Same-Sex(Prohibition) Act in Nigeria

AN APPRAISAL OF THESAME-SEX MARRIAGE(PROHIBITION) ACT,

2013BY,

HAGLER OKORIE, LLMNOTARY PUBLIC & JUSTICE OF THE PEACE

FACULTY OF LAW, ABIA STATEUNIVERSITY, UTURU

DECLARATION

I herein undertake not to submit this presentarticle or any part thereof to anywhere else for

publication at least for three months aftersubmission. I also affirm that the contents of thiswork are purely mine and have not been publishedbefore. Having submitted this article, I have

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exclusively granted IFJR the licence to publish thepaper.

AN APPRAISAL OF THE SAME- SEX MARRIAGE(PROHIBITION) ACT, 2013

ABSTRACT

Under the Marriage Act and Matrimonial Causes Act, marriageis the union of one man and one woman. Also, under ourcustoms and religious teachings, marriage is the fusion orcoming together in union of a man and woman. Under theCriminal Code Act and Penal Code, any offence against theorder of nature which really is defined as a male personhaving carnal knowledge of another male person or indecentpractice between males which are punished with three tofourteen years jail term. These earlier statutory provisionswere designed out of the moral content of our customs andtraditions. The Same-Sex Marriage (Prohibition) Act, 2013 isa restatement and reinforcement of those societal valueswhich have refused stoutly to be corrupted by negativeglobalization. The Act also is a reply to some persons’extreme interpretation of what constitutes liberty and thepursuit of happiness as evangelized by the West under the

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banner of democracy. This work analyzes the Same-SexMarriage (Prohibition) Act, 2013 to discover the extent, ifany, it breaches the fundamental human right provisions ofthe 1999 Constitution, which has been the major plank uponwhich critics of Nigerian State hung. This work demonstratesthat certain sections of the constitution are not absolutein themselves. That the state has a duty to make law fordefence, peace, security, order and public health of thenation in line with the wishes and aspirations of thepopulation. The work finally recommends that the Act beamended to provide for the establishment of rehabilitationinstitutions where convicts under this law shall be held.This is because of the utility in mandatory counseling,therapical and psychiatry treatment of convict instead ofthe present provision of sending them to prison.

INTRODUCTION

The Nigerian state and government have come under

severe criticism over the promulgation of the Same-

Sex Marriage (Prohibition) Act which criminalizes a

formal union of homosexuals, lesbians, gays,

bisexuals, transgender (LGBT) and even

intersexuals. The same sex community, some

international agencies of the United Nations and

even foreign governments have being in unison in

their condemnation of the enactment of this law in

Nigerian. These critics have one principal reason

for smacking the country. The chief reason is that

the Act infringes and contravenes some sections of

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Chapter Four of the 1999 Constitution of the

Federal Republic of Nigeria1 and other

international treaty obligations dealing with

protection of human right which the country is a

state party.2 This work looks at the Act and the

relevant provisions of the constitution relating to

fundamental human rights to find out any form of

breach or otherwise and answer the question whether

this Act is anti-people and its enactment ultra-vires.

This work shall also disclose that this Act is not

the only Nigerian legislation that has criminalized

homosexualism and lesbianism.

MEANING OF SAME-SEX MARRIAGE

In some climes, the concept of same-sex marriage is

known as “gay marriage” which means the coming

together in union of two males. It could also be1 They posit that the Act violates Sections 37, 38, 39 and 40 and in that process ultimately breaches Section 1 (3) of the 1999 Constitution.2 These international treaties include: International Covenant on Civil and Political Rights which was acceded to on 29th July 1993-see Articles 2 (1) and 26; The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment signed on 28th July 1988 and ratified on 28th June 2001; The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) ratified in June 1985 and African Charter on Humanand peoples Rights which has be domesticated by the National Assembly byvirtue of section 12 of the 1999 Constitution.

