On November 29, 2011, the Nigerian Senate unanimously passed a bill prohibiting same-sex marriage and further criminalizing homosexuality. The legislation, "A Bill for an Act To Prohibit Marriage or Civil Union Entered Into Between Persons Of Same Sex, Solemnization of Same and For Other Matter Related Therewith," was first introduced by Senator Domingo Banda and 24 others and went through a public hearing organized by the Senate Committee on Judiciary, Health and Human Rights. It is expected that the bill will go through the House of Representatives and will be sent to the President for final accent and passage into law. Against the background of worldwide indignation from groups, governments and the public debate ignited by the bill, this short article looks at the bill and tries to explain its implications for individual liberties and human rights in Nigeria.
The Same-Sex Marriage Bill is divided into 8 sections:
Section 1 prohibits marriage between same-sex persons in Nigeria. Section 1(3) voids any marriage between persons of the same sex entered into in other countries and deprives such couples the recognition or entitlement to the benefits of a valid marriage. It also makes any contractual or other rights accruing as a result of any same-sex marriage unenforceable in any court in Nigeria.
Section 2 prohibits the celebration of same-sex marriage at religious centers and the issuance of marriage licenses to parties of the same sex.
Section 4 prohibits the registration of gay clubs and societies in all institutions and publicity of same-sex sexual relationships. The section further prohibits publicity, procession and public show of a same-sex amorous relationship.
Section 5 creates the offenses and penalties for holding same sex-marriages, or for performing, witnessing or aiding or abetting the ceremony of same-sex marriages. Engaging in same-sex marriage is punishable by 14 years imprisonment, while the crime of participating in gay organizations, public show of amorous same-sex relationship, witnessing and abetting the solemnization of same-sex marriage, registering or supporting the registration and operation of gay clubs, societies and organizations in Nigeria attracts a penalty of 10 years imprisonment.
Section 6 confers the jurisdiction to entertain all matters, cases and proceedings arising from same-sex marriages or relationships on the High Court in the states and the Federal Capital Territory.
While introducing the bill at the floor of the Senate, Banda cited the need to curb and protect Nigerians from destructive and foreign moral influence. Same-sex marriage is currently not legal in Nigeria, as Nigerian law recognizes three classes of marriage: Christian or statutory, customary and Islamic. None of these systems of matrimonial law countenances marriages between persons of the same sex. Additionally, Nigerian law already criminalizes homosexual conduct, making it even harder to justify the introduction of the present bill. This is evidenced in the provisions of the penal code law applicable in all the states in Northern Nigeria and the criminal code laws of all the states in Southern Nigeria. For example, see Section 284 of the penal code law and Sections 214, 217 and 227 of the criminal code law. The Sharia law, widely practiced in most parts of Northern Nigeria, provides for sentences including the death penalty for homosexual offenses. See for example Chapter III "Hudud and Hudud related offences," Part law III, Sodomy (Liwat)," Section 128-129 of the Kano State Sharia Penal Code Law 2000. The criminal code law and the penal code law have been in force since 1945 and 1968 respectively, while the Sharia codes have been in force for about 10 years in most parts of Northern Nigeria. This again brings into question the rationale for the new law, especially since no person or group has ever raised the issue of their desire to engage in same-sex marriage.
It will be inappropriate to attempt any discussion of this bill without addressing some of the religious and cultural concerns of its promoters. It is instructive to note that the proponents of the bill said that homosexuality is "un-African," yet they turn to Christianity, a religion that is not African, and is indeed opposed to several African traditions, to explain their point. Further, Nigerian jurisprudence has a long history of separating the institution of religion from the law. Aside from these points, it must also be pointed out that this bill has grave implications for individual rights of the people and democracy in Nigeria.
The bill would have a devastating effect on a range of civil society organizations in Nigeria while inciting hatred and violence against anyone suspected of practicing or supporting same-sex relationships, including but not limited to LGBT persons and activists. It is frightening in its possibilities for doing great damage to the fundamental rights of citizens. The provisions of the bill are in clear violation of the Nigerian Constitution and international instruments to which Nigeria is a state party.
Provisions in the bill violate Sections 37, 38, 40 and 42 of Nigeria's Constitution, and the analogous provisions of the African Charter on Human and Peoples' Rights (Articles 2, 3, 11 and 28) and the International Covenant on Civil and Political Rights (ICCPR) (Articles 2, 18, 19, 21, 22 and 26). The Constitution of the Federal Republic of Nigeria, 1999, guarantees certain fundamental rights to all citizens in Chapter IV. Section 34 guarantees the right to the dignity of the human person. Section 34 expressly forbids discrimination on the ground of sex, race, color, language, religion, political or other opinion, national and social origin, fortune, birth or other status.
Although the UN Human Rights Committee established in Joslin V. New Zealand that the ICCPR does not recognize a fundamental right to marry for same-sex couples under Article 23(2), in Young v. Australia the committee did recognize that differential treatment between unmarried same-sex and different-sex couples may constitute a breach of state party obligations under the prohibition of discrimination in Article 26.
