If I may be permitted to paraphrase the King of Afro-beat- Fela Anikulapo Kuti, I would say- you Nigerian or non-Nigerian, kindly listen to me with an open mind. Take your mind out of those religious places and place it in this academic contraption right opposite you.
A lot of controversy has trailed the enactment of the Same Sex Marriage (Prohibition) Act. So much so that even Big Brother has vowed to apply pressure on the Nigerian polity to accept LGBT (lesbianism, Gay, Bisexual, transsexual) rights.
One must thus ask; is it unlawful to be gay in Nigeria?
WHAT THE NEW LAW SAYS?
The law says that any MARRIAGE or CIVIL UNION entered between persons of the same sex in Nigeria shall be invalid. And if it is entered into outside Nigeria, it shall not be so recognised in Nigeria. The law further prohibits any place of worship, be it a church, mosque or otherwise, or any religious official or person from solemnizing such marriage between persons of the same sex. That is, boy can’t marry boy and girl can’t marry girl. Someone asked me earlier, what if I am both a boy and a girl? The sad answer would be- sorry, Nigerian law doesn’t contemplate your existence.
The law further prohibits, the registration of gay associations, clubs, societies, meetings, processions, organizations or the likes. But how would we define gay? Do we define it to include lesbianism? Or do we interpret that provision literally to exclude lesbians and the others?
A rather curious crime created by the law aims at prohibiting “public show of same sex amorous relationships” whether “DIRECTLY or INDIRECTLTY”. The question I will ask and hope gets answered is- can we still shake hands with our brothers in public? And you girls that say hello by hugging, how long would your hugs have to last before an imputation of homosexuality is made? I do not think there was any need to add the words “directly or indirectly”. The provision will still make perfect sense if the words are excluded.
I have been wondering though, how does the law intend to determine the nature of acts that would constitute indirect public show of same sex amorous relationship? Any yardstick? I’ve previously had the imagination that laws creating crimes had to be specifically spelt out. Lon Fuller has advised that one of the features of any good law is clarity. It must be clear. I add here that it at least be amenable to the common sense of the people it seeks to bind. All these precautions become important in order that one may know how long handshakes should last before one gets arrested for “INDIRECT GAY PDA”. So guys, you can no longer pick wool or thread out of your Hommie’s afro. Let him carry it anyway.
Another important aspect of the law is that which prescribes punishments for the crimes created. Olamide has sang about bagging 14 years for being gay. Though close enough, the law does not exactly put it in that manner. What the law says is, if you go through Same Sex Marriage, you get 14 years in the bag. If you witness or officiate the solemnization of same sex marriage, you get 10 years upon conviction. So watch the gatherings you attend, so you don’t be an aider of the solemnization of same sex marriage. And remember, you can’t pick that wool out of that fro. And ladies, you can’t help a sis blow dust out of her eyes in public, you could get 10 years for “INDIRECT PUBLIC DISPLAY OF SAME SEX AMOROUS RELATIONSHIP”. In other words, “Indirect Gay PDA”.
The provision I find most bewildering is the definition of Civil Union in section 7 of the law. It provides Civil Union to include:
- Adult Independent Relationships
- Caring Partnerships
- Civil Partnerships
- Civil Society Pacts
- Domestic Partnerships
- Reciprocal Beneficiary Relationships
- Registered Partnerships
- Significant Relationships
- Stable Relationships.
I end this list with a sigh. The law has succeeded in defining one technical term with at least nine other technical terms. That doesn’t make understanding the crime easier. I do not understand how the House of Representatives and the Senate of the Federal Republic of Nigeria can make crimes of expressions as elusive and potentially controversial as these without a proper guide to interpretation. Again, I posit that the interpretation of “Civil Unions” would have made better sense if this list was excluded.
These are crimes, and as stated earlier, must be clear. I have a right to know what I ought not to do, before I do something, and then, find out that I have committed a crime. Isn’t it? The case becomes even worse for the average lay man on the street, who may even after he has read the law, not know when has committed the crimes. I believe, provisions of the laws creating crimes be lucid and be in the plainest language. This should be even more so considering the level of education and enlightenment in Nigeria. Laws are not made for lawyers alone.
