Last year, the supposed ‘Child Marriage Law’, and the Lagos ‘deportation’ of some Igbo persons were two issues that created a lot of public wave of reactions, and counter-reactions. You can read the article on the ‘deportation’ here. On January 7, 2014, President Goodluck Jonathan signed into law the Same Sex Marriage (Prohibition) Act criminalising same-sex marriage in Nigeria. This was also followed with another wave of public opinion, with a great majority of Nigerians behind the Federal Government.
Even on my Facebook wall, following a post on the same-sex bill signed into law, I had received reactions, for and against. It was a war of words between the pro-gay, and the anti-gay!

The LGBT (lesbian, gay, bisexual and transgender) community kicked against it saying the new law encroaches on their human rights – rights that should be recognised and protected in a democratic society. This, they believe, was wrong and unacceptable since same-sex marriages or relationships was no business of the state to criminalise, since they have the right to private and family life. A constitutionally guaranteed right that no government could right take away from them. Be it a sexual or marital relationship between men; or one between women, such acts are private matters between two consenting adults, which the state should not be concerned with. For instance, The Initiative for Equal Rights (TIER), a Nigeria-based LGBT organisation, had tweeted that “government should think about development and not sex between two consensual adults.” Many Nigerians based abroad (some of whom maintain they are straight though) are also in support of this position, believing that Nigerians must be tolerant and respect the rights of others, no matter their personal convictions or religious beliefs. And the practices in the United States and the United Kingdom are often cited as ready examples as to how modern and democratic Nigeria should be like.

On the other hand, we have those who are against same-sex marriage, relationships or affairs. They are strongly in support of President Goodluck Jonathan’s assent of the bill. On their part, they rest their argument mainly on morality. Same-sex practices are against nature and even God’s commandments, they argue. Embracing it amounts to a rebellion against God. They see it as being unclean, and unholy; indecent and immoral. A sin. God turned against Sodom and Gomorrah for this same reason, they say. Similarly, apart from the moral and religious side of the debate, majority of Nigerians believe it is also un-African. An unnatural act that is against the African culture. Although some historians did try to educate such culturally-concerned Nigerians with the fact that homosexualism may have been practised by some African cultures in the past, those against it believe that it would be a sweeping generalisation to conclude that this was common with all cultures in Africa. A view that cannot be ignored or denied.

While the pro-gay thinks the other side is just being uncivil and hypocritic, the anti-gay community thinks the pro-gay is a victim of western influence who is to be sympathised with. Indeed, it has been a war of words!
And what has the international community been saying? Perhaps, as would be expected, the law has drawn widespread international condemnation from countries such as the United States, Britain, and Canada. A number of international non-governmental organisations have also kicked-against it. In fact, some have come up with the theory that the law will negatively affect the fight against AIDS. In an open appeal to the United Nations Secretary-General Ban Ki-Moon for instance, AIDS-Free World asked the international body to intervene so that “the global response to HIV is neither paralyzed at this critical time, nor set on a disastrous reverse course”. And while the pro-gay community is nodding in agreement, the anti-gay is digging up other reports to disprove this to protect public morality and public interest.

Now that’s enough already! Let me start by stating that my problem with these reactions and counter-reactions, with respect, is the display of intolerance on both sides of the divide. While one side is attacking the other side as being ‘uncivil’ for rejecting same-sex marriage and relationships, the latter thinks the former is pretty much ‘damned’! I think we should all demonstrate some appreciable level of tolerance and understanding.

In every democratic society, there should be no state religion, and Nigeria is no exception. Section 10 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is very clear on that. Although, the people in the state, mostly, have one religion or the other, the state is not to adopt any. The consequence of this is that no matter how good or moral or holy a religious tenet is, the state cannot adopt it as being generally applicable to all.

Having stated that, I will go on to say that in the workings of the state, morality is relative. It is not universally accepted, in that what is seen as morally wrong in a particular place may not be morally wrong in another. The law enforces morality, but not all aspects of morality. There is no law, for instance, against disrespecting one’s parents, yet it is immoral in many cultures to do so.

As the state grows, it however begins to accommodate certain things which hitherto were seen as unacceptable, but not without certain restrictions to at least balance private rights with public morality. If the government must not adopt any state religion, and the principle of morality is not a universal concept, then there is nothing wrong with some states in the US for instance legalising gay marriage, if the democratic culture and times favour it. The state, ideally, should have no god (or God), otherwise it risks adopting a religion. The state, in the eye of the law, is seen as a creation of law, not of God, and the law is itself seen as a creation of consensus, not of itself. That’s the stage countries such as the US, UK and Canada have reached or should we say the level they have advanced to (even though there are other states who understandably see such ‘advancement’ as degeneration). To have more freedom, they must necessarily kill the idea of god-religion. Human freedom dictates at all times, guaranteed by democratic constitutions.

