The Constitutionality of Anti-Gay Laws in Nigeria

Since the bill currently before the National Assembly targeting homosexuals in Nigeria has not yet been passed into law, there will not be any need to comment on it. Rather this article is more concerned with the existing laws, which outlaws same sex relations in the country.

Much has been said about the history of these laws, and the fact that most of them derive from the colonialists, however, this article will argue that even in a country where discrimination and violence against people based on their sexuality is rampant, it is still possible to secure the rights of individuals within that class.

This, coming against the backdrop of arguments raised predominantly by people who hinge their debate on morality, claims that same sex relations are unconstitutional. On the contrary, the constitution of Nigeria did not make any provisions banning homosexuality.

The Nigerian state is founded on the ideal of freedom, equality and justice. The right to freedom from discrimination is expressly granted every Nigerian by the constitution in S.42 (1) (a). The section provides that “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 CITIZEN OF OTHER COMMUNITIES, ETHNIC GROUPS, PLACES OF ORIGIN, SEX, RELIGIOUS OR POLITICAL OPINIONS ARE NOT MADE SUBJECT TO.”

Despite the statement credited to the past minister of foreign affairs at a summit abroad a few years ago, claiming that there are few gay people in Nigeria, it might come as a shock to him that there is indeed a gay community in Nigeria and this community has in fact grown substantially over the years. A community is defined by BLACK’S LAW DICTIONARY (NINTH EDITION) to mean “A SOCIETY OR GROUP OF PEOPLE WITH SIMILAR RIGHTS OR INTERESTS.”

The provisions of the constitution cited above are very important to every Nigerian citizen. The framers of the country’s constitution realized this fact, which is why section 42 of the 1999, constitution is not part of those sections of the constitution that can be restricted upon or derogated as is provided for by section 45.

This argument must be made because the Nigerian legislature will always rely upon section 45 of the constitution in making laws that tend to derogate the fundamental rights of citizens. Section 45 indeed allows laws, which are reasonably justifiable, in the interest of Defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons. The section only covers sections 37, 38, 39, 40 and 41 of the constitution.

It is my belief that in the light of what has been written above, provisions of the CRIMINAL CODE 2004, cap 28, which specifically target same sex relationships are indeed discriminatory against the gay community.

Section 217, of the criminal code act, is inconsistent with section 42 of the constitution. The constitution is “the barometer on which the constitutionality or otherwise of a statute is measured. Where a statute is inconsistent or in conflict with any provisions of the constitution, the provision of the statute will be null and void. This is essentially the language of section1 (3) of the constitution,” per justice Niki Tobi (j.s.c) in A.G LAGOS STATE V. A.G FEDERATION (2003)12NWLR (PT.833)1, SC, PAGE 244, PARAGRAPHS A-D.

The time has come for the country to see the truth about most of these laws, which have been relied upon to destroy the reputations of many people in our society. These laws are being championed by the sentiments of fanatical religious leaders and their fundamental followers. The argument about law and morality has been going on for years. These religious bigots and hypocrites have succeeded in twisting what they feel is a sin in the eyes of their religion into what they feel the law should be for all. Even the courts have held that morality or sentiments have no place in the administration of justice. Why can’t the legislature borrow a leaf from the judiciary? And for how long will they rely on selfish sentiments to make laws, which are inimical to the peaceful existence of a particular community?

The whole essence of anti gay legislation is based on the attempt by the legislature to protect and safeguard public morality. But how does an act between two consenting adults injure or corrupt public morals? In his ESSAY ON LIBERTY (1859), JOHN STUART MILLS distinguished between conduct or ideals that affect only the individual from conduct that may do harm to others. He argued that governmental intrusion is justified only to prevent harm to others, not to influence a person’s private morality.

In a society where security of lives and property has become an issue, where corruption has completely destroyed public service, it is extremely hard to fathom the reasoning behind these anti gay laws. How does murder (an act that affects the lives of other citizens and that is indeed dangerous to society) fit into the same category as an expression of love conducted between two consenting adults?

In the light of the above, it has now become expedient for the gay community in Nigeria and Africa in general, to come together and form a unified body, which, alongside other liberal and progressive organizations representing the interest of minorities in other marginalized communities in the country and on the continent, will fight to preach a message of love, tolerance, and justice for all.

Most gay people in Africa are deeply religious, but it has become quite clear for the world to see that it might possibly take another century for the major religions on the continent to recognize same sex relations as no treat to humankind.

There is a consensus of opinion amongst gay people in and outside Nigeria of the need for an organization of the type mentioned above, but the argument has been whether such an organization has to be a religious body or a political one. I am sure a compromise can be reached between these two schools of though. The most important thing is the realization that it is constitutional for every citizen of Nigeria to strive to identify and belong to an organization that fights for his or her interest, recognizes his or her rights and does not discriminate against his legitimate rights. Whether this new organization would ultimately lead to the emergence of a new religion that embraces gay rights, or a strong political lobby group, is immaterial. Either way, the time is right for gay Africans to get actively involved in their immediate political, religious and socio-economic environment.

GBENGA ASIWAJU

DIRECTOR STRATEGIC ALLIANCE FOR MINORITY EQUALITY
ABUJA, NIGERIA.

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Posted by GBENGOOS on July 10, 2010. Filed under Sexuality. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry