SAME-SEX MARRIAGE (PROHIBITION) ACT, 2014: NEEDFUL
INTERVENTION OR NEEDLESS INTRUSION?
SAME-SEX
MARRIAGE (PROHIBITION)
ACT, 2014: NEEDFUL INTERVENTION OR NEEDLESS INTRUSION?
 |
| Jacob Abiodun Dada, Ph.D |
Jacob
Abiodun Dada,
LL.B (Hons); B.L; LL.M; PhD;
A.DRI,
Associate Professor of Law,
Faculty of Law,
University of Calabar,
Calabar, Nigeria.
ÓJ. A. Dada 2015
Same-Sex
Marriage (Prohibition) Act, 2014: Needful
Interventions or Needless Intrusion?
All
Rights Reserved.
No
part of this publication may be reproduced, stored in a retrieval system or
transmitted in any form or by means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the author.
Published
by:
University
of Calabar Press
University
of Calabar
Calabar
ISBN:
Printed
in Nigeria by
Optimist
Press Nig. Coy
84
Palm Street, Calabar
08064356439,
07078596591, 08021186960
OTHER TITLES BY THE AUTHOR
The
author has to his credit, many scholarly articles published in reputable local
and international journals and the following six textbooks:
-
Principles of Nigerian Company Law, (3rd
ed.) 2014
-
The Law of Evidence in Nigeria, (2nd
ed.) 2015
-
Legal Aspects of Medical Practice in Nigeria (2nd
ed.) 2013
-
Nigeria: The Challenges of Nationhood, 2009
-
Administrative
Law in Nigeria, 2011
-
Jewel on the
Bench: Essays in Honour of Justice Dorothy Nsa Iyamba Idem, (Edited) 2012
DEDICATION
Dedicated
to God for His grace and love.
ACKNOWLEDGEMENTS
With gratitude, I acknowledge the
grace, wisdom, ability, health which God gave to me to conceptualize and
consummate the writing and publication of this monograph.
To my friends, colleagues and commentators on this subject who
are too numerous to mention, I also say thank you for their inspiration and
direction which facilitated the writing of this book. On this list are my dear
wife and colleague, Eunice, my son, Joshua, Barr. Eugene A. Opara and Bishop (Dr.) M. P. Okom who read the work
in draft and made useful corrections and suggestions.
Finally, to Mr. Joseph Eni, Victoria Sunday who handled the
typesetting, and my printer, Mr. Bassey A. Udoh, the M.D and the entire staff
of Optimist Press Nigeria Company for professionally handling the production of
this book, I say thank you.
This monograph is firmly and enthusiastically recommended
to all who are interested in the emotive, topical and celebrated debate on
Same-Sex Marriage.
J. A.
Dada
31st July, 2015 08037238966
TABLE OF CONTENTS
Page
Introduction - - - - - - 1
The Act
–An Overview - - - - 9
A
Comparative Analysis - - - - 15
Sam-sex
Prohibition Act: Human Rights Predator 18
The
Hypocrisy and Capitulation of the West - 29
Conclusion
- - - - - - 40
Appendix - - - - - - 44
SAME-SEX MARRIAGE (PROHIBITION) ACT 2014: NEEDFUL INTERVENTION
OR NEEDLESS INTRUSION? **
Marriage is regarded as a very sacred
institution both in our jurisprudence and in our sociology- Per Niki Tobi JSC.[1]
Introduction
From the
beginning of this Century, same-sex marriage[2]
advocacy has become widespread and gained remarkable popularity in our world of
pluralism, diversity and interdependence[3]. Following the bold precedent laid by The
Netherlands in legalizing same-sex marriage in 2011, many European countries
have embraced this type of matrimonial union[4]
which many people across the globe consider objectionable, intolerable and
perverse. In Africa, South Africa remains the only country which has legalized
the practice.[5]
Owing to
the growing agitation for legal recognition and protection of what is referred
to as gay rights by the microscopic but increasingly vocal pro-gay activists
across the globe[6], the
National Assembly enacted the Same-Sex Marriage Prohibition Act, 2014 which not
only prohibits but criminalizes same-sex marriages in Nigeria[7].
The
passage of this law has received overwhelming commendation and avalanche of condemnation
within Nigeria and outside[8]. Leading the pack of antagonists of this law
are members of the human rights community, gay rights activists, scientific
organizations and some members of the international community. For instance,
the United States, Canada and Britain while expressing unequivocal condemnation
of this law, called for decriminalization of gay relationships. According to
the US Ambassador to Nigeria, James Entwisted, the law “places significant
restrictions on peoples’ freedom of assembly and freedom of expression and sets
“a very worrisome precedent.”[9]
By the passage of the law, the Ambassador concluded, the US and other donor
agencies may withdraw financial support to Nigeria especially in the fight
against HIV/AIDs.
Pro-gay community
has been particularly strident and vociferous in their objection to the Act
which they see as not only barbaric and abhorrent, but a negation of fundamental
human rights. The Lesbian, Gay, Bisexual and Transgender (LGBT) community in
the United States, labeled the Act as “anti- human rights, and a law which “legitimized
homophobic violence and increased fears of persecution”[10]
Perhaps
from a seemingly unpredictable quarters, the Act has also received unequivocal
condemnation. Stan Chu Ilo,[11]
a catholic priest, spared no expletives in describing and condemning the
Act. In his words, “the signing of the
Act is very precipitate and ill-advised… The law is a political distraction and
a populist Act. It is a poor, and unjust
legislation without much deliberation and conversation.”
Arguing that homosexuality is a human reality
which cannot be wished away “through any juridical positivism or legislative
activism”, he reasoned that:
The idea that signing the Act sends
a clear message to Western nations that Nigeria cannot be dictated to by them
and that Nigeria will not know tow to the social experimentations in the West
with regard to marriage seems to me a less than ideal justification for a law
that is not well thought out”.
Another
commentator[12] has
opined that the law “provides dangerous grounds for massive infringement of
fundamental rights, not only of homosexuals, lesbians, gays, bisexuals and
transgender [LGBT] but also those of heterosexual inclinations.
