Jan 22, 201424 min
………Coalition for Sexual Rights in Nigeria
1. Clause 1(1): Marriage contract or civil union entered into between
persons of same sex is hereby prohibited in Nigeria.
Nigeria has never reckoned with contracts between same-sex couples. For
marriage to be valid. It must be a union between a man and a woman.
Marriages between same-sex couples are void ab initio, have no legal backing
in Nigeria and therefore needs no further prohibition. From the Provision of
Sections 3 (1) and Section 5 of the Matrimonial Causes Act, Cap M7, Laws of
the Federation, 2004, this clause serves no particular legitimate purpose. Since
same sex marriage contract is not recognised by the Marriage Act, there is no
impending harm that this bill intends to stem. This clause is therefore not
necessary.
Sub Clause (2): A Marriage contract or civil union entered between
persons of same sex is invalid and illegal and shall not be recognised as
entitled to the benefits of valid marriage.
This is the position of the law in Nigeria presently (save customary practices
that exist from time immemorial) and requires no restatement. The Marriage
Act does not recognize marriages between persons of same sex, so why this
clause?
However, this clause is unconstitutional as it contradicts S.42 of the 1999
Constitution of Nigeria (as amended) which provides thus:
“A citizen of Nigeria of a particular community, ethnic group, place of
origin, sex, religion or political opinion shall not, by reason only that he is
such a person
a) Be subjected either expressly by, or in the practical application of,
any law in force in Nigeria or any Executive or administrative action
of the government, to disabilities or restrictions to which citizens of
Nigeria of other communities, ethnic groups, places of origin, sex,
religions or political opinions are not made subject…”
We hold the strong view that sex as used in the above provision is not limited
to gender or intercourse but includes the sexual orientation of the citizen.
Thus, the provision being unconstitutional is therefore, null and void and of no
effect whatsoever…per S.1(3) of The Constitution of the Federal Republic of
Nigeria.
In practical terms, criminalisation of same sex marriage or union will restrict
same sex couples from access to medical and healthcare services, educational
services and employment opportunities available to other people of different
sexual orientation. It will also deprive spouses of such marriage from
benefitting from their marriage such as inheritance, succession, administration
of estates, Etc.
Sub Clause (3) A marriage contract or civil union entered into between
persons of the same sex by virtue of certificate issued by a foreign country
shall be void in Nigeria, and any benefits accruing there from by virtue of the
certificate shall not be enforced by any court of law in Nigeria.
The provision of this clause is contrary to Nigeria’s obligation in the
international law as a member of the civilized world. It is also disrespectful to
foreign nationals or Nigerians legally married within the enabling laws of other
nations. Such foreigners or Nigerians married abroad would be unable to lay
claims to their rights such as property, freedom from discrimination, insurance
Etc. because of the provisions of this bill. This will negate the provisions of
Section 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended)
Besides, Nigeria is obligated to the comity of Nations under the United Nations
and the Africa Union because she is a party to some international treaties
namely;
a. The International Covenant on Civil and Political Rights which was
acceded to on the 29th of July, 1993. Please refer to Arts. 2(1) and 26
of the Convention which recognise right to equal protection for all
and freedom from discrimination. The United Nations Human Rights
Commission held that based on the above Articles, discrimination on
the bases of Sexual Orientation in an attempt to protect public
morality through a penal law in Australia was wrong. This was in the
case of Toonen Vs Australia, case 488/92. The same opinion was held
by the Commission in the case of Young Vs Australia, UN Doc
CCPR/C78/D/941 in 2003.
b. The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment which was signed on the 28th
day of July, 1988 and ratified on the 28th day of June, 2001.
c. The Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) which Nigeria ratified in June, 1985 and
notably the
d. African Charter on Human and Peoples Rights (ACHPRs) which clearly
recognises that “ every individual shall be entitled to enjoyment of
the rights and freedoms recognised and guaranteed in the present
Charter without distinction of any kind such as race, ethnic group,
color, sex, language, religion, political or any other opinion, national
or social origin, fortune, birth or status” It is pertinent to note that
ACHPRs already forms part of our local laws since it was passed by
the National Assembly in line with section 12(1) of the Constitution
which provides that “ No treaty between the federation and any
other country shall have the force of law except to the extent to
which any such treaty has been enacted into law by the National
Assembly” The implication is that, violating its provision tantamount
to violating our local laws as well as our obligation to African Union.
