Unpacking Nigeria’s Same-sex Marriage (Prohibition) Act

Introduction

In 2013, Nigeria made headlines with the passage of the Same-Sex Marriage (Prohibition) Act, a legislation that not only reinforced traditional notions of marriage but also criminalized same-sex relationships.

This Act has stirred significant debate, not only within Nigeria but also on the international stage, raising questions about the intersection of marriage, tradition, and human rights.

This article aims to delve into the specifics of Nigeria’s Same-Sex Marriage (Prohibition) Act, examining its legal provisions and exploring its impact on both marriage dynamics and the LGBTQ+ community.

By unpacking the complexities of this legislation, we seek to understand the practical implications it has had on individuals and society at large. Join me as I navigate through the legal and social landscape shaped by this controversial law, aiming to shed light on its implications for marriage and LGBTQ+ rights in Nigeria.

What is Marriage?

Marriage according to the Black’s Law Dictionary is the civil status of one man and one woman United in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.

Another legal definition of marriage was given in landmark case of Hyde v. Hyde,[1] which was heard 20th March 1866 before Lord Penzance and this established the common law definition of marriage.

In this case, John Hyde, an English mormon who had been ordained to the priesthood of the Church of Lord Jesus Christ of Latter Day saints (LDS Church), brought an action for divorce of his wife, Lavinia on the grounds of adultery. He had left the LDS church and begun to make and publish anti-norman material which caused him to be excommunicated from the LDS church. His wife then left him and remarried in Utah territory, which was the basis of his divorce suit. The court denied his petition on the grounds that the relationship he had entered into did not constitute a marriage under the laws of England.

Lord Penzance found out that polygamy and concubinage do not constitute a marriage recognized by English law and neither could the custom and tradition unknown to the court, form the basis for the court’s judgement. Thus, the court dismissed his claim on Lord Penzance pronounced;

“I conceive that marriage as understood in Christendom may for this purpose be defined as the voluntary union for life of one man and one woman to the exclusion of all others”

The significance of this is that the union between people of same gender or sex is prohibited and not regarded as marriage, as the right definition involves one man and one woman. It has also been used as an influential consideration in reaching the decisions in recent landmark cases.

However with recent development and the enactment of the Marriage (Same-Sex Couples) Act[2] in the UK which allows same-sex marriage in England and Wales, the definition has become debatable, irrelevant and unenforceable in the United Kingdom.

A monogamous marriage is defined in Nigeria as a marriage which is recognized by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage. [3]

Prohibition of Same-sex Relations in Nigeria Prior to the Same Sex Marriage (Prohibition) Act

In 2013, the Nigerian National Assembly passed a law which made same-sex marriage illegal. However, before the passing of this law, consensual sex and sexual relations between persons of same-sex were prohibited in Nigeria under anti-sodomy laws enacted in the Colonial era, and same-sex marriages were not legally recognized. Also, same-sex relations were criticized and prohibited on religious, customs and traditional grounds.

Several people had condemned homosexuality before the passage of the Act. On March 8, 2004, on the issue of gay marriage, the Daily Champion wrote that is “assaults the basic values of humans and human societies…that there is everything repugnant and profane in this development“.[4] The prevailing view in Nigeria is one that regards homosexuality as an “abuse of traditional values” and work of occultism. Contemporary Nigerian society has had a long standing intolerance of homosexuality, particularly amongst religions communities while calling the act of homosexuality the move of “satanic attack on the Church of God”.

Within the Hausa Communities, male homosexual prostitutes known as Dan Dauda[5] are common among the elite classes and are frequent in hotels in major northern cities. [6]

Under the Shariah Law, Judge Alkali Dahiru Muhammad Gusau of Higher Shariah Court in Kanwuri Gusau, cited a provision of Section 131 of the Penal Code when he sentenced Abdullahim Abubakar Barkeji in February 2002 to a hundred (100) strokes of cane and 1-year imprisonment for committing sodomy with a man.[7] In another case, one Jibrin Babaji was sentenced to death by stoning for sodomy in Bauchi State. [8]

Furthermore, the Criminal Code Act already illegitimized and criminalized homosexual relations in Nigeria.Section 214 of the Criminal Codewhich talks about unnatural offences, provides thus;

Any person who‐  

(1) has carnal knowledge of any person against the order of nature; or  

(2) has carnal knowledge of an animal; or  

(3) permits a male person to have carnal knowledge of him or her against the order of nature, is guilty of a felony and is liable to imprisonment for fourteen years.  