Continuing, he lamented that
… the law is designed to “stifle
the right of the minority to campaign or canvass for alternative viewpoints,”
and that the law constitutes “comprehensive assault on the right of association
and peaceful action of homosexuals”… and “indirect challenge to the foundation
and survival of Nigerian’s constitutional democracy.
He
concluded that the state had no business being pre-occupied with regulating and
criminalizing purely personal voluntary relationships among adults…
This law which is undoubtedly aimed at
regulating behaviour on the basis of standard acceptable to the majority of
Nigerians, also has many protagonists and has been widely applauded especially
by religious leaders, and public affairs commentators. In the words of Professor Ishaq Akintola,
“President Jonathan transmitted on the same wave-length with the rest of
Nigerians by signing the anti-gay bill into law.” Arguing that “pervasive
sexual life is absolutely un-Islamic and un-African,”[13]
he commended the President for resisting pressure from western powers and for boldly
identifying with the cultural and religious yearnings and aspiration of
Nigerians. In the same vein, Pastor Ayo Oritsejafor,[14]
the President of Christian Association of Nigeria, applauded the Act which he
described as “outlawing the immoral culture of same-sex marriage in Nigeria”
maintaining that same-sex is offensive.
In his own
appraisal and reflection, Abati declared that –
“This is
a law that is in line with peoples’ cultural and religious inclination. It is a law that is a reflection of the beliefs
and orientation of Nigerian people.
Nigerians are pleased with it.[15]
To
demonstrate the overwhelming endorsement and support which the Act enjoys among
Nigerians, it has been said that: ‘Nigerians are the least tolerant of all
nations when it comes to gay with 98 percent surveyed condemning homosexuality.[16] Indeed, while addressing the UN Human Rights
Council at the 17th Session of the Universal Periodic Review in
Geneva, Switzerland, the Attorney General and Minister of Justice of Nigeria,
Mohammed Bello Adoke noted that opinion poll showed that 92% of Nigerian
populace supported the enactment of the Act.[17]
Continuing, the learned Attorney-General stated that, The Marriage Act defines
marriage as a relationship between a man and a woman. Christianity and Islam
are the major religions in Nigeria. Same-sex marriage is not in the culture of
Nigeria.[18]
From the above opinions and
postulations, it is obvious that the Act is a “mixed – bag”, enthusiastically
endorsed and applauded by many and vociferously denounced and condemned by
others. Although the commendation or condemnation of a law is not a jurisprudential
barometer to gauge or measure its legality and efficacy, it is nonetheless an
acceptable practice for scholars to critically interrogate any legislation with
a view to setting an agenda for reform. It is in this light that it is proposed to critique
the Same-sex Marriage Prohibition Act and raise some pertinent issues and
problems in validation and justification of the enactment of the Act.
The
Act – An Overview
The
Same-Sex Marriage (Prohibition) Act, 2013, otherwise loosely referred to as “the
Anti-gay Act”, was passed by the National Assembly on 30th December,
2013 and signed into law by President Goodluck Johnathan on the 7th Day of January, 2014.[19] The legislative intent for the passage of
this Act is revealed in the explanatory memorandum to be: “An Act to prohibit a
marriage contract or civil union entered into between persons of the same-sex,
solemnization of same; and for related matters.”
Towards the prosecution and
realization of the foregoing legislative intent, section 1 provides for the
prohibition, invalidity, illegality and unenforceability of same-sex marriage
and civil union in the following words:
A marriage contract or civil union
entered into between persons of same sex:
(a) Is
prohibited in Nigeria;
(b) Shall not
be recognized as entitled to the benefits of a valid marriage.
The
foregoing section not only prohibits same-sex marriage contracts and civil
union, but denies them legal recognition.
Accordingly, they cannot confer benefits such as tax relief; right to
inheritance and privilege from non-disclosure of matrimonial communication which
are enjoyed by couples in valid matrimonial unions.
By
section 2, the prohibited unions shall not be solemnized in a church, mosque or
any other place of worship in Nigeria.
For the avoidance of doubt, the type of matrimonial
union or relationship prohibited in section 1 is provided in section 7 of the
Act which defines same-sex marriage to mean “the coming together of persons of
the same sex with the purpose of living together as husband and wife or for
other purposes of same sexual relationship”.
Civil union on the other hand is defined to mean “any arrangement
between persons of the same sex to live together as sex partners.[20]
In order
to ensure that legislative intent is not subverted or circumvented if the
prohibited unions are contracted outside Nigeria, section 1(2) provides that a
same-sex marriage contract or civil union by virtue of a certificate issued by
a foreign country is void in Nigeria and any benefit accruing by virtue of the
certificate shall not be enforced by any court of law[21].
Section 3 confers validity only on a marriage contracted between a man and
woman. It may be argued that this
provision is superfluous since the Marriage Act recognizes only heterosexual
marriages.[22]
Instructively, however, this section is not to be construed as recognizing only
monogamous marriages.
Other
prohibitions contained in the Act apart from same-sex marriage and civil union are:
(i)
The registration of gay clubs, societies and organizations
their sustenance, processions and meetings;
(ii)
Public show of same-sex amorous relationships either
directly or indirectly.
Instructively,
what constitutes public show of same-sex amorous relationship is not defined by
the Act. Thus, it has been opined that this provision is nebulous, ambiguous
and equivocal with the danger 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 in no amorous
relationship”[23] This
view is, to us, extreme. It is submitted that the legislative intent of what
constitutes public show of amorous relationship is one which involves showing
of affection, love, care and feeling suggestive or indicative of sexual desire. However it is strongly opined that since what
is expressly prohibited is “public show,” it then means that amorous
relationship or show of it in private, between persons of the same sex is not
prohibited by the Act and would, therefore, be lawful. It will be unfortunate if this is the legislative
intent. Further, it is submitted that homosexuality, lesbianism and the likes
are not unlawful under the Act as what is prohibited is the marriage or union
of persons of the same sex. However,
this cannot provide safety valve for those who indulge in them because such
sexual preferences are criminal offences under the Penal and Criminal Codes[24].