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called “lesbian marriage” which means a marriage

contracted between two females. In all, same-sex

marriage is the formal fusion in marriage between

individuals of similar biological sex. Under same-

sex marriage concept, the union recognizes the

coming together in matrimony of two identical sexes

which could be either male or female. Black’s Law

Dictionary defines same-sex Marriage as:

“The ceremonial union of two people of thesame sex; a marriage or marriage-likerelationship between two women or two men”3

So, the concept of same-sex relationship

contemplates the following group: Lesbians, Gays,

Bisexuals, Transgender and Intersexuals. Let us

consider the meaning of these words individually.

(a). Lesbian: This word originated in 1703 in

Lesbos. These are reputed homosexual band

3 Garner, B.A.(ed), Black’s Law Dictionary, Eight Edition, U.S.A, West Publishing Company, 2004, P. 994.

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associated with Sappho of Lesbos.4 Lesbian means

homosexuality between females.

(b). Gay: Generally speaking the word “gay”

means being happily excited or merry, or in high

spirits. When used for sexuality, it means a

homosexual man who is attracted to a fellow man.

(c). Bisexual: This is a sexual attraction

towards both male and female or to people of any

gender identity.5 It is also a characteristic of

possessing both sexes like a hermaphroditic. It

is more of a sexual orientation towards both

sexes.

(d). Transgender: This is a term for people

whose gender identity expression or behaviour is

different from those typically associated with

their assigned sex at birth. So, it is the state

of one’s gender identity (as woman, man, neither

or both) or gender expression not matching one’s

assigned sex (identification by others as male,

female, or intersex based on physical or genetic

4 Webster, M; Webster’s Ninth New Collegiate Dictionary, Massachusetts, Merriam-Webster Inc; 1990, P. 6855 Alan, S; “Bisexuality” in sex from Plato to Puglia: Publishing Group, P. 115.

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sex). Transgender people may be identified as

heterosexual, homosexual, bisexual, pansexual,

polysexual or asexual.6

(e). Intesexual: This is a condition in which

an individual has both male and female anatomic

characteristic to varying degrees or in which

the appearances of the external genilalia is

ambiguous or differs from that characteristic of

the gonadal or genetic sex.7 So, intersexualism

is a condition in humans in which there is a

variation in sex characteristics that do not

allow an individual to be distinctly identified

as a male or female.

Generally, the same-sex marriage (prohibition)

Act defines same-sex marriage to mean:

“The coming together of person of the samesex with the purpose of living together ashusband and write or for other purpose of samesexual relationship”.8

6 See Transgender, Wikipedia, the free encyclopedia, en.wikipedia.org/wiki/Transgender, assessed 19/7/2014.7 See Mosby’s Medical Dictionary, 8th Edition, U.S.A, Elsevier Inc, 2009.8 Section 7 paragraph (3)

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THE NIGERIAN LEGAL SYSTEM BEFORE THE ACT

The barrage of vicious attacks by the same sex

practitioners, some members of the human rights

community, international organizations and foreign

countries on the enactment of this Act brings to

the question our extant criminal legislations which

have lived with us even before independence. The

first code of criminal law to be enacted for

Nigeria was introduced by the Criminal Code

Proclamation 1904 of the Protectorate of Northern

Nigeria, which was repealed when the present code

was enacted for the whole country in 1916.9

However, with effect from September 30, 1960, a

Penal Code was introduced for the Northern States.10

Before the statutes mentioned herein, there existed

and still exist the customary practices, the

Islamic practices and other religious tenets which

bound our people.

9 Aguda, T.A, The Criminal Law and Procedure of the Southern States of Nigerian, 3rd edn., London, Sweet & Maxwell, 1982, P. 433.10 See the Penal Code (Northern Region) Federal Provisions Act 1960 revised in 1963.

