years imprisonment. This violates the rights to equality and non-discrimination, dignity and privacy (Articles 27, 28 and 31) of the Kenyan Constitution, respectively, and the international human rights instruments which the country has ratified.
Reasons given for this attitude include that homosexuality is immoral and against the cultural and religious beliefs of the people. In paragraph 86 of its Third Periodic Report to the Human Rights Committee, Kenya expressed its reluctance to decriminalize homosexuality because it was deemed to be a taboo, against the order of nature, and repugnant to its cultural values and morality. The Human Rights Committee continues to call for an end to discrimination against people in same-sex relationships in Kenya. In its Concluding Observations to the Kenyan government (2005, para. 27; 2012, para. 8), the Committee noted that violence, harassment and abuse continued unabated against gay people in Kenya.
Uganda
Uganda also prohibits same-sex relationships, the reason being that it is contrary to the country’s cultural, moral and religious beliefs. The Constitution of Uganda 1995, the Uganda Penal Code and most recently, the Uganda Anti-Homosexuality Act 2014 all criminalize homosexuality.
The Ugandan Constitution was amended in 2005 to include a provision expressly outlawing same-sex marriage, with the inclusion of Article 31(2a). Meanwhile, section 145(a) and (c) of the Ugandan Penal Code reserves one of the harshest penalties possible for those involved in homosexuality, that is life imprisonment, with a penalty of 7 years imprisonment attached for attempt to engage in homosexuality (section 146). The most recent addition to this repertoire of anti-gay laws is the Uganda Anti-Homosexuality Act 2014. The Act is most discriminatory. Section 2 prescribes a life sentence for homosexuals. Section 3 coins the term ‘aggravated homosexuality’ for situations such as where one of the partners is a minor, the ‘offender’ is HIV positive or is a repeat offender and prescribes life imprisonment for offenders under the section. Attempt to commit homosexuality attracts 7 years imprisonment, whilst attempt to commit aggravated homosexuality attracts life imprisonment under section 4 of the Act.
The 2014 Act presupposes that one of the parties to a same-sex relationship is a victim in that sections 5 and 6 aim to protect ‘victims of homosexuality’. This approach is disturbing. If the intention of the law is to protect individuals who have been sexually abused or raped by someone of the same sex, then the correct term should be ‘victims of rape or sexual abuse’ as applicable. Otherwise, the expression, ‘victims of homosexuality’ as is used without clarification alludes to the idea that homosexual relationships are so unnatural that they cannot be consensual.
Significantly also, just like it obtains in Nigeria, section 12(2) of the Ugandan Anti-homosexuality Act penalizes those who officiate same-sex unions and, in the case of institutions, their licences could be revoked. Of significance also is section 14 which provides for the extradition of Ugandan homosexuals from other countries to face the wrath of the law. Thus, Uganda can penalize gay Ugandan citizens resident in foreign countries which allow same-sex relationships for their sexual orientation. This stance is unfathomable, and it is doubtful if Uganda will receive cooperation from other countries in this regard.
There have been notable instances in which gay people were targeted in Uganda. These include arresting suspected gay people, organizing mass protests against homosexuality and publishing the names of suspected gay people in the media (Mujuzi, 2009). Interesting also is the fact that during the constitutional review process leading up to the 2005 amendment of the Constitution, the issue of same-sex relationships was never up for debate, despite the fact that the peoples’ views had been sought on a broad range of issues, and Ugandans had been vocal about their willingness to comment on a broad range of issues extending beyond the Constitutional Review Commission’s Terms of Reference (Mujuzi, 2009). Even though it had been categorically stated that the Constitution was to be amended to specifically prohibit same-sex marriage, the issue did not receive attention. As Mujuzi (2009) rightly observes, this was a clear indication that the issue was not considered contentious enough.
Malawi
The Penal Code Act of Malawi prohibits same-sex relationships. Notwithstanding the fundamental human rights guaranteed by the Constitution of Malawi (e.g. the rights to dignity, non-discrimination and privacy are guaranteed under Articles 19, 20 and 21 respectively) and international human rights instruments, the rights of gay people in Malawi have been abused.