By section 214 of Criminal Code, any person who has carnal knowledge of any
person against the order of nature or has carnal knowledge of an animal; or
permits a male person to have carnal knowledge of him or her against the order
of nature is guilty of felony, and is liable on conviction to imprisonment for
14years.
Section
5(1) of the Act criminalizes same-sex marriage contract and civil unions and
prescribes 14 years imprisonment for violators.
The sentence prescribed in the section is mandatory, on conviction. As such, a judge has no discretion to either
give a lesser term of imprisonment or impose an option of fine. Section 5(2)(3) imposes criminal liability on
another category of offenders when it provides that:
(2) “A person who registers, operates
or participates in gay clubs, societies and organizations, directly or
indirectly makes public show of same sex amorous relationship in Nigeria
commits an offence and is liable on conviction to a term of 10 years
imprisonment.”
By
sub-section 3,
“A person or group of persons who
administers, witnesses, abets or 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 is liable on conviction to a term of 10 years imprisonment.
While the
amplitude of the offences created by the Act is quite wide, it is instructive
to note that mere association with a gay person or failure to report gay
relationship does not constitute an offence under the Act[25].
A comparative
Analysis
Nigeria
is in company of many African nations in passing Same-Sex Prohibition Act
evidently because Africans see homosexuality as being un-African and Unchristian
and unnatural.[26] In
validation and fortification of this view is the fact that thirty-eight of the fifty-three
African nations criminalize homosexuality in some way.[27]
Out of the many countries which prohibit and criminalize same-sex union, Uganda
deserves special mention because of its robust anti-homosexuality legislation.
Compared with the Nigerian law, the Uganda’s Anti-Homosexuality Act, 2014[28]
is more extensive and the penalty prescribed for offences stiffer. First, unlike the Nigerian law, the Uganda’s
Act includes provisions for extradition of any Ugandan who is accused of an
offence under the Act for trial and punishment in Uganda. Further, the Act
includes penalties for individuals, companies, media organizations and
non-governmental organizations that know of gay people or support LGBT rights.
Also, the Uganda’s Homosexuality Act, divides homosexuality behaviour into two
categories – aggravated homosexuality in which an offender would receive the
death penalty, or “the offence of homosexuality” in which an offender would
receive life imprisonment. This is not the case under the Nigerian law. It is
submitted that there is merit in recognizing aggravated homosexuality and in
imposing stiffer penalty[29].
Section
5(3) of the Uganda Act, makes provision for compensation to victim of homosexuality
in addition to any sentence which may be imposed for any physical, sexual or
psychological harm caused to the victim by the offender. There is no comparable
provision with this evidently imaginative and commendable provision under the
Nigerian law. Similarly, while the
Ugandan law punishes attempt to commit homosexuality and aggravated
homosexuality with imprisonment for 7 years and life imprisonment[30]
respectively, no comparable provision is created under the Nigerian law.
Same-sex Prohibition Act: Human Rights Predator?
The
vociferous condemnation, criticisms and objections to the Same-sex Marriage
(Prohibition) Act and similar legislation have been predicated on the alleged
violation of human rights, particularly the right to private and family life,[31]
right to freedom of thought, conscience and religion,[32]
right to peaceful assembly and association[33]
and right to freedom from discrimination.[34]
These rights are not only guaranteed in the various Nigerian Constitutions but
also in major international human rights instruments to which Nigeria is a
signatory.[35] In Teriah Joseph Eba v Federal Government of
Nigeria,[36] the Act
was challenged on the grounds that it contravened these constitutional
provisions. The plaintiff argued inter
alia that, Nigerians, particularly,
those whose sex is Gay, Lesbian, Bisexual, or Transgender, are by natural
design, biologically and physiologically, without any fault of theirs, share
unique sexual orientation.[37]
Arguing in favour of same-sex relationships, Hert[38]
posits that discriminations against sexual minorities is as a result of “sexual
chauvinism.” He equates this with ethnocentrism, which he says is the refusal
of the individual to understand another individual’s way of life.[39]
According to an association,[40]
“sexual rights are universal human rights based on the inherent freedom,
dignity and equality of all human beings. Since health is a fundamental human rights,
so much sexual health is a basic human rights.”[41]
Also, the United Nations (UN) Human Rights Committee[42]
has defined “sex” to include sexual orientation.[43]
It is
however submitted that the argument that prohibition of same-sex marriage is
unconstitutional and antithetical to human rights is not only self-serving,
dubious and pedestrian but unsustainable. Indeed, the argument does not draw
legitimacy from any human rights instrument. Our thesis is predicated on the
following grounds. First, same-sex union is not expressly or inferentially
guaranteed either in the Nigeria Constitution or in any human rights
instruments[44].
Since the foundation of human rights law was firmly
laid in 1948 with the adoption of the Universal Declaration of Human Rights in
that year, we have seen great progress in the reach of protection afforded by
international human rights law and its core principles of equality,
universality and non-discrimination, but there has been no express guarantee of
same-sex marriage.[45]
Instructively, the United Nations Human Rights Council Resolution on Human
Rights, Sexual Orientation, and Gender Identity,[46]
and the African Commission on Human and Peoples’ Rights Resolution on
Protection against violence and other Human Rights Violation against Persons on
the Basis of their Real or Imputed Sexual Orientation or Gender Identity[47]
neither guarantee, sanction nor recognize same-sex marriage. The objective of
the Resolutions is essentially “to end all acts of violence and abuse, whether
committed by state or non-state actors, including those targeting persons on
the basis of their imputed or real sexual orientation or gender identities…”[48]
Second,
there is no universally accepted juristic construction or interpretation of any
international human rights instruments which has validated, sanctioned,
endorsed or given legal recognition to same – sex marriage.[49]
Third,
many of the fundamental human rights are not guaranteed in absolute term. Rather, they are circumscribed. Following the example of international human
rights instruments, section 45[1] of the 1999 Constitution permits derogation
from the rights constitutionally guaranteed when it provides that:
“Nothing in sections 37,38,39,40
and 41 of this Constitution shall invalidate any law that is reasonably
justifiable in a democratic society –
(a) In the
interest of defence, public safety, public order, public morality[50]
or public health; or
(b) For the
purpose of protecting the rights and freedoms of other persons.