 Section 215 then goes further to say that any person who attempts to carry out any of the acts mentioned in Section 214 of the Act [9] is punishable upon conviction by seven years imprisonment. Also, Section 217 of the Criminal Code Act provides thus;

“Any male person who, whether in a public or private domain, commits any act of gross indecency with another male person, or suborns another male person to commit an act of gross indecency with him, or attempts to instruct any other male person to suborn any such act, be it with himself or with a third male person, whether publicly or privately, shall be guilty of a felony and shall be punished with three years’ imprisonment”.

It should be noted that lesbianism was not included in the Criminal Code and there was no legislation that criminalized sexual relations amongst women.

An Overveiw of the Same sex Marriage (Prohibitions) Act, 2013

The law passed by the National Assembly which prohibits same-sex marriage is the Same-Sex Marriage (Prohibition) Act 2013 [10]. This act was a controversial bill that was first put before the National Assembly by Justice Bayo Ojo on Jan 18, 2006, but it was not passed during the first reading.

The bill was later approved by the Federal Executive Council on Jan 18, 2007 and re-sent it for the National Assembly. However, it received condemnation form human rights organizations and possibly placing Nigeria at odds with several international agreements to which the country is signatory. Thus, the bill was not passed by either house.

The proposed bill included a 5-year imprisonment for anyone who performs, witnesses, aids or abets a same-sex marriage and prohibits the display of same-sex amorous relationship as well as the adoption of children by gays or lesbians. Also stated in the bill is a 5-year sentence for involvement or support of lesbian or gay people rights. The bill’s purpose was to ban all gay-related activities in the country.

In February and March of 2013, the United States State Department and sixteen (16) international organizations condemned the bill stating that it was an infringement of people’s rights to freedom of expression and association provided for by the Nigerian Constitution and the African Charter on Human and People’s Rights, and also a barrier to the struggle against the spread of HIV/AIDS in Nigeria. The passage of the bill was however praised by the Mass Resistance which stated that Nigeria is taking a bold step in fighting back attempts to corrupt public morality.

Despite international pressure, the bill was passed into law and signed by President Goodluck Jonathan on Jan 7, 2014. Thus, the Same-Sex Marriage Prohibition Act 2013, became enforceable in Nigeria. The United States Secretary of State, John Kerry stated that the US is “deeply concerned” by the laws that “dangerously restrict freedom of assembly, association and expression for all Nigerians”.[11]

The explanatory memorandum [12] provides that the Act prohibits a marriage contract or civil union entered into between persons of same sex, and provides penalties for the solemnization and witnessing of same thereof.Section 1provides thus;

• A marriage contract or civil union entered into between persons of same sex:
• (a) is prohibited in Nigeria; and
• (b) shall not be recognized as entitled to the benefits of a valid marriage.
•  A marriage contract or civil union entered into between persons of same sex by virtue of a certificate issued by a foreign country is void in Nigeria, and any benefit accruing there-from by virtue of the certificate shall not be enforced by any court of law.

Section 3 of The Act further states that only a marriage contracted between a man and a woman shall be recognized as valid in Nigeria. Hence, the definition of marriage as a legal union entered into between persons of opposite sex in accordance with the Marriage Act, Islamic Law or Customary is the definition of marriage.

Section 4 of the Act provides that the registration of gay clubs, societies and organizations with the meetings and processions as well as the public show of same-sex amorous relationship is prohibited in Nigeria. That is, gay clubs, societies and organizations, their sustenance, processions and meetings is prohibited. To even display or show of the same sex amorous relationship directly or indirectly is also prohibited.

In all, the things stated above are offences and these offences have attendant penalties. A term of 14 years’ imprisonment awaits any same-sex group of persons who marry, contract or engage in civil union.[13]  A person who registers, operates, participates in gay clubs, societies and organizations either directly or indirectly and makes public show of same sex amorous relationship is liable to a term of 10 years’ imprisonment.[14]  A person or group of persons who also aid or abet the solemnization of such same sex marriage is also guilty of a term of 10 years’ imprisonment. [15]

Effect of the Same-Sex Marriage (Prohibition) Act 2013

From the foregoing, this Act criminalized the LGBTQ+ (lesbian, gay, bisexual, transgender, queer, plus) Community. It was discovered that although same-sex activities between men were criminalized, the passage of the bill into law worsened the situation and increased initial attacks to members of the LGBTQ Community.

The law encouraged the violation of the human rights to dignity of human persons provided for in Section 34 of the Constitution of the Federal Republic of Nigeria 1999 [16] and Article 5 of the African Charter on Human and Peoples Rights 1986. [17] The media reported that a high level of violence, mob attacks, extortion, aggression, arbitrary detention and harassment were carried out on the community and their supporters. 