This is a serious challenge both to our legal system and International
Law. Other likely consequences of the clause include but not limited
to:
a. Making Nigeria a safe haven for persons who wish to evade
matrimonial obligations abroad;
b. It will overreach and deprive partners of diplomats of their
diplomatic privileges.
c. Nigeria can no longer fulfil her obligations on diplomatic
reciprocity.
d. Children of marriages of same sex partners contracted outside
the country will be frustrated in Nigeria.
e. Ridiculing Nigerians efforts to justify polygamy for
International/diplomatic privileges like visa, medical benefits
and scholarships.
Clause 2: (1) Marriage or civil union entered between persons of same
Gender shall not solemnized in any place of worship.
Either church or Mosque in Nigeria.
Section 10 of the 1999 Constitution of the Federal Republic of Nigeria is very
clear on the secularity of Nigeria as a country. This Section provides as follows
The Government of the Federation or of the state shall not adopt any
religion as State Religion.
This provision clearly states that no religion is state religion or has superiority
over another. It portrays the diversity of religion in Nigeria and the need to
respect and tolerate other peoples’ religion.
The Legislative Houses in Nigeria will also be acting ultra vires when it dictates
to religious bodies what kind of marriages they are expected to celebrate and
which they should not. It is dictating religious doctrines and infringing on the
right to worship of Nigerians.
(2) No marriage certificate issued to parties of same sex marriage or civil
union shall be valid in Nigeria.
The provisions of this clause is made out of over abundance of caution and
unnecessary. It is a wasteful exercise of legislative prowess and a usurpation of
customary practices in Nigeria where women marry their fellow women for
support. This has been the practice from time immemorial in the Southern and
Eastern parts of Nigeria (consisting of the Igbos, Ijaws, Efiks and Ibibios).
Another implication of this clause is the potential of retribution by countries
whose marriage certificates are not recognised in Nigeria through rejection of
marriage certificates belonging to Nigerians. A serious risk for all Nigerians that
might have stake in such countries.
Clause 3: Only marriage contracts between a man and a woman either under
Islamic Law, Customary Law and Marriage Act is recognised in Nigeria.
This again impugns on the secular nature of Nigeria. The Legislative Houses
have again acted in excess of the powers vested upon them by the 1999
Constitution of the Federal Republic of Nigeria (as amended)
Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as
amended provides thus: The National Assembly shall have the power to make
laws for the peace, order and good government of the Federation or any part
thereof for with respect to any matter included in the Exclusive Legislative List
set out in Part 1 of the Second Schedule to the Constitution.
The Exclusive Legislative List, Part 1, Second Schedule, item 61 of the
Constitution of the Federal Republic of Nigeria provides thus: the formation,
annulment and dissolution of marriages other than marriages under Islamic
law and Customary Law, including matrimonial causes relating thereto.
These provisions of the constitution does not vest in the National Assembly the
power to dictate which type of marriage shall be recognised as valid in Nigeria.
It has simply acted in excess of its jurisdiction by so doing.
The bill is also in error by stating that only marriages between a man and a
woman shall be recognised in Nigeria. It did not address the issue of polygyny
where one man can wed multiple wives at the same time.
Clause 4(1) The Registration of gay clubs, societies and organisations, their
sustenance, possessions and meetings are hereby prohibited.
This provision clearly contradicts Section 40 of the Constitution which clearly
provides that:
“Every person shall be entitled to assemble freely and associate with other
persons , and in particular he may form or belong to any political party, trade
union or any other association for the protection of his interests.”
Nigeria is a democratic Society and the provisions of this bill will be setting a
very dangerous precedent for democracy.
By proscribing LGBTI organisations, the interest of the community such as
health, education and capacity building (human Development) which such
organisations provide to fill the gap created by government, can lead to a
broken community with chronic problems that are neither attended to by
government, nor LGBTI organisation. The result will be unattended issues
spreading all over, in form of diseases, poverty and increased crime rate.
Also nationals that work in LGBTI organisations will thus be deprived of their
right to livelihood which has been interpreted to be an integral aspect of the
right to life as guaranteed by the constitution Section 33.