The right
to freedom from discrimination which is guaranteed by section 42 is also not
sacrosanct as the provision is self-limiting.
Besides, the discrimination prohibited by the constitution is one based
on ethnicity, place of origin, sex, religion or political opinion and not sexual
preferences, no matter how perverse.
Consequently,
while the constitution recognizes and guarantees certain rights, it also
provides that the enjoyment and enforcement of these rights are subject to the
overriding interests and considerations which are reasonably justifiable in a
democratic society. Fourth, assuming same-sex is recognized in some
international human rights instruments, which is not conceded, such instrument
will not be binding in Nigeria by virtue of the provision of section 12 of the
1999 Constitution which makes a treaty enforceable only upon ratification by
the National Assembly[51]
unless the country is a party to it and it has been ratified by the National
Assembly. Happily, Nigeria has not ratified any such treaty.
In further
support of the Act, it is fitting to recall that it received tremendous and
enthusiastic endorsement by overwhelming majority of Nigerians. Indeed, the
threat of economic sanction and outright blackmail did not diminish the
avalanche of acceptance and commendation of the Act. Consequently, the law
cannot be said to be unreasonable or unjustifiable in a democratic society in
the interest of public morality since it seeks to uphold public morals by
prohibiting a conduct which is widely adjudged as “immoral, unclean, unholy, indecent,”
Further
justifications exist for the passage of the Act. Prior to its passage, our
penal legislation criminalizes certain sexual conducts such as defilement[52],
sodomy and bestiality[53].
Yet, no one has contested the validity
of these penal provisions notwithstanding the fact that the prohibited conducts
may be said to be the sexual preferences of those who may want to indulge in
them.
Also, without
engaging in any lengthy academic or jurisprudential discourse on the concept of
right, it is safe to argue that homosexuality and other prohibited sexual
preferences are not “rights” since a right properly so-called, must be
recognized and protected by a legal system. To the extent that there is no legal
recognition or protection of same-sex marriage in Nigeria, it is dubious and
futile to refer to homosexuality as a “right”.[54]
Importantly,
every law is essentially intrusive in that laws generally regulate human
conducts. Like morality, laws set
standards, limit, control, circumscribe and superintend human conducts as well
as impose sanctions for violation.[55] No individual nominates or determines the
areas of his life in which he considers regulation either by statute, culture
or ethic, desirable. Also, it is not within the prerogative of individuals to
stipulate conducts which should be subject to legal restrictions since human
beings generally like unlimited and unrestrained freedom. If thieves, armed
robbers, rapists, murderers etc cannot claim a right to steal, rob, rape or
kill, it is dubious for anyone with perverse, and reprehensible sexual
preference to insist on such preference. Indeed, to license such behavior will
amount to surrendering to blackmail and abdication of law-making power by the State.
Again, if objection to same-sex prohibition on the ground that it assaults the
sexual orientation of sexual minority is sustainable, it will be dubious and
discriminatory to prohibit and criminalize what has been termed ‘unnatural sexual
offences’ such as sodomy, bestiality and sadomasochism[56].
Indeed, that would amount to logical contradiction and conceptual confusion! This
is especially so because although there has been extensive research examining
the possible genetic, hormonal, and social influences on sexual orientation,
the reason for sexual preference or orientation has not been scientifically
established. According to the American Psychological Association (APA) in its
website,
“no findings have emerged that
permit scientists to conclude that sexual orientation is determined by any
particular factor or factors. Many think nature or nurture both play
complex roles, most people experience little or no sense of choice about their
sexual orientation.
The
argument that homosexuality is a contemporary reality and that “government
should think about development and not sex between two consenting adults”
questions the legitimate role of government in the society and must be
discountenanced as legally unsupportable. Without doubt, therefore, the
Same-sex Marriage Prohibition Act is a positive, constructive and proactive
legislation which must be applauded and not derided.
The Hypocrisy and Capitulation of the West
In the wake of the passage of the Same-sex Marriage
(Prohibition) Act, many western countries were not only quick and unequivocal
in their condemnation of the Act, but threatened to withhold economic aids to
Nigeria.[57] This response is undoubtedly ironical and
contradictory because of the high value which the Western world, historically
conferred on marriage institution.
Historically, the West, without equivocation, recognized the sanctity
and inviolability of marriage institution and thus regarded certain practices
such as polygamy, cohabitation and prostitution objectionable. In Fender v St. John Mild,[58]
Lord Wright in expressing his objection to cohabitation declared that:
“the law will not enforce an immoral promise, such
as promise between a men and a woman to live together without being married or
to pay a sum of money or to give some other consideration in return for
immoral association.[59]
In the same vein, polygamy[60]
which is extensively practiced under most African native law and custom, has
been widely condemned and labelled as “unchristian”,[61]
“revolting”,[62]
“barbarous”[63], and “a
union falsely called marriage”[64].
To demonstrate the revulsion of the West to polygamy,
it is fitting to recall the persecution of the Mormon Church of Utah by the
United States of America on the ground that the church recognized polygamy. In
1887, the Congress enacted legislation to provide for a judicial proceeding to
terminate the corporate Charter of the Church and for the escheat of its
property.[65]
Further, many adherents of the Church were jailed and voters were required to
swear that they were not members of any organization advocating polygamy and
that they would not teach, advise, counsel or encourage any person to commit
the crime of bigamy or polygamy.[66] The Mormon church was consequently
constrained to issue a proclamation in 1870 terminating plural marriages in the
church.
The attitude of the English courts towards
polygamous marriage is also exemplified by the celebrated dictum of Lord
Penzance who defined marriage in the oft-cited case of Hyde v Hyde[67]
as the “voluntary union for life of one man and one woman, to the exclusion of
all others”.
In further demonstration of its objection to any
type of matrimonial union other than monogamy, bigamy is criminalized in
Britain and other Western worlds.[68]
So strict is the objection to other forms of relationships other than monogamous
marriage that Phillimore J. declared in Spiers
v Hunt,[69] that; “the institution of the family is the
basis of the civilized state and law should and does encourage the closest
relations between husband and wife and discourage every transaction, the
tendency of which is to give the husband another woman to use for as well as or
instead of his wife.”
