ANTI-HOMOSEXUAL LEGISLATION IN NIGERIA IN PERISCOPE (by JOSHUA OMENGA)
Same-Sex Marriage (Prohibition) Act, enacted in 2013 and signed into law on the 7th Day of January 2014, has been a subject of much controversy, particularly owing to the socio-religious sentiments of the Nigerian public. A brief summary of this notorious legislation is necessary in understanding it, and perhaps in justifying or condemning it.
Section 1 of the Act prohibits the solemnisation of same sex marriage and also provides that such marriage, if solemnised outside Nigeria, is invalid once the couple enter into Nigeria. Section 4 prohibits the registration of gay clubs, societies, association, organisation etc. and any procession or meeting related thereto. It further prohibits the public display of same sex ‘amorous’ relationship, whether direct or indirect. Section 5 deals with punishment related to homosexual offences. It provides that a person entering into same sex union is liable upon conviction for fourteen years imprisonment. On the other hand, anyone who registers, operates or participates in gay clubs or directly or indirectly makes public display of same sex amorous relationship is liable for ten years imprisonment. And Section 5(3) provides that a person who abets or solemnises or merely witnesses same sex solemnisation is guilty of an offence and is liable upon conviction to ten years imprisonment.
This forms the summary of the Act relating to same sex union, passed by the National Assembly and signed into law by the President ‘for the preservation of the national morality’. The extent to which the Nigerian public are privy to this legislation, especially with regards to its punishment, is a matter to be considered in another place. But we may, for the sake of this essay, presume that it was duly passed. If so, the germane questions are: To what extent does the legislation infringe on individual’s rights and therefore conflict with the constitution? To what extent is it an incursion of the law into the private lives of the citizens? What exactly constitute ‘society morality’ for which this Act purportedly intend to safeguard? In the discussion of the last issue raised, the aspect of religion and secularism will also be considered vis-à-vis the Nigerian state.
The Constitutionality of the Act
Any legislation is binding, whether it is a ‘good’ or ‘bad’ law insofar as it does not conflict with the grundnorm i.e. the constitution. As the court is the custodian of the constitution, it is difficult to tell whether the provisions of the Act contravene the constitutional provisions since it has yet (to the best of my knowledge) to be tested in the court. However, certain aspects of the Act seem to taunt the provisions of the constitution. For instance, what exactly does Section 5(2) intend to punish? Minus the direct public show of same sex amorous relationship, it seems the act is punishing nothing but ‘social’ gathering – different from other social gatherings only in being constituted by members of the same sex. What constitutes an amorous display? Holding hands in the public, hugging, kissing? If two foreign men, used to pecking themselves in their hometown do the same in Nigeria, does that constitute an amorous display for the purpose of the Act? If not, does it make any difference if the ‘pecking’ is done by two Nigerians ‘unused to pecking’? The law can hardly be this mercurial – and hopefully, this is not the intendment of the legislature.
‘Real’ sexual display, and not mere fluid ‘amorous’ display, may be justified on the basis of public policy. But such sexual display would be equally wrong on the same basis if done by heterosexual couples – for instance, the perfectly legal act of sexual intercourse between a husband and wife would be against public morality if done in the public. It therefore follows that ‘amorous relationship’ is no less immoral when done by heterosexual couples in the public as when done by homosexual couples.
As to the mere association of people of the same sex, there is obviously nothing harmful in it, no matter how public. It is doubtful that the mere gathering of people of the same sex for the purpose of clubbing, gay association etc. will offend the sensibility of the general public without the imputation of its sexual aspect. If anything, it is the heterosexual gathering which seems to offend the sensibility of a typical African. Of course, it is conceded that the name of such clubs or gathering may give it an offensive connotation to the public – but this only shows that the connotation, rather than the gathering itself, is offensive to ‘public policy’. But is this a sufficient ground for its criminalisation? Is it a sufficient reason for the legislature to divest the individuals of their rights to freedom of association?
The really ridiculous aspect of this Act is that same sex union is not merely a misdemeanour but a felony, punishable with 14 years’ imprisonment. How reasonably commensurate is the punishment for this crime? With the language of the Act, it may only be hoped that a humanitarian judge may use his discretion in administering this punishment, for it seems that this is one place where the legislature seems rather to be on the lookout for scapegoats rather than in merely protecting the society’s interest.
Directly related to the incursion of this Act into Human Rights is the issue of its legality in the face of international law – especially with regards to the freedom of association and discrimination. Section 1(2) of the Act voids same sex marriage entered by persons outside Nigeria. But is such union contracted outside Nigeria criminal once the couple enter Nigeria? Nothing in the Act seems to suggest so. It merely voids the union and denies it of enforceability in Nigerian courts and any benefits that would otherwise accrue to it were it a heterosexual union. This arouses a fundamental question: what exactly does the law prohibit – the solemnisation of same sex union or same sex cohabitation? It seems in the face of the provisions of the Act that it is more concerned with prohibiting the solemnisation of same sex union. It can only be hoped that the rather exhaustive interpretation of the Act in Section 7 will go a long way in helping to reconcile this seeming incongruity.