The provisions criminalizing homosexuality in Malawi’s legislation are similar to those of the other countries discussed above. For instance, the wordings of section 153 of the Malawian Penal Code which criminalizes homosexuality is exactly the same as section 162 of the Kenyan Penal Code, the main difference being that Malawi includes the words ‘with or without corporal punishment’ after the prescribed 14-year jail term. An attempt to engage in a same-sex relationship attracts a 7-year sentence under section 154, whilst an act of gross indecency by two males also attracts a prison sentence under section 156. Section 137A which prohibits lesbianism is a replica of section 156 of the same Code.
To show the hypocrisy of the system, in terms of section 157(1) and (3), incest attracts a 5-year jail term, whilst an attempt to commit incest is merely classified as a misdemeanour. Although this may not be the intention of the legislators, it sends a message that incest can be tolerated over homosexuality.
As observed by the Human Rights Committee in its Provisional Concluding Observations on Malawi (June 2012), there is an established history of homophobia in Malawi. The origin of this discriminatory attitude can usually be traced to cultural, religious and traditional values (Mujuzi, 2011). The celebrated case of Republic v. Steven Mojeza Soko and Tionge Chimbalanga Kachepa 10 aptly captures this history. The defendants, partners in a same-sex relationship, were cohabiting and had had an engagement ceremony. They were arrested and charged under the Penal Code. The court emphasized that Malawi was not ready for same-sex unions and found the need to apply the stiffest sentences possible under the law, as a deterrent to others. However, following international condemnation, the men were pardoned.
It is noteworthy that remarkable changes have since taken place, such as the suspension of the country’s anti-gay laws in November 2012, pending a decision by Parliament. The sincerity of this move and what the future holds for homosexuals in Malawi remain to be seen.
The discrimination against people in same-sex relationships in the above countries reflects the general mindset in Africa, which seems unlikely to change in the nearest future. It is hoped that the success recorded in South Africa in decriminalizing same-sex relationships would eventually have a positive influence on other African countries.
The incompatibility of Nigeria’s anti-gay legislation with human rights principles
The provisions of the Same-Sex Marriage (Prohibition) Act 2013 and other anti-gay laws in Nigeria directly contradict national and international principles of fundamental human rights, such as the right to privacy, dignity, equality and non-discrimination, the right to health and the right to found a family. They violate the country’s obligations as a State Party to international human rights instruments. Some of these principles will be examined below with a view to showing how the Act violates them.
The right to privacy and family life
The right to privacy is a fundamental human right and must be respected. By criminalizing same-sex relationships and marriage, and the public show of same-sex amorous relationships under section 4(2), the Same Sex Marriage (Prohibition) Act violates the right to privacy. Section 37 of the Nigerian Constitution guarantees the right to privacy and family life to all citizens. It is also guaranteed under the Universal Declaration on Human Rights (the UDHR) 11 and the International Covenant on Civil and Political Rights (ICCPR). 12 Thus, gay people are also entitled to this right, which covers citizens’ homes, correspondence, telephone and telegraphic communications.
A leading authority on the violation of the fundamental rights of gay people is Toonen v. Australia. 13 In issue were the rights to privacy and non-discrimination. The facts were that Nicholas Toonen, a homosexual man, challenged the criminalization of homosexuality in Tasmania, Australia (para. 1). He sent a Communication to the Human Rights Committee of the ICCPR, arguing among other things that sections 122(a) and (c) and 123 of the Tasmania Criminal Code (criminalizing sexual contact between men) violated his rights under Articles 17 (privacy) and 26 (non-discrimination) of the ICCPR (paras 2.1–3.1). This ultimately cost him his job. The Human Rights Committee agreed with the complainant, finding that sections 122 and 123 of the Tasmanian Criminal Code (which criminalized sexual relations between consenting adults of the same sex) violated the complainant’s right to privacy (paras 9–11), causing Australia to review the criminalization of homosexuality in Tasmania and overhaul that law.
In the above case, Tasmania had tried to justify these provisions on the basis of public health and morality, alleging that issues of morality should be regarded as being for domestic decisions and that the provisions could prevent the spread of HIV/AIDS (para. 8.4). In puncturing this argument however, the Committee noted that the Australian Government had on its part conceded that criminalizing homosexuality had the exact opposite effect, in that it drove those most vulnerable to HIV/AIDS into hiding, for fear of discrimination, and it found no link to have been shown between continued criminalization and effective control of the spread of HIV/AIDS (paras 6.5 and 8.5). On the purported argument that morality was a matter for domestic adjudication, the Human Rights Committee observed the danger in allowing such an argument to prevail, as it would result in the withdrawal of several domestic laws interfering with privacy from the Committee’s jurisdiction (para. 8.6).
Similarly, in Norris v. Ireland, 14 the European Court of Human Rights held that an Irish Law criminalizing same-sex relationships between consenting adults was in violation of the right to private and family life as guaranteed by Article 8 of the European Convention.
Another element of the right to private life is the right to family life. This is guaranteed to all persons under Article 16 of the UDHR and Article 23 of the ICCPR, respectively, as long as the contracting parties are of full age and have given their free and full consent. In Vallianatos and Others v. Greece, 15 the European Court of Human Rights held that the legal recognition of different-sex civil partnerships to the exclusion of same-sex civil partnerships was incompatible with Article 8 of the European Convention on Human Rights.
The right to dignity
The right to dignity is another fundamental right which the Same Sex Marriage (Prohibition) Act violates. It is preserved under section 34 of the Nigerian Constitution, and accordingly, no individual ought to be subjected to torture or to inhuman and degrading treatment. Similarly, the UDHR (Articles 1 and 5), the ICCPR (Article 7) and the Banjul Charter (Article 5) preserve the right to dignity. The spate of violent attacks on suspected gay people in Nigeria in the period leading up to the introduction of the Act and thereafter conflicts with the spirit of this provision.
To achieve this right to dignity, it is essential to prohibit acts such as torture and other inhuman acts which debase the individual and strip them of their dignity. As aptly captured by the Human Rights Committee, prohibition of torture is a means of preserving the right to dignity, as well as the physical and mental integrity of the individual, as a fundamental human right. 16 Witch-hunting gay people, arresting, parading and flogging them is essentially torture, cruel, inhuman and degrading treatment. The Committee noted that application of Article 7 is not restricted to physical acts but also mental suffering. 17
The African Commission recently adopted a resolution condemning all forms of violence based on sexual orientation. It deemed such acts to be human rights violations, particularly with regard to the rights to life and dignity which are guaranteed under the Banjul Charter (Articles 4 and 5), and condemned the persecution of persons on the basis of their sexual orientation or gender identity. 18
Also, in National Coalition for Gay and Lesbian Equality v. Min. of Justice and others, the South African Constitutional court stated that criminalization of same-sex relations violates the right to dignity, 19 noting that the constitutional protection of dignity required the acknowledgement of the value and worth of all individuals as members of the society. 20
The right to equality and non-discrimination
The Same Sex Marriage (Prohibition) Act contravenes provisions on the individual’s right to equality and non-discrimination. Section 42 of the Nigerian Constitution provides for the equal treatment of, and non-discrimination against, Nigerian citizens as a fundamental right. Whilst it is noted that the non-discriminatory provisions under the Nigerian Constitution do not explicitly prohibit discrimination based on sexual orientation, or include the all-encompassing phrase ‘other status’, Article 2 of the Banjul Charter, which Nigeria ratified through the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act 2004, prohibits discrimination on several grounds, and for good measure, concludes with the phrase ‘or other status’, a phrase that has been described by the Committee on ESCR in its General Comment 20 on non-discrimination in the enjoyment of rights contained in the ICESCR to include HIV status or sexual orientation.
Likewise, Articles 2, 3, 18 and 19 of the Banjul Charter provide for the right to equality, and non-discrimination against all persons, with Article 28 imposing a duty on the individual to respect others without discrimination and promote, safeguard and reinforce mutual respect and tolerance of all others. Further, Articles 1 and 2 of the UDHR reiterate that all human beings are born free and equal in dignity and rights, whilst Article 7 provides for equality before the law and equal protection without any discrimination. The ICCPR also guarantees the right to equality and non-discrimination under Articles 2, 3 and 26.