Further, by categorizing some sexual behaviours as “unnatural”
and criminalizing the same, it is believed that the Western world recognized
that sexual behavior or preference must be limited and circumscribed by
societal beliefs, values and mores.
Using the above pronouncements as a barometer of Western value for
marriage institution, it becomes baffling and inexplicable to rationalize or
justify the current dubious advocacy and adherence of the West to the most
egregious sexual perversions in the name of human rights.
Instructively, the avalanche of historical
opposition of the West to certain relationships and sexual practices as
demonstrated above is not without historical antecedence. In the Holy Bible, the story of creation is
not only revelatory of a distinction between man and woman[70]
but the natural order of nature regarding marriage and sex.[71]
Thus, sodomy,[72]
bestiality,[73] incest,[74]
and adultery[75] are
prohibited[76]. These
sexual practices are still criminalized in many penal statutes in the West and
in many former colonial territories, including Nigeria[77]
whose legal system is greatly influenced by the British Legal System.
Indeed until lately, many judicial decisions in the
UK and USA invalidated same-sex marriages. It is, therefore, a regrettable
somersault[78] and
civilization taken to a ridiculous height, to canvass, advocate, sanction,
validate, or justify homosexuality, lesbianism or same sex marriage on the
ground of protecting human rights of the ‘sexual minority’[79]
who indulge in them. For purposes of completeness, some of the cases may be
noted.
In Jones v
Hallahan,[80] a lesbian couple argued that denying
them a marriage license deprived them of three basic constitutional rights –
the right to marry, the right to associate, and the right to freely exercise
their religion. The court refused to
address the constitutional issues, holding that “the relationship proposed does
not authorize the issuance of a marriage license, because what they propose is
not a marriage.” In Singer v. Hara,[81]
a gay male couple argued that denying them the right to marry violated the
state Equal Rights Amendment. The court
disagreed, holding that the purpose of the statute was to overcome
discriminatory legal treatment between men and woman on account of sex.
Same- sex marriage was also rejected in Adam v. Howerton [82]
where the couple, a male American
citizen and a male Australian citizen, challenged the Board of Immigration
Appeals refusal to recognize their marriage for the purpose of the Australian
obtaining U.S. residency as the spouse of the American. (The couple participated in a marriage
ceremony with a Colorado minister and had been granted a marriage license by
the Boulder, Colorado county clerk.) The court ruled that the word “spouse”
ordinarily means someone not of the same sex. Then it noted the 1965 amendments
to the Immigration Act, which expressly barred persons “afflicted with sexual
deviations” (homosexuals) from entry into the country. The court concluded that it was unlikely that
Congress intended to permit homosexual marriages for purposes of qualifying as
a spouse of a citizen, when the Immigration Act explicitly bars homosexuals
from entering into the United States.
The case of Thorton
v Timmers,[83] may
also be noted. In that case, a lesbian couple sought a marriage license. In denying their request that the court order
the clerk to issue them a license, the court concluded that “it is the express
legislative intent that those persons who may be joined in marriage must be of
different sexes.”[84]
Again, in the Matter
of Estate of Cooper,[85] Cooper died, leaving the bulk of his
property to his ex-lover. His current
lover sued to inherit as a surviving spouse under New York’s inheritance laws. The court concluded that only a lawfully
recognized husband or wife qualifies as a surviving spouse and that “persons of
the same sex have no constitutional rights to enter into a marriage with each
other…”
However, beginning with the case of Goodridge v Dept. of Public Health,[86]
some same sex couples have successfully challenged the legality of legislative
prohibition of same-sex marriage. Following this decision and many others, the United
States Supreme Court in a landmark judgment held in the case of James Obergefell, et al; Petitioners v
Richard Hodges, Director, Ohio,[87]
that the fundamental right to marry is guaranteed to same-sex couples by both
the Due Process Clause and the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution and as such, same-sex couples may
exercise the fundamental rights to marry in all the States of America. The
facts of the case may be briefly noted[88]. The petitioners, a same-sex couple, decided
to get married to obtain legal federal recognition of a marriage. They married
in Maryland. After learning that their state of residence, Ohio, would not
recognize their marriage license, they filed this lawsuit alleging that the
state discriminates against same-sex couples who have married lawfully outside
the state. Because one partner, John Authur was terminally ill, and suffering
from amyotrophic lateral sclerosis, ALS, they wanted the Ohio Registrar to identify
the other partner, James Obergefell, as his surviving spouse on his death
certificate based on their marriage in Maryland on July, 11,2013. Although the
Ohio Registrar agreed that discriminating against same-sex was
unconstitutional, the Attorney-General of the State affirmed the legality of
the same-sex marriage ban. This led to the institution of this action. In a
split decision of 5 to 4, the court affirmed the constitutionality of same-sex
union.[89]
By this decision, all states are obliged to issue marriage licences to same-sex
couples and to recognize same-sex marriages validly performed in other
jurisdictions.[90]
Instructively, the General Assembly of the
Organization of American States has since adopted, by consensus, a resolution
entitled, ‘Human Rights, Sexual Orientation, and Gender Identity[91]
on LGBT rights. Accordingly, there is now a firm legal platform upon which the
‘sexual minority’ in America can predicate their sexual perversion in the name
of sexual orientation.
Given the
consistent rejection of same-sex marriage as demonstrated in the above cited
cases by the American courts, it is baffling and a regrettable somersault that
some courts and now, the American Supreme Court, will validate and justify
same-sex relationships on the ground of upholding human rights of those who
indulge in it. The full endorsement of same-sex marriage by American and many
European countries provokes the imperative need for vigilance against further
erosion and needless subversion of principles and beliefs which were hitherto
held sacred. It calls for rigorous interrogation of these
leading light of civilization and democracy. It is high time the rest of the
world rose to guard the guard, oversee the overseer, redeem the redeemer and
lead the led.
CONCLUSION
From the
above juridical tour ‘d’ horizon, it
becomes irresistible to conclude that the Same-sex Marriage Prohibition Act is
not only consistent with the values, mores and beliefs of overwhelming majority
of Nigerians but that objection to it
does not find sustainable legitimacy in any human rights norm.