It is pertinent to note that LGBTI organizations in Nigeria operate basically not
to promote homosexual practices but to attend to public health issues as it
affects this particular community. Proscribing LGBTI organizations will have
very negative health implications on the country and will be contrary to the
provisions of the constitution Sections 37, 38, 39 and 40 which can only
conditioned on the grounds of defence, public safety, public order, public
morality and public health. In this case the LGBTI organizations are about being
proscribed without consideration for overriding public health implication.
Another socio – economic implication of this clause is the loss of employment
opportunities by many Nigerians who are employed in these organisations
either as program officers or consultants accompanied with their family
benefits. The clause is also capable of affecting diaspora in-flow. This will also
have negative impacts on Nigeria’s credence after her expression of interest to
implement programmes on HIV/AIDS and receiving funds for same. It will not
speak well of Nigeria to rescind her interest upon expending the huge sectoral
budget on health from Implementing partners.
Clause 4 sub (2) the public show of same sex amorous relationship directly or
directly is hereby prohibited.
This provision of the bill is open-ended and vague. It has the overt potential of
criminalizing filial relationship and any form of show of affection between
persons of same sex. The parameter for ascertaining same sex amorous
relationship is not defined.
More so, the law will charge the polity as it potentially criminalizes filial
affection with resultant effect of fear of being targets of hate crimes and
violence. The closely knitted fabric of love, peace and harmony inherent in the
African society will begin to erode with the presence of this law, since the law
is imprecise on what form of affection can be allowed and disallowed and what
it intends by the use of the word ‘directly’ or ‘indirectly’
Laws are not meant to be imprecise and vague. This law should be disallowed
for vagueness and lack of precision.
State actors and non state actors can capitalize on this to make indiscriminate
arrest, blackmail and extort people based on subjective interpretation of what
same sex amorous relationships are.
Clause 5 sub (1) Persons who entered into a same sex marriage contract or
civil union commits an offence and are each liable on conviction to a term of
14 years imprisonment.
This bill will create undue hardship on Nigerians: socially and economically as
civil union is defined to include almost all manner of co-habitation. In Nigeria,
friends live together in same apartments for several reasons: social, fraternal
and economic reasons. Nigerians are communal in nature but this bill did not
put into consideration the hardship it will create on this ground.
This is invasive of the privacy and family life of Nigerians that is guaranteed
under the Section 37 of the Constitution, which provides that, “the privacy of
citizens, their homes, correspondence, telephone conversations and
telegraphic communications is hereby guaranteed and protected”.
“The right to privacy implies a right to protect one’s thought; and one’s body
from unauthorized invasion… the sum total of the rights to privacy, and
freedom of thought, conscience or religion which an individual has, put in a
nutshell, is that an individual should be left alone to choose a course of life,
unless a clear and compelling overriding state interest justifies the contrary”.
Per Ayoola JSC in the case of M.D.P.D.T. v Okonkwo (2001) FWLR (PT. 44) 542.
The interest as adduced by the sponsors of this bill is inimical to overriding
public interest.
Cluase 5 Sub (2)- Any person who registers, operates or participates in gay
clubs, societies and organizations, or directly or indirectly make public show
of same sex amorous relationship in Nigeria commits an offence and shall be
liable on conviction to a term of 10 years imprisonment.
The provisions of this clause is targeted at organizations that may be providing
services to members of the society based on their sexual orientation. It
criminalizes such forms of service delivery as sex education and condom
promotion must no more speak to, or address sexual minorities in obedience
to this law.
This law is potentially harmful and capable of sending sexual minorities into
their closet, truncating the national response to HIV/AIDS in Nigeria. This law
will negatively impact the public health of Nigerians, should sexual minorities
become closeted.
According to Chidi Odinkalu, Chairman of Nigeria’s Human Rights Commission,
stresses this point when he said “But African cultures of family values have
always cohabited quiet happily with our culture of public show of affection and
compassion”
This bill if passed into law will create a fertile ground for state agent to clam
down on person perceived to be gay, whether or not they are, if seen
displaying love and affection publicly. The bill is very subjective in this regard.
Clauses 5 Sub (3) 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, organizations,
processions or meetings in Nigeria commits an offence and shall be liable on
conviction to a term of 10 years imprisonment.