Same Sex Legislation and the Question of Morality
While it is doubtful that the Act can be justified on the basis of protecting the society from ‘harm’, no matter how vaguely defined, it can almost be unanimously conceded that morality is the basic reason for the criminalisation of same sex union. The question of what constitutes moral or immoral conduct is, and has always been, a slippery ground upon which none can confidently stand. By whose standard is same sex union to be declared moral or immoral – the average man on the street, the religious fanatic or the liberal professor?
Nigeria is a predominantly religious society. The two major religions in Nigeria – Christianity and Islam – frown against same sex union, and so does the ‘African mentality’. But of course the African mentality is nothing but the expression of African traditional religious ideals, now subsumed in the ‘public policy’ and extant customary laws. One sees from all these that the ‘Nigerian morality’ which abhors same sex union is really its religious expression. The question provoked by this is, ‘Is religious sentiment, no matter how strong, enough to render an act criminal – and with grave penalty?’
The answer would be in the affirmative in a theocratic society; but this is not the case with Nigeria. The Constitution expressly states that Nigeria is a secular state. For this reason, it does not seem wise to use religious sentiments, no matter how pervasive, as a criterion for the criminalisation of any act.
Of course secularity does not imply godlessness, and it is nowhere thus suggested. My submission is that homosexuality, as far as it is a matter of morality, is not for the State to tackle but for religion, and any failure in curbing it should be the failure of religion and not of the State. Perhaps one will understand it better by looking at the rather too similar issue of adultery. There is in fact no obvious difference between homosexuality and adultery, and they seem so regarded in the religions in which their immorality is proscribed.
The State has however refrained from dabbling into the criminalisation of adultery. The debate and the many killings resulting from the criminalisation of adultery in the northern states are enough to warn us of what to expect from the same sex legislation. The Wolfenden Commission on Homosexual Offences and Prostitution (1957) gives a terse submission which I intend to adopt: the purpose of the criminal law is to provide sufficient safeguards against the exploitation and corruption of the more vulnerable members of the society, not to interfere in the private lives of citizens or to seek to enforce any particular pattern of behaviour. The report’s laconic submission cannot be more to the point – ‘there must remain a realm of private morality and immorality which is not the law’s business.’ I accordingly submit that the question of morality or immorality of homosexuality is not the law’s business, especially in secular states like Nigeria.
The Act and Privacy
If there is no legislation prohibiting heterosexual amorous relationship in the public – which is equally as bad in the ‘corruption of public morality’ – it seems rather discriminatory that a legislation should be put in place to prohibit homosexual amorous display. But in reality, do homosexuals display their amorous relationship any more than heterosexuals – especially in the face of obvious public opprobrium? The best this law can do is to restrict the homosexuals to practising it in the privacy of their houses, which is what obtains with or without legislation. If they are confined to carrying out their homosexual acts in the private, how exactly does the protection of the public morality come into play? The recurrent question remains, ‘What exactly does the Act prohibit?’
This raises another fundamental issue of the extent to which the Act infringes on the privacy of citizens. How is evidence to be gathered in prosecuting ‘homosexual deviants’, for felony cannot be summarily tried? To gather evidence, it seems inevitable that the privacy of such individuals must be intruded upon. The Act seems to intend this, for it criminalises even the mere witnessing of same sex solemnisation. If for instance one suspects same sex relationship, is one to report immediately or to get more facts? If one fails to report such activity – and if it real – there is no reason why one should not be as criminally liable as if one had witnessed its solemnisation.
The Absurdity of the Penalty under the Act
Perhaps the really absurd aspect of the Anti-Homosexual legislation in Nigeria is its attendant punishment. As has been noted, the parties to the union are liable for 14 years imprisonment while involvement in homosexual clubs, organisation etc. attracts 10 years imprisonment. These are without the option of fine; and it is doubtful that the judge is given the discretion of awarding lesser punishment once guilt is established. One may understand the rationale behind the awarding of such grave punishment on the principal offenders, namely, to serve as deterrence. But what about the punishment imposed on mere witnesses to such a solemnisation who perhaps may take no active part expect in being present ‘at the crime scene?
10 years imprisonment is meted for merely witnessing same sex solemnisation. Until it is tested in the court and the court properly interprets what suffices as ‘witnessing’ same sex solemnisation, one is left to wonder at the intendment of the prohibition. For instance, if a man passing on the road stops over at a party and discovers it to be a solemnisation of same sex union, is he thus a criminal for the purpose of the Act? If a homosexual union or party is going on in one’s neighbourhood and one can observe from the window or from the outside – does one thus become culpable for a crime with 10 years’ imprisonment?
This part of the legislation seems to constitute the citizens into watchdogs. This is obviously unfair in this busy and urbanised world where people are reluctant to pry into other people’s affairs. This is quite apart from the fact that this amounts to criminalising omission – and one wonders what duty is placed on such people not to witness the ‘immoral activities’ of their neighbours. The duty to protect public morality? The legislature may yet reveal their real motive in imposing such punishment for mere omission.
In a curiously ironical way, the issue of homosexuality has never been as rampant as it is following its criminalisation. There may have been quite a number of homosexuals practising it in private prior to its proscription, but it seems that they are eager to assert their rights now that it has been criminalised. This raises a question of whether criminalising certain offences can actually abate them.
It is my personal opinion that immoral though homosexuality may be, it is no reason for its criminalisation. In the face of the internationalisation of human rights law and the global trend towards liberalism, one may easily predict that this is one law which is not likely to stand the test of time.