Section 5(3) of the bill, which attempts to criminalize anybody who "witness, aids or abets the solemnization of same sex union," is very problematic as it introduces widespread censorship and undermines fundamental freedoms such as speech, expression, association and assembly.
The bill is clearly discriminatory as it singles out one group of people to be deprived of rights that all people enjoy as guaranteed by the constitution and international human rights treaties to which Nigeria is a state party. In particular, the bill violates the right to freedom from discrimination as recognized in Section 42(1) of the Nigerian Constitution.
The potential political implications are equally enormous. Opposition politicians and activists can simply be labeled as homosexuals to ensure that they are discredited. A case in point was in January 2011, during the presidential primaries of the ruling Peoples Democratic Party (PDP). Opponents of former vice president Alhaji Atiku Abubakar assembled a group of young men under the banner of "Nigerian Gay Forum," purportedly seeking voter support for Atiku, because "he is one of us."
The provisions of the bill are vague in their most dangerous places and the enforcement of the law is left to the subjective opinion of the enforcers. The provisions of Section 5(2), for instance, prohibit publicity, procession and public shows of gay relationships. The danger in this provision is that it is a license for the enforcers of the law to determine what amounts to a public show of an amorous relationship.
That UN Human Rights Committee has consistently argued that any domestic law criminalizing private, same-sex behavior between consenting adults is a violation of the principle of non-discrimination. See, for instance, the observations delivered with reference to Egypt in 2002, Ecuador in 1998, and the US in 1995 and 2006. It should be noted that Nigeria acceded to the ICCPR without reservations in 1993. On the authority of Toonen v. Australia, the committee made far-reaching pronouncements on the issue of discrimination on the basis of sexual orientation and held that states cannot curtail human rights on the basis of sexual orientation. The same-sex marriage bill is a clear negation of duty of the Nigerian state, which is a state party to the ICCPR and other international instruments prohibiting discrimination on the basis of sexual orientation.
Section 45 of the Nigerian Constitution has placed restrictions on some of the fundamental rights guaranteed in Sections 36, 38, 39, 40 and 41, in the interest of defense, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedoms of other persons. It is worthy to note that the right to freedom from discrimination is not included in the restrictions. Even if Section 42 had been included, the bill would still not have been covered, as it would have been against the interest of public health and the behavior being criminalized cannot be said to infringe on the rights of others. Public morality cannot also be in issue with respect to consensual relationship in private.
The Nigerian Constitution equally guarantees the right to privacy and family life in Section 37. This right is to protect the privacy of the citizen at home as well as his correspondence; Section 5(3) of this bill is a clear violation of this right. Under the guise of enforcing this law, the state can violate the citizen's right to privacy with impunity.
If passed into law, the bill will amount to an incitement to persecute persons on the basis of their sexual orientation. Article 7 of the Universal Declaration of Human Rights prohibits any incitements to discrimination; the present bill will act as a license for torture and ill treatment based on sexual orientation. By institutionalizing discrimination, the law will act as an official incitement to violence against lesbians and gay men in the community as a whole, whether in custody, in prison, on the street or in the home. Additionally, the bill will deprive gays and lesbians the right to life by obstructing access to HIV/AIDS programs, as it is capable of driving people already suffering stigma for their sexual identity still further underground. Clearly it is wrong to prevent persons from accessing medical facilities on the basis of their sexual orientation. If it becomes impossible under the legal regime for the gay community to access medical facilities, or if they cannot be beneficiaries of the HIV prevention and campaign efforts, this amounts to a violation of the right to life guaranteed under Section 33 of the Constitution.
The bill will also open avenues for human rights violations by the Nigerian police even among heterosexual individuals, including thousands of migrant workers and students who share rooms in major Nigerian cities for economic reasons. In the wake of a similar bill in 2007, security men forced their way into a party and arrested 18 young men in August 2007 in Bauchi, Northern Nigeria. They were later charged with organizing gay marriages. Also expected to increase is the practice of police and vigilantes breaking into hotel rooms, seeking out gay couples.
This discourse merely attempts to highlight the dangers of the bill and its implication for Nigeria's democratic process. The same-sex marriage bill is offensive, discriminatory and a violation of ICCPR and the Yogyakarta Principles, among other human rights treaties. Above all, the Nigerian government needs to rise up to fulfill its fundamental obligations and responsibilities to its entire citizenry and to overturn this colossal human rights violation, and protect the rights and dignity of all, including sexual minorities.
Damian Ugwu is a leading Nigerian human rights researcher. He holds a masters degree in International Law and Diplomacy, and has authored several human rights reports. Prior to joining Social Justice & Advocacy Initiative, he led the Civil Liberties Organisation's Advocacy Program.
Suggested citation: Damian Ugwu, Nigerian Same-Sex Marriage Ban Infringes Individual Rights, JURIST - Hotline, Dec. 16, 2011, http://jurist.org/hotline/2011/12/damian-ugwu-nigerian-marriage.php.
This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com