This clause is also laden with ambiguity as to the meaning of abetting and
aiding. Lawyers and human rights activists who defend the rights of gay people
would be offending the provisions of this clause as their actions are capable of
being construed as supporting either the registrations, operations and
sustenance of same sex societies and organizations.
Family members may be guilty of aiding and abetting, clergies who take
confessions may be victims of this bill for refusal to report a member who
confesses to them, professionals such as doctors, nurses and laboratory
technicians can also be proscribed for failure to report any incident of ailment
resulting from same sex relationships. The list of persons who can be
proscribed is endless because the law is not precise in its definition.
Clause 6:The High court of a state or the Federal Capital Territory shall have
jurisdiction to entertain matters arising from the breach of the provisions.
Vesting the High Court in the state with Jurisdiction over the provisions of this
Act is a deliberate ploy to ensure that persons arraigned in court are remanded
in prisons custody pending formal application for bail brought before the High
court.
In practice, the police do not arraign a suspect directly at the High court for an
offence over which only the High court is vested with jurisdiction. Arraignment
is usually at the Magistrate court, from where the accused person is remanded
in prison custody pending the outcome of the advice of the Director of Public
Prosecution of the state and a formal application brought before the High
court with all accompanying processes. This is not usually very expedient as
the accused person may spend a minimum of three weeks in prison custody
before bail is applied for, granted and perfected.
This is invasive of the fundamental rights to personal liberty of any accused
person under charge. It is a very conscious provision and a veritable tool that
can be used to ruin every organization perceived to provide services to, and/or
protect the right of same gender persons.
CONCLUSION
From the clause to clause analysis of the proposed Act awaiting the assent of
the president to become law, it is our very considered opinion that THE BILL
IF ASSENTED TO, will create undue hardship on Nigerians both the LGBTI and
heterosexual community alike.
Very informed Nigerians have made critiques against the law, its intentions
and consequences, like the Noble Laureate, Professor Wole Soyinka and Mr.
Jiti Ogunye, a human rights lawyer and a former chair of the Ikeja branch of
the Nigerian Bar Association, have spoken extensively and critically on the
bill and its negative implications on the citizenry and said it is an unnecessary
publicity stunt.
the bill will formalise discrimination against perceived gay persons; their
family members and friends; organizations, professionals and human rights
defenders who provide services and support to them, and have wide ranging
effects on civil liberties in the country; and also stir up hate crimes, violence,
harassment, victimization, unlawful detention and imprisonment on
innocent Nigerians.
It will also criminalise and the freedom of speech, association, assembly and
compromise the right to privacy and property.
Nigeria has the second largest HIV/AIDS burden in the and the bill will
frustrate the national response (NACA statement on HIV/AIDS burden), by
criminalising those conducting outreach programmes as well as driving the
most at risk population underground.
Economically, the bill will affect the investment drive of government; scare
away potential foreign investors and Nigerians same sex couples from
coming home to contribute their quota to the economy.
The bill is also laden with manifest ambiguities which are capable of variant
interpretation to serve punitive intentions and suit the whips and caprices of
state agents and non state actors.
The bill is unconstitutional as it compromises some fundamental rights
enshrined in the constitution of the Federal Republic of Nigeria, 1999 (As
amended).
The bill does not comply with the provisions of the constitution and is
unconstitutional, null and void. See the case of ATTORNEY-GENENRAL OF
LAGOS STATE V ATTORNEY-GENERAL OF THE FEDERATION (2004) 20 NSCQR
99.
It is well settled that the constitution is Supreme; it is the organic,
fundamental law and the ground norm of Nigeria and all enactment must
comply with the provisions of the constitution. See the case of FASAKIN
FOODS VS HOSANYA (2006) 26 NSCQR (PT).
It is also clear that the National Assembly has acted ultra vires by exceeding
their legislative powers. The provisions of clauses 2 and 3 of this bill where
made without constitutional powers. The National Assembly cannot exercise
legislative powers in matters not included in the Exclusive Legislative List. See
the case of ATTORNEY GENERAL OF ABIA STATE V ATTORNEY GENERAL OF
THE FEDERATION (2006) 28 NSCQR 161 at 167.