It has
been persuasively argued that: “Legal liberalism upon which human rights are
premised, thus assumes a series of truths: society is pluralistic, there are
majorities and minorities, true democracy necessitates the protection of
minorities from the tyranny of majorities and true minorities share
characteristics that differentiate them from the majority norm.”[92]
Nevertheless, the majority should not be blackmailed or intimidated to embrace
the view of the minority no matter how immoral, perverse or reprehensible. If we
accept the eminently dubious proposition that any type of sexual behavior
should be tolerated and accepted, we will, in effect, be casting overboard the
regulatory role of law in the society which will be an invitation to anarchy
and chaos. If same-sex marriage is endorsed and becomes fashionable, the human
population will be in peril of extinction. Also, we will have no justification,
legal or moral, to criminalize sexual conducts such as bestiality or any
criminal conduct whatsoever. It has been argued that same-sex couples can adopt
children, the question may be asked why should they not live with the
consequences of their voluntary, though evidently irrational choice? If
everybody were to indulge in this sexual aberration, who will give birth to the
children to be adopted? Just as the British colonialists found certain
customary practices objectionable and unenforceable on the ground that they ‘were
repugnant to natural justice and good conscience’, we can say without
equivocation that same sex relationships are not merely inconsistent with
decency, morality and good conscience but constitute grave assault on divine
and natural order. Interestingly, Justice Samuel Alito in his dissenting
judgment in Obegefell’s case alluded
to this fact when he lamented that:
Today’s
decision usurps the constitutional right of the people to decide whether to
keep or alter the traditional understanding of marriage…it will be used to
vilify Americans who are unwilling to assent to the new orthodoxy…if a bare
majority of Justices can invent a new right and impose that right on the rest
of the country, the only real limit on what future majorities will be able to
do is their own sense of what those with political power and cultural influence
are willing to tolerate.[93]
Same-sex
marriage is particularly reprehensible because there is no generally accepted
scientific evidence to justify it. Indeed,
it has been insightfully noted that, “on the biological level, it is clear that
physiologically and morphologically, the sexual organs are designed for the
purpose of generation of offspring. So homosexual tendencies are, therefore,
unnatural, and disordered as they are unable both biologically and on the human
level to achieve the purpose of human sexuality.”[94]
Further, in view of the overwhelming revulsion against same sex unions in
Nigeria, it is futile to condemn the Act because law, generally, has always
sought to confer primacy on public interest over that of the individuals. Given
this reality, the needless castigation of African culture and immoral elevation
of Euro-centrism is unhelpful and unsustainable and must be consigned to the
dustbin of history. The Same-sex Marriage Prohibition Act must, therefore, be
applauded as being absolutely imperative in the face of the wild, audacious,
violent and needless assault on, and desecration of, the values and virtue
hitherto held sacred.
Jacob
Abiodun Dada, LL.B (Hons); B.L; LL.M; PhD; A.DRI, Associate Professor of Law,
Faculty of Law, University of Calabar, Calabar, Nigeria. He can be reached at odundada1@yahoo.com and Jacob.dada25@gmail.com.
[1] Ezennah v Atta (2004)2 SC (pt 11) 92
[2] Same-sex marriage is defined as
the ceremonial union of two people of the same sex, a marriage or marriage like
relationship between two women or two men. See, B.A Garner(edr.), Black’s Law Dictionary 8th
ed. USA: Thompson West Publishing Co.; 2004 at 994.
[3]. Different words often used to
describe persons who are primarily attracted to persons of the same sex
include; homosexual, gay, lesbian, heterosexual, straight, queer, bugger, etc..
[4]. Same-sex marriages have been
performed in Belgium in 2003, Spain (2005), Canada (2003), Sweden (2009), Portugal (2010), Iceland (2010), Argentina
(2012), Brazil (2013), France (2013), and United Kingdom (2014).
[5] On the rights of homosexuals in
South Africa, see, M Ilyayambwa,
‘Homosexual Rights and the Law: South African Constitutional Metamorphosis’
Vol. 2 No. 4, February 2012, International Journal of Humanities and Social Science, New York, Centre for Promoting Ideas (CPI) at
50
[6] It has been alleged that prior
to the enactment of the law, the National Assembly was being lobbied to legalize
same sex relationships and that the passage of the law was a way to “stop the
lobbying.” See, Abigail Anaba, ‘On Same-sex Prohibition: Times Change, People
Change and New Tendencies Emerge,’ The
Scoop January, 14, 2014, available at www.thescoopng.com/abigail-anaba-on-same-sex-prohibition.
Last accessed 13/7/2015
[7] For insight into the growing
number of gay and lesbian community in Nigeria, visit. www.vanguardngr.com/2012/06/revealed-more-people-are-secretly-practising-homosexuality-in-Nigeria/ (last accessed on May, 16,2015)
[8] On a fictional humorous debate
on the Act, see, Eddy Odivwri, “Same-sex Marriage? God Forbid”, This Day Live, January, 25, 2014, available
at www.thisdaylive.com last accessed
on 27/6/2015
[9] “The Storm Over Same Sex
Marriage Prohibition”, This Day Live, 25 January, 2014;
available at www.thisdaylive.com/9
[10] Ibid.
[11] S.C. Ilo, “The Same-Sex
(Prohibition) Act, 2013: A Call for
Dialogue for the Sake of Those on the Margins,” Sahara Reporters, Jan. 29, 2014; Available at …
[12] F. Aborishade, “Same – sex (Prohibition)
Act: A Critical Analysis”, in Sahara
Reporters, Jan. 21, 2014
[13] This Day Live
[14] Ibid.
[15] The then Senate President, David
Mark while justifying the passage of the Act described same-sex marriage as
‘offensive to our culture’. See, This day Live November, 01, 2011, available at
www.thisdaylive.com (last accessed on
27/6/2015
[16] The Telegraph, 14 Jan. 2014;
also available at www.telegraph.co. uk/9.
Without doubt, anyone who is homosexual or lesbian can be sure to face
ostracism, harassment, prejudice and even physical abuse.