It is doubtful if these provisions as they relate to Civil Unions will be enforceable, having in mind, the provisions of the Constitution and other Conventions guaranteeing Fundamental Rights.
WHAT DOES THE CONSTITUTION SAY?
- You have a right to the privacy of your home, correspondence e.t.c. I only wonder how the police will get to know what two grown adults, whether of the same sex or not are doing in the privacy of their homes.
- You have your right to think what you wish, believe what you want, worship who or what you want, and have whatever conscience you please. As my teacher, Prof. Oyebode would say back in the university, “You have a right to go to heaven the way you wish”. It is between you and who or whatever you serve.
- You have the right to express yourself the way you want and how you want. So hold whatever views you choose. Just make sure you are not infringing the rights of others.
- You have a right to associate and assemble with the people you choose, except such association or assembly is prohibited by law.
- You as a Nigerian citizen, shall not be discriminated against based on your ethnic group, sex, place of origin, religion, or political opinion. This section obviously does not mention sexual preference as one of the grounds. But, is this list exhaustive? I however imagine that with a little Judicial Activism and expansive interpretation of the Constitution, it could be squeezed in.
Be that as it may be, the provisions of the African Charter of Human and peoples Right may be called in to aid, and this will be discussed in a subsequent paragraph.
THE BIG CAVEAT
Section 45 of the Constitution says, nothing in section 37, 28, 39,40, 41, shall invalidate any law that isreasonably justifiable in a democratic society in the interest of “defence”, “public safety”, “public morality”, “public order”, “public health” and for the “purpose of safeguarding the rights of other persons”
This is perhaps, the giant opening for the enactment of the Same Sex Marriage (prohibition) Act. This section lists the grounds for derogation to include “public morality”
So I ask, how does what two or more individuals, whether of the same sex, opposite, multiple or combined, do in the privacy of their room affect “public morality”? If it does then I wonder what doesn’t affect public morality. Also, how does it affect defence, public order or public safety? It is the opinion of this writer that this law by some of its provisions has delved into the realm of “private morality”. And that is why I think that some items in the list copied above cannot properly, be labelled by any law as crimes, as that would be inconsistent with the provisions of the constitution, and as well be a violation of the residual rights not caveated by the derogation clause.
I guess that in a rush to put a law out, the National Assembly did not reason these factors out.
BUT DOES THE AFRICAN CHARTER HELP THE LGBT CASE?
The Charter in Article 28 provides that “every individual shall have the duty to respect and consider his fellow human beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance”. It is pertinent to note that this provision of the law is directed only at individuals, and not the State, or the Government. One would however need to determine the definition of “individuals”. Could it be interpreted to include the state? This I doubt. Further, this provision imposes a duty on members of the society and does not necessarily vest a right on individuals. But as may be argued a right imposes a duty, and a duty vests a right.
Article 2 further states that “every individual shall be entitled to the enjoyment of rights and freedoms recognised and guaranteed in the Charter, without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth orother status”. This would mean that you may not be discriminated against based on whatever opinionyou hold or status you have.
Despite these rights created, the Charter admonishes in Article 27(2) that “the rights of each individual shall be exercised with due regard to the rights of others, collective security, morality, and common interest”. How would we define morality, common interest and the right of others?
The Charter then imposes a duty on the state by providing that “the promotion of and protection ofmorals and traditional values recognised by the community shall be duty of the state”. Again, how would we in the Nigerian context, define morals and traditional values? Isn’t the state (Nigeria) through the Same Sex Marriage Prohibition Act, promoting and protecting our morals and traditions?
CONNECTING PHILOSOPHIES
The legalists would say, the law is the law as long as the law was validly made. But what really is the law?
Lord Wolfenden would imagine that, whatever two adult citizens, same sex or not, are doing in the privacy of their rooms should never be the business of the government. In Nigeria though, it apparently is.