CLAUSE BY CLAUSE ANALYSIS OF THE SAME SEX MARRIAGE
(PROHIBITION) LAW, 2014.
1. Clause 1(1): Marriage contract or civil union entered into between
persons of same sex is hereby prohibited in Nigeria.
Nigeria has never reckoned with contracts between same-sex couples. For
marriage to be valid. It must be a union between a man and a woman.
Marriages between same-sex couples are void ab initio, have no legal backing
in Nigeria and therefore needs no further prohibition. From the Provision of
Sections 3 (1) and Section 5 of the Matrimonial Causes Act, Cap M7, Laws of
the Federation, 2004, this clause serves no particular legitimate purpose. Since
same sex marriage contract is not recognised by the Marriage Act, there is no
impending harm that this bill intends to stem. This clause is therefore not
necessary.
Sub Clause (2): A Marriage contract or civil union entered between
persons of same sex is invalid and illegal and shall not be recognised as
entitled to the benefits of valid marriage.
This is the position of the law in Nigeria presently (save customary practices
that exist from time immemorial) and requires no restatement. The Marriage
Act does not recognize marriages between persons of same sex, so why this
clause?
However, this clause is unconstitutional as it contradicts S.42 of the 1999
Constitution of Nigeria (as amended) which provides thus:
“A citizen of Nigeria of a particular community, ethnic group, place of
origin, sex, religion or political opinion shall not, by reason only that he is
such a person
a) Be subjected either expressly by, or in the practical application of,
any law in force in Nigeria or any Executive or administrative action
of the government, to disabilities or restrictions to which citizens of
Nigeria of other communities, ethnic groups, places of origin, sex,
religions or political opinions are not made subject…”
We hold the strong view that sex as used in the above provision is not limited
to gender or intercourse but includes the sexual orientation of the citizen.
Thus, the provision being unconstitutional is therefore, null and void and of no
effect whatsoever…per S.1(3) of The Constitution of the Federal Republic of
Nigeria.
In practical terms, criminalisation of same sex marriage or union will restrict
same sex couples from access to medical and healthcare services, educational
services and employment opportunities available to other people of different
sexual orientation. It will also deprive spouses of such marriage from
benefitting from their marriage such as inheritance, succession, administration
of estates, Etc.
Sub Clause (3) A marriage contract or civil union entered into between
persons of the same sex by virtue of certificate issued by a foreign country
shall be void in Nigeria, and any benefits accruing there from by virtue of the
certificate shall not be enforced by any court of law in Nigeria.
The provision of this clause is contrary to Nigeria’s obligation in the
international law as a member of the civilized world. It is also disrespectful to
foreign nationals or Nigerians legally married within the enabling laws of other
nations. Such foreigners or Nigerians married abroad would be unable to lay
claims to their rights such as property, freedom from discrimination, insurance
Etc. because of the provisions of this bill. This will negate the provisions of
Section 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended)
Besides, Nigeria is obligated to the comity of Nations under the United Nations
and the Africa Union because she is a party to some international treaties
namely;
a. The International Covenant on Civil and Political Rights which was
acceded to on the 29th of July, 1993. Please refer to Arts. 2(1) and 26
of the Convention which recognise right to equal protection for all
and freedom from discrimination. The United Nations Human Rights
Commission held that based on the above Articles, discrimination on
the bases of Sexual Orientation in an attempt to protect public
morality through a penal law in Australia was wrong. This was in the
case of Toonen Vs Australia, case 488/92. The same opinion was held
by the Commission in the case of Young Vs Australia, UN Doc
CCPR/C78/D/941 in 2003.
b. The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment which was signed on the 28th
day of July, 1988 and ratified on the 28th day of June, 2001.
c. The Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) which Nigeria ratified in June, 1985 and
notably the
d. African Charter on Human and Peoples Rights (ACHPRs) which clearly
recognises that “ every individual shall be entitled to enjoyment of
the rights and freedoms recognised and guaranteed in the present
Charter without distinction of any kind such as race, ethnic group,
color, sex, language, religion, political or any other opinion, national
or social origin, fortune, birth or status” It is pertinent to note that
ACHPRs already forms part of our local laws since it was passed by
the National Assembly in line with section 12(1) of the Constitution
which provides that “ No treaty between the federation and any
other country shall have the force of law except to the extent to
which any such treaty has been enacted into law by the National
Assembly” The implication is that, violating its provision tantamount
to violating our local laws as well as our obligation to African Union.