[17] Thisday Live, available at www.thisdaylive.com/articles/no-way-for-same-sex-marriage-nigeria-tells-the-world/162386.
(last accessed on 27/6/2015
[18] Ibid.
[19] Historically, it may be noted
that it was the regime of the erstwhile President Olusegun Obasanjo who in 2006
initiated an executive bill outlawing same-sex marriage.
[20] Other descriptions for civil
union include (a) adult independent relationships; (b) caring partnerships (c)
civil partnerships; (d) civil solidarity pacts (e) domestic partnerships (f)
reciprocal beneficiary relationships (g) registered partnerships (h)
significant relationships and (i) stable union.
[21] It has been argued that this
subsection seems to regulate the behavior of Nigerians abroad and that it
disregard the rules of jurisdiction. See, Yinka Olomojobi, “Women and Sexual
Rights in Nigeria”, (KSU BJPL), VOL 5, NO.1, 2013 at 186, 192.
[22]See, E.I Nwongugu, Family Law in Nigeria, Enugu: Ofusan
Nigeria Limited, 1990 at Ixxviii.
[23] Aribisala, Op. Cit
[24] . See, for instance, sections
214 & 217 of the Criminal Code dealing with ‘unnatural offences’ such as
sodomy or buggery and bestiality.
[25] However it is an offence under
section 515 of the Criminal Code for a person to fail to use all reasonable
means to prevent the commission or completion of a felony
[26] Hughes, Dana (14, December,
2009) ‘Africa’s Culture War: The Fight
over Uganda’s Anti-Gay Bill’ ABC News. Also available at en.N.Wikipedia.org/wik.
[27] The
Independent Newspaper (Uganda) 11 January, 2010.
[28] The Act was passed by the Uganda
Parliament on 20 December, 2013 and signed into law by President Yoweri
Museveni on 24 February, 2014. On 1
August, 2014, the Constitutional Court of Uganda ruled the law invalid as it
was allegedly not passed with the required quorum
[29] “Aggravated
homosexuality” is defined to include homosexual acts committed by a person who
is HIV-Positive, is a parent or authority figure, or who administers
intoxicating substances, homo sexual acts committed on minors or people with
disabilities and repeat offenders.
[30] Section 4 (1) (2)
[31] Guaranteed in S. 37, 1999
Constitution of Nigeria (as amended)
[32] Ibid. S. 38
[33] Ibid. S. 40
[34] Ibid. S. 42
[35] Some example of these major
international human rights instruments include Universal Declaration of Human Rights,
1948, The International Covenant on Civil Political Rights ICCPR; and African
Charter on Human and Peoples’ Rights, 1981 which has even been domesticated.
[36] Suit No. FHC/ABJ/CS/197/2014.
[37] This suit was eventually
dismissed by the court on the grounds that the plaintiff did not have the locus
to challenge the Act. Although the court
did not affirm the legality and constitutionality of the Act, it is predictable
that if the case had been heard on merit, the court would have upheld the
constitutionality of the Act. See, TN News, October, 22, 2014. Available at
www.tranparentnigeria.com/news-entries/9350/Nigeria-Co
[38] Gilbert Hert, “Same Sex,
Different Cultures: Exploring Gay & Lesbian Lives”, Oxford: Westview Press,
1997
[39] Ibid.
[40] The World Congress of Sexology,
Valencia, Spain, 1997
[41] The World Association of
Sexology, (WAS), Hong Kong approved this resolution in 1999. See, http://www.worldsexology.org.on
(last accessed on 12/6/2015
[42] Communication No. 488/1992;
Australia. CCPR/C/50/D/488/1992. 4 April, 1994, para.8.5
[43] The World Health Organization
has also defined sexual rights to consist of, “ the highest attainable standard
of sexual health, including access to sexual and reproductive healthcare
services; seek, receive and impart information related to sexuality; sexuality
education; respect for bodily integrity; choose their partner; decide to be
sexually active or not; consensual sexual relations; consensual marriage;
decide whether or not, and when, to have children; and pursue a satisfying,
safe and pleasurable sexual life. The responsible exercise of human rights
requires that all persons respect the rights of others.” See also, the report
of the Special Rapporteur, Paul Hunt, to the 60th session of the
Commission on Human Rights which stated inter alia that “the correct
understanding of human rights principles, as well as existing human rights
norms, leads ineluctably to the recognition of sexual rights as human rights.
Sexual rights include the right of all persons to express their sexual
orientation, with regard for the well-being of others, without fear of
persecution, denial of liberty or social interference. E/CN.4/2004/29, 16
February, 2004, para.54
[44] For instance, Article 16 of the
UDHR, 1948 which guarantees right to marry merely confers the right on men and
women of full age without any recognition of same-sex union. Also, CEDAW, has
no provision which guarantees same-sex marriage. In Article 16 all that the
Convention guarantees is “the same right freely to choose a spouse and to enter
into marriage only with their free and full consent” and not right to be
married to a person of the same sex.
[45] See, K. Sheill, ‘Losing Out in
the Intersections: Lesbians, Human Rights, Law and Activism’, Contemporary Politics, Vol. 15, No. 1,
March, 2009, at 56.
[46] Res A/HRC/17/L.R/Rev. 1 adopted
on June, 17, 2011, (UN Doc.A/63/635) available at http://www.hrw.org/news/2011/06/17
historic - decision-united-nations (last accessed on 29/June, 2015.
[47] Res 275 adopted on May, 12,
2014, available at www.achpr.org/session/55th/resolutions/275
last accessed on 29/June, 2015.
[48]. For instance,
the UN resolution merely urged States to: ensure that human rights violations
based on sexual orientation or gender identity are investigated and
perpetrators held accountable and brought to justice; ensure adequate
protection of human rights defenders, and remove obstacles which prevent them from
carrying out their work on issues of human rights and sexual orientation and
gender identity; take all necessary measures, in particular, legislative or
administrative, to ensure that sexual orientation or gender identity may under
no circumstances be the basis for criminal penalties, in particular executions,
arrest or detention; to commit to promote and protect the human rights of all
persons, regardless of sexual orientation or gender identity.