Although there has been no evidence as to the prosecution of individuals under this act, the heated public debate and heightened interest of social media in the issue of homosexuality has made it more obvious and the members of the LGBTQ+ Community more vulnerable. Interviewees and human rights organizations said that the law was an avenue for people to act out their homophobia with brutality without fear of legal consequences.

Many members of the community interviewed on social media stated that the general public was against homosexuality on the grounds of religious and cultural beliefs, but now that it has been enacted into law, many people saw it as an avenue to vent out their anger and annoyance for their choice of sexual identity. For instance, in February 2014, in a village in Abuja, a group of about 50 people armed with cutlasses, clubs and so on, dragged at least 14 men from their houses and beat them up. They were heard saying they were doing the work of President Goodluck Jonathan and were cleansing the community of gay.[18]

The passage of the bill into law also encouraged police extortion and extra judicial and unlawful arrests and detention. For instance, shortly after the passage of the Act, policemen raided an HIV awareness meeting and arrested 12 people on suspicious of “promoting homosexuality”. They were detained in police custody without charge for a period of three weeks and were finally released after paying a bribe of N100,000 (one hundred thousand naira).[19] Another set of interviewees said that prior to the passage of the law, they were not detained.

At a birthday party at Ibadan, 21 men were arrested at a birthday party after a member of the public had called and invited policemen, claiming that homosexual activities were being carried out. [20] The police arrived and found a bag of condoms belonging to the HIV peer educator. They were detained for 4 days and only released after paying bribes ranging from 10,000 naira to 25,000 naira.

Policemen now see the law as a tool for the violation of human rights by acts of torture, sexual violence, extortion and whatnot towards people of the community, and increased mob violence have been carried out against persons based in their real or perceived sexual identity. LGBTQ+ victims of crime said that the law prevented them from reporting to the authorities due to fear of exposure and arrest which again means that they cannot be guaranteed their rights to fair hearing as provided for inSection 36 of The Constitution and Article 7 of the Charter.[21]

Also, the enactment of this law initiated and encouraged violation of human rights to freedom from discrimination as contained inSection 42 of The Constitution and Article 2 of the Charter.

In November 2015, the African Commission on Human and People’s Rights urged the Nigerian government to review the Act as there were increasing acts of violence, and discrimination on people based on their sexual orientation and gender identity and ensure adequate care for the LGBTQ Community.[22]

Also, other human rights organizations have imposed obligations on the Nigerian government to ensure equal rights before and protection of the law, respect and protect of rights to freedom of expression, association, privacy and freedom from discrimination and dignity of human persons. It has also called for prevention of arbitrary arrest, torture and cruel treatment towards people of LGBTQ Community.

Weaknesses of the Same-Sex Marriage (Prohibition) Act 2013

Whilst the Act is fighting against marriage entered into between people of the same sex, it is of great knowledge that same sex relations and marriage also exist amongst women. However, the Act is silent on this.

The act of a woman being in an amorous relationship is known as and called lesbianism as opposed to their male counterparts referred to as gay. There abound in European countries of the world marriages celebrated between two women. This is not mentioned in the Act.

This may be interpreted as non-inclusion of women in the definition, as the word ‘gay’ was specifically mentioned as opposed to ‘lesbian’. If the interpretation of the literal rule of construction of this Act is taken into consideration, it could defeat the very essence of the creation of the Act.

Further, the Act states that the registration of gay clubs, societies and organizations are prohibited but is silent of the creation of lesbian organizations, societies and clubs. Also, the registration of lesbians into these clubs and organizations are not stated as the Act makes regards to gay people which translates to homosexuals.

Also, there is no evidence of punishment of homosexuality under criminal law. Many people who have been arrested and unlawfully detained on ground of homosexuality were not charged. This is because there has been no concrete evidence worthy of charging one with homosexuality.

Thus, the fact that there has been no civil action or prosecution of real or “suspected” homosexuals just further emphasizes the irrelevance and redundancy of the Act. As seen from the above cases of unlawful arrests and detention by the policemen on “perceived and suspected” homosexuals, they were not charged with the crime of homosexuality because there was no material evidence to corroborate their actions of detention and were released only through bribes which further police extortion since the passage of the law.