Notwithstanding the above human rights instruments to which Nigeria, and other African countries are parties to, discrimination against gay people remains a major problem on the continent. Save for South Africa, which has stood out in decriminalizing homosexuality, the disdain for homosexuality persists, despite persistent calls by the Human Rights Committee in its Concluding observations to African countries to end the discrimination and violence against gay people. 21
Young v. Australia 22 also provided a platform for the Committee to express the ICCPR’s stand on the criminalization of homosexuality. The complaint was in respect of Australia’s veterans’ entitlements law under which homosexual veterans were not entitled to the same pension as others. The Committee found Australia to be in violation of Article 26 of the ICCPR and stated that the complainant was entitled to an effective remedy and reconsideration of his pension application.
The right to health
Article 25 of the UDHR provides for the right to a standard of living which is adequate for the individual’s health and well-being, medical care and necessary social services and special care for motherhood and childhood, among other things. The Banjul Charter equally guarantees this right. Article 16 of the Charter provides for the right to the best attainable state of physical and mental health and directs States Parties to protect citizens’ health and provide them with adequate medical attention when sick.
The Human Rights Committee noted the connection between criminalization of homosexuality and the high prevalence of HIV/AIDs among homosexuals. 23 Criminalization breeds stigma and discrimination, driving gay people underground and making it difficult for them to assess HIV-prevention programmes, with serious implications for efforts to curb the spread of the epidemic.
Freedom of association and assembly
Section 40 of the Nigerian Constitution provides for the right to assemble freely, associate with others and form an association to protect members’ interests. The UDHR (Article 20(1)), the Banjul Charter (Articles 10 and 11) and the ICCPR (Articles 21 and 22) also recognize this freedom. Sections 4(1) and 5(2)&(3) of the Same Sex Marriage (Prohibition) Act, which prohibit registration of gay clubs and prescribe penalties for such is in violation of this right.
The above discussion has shown clearly the incompatibility of Nigeria’s anti-gay law with principles of fundamental rights that are entrenched in human rights instruments and have been reiterated by treaty monitoring bodies and relevant case law. These violations are intolerable, as they are incompatible with the country’s obligations under its own constitution and as a State Party to international human rights instruments. There is an urgent need therefore to address this situation.
South Africa as a model for African countries in the decriminalization of homosexuality
South Africa has blazed the trail in Africa and, indeed, the world with regard to gay rights. Although previously a homophobic nation, it experienced a dramatic turnaround in the 1990s, with the end of apartheid. The Constitution of South Africa 1996 protects the rights of gay people. Section 9(3) and (4) specifically prohibits discrimination on any ground, including sexual orientation. Other fundamental rights guaranteed under the Constitution include the right to dignity, security of the person, privacy and expression (sections 10, 12, 14 and 16, respectively). These provisions were further cemented by the Promotion of Equality and Prevention of Unfair Discrimination Act 2000, which aimed to give effect to the provisions of section 9 of the Constitution.
In addition to the Constitution, there exists a remarkable body of legislation and case law which established the present non-discriminatory regime in South Africa. Some of these will be discussed briefly.
In 2005, the Constitutional Court in Minister of Home Affairs v. Fourie 24 ruled that denying people in same-sex relationships the right to marry was unconstitutional. Following this historic ruling, South Africa legalized same-sex marriage, with the introduction of the Civil Union Act 2006, under which any two persons could be joined together as spouses or partners in a civil union, as long as the union was voluntary and they were of age (18 years). Section 13 accords a civil union the same legal status as marriages under the Marriage Act and the Customary Marriage Act.
