Beyond prohibiting same sex marriage and civil union, the Nigerian Same Sex (Prohibition) Bill, which Mr. President has just assented to, provides dangerous grounds for massive infringement of fundamental rights, not only of homosexuals, lesbians, gays, bisexuals and the transgender (LGBT), but also those of heterosexuals. The Same Sex Act (Prohibition) Act should therefore be reconsidered before the ink with which it was written dries up.
First, a general overview of the Act is presented. (This analysis is based on the Bill that had been in circulation before Mr. President granted assent). The Act consists of eight (8) sections. Section one prohibits same sex marriage or civil union. Section 2 prohibits solemnization (celebration) of same sex marriages or civil union in places of worship, including churches and mosques. Section 3 declares that only marriages contracted between a man and a woman (heterosexual marriage) are valid in Nigeria.
Section 4 specifically prohibits the registration, sustenance meetings and processions of gay clubs, societies and organisations. Though the section restrictively uses the term ‘gay’, it is suggested that the provision of section 4 applies equally to the lesbian, bisexual and transgender. The same section 4 prohibits direct or indirect public show of same sex amorous relationship. Section 5 provides for offences and penalties under the Act. Persons who enter into same sex contract or civil union are liable, upon conviction, to 14 years imprisonment. Any other persons who register, participate in their organizations, meetings or processions are liable, upon conviction, to 10 years imprisonment. Section 6 provides that the State High Court has jurisdiction over offences committed under the Act. Section 7 is the interpretation section while section 8 provides for the short title.
Section 1 (1) of the Act prohibits marriage contract or civil union between persons of the same sex. It states further that such a marriage or civil union, as the case may be, is not only invalid but also illegal and void. Even if it were conducted in a foreign jurisdiction where it is lawful, it is unenforceable in Nigeria. Parties to same sex marriage are not entitled to the benefits, which are conferrable on parties to valid heterosexual marriages. Though the Act does not list the benefits, the benefits of a valid marriage, in law, usually include:
• Work related benefits such as tax concessions on account of expenditure on the other spouse, medical care for the other spouse (and children of the marriage), paid leave from work to take care of the other spouse in the event of sickness or emergencies, and so on. Other benefits include:
• Right of inheritance by the surviving spouse;
• Right of surrogate decision making in periods of emergencies or incapacities, such as when the other spouse has to undergo surgery, and
• Evidentiary privileges as contained in section 187 of the Evidence Act, which provides that a spouse is precluded from disclosing confidential marital communication, except in proceedings between the couple. None of the parties can also be compelled to disclose confidential communication without the consent of the other.
Section 4 sub section (2) prohibits “public show of same sex amorous relationship directly or indirectly”. What is meant by “public show of same sex amorous relationship” is not defined. Similarly, what is meant by “indirect” or “direct” public show of same sex amorous relationship is not defined. Section 4 sub (2) of the Act is therefore nebulous, ambiguous and equivocal and could be subject to multiple interpretations and abuse. The implicit danger in this particular provision is that anybody, whether homosexual or heterosexual could be wrongfully or erroneously arrested and charged with “public show of same sex amorous relationship” when they simply hug or hold hands with persons of the same sex who may be ordinary friends between whom there is no “amorous” relationship.
The press has reported that several persons have already been arrested under the Act in different states of the Federation. According to a television station’s news item a few days ago, the following number of persons have been arrested: 12, 6, 6 and 160 in Oyo, Imo Anambra and Bauchi States, respectively. Though the circumstances of the arrest are not disclosed, the victims are most likely to be poor people; the rich who also engage in homosexual behaviours are not likely to be victims of abuse by the police.
Section 5 sub (3) of the Act criminalizes witnessing, aiding, abeting the solemnization of same sex marriage or civil union, or supporting the registration, operation, processions, meetings or sustenance of homosexual clubs:
Any person or group of persons that witness, abet and aids the solemnization of a same sex marriage or civil union, or supports the registration, operation and sustenance of gay clubs, societies, organisations, processions or meetings in Nigeria commits an offence and shall be liable on conviction to a term of 10 years imprisonment.
By the provisions of section 5 sub (3), anyone who advocates registration of homosexual clubs, organizations or societies may be liable to being charged under the Act. Even though a person may not be homosexual, lending support to the operation, sustenance of homosexual organizations has become an offence. Even if an individual does not have homosexual orientation, it is now a crime to support and/or participate in meetings or processions of homosexuals.
Section 5 sub (3) of the Act therefore violates the following universally recognized fundamental rights which are also guaranteed under the Constitution of the Federal Republic of Nigeria (CFRN) 1999, as amended:
• The right of association guaranteed for “every person” under section 40, CFRN, 1999.
• Freedom of expression, ‘including freedom to hold opinions and to receive and impart ideas and information without interference’, guaranteed under section 39, CFRN, 1999.
• Freedom from discrimination, which is guaranteed under section 42, CFRN, 1999, which provides that no one shall be discriminated against on the basis of the circumstances of birth.
• Freedom from unequal treatment which is guaranteed under the preamble to the Constitution, which declares that the Constitution is based on the principle of equality and justice.
Even if it is admitted that laws tend to regulate behavior on the basis of the standard acceptable to the majority at any point in time, the law should not stifle in any way, the right of the minority to campaign or canvass for alternative viewpoints and world outlooks. The comprehensive assault on the right of association and peaceful action of homosexuals and those who may support their right to enjoy fundamental freedoms (of association and expression) is an indirect challenge to the foundation and survival of Nigeria’s constitutional democracy. Unless the attacks on fundamental rights contained in the Same Sex (Prohibition) Act is challenged, the majority would have unwittingly lost the moral right to resist future breaches of their fundamental right to association and expression on other issues of interest.
It is suggested that rather than the State being preoccupied with regulating and criminalizing purely personal voluntary relationships among adults, to the extent of attacking fundamental rights of association and expression, the State should be more concerned with fighting corruption which destroys the capacity of the State to attend to the wellbeing of ordinary people, which may also partly be at the root of social processes leading to varied orientations in sexuality.
Femi Aborisade, Esq.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of SaharaReporters