What should be done to avoid this is the amendment of the Act. That is, when an opportunity for the amendment of the Act presents itself, the Act should include sexual relations amongst women and expressly prohibit sexual relations, civil union, amorous relationship, registration of lesbian clubs and organizations between women so that any loop holes will be adequately covered by the Act. Also, the act should ensure the protection of suspected homosexuals from angry and annoyed citizens due to their choice of sexuality and sexual orientation.

Conclusion

In essence, the institution of marriage has long been defined by legal frameworks and societal norms, often reflecting cultural, religious, and historical perspectives.

In the eyes of the law, marriage traditionally entails a union between one man and one woman, with rights and responsibilities delineated by legal statutes. This understanding, rooted in centuries-old legal precedents, has shaped the legal landscape surrounding marriage, particularly in jurisdictions like Nigeria where traditional values hold sway.

However, the landscape of marriage and human rights underwent significant upheaval with the advent of the Same-Sex Marriage (Prohibition) Act of 2013 in Nigeria. This landmark legislation not only codified the traditional definition of marriage but also criminalized same-sex relationships and advocacy for LGBTQ+ rights. The Act, while reflecting prevailing societal attitudes towards homosexuality, drew criticism from international human rights organizations for its infringement on fundamental rights to freedom of expression, association, and privacy.

The enforcement of the Same-Sex Marriage (Prohibition) Act has had profound implications for the LGBTQ+ community in Nigeria. Reports of violence, discrimination, and arbitrary arrests underscore the challenges faced by individuals whose sexual orientation deviates from societal norms. Moreover, the Act’s silence on lesbian relationships and its ambiguity regarding enforcement have raised questions about its effectiveness and fairness.

In light of these concerns, calls for the review and amendment of the Same-Sex Marriage (Prohibition) Act have grown louder. Advocates argue for a more inclusive legal framework that respects the rights and dignity of all individuals, regardless of sexual orientation or gender identity. Such amendments would not only address existing gaps in the law but also mitigate the harm inflicted on marginalized communities.

Moving forward, the path to progress lies in fostering dialogue, understanding, and empathy. By acknowledging the inherent dignity and worth of every individual, irrespective of sexual orientation, Nigeria can pave the way for a more just and inclusive society. Through legislative reform, education, and advocacy, the country can uphold its commitment to human rights and equality for all its citizens, ensuring that no one is left behind in the pursuit of justice and dignity.

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[1] (1866) 1 P & D 130.

[2] Marriage (Same-Sex Couples) Act 2013 (c. 30).

[3] The Interpretation Act Cap 17 Laws of the Federation of Nigeria, 2004.

[4] Editorial, ‘Gay Marriage’ Daily Champion (Lagos, 8 March 2004).

[5] Meaning “men who are wives of men”.

[6] Sunday Times 9 Nov. 2003.

[7]  Isha Ibrahim Maru, ‘Nigeria: Man Gets 100 Strokes, One-Year Jail for Sodomy’ THIS DAY (Gusau, 28 February 2008) allafrica.com/s/ accessed 27 February 2024.

[8] Tashikalmah Hallah, ‘Nigeria: Sodomy: Sharia Court Sentences Man to Death By Stoning’ DAILY TRUST (Bauchi, 25 September) /allafrica.com/l accessed 27 February 2024.

[9] The Criminal Code Act

[10] Hereinafter referred to as ‘The Act’.

[11] Editorial, ‘Nigeria signs harsh anti-gay bill into law’ AL JAZEERA (Nigeria, 13 January 2014) http://america.aljazeera.com/articles/2014/1/13/nigeria-signs-harshantigaybillintolaw.html accessed 26 February 2024.

[12] Of The Act.

[13] Section 5(1) of The Act.

[14] Section 5(2) of The Act.

[15] Section 5(3) of The Act.

[16] Hereinafter referred to as The Constitution.

[17] Hereinafter referred to as The Charter.

[18] Adam Nossiter, ‘Mob Attacks More Than a Dozen Gay Men in Nigeria’s Capital’ THE NEW YORK TIMES (New York, 15 February 2014) nytimes.com/2l accessed 27 February 2024.

[19]Human Rights Watch,  ‘ “Tell Me Where I Can Be Safe” The Impact of Nigeria’s Same Sex Marriage (Prohibition) Act’ hrw.org/rt accessed 29 February 2024.

[20] Seyi Peters, ‘Police Arrest 21 Men With 122 Condoms In Ibadan For Allegedly Belonging To A Gay Cult’ THE TRENT (Lagos, 18 May 2015) thetrentonline.com/p/ accessed 29 February 2024.

[21] African Charter on Human and People’s Rights 1986.

[22] (n 21).

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