This is a serious challenge both to our legal system and International
Law. Other likely consequences of the clause include but not limited
to:
a. Making Nigeria a safe haven for persons who wish to evade
matrimonial obligations abroad;
b. It will overreach and deprive partners of diplomats of their
diplomatic privileges.
c. Nigeria can no longer fulfil her obligations on diplomatic
reciprocity.
d. Children of marriages of same sex partners contracted outside
the country will be frustrated in Nigeria.
e. Ridiculing Nigerians efforts to justify polygamy for
International/diplomatic privileges like visa, medical benefits
and scholarships.
Clause 2: (1) Marriage or civil union entered between persons of same
Gender shall not solemnized in any place of worship.
Either church or Mosque in Nigeria.
Section 10 of the 1999 Constitution of the Federal Republic of Nigeria is very
clear on the secularity of Nigeria as a country. This Section provides as follows
The Government of the Federation or of the state shall not adopt any
religion as State Religion.
This provision clearly states that no religion is state religion or has superiority
over another. It portrays the diversity of religion in Nigeria and the need to
respect and tolerate other peoples’ religion.
The Legislative Houses in Nigeria will also be acting ultra vires when it dictates
to religious bodies what kind of marriages they are expected to celebrate and
which they should not. It is dictating religious doctrines and infringing on the
right to worship of Nigerians.
(2) No marriage certificate issued to parties of same sex marriage or civil
union shall be valid in Nigeria.
The provisions of this clause is made out of over abundance of caution and
unnecessary. It is a wasteful exercise of legislative prowess and a usurpation of
customary practices in Nigeria where women marry their fellow women for
support. This has been the practice from time immemorial in the Southern and
Eastern parts of Nigeria (consisting of the Igbos, Ijaws, Efiks and Ibibios).
Another implication of this clause is the potential of retribution by countries
whose marriage certificates are not recognised in Nigeria through rejection of
marriage certificates belonging to Nigerians. A serious risk for all Nigerians that
might have stake in such countries.
Clause 3: Only marriage contracts between a man and a woman either under
Islamic Law, Customary Law and Marriage Act is recognised in Nigeria.
This again impugns on the secular nature of Nigeria. The Legislative Houses
have again acted in excess of the powers vested upon them by the 1999
Constitution of the Federal Republic of Nigeria (as amended)
Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as
amended provides thus: The National Assembly shall have the power to make
laws for the peace, order and good government of the Federation or any part
thereof for with respect to any matter included in the Exclusive Legislative List
set out in Part 1 of the Second Schedule to the Constitution.
The Exclusive Legislative List, Part 1, Second Schedule, item 61 of the
Constitution of the Federal Republic of Nigeria provides thus: the formation,
annulment and dissolution of marriages other than marriages under Islamic
law and Customary Law, including matrimonial causes relating thereto.
These provisions of the constitution does not vest in the National Assembly the
power to dictate which type of marriage shall be recognised as valid in Nigeria.
It has simply acted in excess of its jurisdiction by so doing.
The bill is also in error by stating that only marriages between a man and a
woman shall be recognised in Nigeria. It did not address the issue of polygyny
where one man can wed multiple wives at the same time.
Clause 4(1) The Registration of gay clubs, societies and organisations, their
sustenance, possessions and meetings are hereby prohibited.
This provision clearly contradicts Section 40 of the Constitution which clearly
provides that:
“Every person shall be entitled to assemble freely and associate with other
persons , and in particular he may form or belong to any political party, trade
union or any other association for the protection of his interests.”
Nigeria is a democratic Society and the provisions of this bill will be setting a
very dangerous precedent for democracy.
By proscribing LGBTI organisations, the interest of the community such as
health, education and capacity building (human Development) which such
organisations provide to fill the gap created by government, can lead to a
broken community with chronic problems that are neither attended to by
government, nor LGBTI organisation. The result will be unattended issues
spreading all over, in form of diseases, poverty and increased crime rate.
Also nationals that work in LGBTI organisations will thus be deprived of their
right to livelihood which has been interpreted to be an integral aspect of the
right to life as guaranteed by the constitution Section 33.