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A careful peek at the Criminal Code Act11 shows that

a couple of provisions criminalize acts in the

nature of same sex practices. Section 214 terms same-

sex activities as “unnatural offences”. The section

provides thus:

“Any person who –1. has carnal knowledge of any person against the

order of nature; or2. has carnal knowledge of an criminal; or3. permits a male person to have carnal knowledge

of him or her against the order of nature;is guilty of a felonry, and is liable toimprisonment for fourteen years”.

Section 215 further provides as follows:

“Any person who attempts to commit any ofthe offences defined in section 214 of thiscode is guilty of a felony, and is liable toimprisonment for seven years.”

11 CAP. C38 Laws of the Federation of Nigeria (LFN) 2004

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Furthermore, section 217 classifies same sex sexuality

as “indecent practices between males”. It provides

thus:

“Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procuresanother male person to commit any act of grossindecency with him, or attempts to procure thecommission of any such act by any male person withhimself or with another male person, whether inpublic or private, is guilty of a felony, and isliable to imprisonment for three years.”

The Penal Code12 also proscribes conducts that share

similitude with same-sex sexual activities and

calls it “unnatural and indecent offences against

the person”. It provides that;

“Whoever has carnal intercourse against theorder12 See Penal Code (Northern States) Federal Provisions Act, CAP. P3 LFN 2004

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of nature with any man, woman or criminalshall be punished with imprisonment for a termwhich man extend to fourteen years and shallalso be liable to fine.”

In the same vein, Section 405 (2) (e) of the Penal Code

defines the term “vagabond” to mean;

“Any male person who dresses or is attired inthe fashion of a woman in a public place or who practices sodomy as a means of livelihood oras a profession”

Section 407 punishes the offence of vagabond. It

provides that:

“Whoever is convicted as being a vagabondshall be punished with imprisonment which may extendto two years or with fine which may extend totwo hundred and fifty pounds or with both.”

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Under the customary practices of the Southern

Nigeria, same-sex sexual activities or practices

are termed a “taboo” and attracts punishments

ranging from banishment or being ostracized by the

entire village or community. In very serious

situations the practitioner is taken to the evil

forest, his house destroyed and risked being killed

as atonement to the gods of the land for

desecration of the land. In Northern Nigeria, the

Sharia legal system operates. This is a system that

applies to Muslims and to those who voluntarily

consent to its jurisdiction. The states in the

North that adopted the Sharia legal system is about

twelve. So, in these states, any form of sodomy or

same sex sexual activity is punished with death

sentence. However, some states have various other

sentences on it other than death.13

Under the religious province, same-sex activities

and practices are considered highly a moral

challenge and issue, for it is regarded as against

nature and commandment of God as contained in the13 States like Gombe, Jigawa, Kebbi, Sokoto Yobe etc.

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Holy Bible. Any practice of it is regarded as a

rebellion against the creator. Practitioners are

seen as unclean, unholy and amorally sinful against

God. Since the introduction of Christianity and the

gift of the Bible, Nigerian Christians hold sodomy

and homosexuality in utter disdain without any

state law intervening.

Therefore, a review of the state of law in Nigeria

before the Same-Sex Marriage (Prohibition) Act,

2003 shows that it is heavily beyond any iota of

contestation that our legal system has since

immemorial proscribed the practices and activities

relating of same-sexism and homosexuality. It has

also shown that even in the tribal and traditional

Nigerian existence, our customs and culture have

not tolerated such behaviour or life style as the

punishment meted on any of these practices have

been drastic. It is bewildering that all these laws

existed to the knowledge of the same-sex

practitioners, and their cohorts but they did

nothing to challenge them and to ask for repeal.

