Nigerian proposed law on same sex marriage limits freedom and human rights

 (This unattributed article about the same-sex marriage bill in Nigeria was published by Behind the Mask on 29 July 2011)

Fundamental human rights are interrelated and interdependent. Discrimination against anyone on the basis of perceived or real sexual orientation, gender expression and identity is a core violation of human rights.

The limit of freedom to fundamental human rights is only justified when the exercise of rights of one is in an attempt to infringe on the rights of others. Does same-sex consensual relationship hurt anyone?

Back in 2009 a Guardian newspaper editorial written by Luke Onyekakeyah shared with readers the myth and misconception that homosexuality is Western and therefore should not accepted by Africans.

I would like to use this medium to educate people and say that homosexuality existed even during the pre-colonial era. At this time, we Africans were tolerant and free to express our sexuality in diverse ways.

A typical example is the traditionally accepted marriage of two women as husband and wife in the southern region of Nigeria. I have been part of a recent research that revealed this information but I am not allowed to mention in this response the communities engage in this practice because of the stigma attached to it.

Should we therefore, as Nigerians stab our compatriots in the back? Should we for the sake of “morality” disrespect people because of what their beliefs are?

In fact, it is the adoption of the sodomy laws from the British colonial masters that is Western. However, I will not indict the Westerners for the law but will point out our own myopia and our ignorant attitude when it comes to censoring any laws we adopt. We still make this mistake. The Nigerian government signs onto international treaties without reservation abroad, then comes back home to sing a different tune.

Often I ask the question, “What is wrong with Westernizing the world?” After all, Christianity which is one of the most respected religions across the world is a Western import. The alphabetisation of our various languages is Western. Our current dress style and fashion is Western. Even the protest of Christian groups at the March 11, 2009 public hearing on the Nigeria same-sex marriage prohibition bill portrays great influence of Western culture.

The website content of Daughters of Sarah- a Christian group present at the public hearing justifies this argument. The following is an excerpt from her website:

About our U.S. Contact
Katheryn Jones founded the Sons and Daughters with Destiny organization in 2002. She has dedicated the majority of her life in serving people in the area of West Africa Missions, Youth, Juvenile and Adult Detention Centres and Christian Education. She is currently serving as the United States Liaison/Contact for the Daughters of Sarah Ministry and works in conjunction with both organizations to provide financial/non-financial support for the programming of the Daughters of Sarah Ministry. Katheryn is currently employed by Allstate Insurance Company and during the last 20 years has held various leadership positions in the areas of claims, call centres, communications and education/training.

The advocacy against the same-sex marriage prohibition by international organizations that are concern about human rights in general is not a shame. In fact, the shame is the introduction of such a bill to become law. 

Human Rights Watch, Global Rights and even Amnesty International are organisations that have worked and still working in Nigeria on many other issues of human rights violations for a very long time. We have all commended their works and sympathized with the victims they defend. So why on earth should anyone call it a shame for these organizations to express their concern over a bill attempting to violate the rights of a social group and for that matter, targeted towards human rights defender?

The issues of sexual diversity and human rights is broad, therefore it is very easy to misunderstand the concept of sexuality.

Bestiality is sexual intercourse with an animal that cannot communicate in human language and invariably cannot give consent to any sexual conduct with human being. The impossibility for an animal to give consent to sex is what justifies the immorality in having sex with them. Paedophilia is same because it involves minors, who cannot give consent. As such, bestiality and paedophilia should not be compared with homosexuality. Homosexuals are people who have sexual and emotional feelings towards persons of same sex and in so many cases expect where minors are concerned and in cases of rape, their love is consensual.

The real motive for the introduction of this bill cannot be properly located in the realm of the powers to make law for the peace, order and good government contained in Section 4(2) of the Constitution of the Federal Republic of Nigeria.

Clearly, the bill is unnecessary and duplicitous and therefore a waste of public resources. There are ample provisions in our penal laws to deal with the behaviour the bill attempts to criminalise. For instance Section 14 of the Criminal Code (applicable in all the 17 southern states in Nigeria) provides a sentence of 14 years imprisonment for it terms ‘carnal knowledge against the order of nature’. Section 284 of the Penal Code Law (applicable in all the 19 states in Northern Nigeria and Abuja) has a similar provision and punishment.

This bill if allowed to be passed will in very many ways affect the relationship of Nigeria with different countries as the bill voids marriages otherwise validly conducted under the laws of other nations. This attempts the question the sovereignty of other nations and reciprocity will entail Nigeria’s sovereignty being questioned in such countries.

The right to private and family life and the right to freedom of thought, conscience and religion are all rights constitutionally guaranteed. The law will take away all of this.

It is clearly a bill that is targeted at a minority group on the basis of their different sexual orientation. Section 42 of the Nigerian Constitution prohibits discrimination on several grounds. The section provides-

(1) 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, on in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not subject; or
(b) Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, sex, religions or political opinions.

The question is whether prohibiting same gender marriage in Nigeria will be a violation of the fundamental right to freedom from discrimination recognized and guaranteed under section 42? The Courts in Nigeria are yet to interpret the word “sex” to my knowledge to enable us know the extent of protection guaranteed under this provision. However, it is safe to argue that a Nigerian court faced with the task will interpret the ‘word’ sex to include ‘sexual orientation’. This is so because in TOONEN V. AUSTRALIA the Human Rights Committee interpreted the word ‘sex’ to include sexual orientation. Nigeria signed the International Covenant on Civil and Political Rights without reservation in 1993. It then follows that institutions of the Nigerian state will ensure that that they conduct their affairs in accordance with Nigeria’s obligations under international law.

Moreover, Nigeria is currently the Chair of the Human Rights Council and it will indeed be a major set-back to Nigeria’s diplomatic victory in attaining that chair to begin to embark on conducts that are in clear breach of its international human rights obligations.

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