Roscoe Pounds, Rudolf Von Jherring, Jeremy Bentham, T.O Elias, will all say law is made for society, while having society in mind. And the feelings of the society should never be divorced from the laws.
Savigny, says, the spirit of the people must determine what their law is. So you have to look at their collective history, and present endeavours, to determine what motivates or dissuades them, then use these as yardsticks in developing the real laws for the people. So I ask, what is the Nigerian spirit toward homosexuality?
A NIGERIAN VIEW
To understand the utility of any law made for society, individual rights of citizens must be weighed against the rights and interests of the society in general. So, if the general mood of the Nigerian society is that of aversion to homosexuality, then care must be taken not to offend the Nigerian spirit. Care must be taken also to prevent the dissenting individuals from having the mind-set that society does not care about their opinions and feelings. A balance must be struck
Freedom as I believe is a most elusive phenomenon. In every society, there is always a higher freedom. Society through the government and public opinion must then come in and say- well, even though you may enjoy these rights, these other rights must be enjoyed with caution. That is what both the Constitution and the African Charter have said. I believe that is the essence of the social contract. Only in the state of nature, does one enjoy unreserved rights. In the state of nature, you have the right to kill, steal another’s property, covet another’s spouse, have carnal knowledge of animals, you have a right to do whatever you may imagine. In the state of nature, you can do, undo, and re-do.
However, in the “State of a Union”, any union, having co-existence and mutual respect in mind, some of these rights have to be surrendered. Then at intervals, members of the society may meet to determine whether there is to be an inclusion of a formerly surrendered right. I believe this is something that members of the society have to determine for themselves. Foreigners, having for themselves a different recognised sets of belief and motivation, shouldn’t be the ones to tell Nigerians when to have their meeting, to negotiate these new rights. This must occur naturally and on our terms. It should not be forced. Perhaps one day we will decide to include these new rights. Just perhaps.
Majority of Nigerians do not want LGBT rights recognised. It is that simple. It is against our culture, mores, values and aspirations as a people. And foreigners who preach otherwise should well legalise polygamy in their countries.
One thing that all men with common sense, will agree upon, is the fact that society is different from society. So also are their peoples, so also are their laws. So you should not impose foreign laws motivated by a different feeling, upon the Nigerian consciousness, as though we were robots to be programmed. No. Law is made for man, not man for the law.
These pressures coming mostly from the west if nothing at all, is imperialist. Even in the United States of America, the Judges split 5 in favour, to four against nation-wide legalization. This goes forward to show that even over there, the acceptance is not unanimous- neither is there a landslide support for these rights. How do you then force your opinions on others? Isn’t that against the freedoms that you preach? As the sociologists would say- there is no superior culture. Maybe one day, we will imbibe these views, maybe not. But at least, let the Nigerian consciousness naturally get to that level. Cultures don’t mix in one day. Transposition, transfusion or assimilation of cultures and ideas have to be systematic. We are no longer a colony.
We must and will forge ahead as a people and determine when the time is right to accept any idea we please. We will have our talks when we decide to. No one will any longer make our laws for us. Our customary laws have suffered enough. It is bad enough that the English Customary law, which became English Common law, which was then received as Nigerian law is what we practice. We must develop our laws with our conscience and consciousness in mind.
THE END
Take home from this article:
- If you are a Hermaphrodite, you can’t get married under Nigerian law.
- The law does not prohibit you from marrying a girl who was once a guy.
- The Same Sex Marriage Prohibition Act, is not the worst drafted law.
- Philosophy is not necessarily law. Otherwise may be argued in any case.
- Nigerian law doesn’t care if you are transexual, the debate isn’t yet hot enough to require a hasty-badly-drafted law.
- The police may regularly peep through your room windows to see whether you are committing a crime.
- Pick up the law, read and digest it. If there is anything you do not understand, seek legal advice.
- You have a right to have the law or any other law interpreted to you in court.
- It is better in Nigeria, to be straight than sorry.
Mobolaji Anjolaiya (anjolaiyamobolaji@gmail.com) is a Law graduate of the University of Lagos. He writes from Lagos.