Moreso, the content and provisions of these

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legislations are more draconic than the present

Act. These laws criminalize both public and private

practices of homosexuality while the present Act

only regulates public show of same sex amorous

relationship.14 This means that homosexual can

practice in their closet or in private without

breaching the Act. The tenor of these laws prohibit

both homosexuality relationship and at the same

time marriage celebration. But the provisions of

the present Act only relate to celebration of

marriages or civil union entered into between

persons of same sex.15 Similarly, the Act provides

fourteen years jail term on conviction of the

offence of homosexual marriage just as provided for

by both the Criminal Code and the Penal Code. This

is less the punishment provision for Sharia legal

system and the customary law of the people in the

south. Admittedly, the only seeming difference in

the Act is the criminalization of witnesses of gay

marriage, persons who administer marriage oath, gay

14 Section 4 (2) of the Same Sex Marriage (Prohibition) Act, 201315 Sections 1 and 2 ibid. That is to say that homosexual relationship only without more is not prohibited by the Act. This is because the express mention of something is the exclusion of others.

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clubs, membership, supports the registration and

operation of the organization of same sex, with a

ten year jail term on conviction.16 So in all, the

Act is quite benign in its provisions comparative

to the already existing criminal legislation in

Nigeria since 1916.

THE HUMAN RIGHTS ISSUES

The major knock given to the present Act from

different quarters is basically on the ability of

the Act to pass human rights tests. There have been

various theories as there are legions of homosexual

and human rights practitioners. These theories are

from the ridiculous to the sublime. It has been

banding about that the Act violated all the

provisions of Chapter Four of the 1999

Constitution.17 That is to say that the twelve items

of the fundamental human rights have all been

infringed by the Act.18 They further posit that the

16 Section 5 ibid17 Section 33 to 4418 See, Coalition for Sexual Rights in Nigeria, Clause by Clause Analyses of Nigeria Same Sex Marriage (Prohibition) Law, 2013, at http://lawyersalet.wordpress.com /2014/01/

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Act will restrict same sex couples from access to

medical and health care services, educational

services and employment opportunities as contained

in Chapter two of the constitution.19 Infact the

Joint UN Programme on HIV/AIDS (UNAIDS) and the UN-

backed Global Funds to Fight AIDS, Tuberculosis and

Malaria, both said that the Act would prevent

access to essential HIV services for homosexuals

who may be at high risk of infection. They further

contend that the Act can also be used against

organization working to promote HIV prevention and

treatment services to LGBT people.20

On the specific provisions of the fundamental

rights on the 1999 Constitution that is thrown up

for consideration which is the crux of the matter

include: sections 37, 38, 39, 40 and 42. Section 37

provides that;

“The privacy of citizens, their homes,correspondence,

19 Ibid20 UN Denounces Anti-Homosexual Law in Nigeria, supra

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telephone conversations and telegraphiccommunications is hereby guaranteed and protected.”

The Constitution provides for right to privacy and

to live a family life unperturbed either by

neighbors or the state. However, a person’s right

to be left alone to choose a course for his life is

achievable if there is no clear and compelling

overriding state interest to justify. The state has

a responsibility of balancing conflicting interest

in such a way as to ensure the fullness of liberty

without destroying the existence and stability of

society itself. This was the holding of the court

in M.D.P.D.T VS. Okonkwo.21 The Nigerian society is one

founded largely more on religious and cultural

tendencies. It is a hugely conservative one which

holds tenaciously its beliefs. Homosexual

inclinations are anachronistic, immoral and

tobooish. If the state should allow such practice

within the neighborhood, there could be breach of

peace as the practitioner may be object of abuse

and attack and violence may ensue in that21 (2001) FWLR (Pt.44) 542

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community. This legislation is also to check

inflicting such orientation into innocent members

of the public. These explain the reason for the

provision in section 45 (1) of the 1999 Constitution

which provides that:

“Nothing in Sections 37, 38, 39, 40 and 41…shall invalidate any law that is reasonablyjustifiable in a democratic society –(a). in the interest of defence, public safety,

public order, public morality or public health; or

(b). for the purpose of protecting the rightsand freedom of other persons.

