The judiciary and the protection of the human rights of homosexuals in Nigeria

Abstract

Some Nigerian statutes proscribe consensual adult homosexual conduct. As a result, homosexuals have been under increasing human rights violations, including arbitrary arrest, police brutality and denial of access to healthcare services. The Constitution of the Federal Republic of Nigeria 1999 (CFRN) (amended) provides for the rights of every individual to liberty, dignity, privacy, freedom from discrimination and freedom of association. The Courts in Nigeria are bestowed with the power of constitutional interpretation and the duty to protect individuals against human rights violations. However, Nigerian courts have failed to protect the rights of homosexuals in Nigeria against the rights limiting provisions of legislation which criminalise consensual adult homosexual conduct. Legal scholars such as Ronald Dworkin encourage the adoption of the moral reading of the human rights provisions of the constitution. Ronald Dworkin and other proponents of the moral reading of the constitution are of the view that judges need to interpret the constitution in a manner that will protect the rights and liberties of all persons, including minorities. Constitutional moralists say the interpretation of the constitution to satisfy the wishes of the majority could lead to breaches of the rights of members of minority groups. Courts in other jurisdictions have variously applied the moral reading of the constitution and consequently arrived at decisions protecting the rights of homosexuals. In this research, I shall critically study the theory of the moral reading of the constitution in order to understand how the moral reading of the constitution could lead to the protection of the rights of members of minority groups. Thereafter, I shall examine the court system in Nigeria in order to understand how the courts could come to the aid of homosexuals, whose rights have been put on the line by the existence of statutes which criminalise consensual adult homosexual conduct(s). Furthermore, I shall carry out a study of how courts in other jurisdictions have applied the moral reading of the constitution to arrive at decisions that protect the rights of homosexuals and establish whether Nigerian courts could learn some lessons on the protection of the rights of homosexuals from the decisions of courts in other jurisdictions.