But the question is: as Nigerians, have we gotten to that stage where we can kill our god-religion, our various cultural moralities, our Christian, Islamic and traditional beliefs, and embrace the full evolution of human rights in both our private and public life? It needs no answer. If we were ready, there wouldn’t have been a louder noise against same-sex marriage and relationships in the Nigeria. And there is nothing morally wrong or right about President Jonathan signing into law a bill against same-sex marriage or ‘gay rights.’ It is a matter of the relativity of morality. We cannot also denny that in Nigeria, not the US, the democratic culture is yet to mature to the same level as that which operates in the west where the Constitution is god.

And it is notable to add that the Nigerian Constitution guarantees and protects the right to private and family life in section 37, but not without some restrictions. Section 45(a) provides to the effect that the right to private and family life can be justifiably restricted in a democratic society to protect public safety, public order, public morality or public health. Therefore, although same-sex marriages or affairs touch on the private lives of LGBT persons which should not be the business of the state, it would be safe to say that the provisions of the Same-Sex Marriage Act can be reasonably justified in a democratic Nigeria based on the provisions of section 45. That is, to protect public morality, as determined by the state.

Also, the time is not ripe, just as the time was not ripe in the US some years ago. Morality is relative, just as opinions are divergent. The Nigerian jurisdiction is simply not ready to embrace it. Yet. It doesn’t mean Nigerians are ‘uncivil’, ‘undemocratic’, ‘hypocritic’ or ‘uneducated’ as the world out there, including some Nigerians in the Diaspora, are too quick to call Nigerians. It is just a matter of time and place. The statistics are there to prove this.

A study of 39 nations around the world by the U.S. Pew Research Center found that 98 percent of Nigerians believe the society should not accept homosexuality, making the country the world’s least tolerant when it comes to LGBT issues. And it perhaps it is the voices of 98 percent of a country of over 170 million people that we all heard loud and clear after the Same Sex Marriage (Prohibition) Act criminalising same-sex marriage in Nigeria was signed into law.

The Act stipulates the sanctions awaiting the violators of the new law. Let me briefly outline an abstract from the Act:

“A person who enters into a same sex marriage contract or civil union commits an offence and is liable on conviction to a term of 14 years imprisonment.”

Before I conclude this piece by way of recommendation to the government, I will not neglect to note that same-sex orientation is a complex issue. It is not as simple as laws against it would have it appear to be. This is also true for laws in support of it in some other jurisdictions. Just as it is not as simple as labelling gays and lesbians as ‘abnormal’ or ‘unwanted’ or ‘disordered’, equally, it is not as simple as recognising their same-sex orientation as human rights as laws in support of it largely do. There is no clear consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay or lesbian orientation. There have been various research examining the possible genetic, hormonal, and social influences on sexual orientation, but according to the American Psychological Association (APA) on its website:

‘…no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles; most people experience little or no sense of choice about their sexual orientation.’

The position of the new law against same-sex marriage in Nigeria therefore tilts towards nurture, and not nature. And it is to prevent such same-sex behaviours from spreading, at least legitimately, that the bill has been signed into law by the President.

By way of possible reforms to the Act however, it is my personal opinion that the punishment provided such as imprisonment does not sufficiently show that the government fully appreciates the complex and sensitive nature of same-sex behaviours. Incapacitation is meant to stop convicts from committing same criminal acts in the future, but in the case of gays and lesbians, the reality is that behind bars, such behaviours actually persist. Also, there is no restitution since the victim of the same-sex act is the persons (gay couples for instance) in question, and not another. Again, imprisonment in this case does not really serve as retribution. This is because unlike other crimes such as murder, robbery or rape, no one has been harmed to justify the society’s infliction of harm on gays or lesbians for their acts.

Therefore, apart from serving as deterrence to others by threatening them with punishment for 14 years or 10 years (as the case may be), criminalising same-sex marriage or affairs without any provision for a special rehabilitation mechanism within the justice system is bound to create its own problems. To avoid such insensitive treatment in the hands of the state, the state may need to consider providing a rehabilation programme that can include mandatory counselling, treatment or therapy, and access to support groups. Persons who show medically verifiable improvements in sexual orientation may then be encouraged (not mandated) to participate in voluntary public works such as speaking with teenagers and youths on same-sex issues, sharing their personal experiences, and helping to promote the sacred institution of marriage, and family as vital to the growth of a happy society. Obviously, the state does not see homosexual behaviour as a normal aspects of human sexuality.

But there may be need, in Nigeria, for an independent scientific research into the development of sexual orientations in persons. We cannot continue to rely on examinations and conclusions, particularly from the west, as the factor of vested interests in such research cannot be ignored. This can aid policy directions and legislative reforms in the future.

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Nigerian Law Today

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