The Same Sex Marriage (Prohibition) Act is germane

for public safety, public order, public morality

and public health. According to UNAIDS, Nigeria has

the second largest HIV epidemic globally – in 2012,

there were an estimated 3.4 million people living

with HIV in Nigeria. In 2010, national HIV

prevalence in the country was estimated at 4

percent among the general population and 17 percent

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among homosexuals.22 That is to say those homosexual

activities breed HIV. Section 38 provides for rights

to freedom of thought, conscience and religion.

Section 39 provides for right to freedom of

expression and the press. It is important for the

state to control some of these thoughts whose

public expression will put the state and population

into disorder. An expression of a thought that can

attack the rights, peace and orderliness of a

neighborhood must be checked by the state through

legislation in exercised of its powers in section 45

(1) of the constitution.23 In Registered Trustees, Holy

Apostolic Church vs. Ayeni,24 the court held inter alia:

“Freedom of worship depends on preservationof peace. It is only reasonable that if theexercise of the competing fundamental rights of the twoparties to freedom of worship in one church wouldresult in a breach of the peace and loss of lives andproperty

22 UN Denounces Anti-Homosexuality Law in Nigeria, Supra23 See also the powers of the state through the “… National Assembly to make laws for the peace, order and good government…” Section 4 (3) of the Constitution24 (2002) FWLR (Pt. 115) 708

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then the balance of convenience lies in thepreservation of peace and such an order cannot be said tobe in breach of a fundamental right to freedom toworship”

It is the duty of the state to make law for peace,

security and order, especially where it is crystal

clear that such conducts are prone to citizen’s

challenge.25

Section 40 provides for the right to freedom to

peaceful assembly and association while section 42

provides for right to freedom from discrimination.

Same sex practitioners have contended that section 4

(1) of the Act contravenes section 40 of the

constitution by proscribing gay clubs, societies

and organizations. Section 40 of the constitution is

not absolute.

This was the holding of the court when it

considered the provision of sections 3 and 5 of the

25 See Ukpabio vs. N.E.V.C.R (2008) 9 NWLR (Pt. 1092) 219 where the court held that the fundamental right enshrined in section 39 was subject to derogation as it is not absolute and cannot in validate any law that is reasonably justifiable in the interest of defence, public safety, publicorder, public morality or health.

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Trade Unions Act and stated that they are not

inconsistent with the provision of the section 40

of the constitution.26 On the other hand, Section 42

(1) provides inter alia:

“A citizens of Nigeria of a particularcommunity, ethnic group, place of origin, sex, religion orpolitical opinion shall not by reason only that he is such aperson… to disability…”

It must be hastily stated have that this particular

section has no ultimate bearing with the same sex

marriage (Prohibition) Act. The section is not

ambiguous as it is precise and clear in its

provision and meaning. The word “sex” used there

does not relate to sexual activities or

inclinations but defines gender. It is dangerous to

impute or infuse into the body of the section that

which it does not contain or infer. Therefore,

there is no contravention of Section 42 of the

constitution by the Act.26 R.T.N.A.C.H.P.N vs. M & H.W.U.N (2008) 2 NWLR (PT. 1072) 575.See also N.U.E.E vs. B.P.E (2001) ALL FWLR (Pt. 525) 201.

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CONTENT OF THE ACT

The Act has eight sections which includes the

citation section. Section 1 prohibits same sex

marriage or civil union and voids any same sex

certificate issued by a foreign country. Section 2

prohibits solemnization of same sex marriage in

places of worship, which includes a church, mosque

and any other place of worship in Nigeria. Section 3

declares that only marriage contracted between a

man and a woman shall be recognized as valid in

Nigeria. Section 4 provides that the registration of

gay clubs, societies and organizations, their

sustenance, procession and meetings is prohibited

and also the public show of same sex amorous

relationship directly or indirectly is prohibited.