[49] Lately however, there are
decisions which have validated same sex relationships. In Nicholas Toonen v Australia Case No 488/1992, UN Doc.
CCPR/C/50/D/488/1992 (April, 1994), UN GAOR, Hum.Rts. Cte; 15th
Session, a quasi-judicial decision of
the Human Rights Committee, a Committee which monitors the International
Covenant on Civil and Political Rights stated that laws penalizing same-sex
male sexual behavior violated Articles 2 on non-discrimination and 17 on privacy
on the ground that in the list of prohibition in Article 2, the word “sex” encompassed “sexual orientation”
[50] Emphasis supplied. It is
particularly fitting that the constitution clearly recognizes the place of
public morality in legislation.
[51] The supremacy and primacy of the
provisions of the constitution as stipulated in S.1(3) over other laws
including treaties has since been judicially endorsed in Nigeria. See. General Sani Abacha v Gani Fawehinmi (2000)
6 NWLR (Pt.660) 228.
[52] See, section 218, Criminal Code
[53] See, e:g, section 214 Criminal
Code
[54] Indeed if every claim is
accepted as right, then serial murderers and rapists can sustainably argue that
they are exercising their right to kill innocent lives and rape helpless women.
Undoubtedly, this will be absolutely preposterous.
[55]. See, S. Shavell, ‘Law Versus Morality as Regulators of
Conducts’, American Law and Economics
Review V4 N2 2002 (227-257.)
[56] In Laskey, Jaggard and Brown v UK, also known as the Spanner Case
(1997) 1 ECHR, Ser.A in the prosecution of same-sex sadomasochistic behavior,
the court accepted the government’s rationale that interference with private
life was justified by the interest of protecting public health from
“assaultive, injurious” behavior.
[57] See, Vanguard, January, 21, 2014, available at www.vanguardngr.com/2014/01/gay-marriage-law-us-threat
; naija247news.com/anti-gay-laws-us, of
July, 28, 2014 and naijagists.com/us-to—sanction-nigeria-ova of 21 January,
2014 available at www.google.com.ng/search?q=threat+of+sanction+against+ni
[58] (1983) AC 1 at 3,
[59] See, also Uphill v Wright (1911)1 KB 506
[60] A term which encompasses both
polyandry (plurality of husbands of husbands to one wife) and Polygymy,
plurality of wives to one husband) is a traditional form of marital arrangement
in which a spouse of either sex may have more than one male at the same time.
[61] Re Bethell (1888)38 Ch.D. 220
[62] Hyde v Hyde (1866) L.R.I.P & D. 130
[63] Warrender v Warrender (1835)2 CL & Fin. 488
[65] See, Footes, Levy and Sander, Cases and Materials on Family Law, 1966
at 593.
[66] Ibid at 594. See also, Dele Peters, ‘Feminism and the
Institution of Polygamy: A Forward-Looking Approach’ in Nigerian Current Legal
Problems, Vol.s 4 & 5. I.A. Anya ed;
Lagos: Nigerian Institute of Advanced Legal Studies, 2000 at 1-27 @ 23.
[67] (1861-73) All ER.
[68]. See, for instance, section 57
of the Offences Against the Person Act, 1861. Relevant cases include, R V Crowhurst (1979) Crim. L.R. 399, R v Smith (1994) 15 Cr App. R 407; R v Authur William Balllard (2007) 2 Cr. App.
R. (S) 94 .
[69] (1906)1 KB 720
[70] In Genesis 1 v 27-28, the Bible
notes that “God created man in his own image; Male and female he created them.
[71] God created,
Eve, a woman and not another man as helpmate for Adam. See, Genesis 2: 18
[72] Leviticus 18 :22
[73] Leviticus 18 : 23
[74] Leviticus 18 :7-16
[75] Leviticus 18 :20
[76] In the Qur’an unlawful sexual
intercourse is also prohibited. Indeed, same sex activity is punishable by death.
See Sura 7: 80-84. See also, Qur’an 4:15
[77]. See for instance, section 214
Criminal Code
[78] A public affairs commentator referred
to this somersault as the “return to Sodom.” See S Osuji, The Nation Newspaper, Saturday, July, 4, 2015 at 64
[79] Sexual minority refers to
individuals who have a dissimilar sexual orientation from others.
[80] Kentucky, 1973
[81] Washington, 1974
[82] Colorado, 1975
[83] Ohio, 1975
[84] See also, the
case of De Santo v. Barnsley (Pennsylvania,
1984).
When this couple split up, De Santo sued Barnsley for divorce,
claiming that the couple had a common-law marriage. A common –law marriage is one where the
partners live together and act as a marriage –in 1984, Pennsylvania was one of
those states. The court threw the case
out, stating that if the Pennsylvania common-law statute is to be expanded to
include same-sex couples, the legislature will have to make that change.
[85] New York, 1990
[86] 798 N.E 2d 941 (Mass.2003)
[87] 576 U.S, 2015 argued on April,
28, 2015 and decided on June, 26, 2015,
[88] Available at
http://en.m.wikipedia.org/wiki/Obergefell-v -Hodges, last accessed on
16/07/2015.
[89] The court upturned its earlier
decision in Baker v Nelson
[90] In his dissenting judgment, John
Roberts declared inter alia, that ‘the majority’s approach has
no basis in principle or tradition, except for the unprincipled tradition of
judicial policymaking that characterized discredited decisions such as Lochner v New York, 198 U.S (1905).’ The
decision has also received widespread condemnation around the world. See, for
instance, Vanguard Newspaper, 26, June, 2015. Notable
American politicians cutting across the Republicans and Conservatives political
divide have also criticized the decision. See, VON, USA, Available at,
m.voanews.com/a/2839403.html. last accessed on 16/07/2015.
[91] AG/RES.2435(XXXVIII-0/08)
[92] D Herman, “Rights of Passage:
Struggles for Lesbian & Gay Legal Equality”, London: University of Toronto
Press, 1994, at 38.
[93] Obergefell, et al v Hodges, Director, Ohio Department of Health,
supra
[94] Abigail Anaba, Op.Cit.
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