It is pertinent to note that LGBTI organizations in Nigeria operate basically not
to promote homosexual practices but to attend to public health issues as it
affects this particular community. Proscribing LGBTI organizations will have
very negative health implications on the country and will be contrary to the
provisions of the constitution Sections 37, 38, 39 and 40 which can only
conditioned on the grounds of defence, public safety, public order, public
morality and public health. In this case the LGBTI organizations are about being
proscribed without consideration for overriding public health implication.
Another socio – economic implication of this clause is the loss of employment
opportunities by many Nigerians who are employed in these organisations
either as program officers or consultants accompanied with their family
benefits. The clause is also capable of affecting diaspora in-flow. This will also
have negative impacts on Nigeria’s credence after her expression of interest to
implement programmes on HIV/AIDS and receiving funds for same. It will not
speak well of Nigeria to rescind her interest upon expending the huge sectoral
budget on health from Implementing partners.
Clause 4 sub (2) the public show of same sex amorous relationship directly or
directly is hereby prohibited.
This provision of the bill is open-ended and vague. It has the overt potential of
criminalizing filial relationship and any form of show of affection between
persons of same sex. The parameter for ascertaining same sex amorous
relationship is not defined.
More so, the law will charge the polity as it potentially criminalizes filial
affection with resultant effect of fear of being targets of hate crimes and
violence. The closely knitted fabric of love, peace and harmony inherent in the
African society will begin to erode with the presence of this law, since the law
is imprecise on what form of affection can be allowed and disallowed and what
it intends by the use of the word ‘directly’ or ‘indirectly’
Laws are not meant to be imprecise and vague. This law should be disallowed
for vagueness and lack of precision.
State actors and non state actors can capitalize on this to make indiscriminate
arrest, blackmail and extort people based on subjective interpretation of what
same sex amorous relationships are.
Clause 5 sub (1) Persons who entered into a same sex marriage contract or
civil union commits an offence and are each liable on conviction to a term of
14 years imprisonment.
This bill will create undue hardship on Nigerians: socially and economically as
civil union is defined to include almost all manner of co-habitation. In Nigeria,
friends live together in same apartments for several reasons: social, fraternal
and economic reasons. Nigerians are communal in nature but this bill did not
put into consideration the hardship it will create on this ground.
This is invasive of the privacy and family life of Nigerians that is guaranteed
under the Section 37 of the Constitution, which provides that, “the privacy of
citizens, their homes, correspondence, telephone conversations and
telegraphic communications is hereby guaranteed and protected”.
“The right to privacy implies a right to protect one’s thought; and one’s body
from unauthorized invasion… the sum total of the rights to privacy, and
freedom of thought, conscience or religion which an individual has, put in a
nutshell, is that an individual should be left alone to choose a course of life,
unless a clear and compelling overriding state interest justifies the contrary”.
Per Ayoola JSC in the case of M.D.P.D.T. v Okonkwo (2001) FWLR (PT. 44) 542.
The interest as adduced by the sponsors of this bill is inimical to overriding
public interest.
Cluase 5 Sub (2)- Any person who registers, operates or participates in gay
clubs, societies and organizations, or directly or indirectly make public show
of same sex amorous relationship in Nigeria commits an offence and shall be
liable on conviction to a term of 10 years imprisonment.
The provisions of this clause is targeted at organizations that may be providing
services to members of the society based on their sexual orientation. It
criminalizes such forms of service delivery as sex education and condom
promotion must no more speak to, or address sexual minorities in obedience
to this law.
This law is potentially harmful and capable of sending sexual minorities into
their closet, truncating the national response to HIV/AIDS in Nigeria. This law
will negatively impact the public health of Nigerians, should sexual minorities
become closeted.
According to Chidi Odinkalu, Chairman of Nigeria’s Human Rights Commission,
stresses this point when he said “But African cultures of family values have
always cohabited quiet happily with our culture of public show of affection and
compassion”
This bill if passed into law will create a fertile ground for state agent to clam
down on person perceived to be gay, whether or not they are, if seen
displaying love and affection publicly. The bill is very subjective in this regard.
Clauses 5 Sub (3) 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, organizations,
processions or meetings in Nigeria commits an offence and shall be liable on
conviction to a term of 10 years imprisonment.
