Since news of the enactment of the Same Sex Marriage (Prohibition) Act 2014, (which people loosely refer to as the ‘Anti-gay bill’) broke; both Nigerians and the International community have been reacting to the veracity or otherwise of this piece of Legislation. Whilst some have hailed it as timely, and a reflection of the wishes of the Nigerian people, others have given it the stick, describing it as unconstitutional, draconian and suppressive.
This writer will not bother with the reasons adduced by both camps for and against the Act, but will attempt a legal review of the Legislation with a view to highlighting its provisions and the misconceptions that have trialed same.
As stated above, opponents of the Act have posited that it violates some constitutionally guaranteed rights as enshrined in Chapter 5 of the Constitution of the Federal Republic of Nigeria 1999 (as amended); but they however fail to realize that the same constitution, in its wisdom, understands that fundamental rights in themselves are not absolute, and went on to provide in section 45 (1) (a) thus:
“Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is REASONABLY JUSTIFIED in a democratic society –
In the interest of defence, public safety, public order, PUBLIC MORALITY or public health” (emphasis mine).
From the foregoing, what we can readily deduce is that whilst the Constitution provides for, and guarantees certain rights as fundamental, it also ensures that the protection and/or enforcement of these rights are subject to the overriding interests and considerations which are reasonably justifiable. The question will then be – is the Same Sex Marriage (Prohibition) Act reasonably justified given the interests listed in paragraph (a) of subsection (1) of section 45 of the Constitution? In the opinion of this writer, the answer will be a resounding yes!
There is no gain saying that Nigeria is a very religious country with its population evenly divided between Christians and Muslims, together with a sizable number of people who are traditional worshippers, all of whom (or at least a majority) believe that the idea of same sex unions patently violate their religious and cultural beliefs and the Legislature (National Assembly) being a representation of the people, and having been empowered by the Constitution in section 4 thereof “…to make laws for the peace, order and good government of the Federation…” and in the interest of public morality are unequivocally discharging their constitutional responsibilities with the enactment of the Act.
We all know that certain influences Nigerians have been exposed to over the years, have encouraged the proliferation of homosexuals and homosexual activities in the country in recent times. This has resulted in conflicts, because most people feel offended by these acts and sometimes go out of their way to resist such tendencies. It can be argued that the Act seeks to put an end to these conflicts by prohibiting and discouraging citizens from engaging in activities that offend the sensibilities of the greater majority of the populace thus putting themselves in harm’s way.
Again, others might argue that why should there be Legislation for acts that are essentially private. Now this is where this writer will seek to make a distinction. The Same Sex Marriage (Prohibition) Act does not criminalize or prohibit homosexuality in itself, it only prohibits homosexual ‘marriages’, civil unions and other relationships under that head, amorous public display of such relationships, and promoting and/or engaging in homosexual activities. The law also disallows anyone to witness, aid and abet the solemnization of a same sex marriage or civil union.
These acts, as prohibited under the Act, are called ‘victimless crimes’. A victimless crime is a term used to refer to actions that have been ruled illegal, but which are argued not to directly violate or threaten the rights of any other individual. It often involves consensual acts in which one or more persons commit a criminal offence in which no other person is harmed. Examples include prostitution, gambling and the use of illicit drugs.
The understanding is that pure democratic view of government endorses the majority’s right to overrule any minority, thus if an act offends the majority of the population, even if the act is victimless, then the representatives of the majority have the right to prohibit and punish it. They may consider that the direct harm of the activity in question is so great that the people involved need to be protected against their own actions, regardless of their desires.
Some behaviors can be argued to damage social fabric or social custom, even if it does not harm anyone who does not consent. Restriction of these acts can be linked to preserving morality in the community at large and this finds credence in Section 45 (1) (a) supra.
Bringing it home to the Same Sex Marriage (Prohibition) Act, the law seeks to prohibit the acts which have been reeled out hereinabove, in preservation of public morality even though they are ‘victimless’.
Having firmly established that the Act is constitutional, let us take a detailed perusal of the provisions of the Act.
Before we proceed, it is the opinion of this writer that the draftsman of the Legislation did a shoddy job of it, as it is fraught with ambiguities and rather verbose wordings.
Section 1 of the Act generally prohibits any marriage contract or civil union between persons of the same sex and disallows any benefits accruing therefrom.
