Assessing the human rights implications of the Nigerian law dealing with sexual orientation

Abstract

The 21st century has witnessed a radical change in the status of sexual minorities, the world over, with this change having a profound impact in the global North, in particular. A series of landmark United Nations, regional and national court decisions, inspired by the increasing effective lesbian, gay, bisexual, transsexual (LGBT) lobby, are progressively announcing the end of institutionalised discrimination which had been the lot of homosexual persons for centuries in many part of the world. However, while there has been a statutory shift towards the welcoming of homosexual persons in the West and in parts of Latin America, thus gradually recognising the injustice synonymous with discrimination on the basis of sexual orientation, African states remain less likely to respect homosexual persons' rights. The Nigerian LGBT experience exemplifies the regressive position in many African states. Not only have laws been enacted that criminalise homosexuality in Nigeria; existing laws have in 2014 been strengthened by newer, ever more stringent anti-homosexuality legislation. The most notable anti-homosexuality law is the Same-Sex Marriage (Prohibition) Act, (SSMPA) 2013, signed into law in January 2014 by then President Goodluck Jonathan. Unlike the anti-sodomy provisions in the criminal and penal codes inherited from the British colonial rulers and the provisions of the Sharia legal codes in operation in some of the states of northern Nigeria, the controversial SSMPA explicitly criminalises same-sex marriage and goes further by also criminalising broader categories of homosexual related conduct throughout the territory of Nigeria. This thesis argues that Nigerian laws criminalising consensual adult homosexual conduct prima facie violate the human rights provision of the Nigerian Constitution and Nigeria’s international law obligations. The thesis takes a holistic view of the major cultural, religious and moral arguments proposed by opponents of sexual minority rights in their efforts to justify the continued discrimination of homosexual persons and same-sex consensual sexual conduct in Nigeria. The study aims to contest the validity of these arguments by presenting a case for the decriminalisation of homosexual acts in Nigeria through such instruments as judicial intervention, legislative enactment, executive action and sexual minorities’ rights activism. This study highlights the fact that people do not choose their sexual orientation and that consensual adult homosexual conduct is no more inherently harmful to others than heterosexual acts. Contrary to the widespread belief in Nigeria that consensual adult homosexual conduct is based on imported Western values, this study underlines that homosexuality has been an undeniable fact of human existence predating colonialism – also in what today is Nigeria. In this regard, by demonstrating the surprising tolerance toward homosexuals in pre-colonial Idomaland, this study further confirms the notion that consensual adult homosexual conduct is not a Western import. In the process, this study sheds new light on pre-colonial attitudes to homosexuality in Idomaland, North Central Nigeria, where no prior field research has been conducted. The study further discredits the religious objection to consensual adult homosexual conduct by adopting a contextual reading of Islam and Christianity, the two dominant religions in Nigeria, thus allowing for the co-existence of religious beliefs and the protection of sexual minorities. This study affirms that the moral objection to consensual adult homosexual acts fails for the very reason that such practices do not cause harm to either society or other individuals. This study fits Isaiah Berlin’s conception of liberty as individual autonomy into the argument for the liberalisation of Nigerian sexual minorities’ environment. The application of Berlin’s concept of negative liberty to the Nigerian homosexual environment supports the affirmation of sexual minority rights as fundamental human rights.