This clause is also laden with ambiguity as to the meaning of abetting and
aiding. Lawyers and human rights activists who defend the rights of gay people
would be offending the provisions of this clause as their actions are capable of
being construed as supporting either the registrations, operations and
sustenance of same sex societies and organizations.
Family members may be guilty of aiding and abetting, clergies who take
confessions may be victims of this bill for refusal to report a member who
confesses to them, professionals such as doctors, nurses and laboratory
technicians can also be proscribed for failure to report any incident of ailment
resulting from same sex relationships. The list of persons who can be
proscribed is endless because the law is not precise in its definition.
Clause 6:The High court of a state or the Federal Capital Territory shall have
jurisdiction to entertain matters arising from the breach of the provisions.
Vesting the High Court in the state with Jurisdiction over the provisions of this
Act is a deliberate ploy to ensure that persons arraigned in court are remanded
in prisons custody pending formal application for bail brought before the High
court.
In practice, the police do not arraign a suspect directly at the High court for an
offence over which only the High court is vested with jurisdiction. Arraignment
is usually at the Magistrate court, from where the accused person is remanded
in prison custody pending the outcome of the advice of the Director of Public
Prosecution of the state and a formal application brought before the High
court with all accompanying processes. This is not usually very expedient as
the accused person may spend a minimum of three weeks in prison custody
before bail is applied for, granted and perfected.
This is invasive of the fundamental rights to personal liberty of any accused
person under charge. It is a very conscious provision and a veritable tool that
can be used to ruin every organization perceived to provide services to, and/or
protect the right of same gender persons.
CONCLUSION
From the clause to clause analysis of the proposed Act awaiting the assent of
the president to become law, it is our very considered opinion that THE BILL
IF ASSENTED TO, will create undue hardship on Nigerians both the LGBTI and
heterosexual community alike.
Very informed Nigerians have made critiques against the law, its intentions
and consequences, like the Noble Laureate, Professor Wole Soyinka and Mr.
Jiti Ogunye, a human rights lawyer and a former chair of the Ikeja branch of
the Nigerian Bar Association, have spoken extensively and critically on the
bill and its negative implications on the citizenry and said it is an unnecessary
publicity stunt.
the bill will formalise discrimination against perceived gay persons; their
family members and friends; organizations, professionals and human rights
defenders who provide services and support to them, and have wide ranging
effects on civil liberties in the country; and also stir up hate crimes, violence,
harassment, victimization, unlawful detention and imprisonment on
innocent Nigerians.
It will also criminalise and the freedom of speech, association, assembly and
compromise the right to privacy and property.
Nigeria has the second largest HIV/AIDS burden in the and the bill will
frustrate the national response (NACA statement on HIV/AIDS burden), by
criminalising those conducting outreach programmes as well as driving the
most at risk population underground.
Economically, the bill will affect the investment drive of government; scare
away potential foreign investors and Nigerians same sex couples from
coming home to contribute their quota to the economy.
The bill is also laden with manifest ambiguities which are capable of variant
interpretation to serve punitive intentions and suit the whips and caprices of
state agents and non state actors.
The bill is unconstitutional as it compromises some fundamental rights
enshrined in the constitution of the Federal Republic of Nigeria, 1999 (As
amended).
The bill does not comply with the provisions of the constitution and is
unconstitutional, null and void. See the case of ATTORNEY-GENENRAL OF
LAGOS STATE V ATTORNEY-GENERAL OF THE FEDERATION (2004) 20 NSCQR
99.
It is well settled that the constitution is Supreme; it is the organic,
fundamental law and the ground norm of Nigeria and all enactment must
comply with the provisions of the constitution. See the case of FASAKIN
FOODS VS HOSANYA (2006) 26 NSCQR (PT).
It is also clear that the National Assembly has acted ultra vires by exceeding
their legislative powers. The provisions of clauses 2 and 3 of this bill where
made without constitutional powers. The National Assembly cannot exercise
legislative powers in matters not included in the Exclusive Legislative List. See
the case of ATTORNEY GENERAL OF ABIA STATE V ATTORNEY GENERAL OF
THE FEDERATION (2006) 28 NSCQR 161 at 167.