In National Coalition for Gay and Lesbian Equality and Others v. Minister of Justice and Others, 25 the Witwatersrand High Court had declared as unconstitutional and invalid, the common law offence of sodomy, and the inclusion of sodomy as a crime in the South African Sexual Offences Act 1957, among other legislation, and referred its decisions to the Constitutional Court for confirmation in terms of section 172(2)(a) of the Constitution. 26
The Application for confirmation in the above case was brought before the Constitutional Court in National Coalition for Gay and Lesbian Equality and Anor v. Minister of Justice and Others. 27 In confirming the High Court’s decision, the Constitutional Court acknowledged that criminalization stemmed from moral and religious views of a section of society. 28 On the harmful effects of criminalization, the Court noted that these went beyond an immediate impact on victims’ dignity and self-esteem, to their personhood and identity at a deep level, affected their ability to achieve self-identification and self-fulfilment and was, overall, a severe limitation of their right to equality, privacy, dignity and freedom. 29
In Geldenhuys v. National Director of Public Prosecution, 30 the issue for determination was whether there was any justification for provisions of the Sexual Offences Act which set different ages of consent for heterosexual sex and male homosexual sex (16 and 19 years, respectively). The Constitutional Court found the different age limits to be discriminatory and contrary to section 9 of the Constitution. 31 It was held that there was no justification for the different ages of consent, other than to categorize homosexuality as perverse, demeaning and disgraceful, contrary to the spirit of the South African Constitution. 32
Also, in J v. Director General, Department of Home Affairs, 33 it was held that provisions which accorded legitimacy to only children born via artificial insemination to married heterosexual couples were unfairly discriminatory against same-sex couples; 34 and in Satchwell v. The President of the Republic of South Africa and Another, 35 the Constitutional Court declared as unconstitutional and unfairly discriminatory based on sexual orientation, provisions pertaining to payment to which a judge’s surviving spouse was entitled. 36
The above authorities highlight South Africa’s strides towards decriminalization of homosexuality. It is desirable that other African countries follow the South African example.
Conclusion and recommendations
This article has noted that Nigeria’s Same Sex Marriage (Prohibition) Act 2013 violates basic human rights principles. It has, however, pointed out that the Act must be addressed, together with previously existing legislation which had criminalized homosexuality long before it. For this reason, the article also considered the new law to be unnecessary, as it only extended the already established criminalization of same-sex relationships. The roles of culture and moral values in shaping Nigeria’s anti-gay attitude and law was also considered. It was shown that cultural background and the perceived high moral values of the Nigerian people played vital roles in entrenching the prohibitive regime.
In the light of the various human rights instruments which the Same Sex Marriage (Prohibition) Act and Nigeria’s other anti-gay law violate, it is expedient that they be repealed. However, the article acceded that a repeal was unlikely, going by the overwhelming support which the Act has received from the Nigerian majority, not discounting the psychological boost that could be said to have been received from Uganda’s subsequent introduction of its own anti-gay law, and the persisting intolerance of homosexuality in Africa generally.
In the event that the Act is not repealed, it is recommended that certain measures be put in place. They are: expunging some of the provisions of the Act (such as section 1(2) which voids same-sex unions contracted outside Nigeria); redrafting others, for instance, replacing prescribed prison terms for gay people with fines; removing, or at least, drastically reducing the harsh penalties attached to offences, such as prescribed jail sentences for persons who officiate or witness same-sex marriages and gay rights groups; introducing new provisions to protect suspected gay people from vigilante attacks; and generally being more tolerant of those whose sexual orientation is different from the norm. Admittedly, these recommendations will not have the same effect as an outright repeal but will nevertheless work towards mitigating the situation.
The tolerance being prescribed above is not necessarily an immediate or actual legalization of gay rights. It is understood, against the background of Nigerian, and in general, African cultural values and moral inclination, that this may be difficult, if not impossible for the time being. That being said, a middle ground can nevertheless be found. In essence, a call for an end to victimization of gay people and criminalization of same-sex relationships must be differentiated from a call for the legalization of gay rights. Whilst the latter concerns a bestowing of rights on gay people such as the right to enter into marriage contracts, the former only asks that gay people not be victimized for being gay and that their rights as human beings be respected.
In conclusion, the article has reiterated that in realizing their human rights and freedoms, people should be free to love whomever they choose without fear of discrimination. Indeed, the freedom to express one’s self romantically or sexually must be seen as a step towards self-actualization. This right must not be denied simply on the basis of intolerance masquerading as culture, morality, religion or any other reason lacking in merit.
Ultimately, it is hoped that Nigeria would learn from countries such as South Africa, the United Kingdom, Australia and New Zealand where the fundamental rights of people, regardless of their sexual orientation are being recognized, respected and protected.
Footnotes
Acknowledgement
The author wishes to thank Professor Ebenezer Durojaye for comments on earlier drafts of this article.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.