Under section 5 which is the offences and penalties

section, any person who enters into a same sex

marriage contract or civil union commits an offence

liable on conviction to a term of fourteen years

imprisonment. Again, any person who registers,

operates or participates in gay clubs, societies

and organizations or makes public show of same sex

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amorous relationship is on conviction liable to ten

years imprisonment. By subsection (3) any person or

group who administers, witnesses, abets or aids the

solemnization of the same sex marriage or civil

union or supports the registration, operation and

sustenance of gay clubs, societies, organizations,

processions or meetings commits an offence and on

conviction is liable to a ten years imprisonment.

Section 6 provides jurisdiction to any High Court of

a state or the Federal Capital Territory to

entertain matters of same sex. Section 7 is the

interpretation section while Section 8 is the

citation provision.

It must be pointed out here that the draftsman of

this Act did a poor job on it. The Act contains

several ambiguities which will expose the Act to

legal attacks in courts. In drafting an Act, there

must be specificity in the choice and use of

language or words. For instance, Section 4 is

incoherent and inchoate in nature. Subsection (1)

looks clumsy with the lumping of the sentence while

subsection (2) is vague and indefinite. The Act in

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its interpretation section did not define the

clause “public show of same sex amorous

relationship”. It is nebulous. It gives the law

enforcement agencies the discretion to arrest on

any positive or negative prompting in their own

interpretation of the section. Again, the content

of section 5 (3) is worrying. The criminalization of

witness or any person who supports the organization

flies the dragnet even for lawyers who may be

briefed to defend a homosexual, also for a Medical

Doctor who may be treating a same sex or a human

rights activist who may be demanding for government

to accord greater rights to this group. This

subsection needs abrogation or amendment.

CONCLUSIONS

From the totality of the analysis made in this

work, it is quite apposite that the Same Sex

Marriage (Provision) Act, 2013 was enacted by the

National Assembly in the exercise of its powers

derived from section 4 (3) of the 1999 Constitution. The

said Act accords no infraction of any sections of

Chapter four or any other section of the

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constitution. The provisions of the Act are

reasonably justified in a democratic Nigeria as it

is to protect public morality, public safety,

public order and public health. It must be pointed

that some African Counties like Uganda punish

homosexual acts with imprisonment for life. In

Gambia, the President has said that homosexuals

should be decapitated. In June, Senegalese

President, Macky Sall argued with Obama about the

subject at a news conference. President Sall said

that other countries should refrain from imposing

their values beyond their borders. This is true “as

we do not ask Europeans to be polygamists. We like

polygamy in our country, but we cannot impose it on

yours. This is because the people won’t understand

it. They won’t accept it”

This Act is a law that is in line with the people’s

culture and religious inclination. It is a law that

is a reflection of the beliefs and orientation of

Nigeria people. Nigeria is one of Thirty Eight

African counties (about 70 percent of the

continent) that have laws prohibition

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homosexuality.27 A study of 39 nations around the

world by U.S. Pew Research Centre found that 98

Percent of Nigerians believe the society should not

accept homosexuality.

RECOMMENDATIONS

Section 5 (1) of the Act punishes anyone convicted with

a term of fourteen years. My view is that the

imprisonment of homosexual practitioner cannot

solve the challenge. The prison system in Nigeria

is highly challenged by over-congestion and lack of

infrastructure. The prison official and the system

is also not ready and do not have the know-how to

accommodate this special inmate who found himself

in prison on a victimless crime. The result is that

he will corrupt and baptize new convert in the

prison. The prison confinement will be a veritable

platform for such a fellow to continue to ply his

trade and a huge negative investment reward of

HIV/AIDS will be reaped.

27 Amnesty International in New Law in Nigeria Bans Gay, Meetings, Boston Herald, Monday, January 13, 2014.

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I recommend the amendment of the Act to also

include rehabilitation of homosexuals in a

rehabilitation camps that will be established. This

rehabilitation mechanism or programme will include

mandatory counseling, treatment, therapy,

psychological and psychiatric treatment and

evaluation. In the alternative, the Act could be

amended to provide that the jail term must be

served in this rehabilitation centers that will be

established.

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