It is my opinion that the use of the word ‘marriage’ here is out of place because even the Act itself defines Marriage as “a legal union entered into between persons of the opposite sex in accordance with the Marriage Act, Islamic Law or Customary Law’. What this means is that you can only have a ‘marriage’ if and only if it is between persons of the opposite sex, and it is in accordance with the laws cited. Thus the term ‘marriage’, can not be used to qualify any union between persons of the same sex (at least under Nigerian Law).
However, the letter and spirit of that provision is not lost on us.
Section 2 disallows the solemnization of marriage or civil union between persons of the same sex in any place of worship (by whatever name called) and any certificate issued in consequence thereof shall be invalid.
What this means is that the solemnization of same sex marriage or civil union, can not be carried out in any place of worship (by whatever name called) or in any place for that matter within the Federal Republic of Nigeria. However, if persons of the same sex succeed in the solemnization of their ‘marriage’ or civil union, any certificate issued to them in that regard shall be invalid.
Section 3 states what qualifies as a valid marriage in Nigeria without more.
This section is clear enough in consonance with the idea it seeks to promote.
Now section 4 is a bit tricky and has been given varying interpretations. Some have said it gives our Law Enforcement Agencies sweeping powers to round innocent people up on trumped up charges of being gay. Nothing can be farther from the truth. For purposes of clarity, let me reproduce the section verbatim. It provides thus:
s. 4 (1) The Registration of gay clubs, societies and organization, their sustenance, processions and meetings are hereby prohibited
(2) The public show of same sex amorous relationship directly or indirectly is hereby prohibited.
Before we go on, it should be parenthetically noted that in law, we have what we call Canons of Interpretation which aid our courts in interpreting and applying legislations, and that punitive legislations are strictly construed in favour of the accused person under the “Rule of Lenity”. Thus in understanding the provisions of section 4 (1), we will resort to the use of the Expressio unius est exclusio alterius rule of interpretation, which literally means “the express mention of one thing excludes all others”.
That section only prohibits the registration, sustenance, processions and meetings of gay clubs, gay societies and gay organizations. In other words, it is only when people come together as a gay movement that their processions and meetings will constitute an illegality. Thus, a number of people (who are individually gay) can come together to conduct their normal everyday transactions, and still not be in violation of the law. For example, if you have the Executive a Students’ Union Government (charged to oversee the affairs of students) made of people who are gays, they can not be prosecuted under the Act because theirs is not a gay club, society or organization.
Again, one can not see how the registration of a gay club, society or organization is possible since the Companies and Allied Matters Act already disallows the registration of a body that tends to promote an illegal purpose.
Subsection (2) of section 4 however leaves us with the dilemma of understanding what constitutes a (1) ‘direct’ (2) ‘indirect’ and (3) ‘public show’ of same sex amorous relationship.
Whilst we can infer that ‘public show’ in this context would mean a display of affection of an amorous nature in a public place, the ‘direct’ or ‘indirect’ display of same is rather open to conjecture.
It is the opinion of this writer that that subsection should be redrafted to reflect the its intendment without ambiguities.
Section 5 outlines what constitutes an offence under the Act and prescribes penalties for same.
Subsection (1) prescribes a 14 year jail term for persons who enter into same sex marriage contract or civil union. This provision might seem pretty straight forward until you look at the definition of same sex marriage under the Act. Same Sex Marriage is defined as
“the coming together of persons of the same sex with the purpose of living together as husband and wife or for the purpose of same sexual relationship”.
This definition is rather vague. What the definition implies is that once persons of the same sex come together to “live as husband and wife” or for “same sexual relationship”; same sex marriage would have been established simpliciter. The question will now be – how do you establish that two people of the same sex are living as “husband and wife” given that the terms “husband” and “wife” have definite meanings? How would you determine the “husband” or “wife” is? What this means is that proving “same sex marriage” as an offence will be a tall order for the prosecution given that “an act does not make a person guilty unless their mind is also guilty” (actus non facit reum nisi mens sit rea).
Subsection (2) of section 5 prescribes jail terms for acts that have already been addressed hereinabove under section 4.
Subsection (3) of section 5 has generated a lot of controversies as some have said that the provision compels people who live with, or know any gay person, to report such persons to the authorities. Some even make the ridiculous claim that the subsection disallows any person (be it doctors, nurses lawyers etc) from offering their services to gay people. That is not true!
The subsection provides that
“Any person or group of persons that witness, abet and aids the solemnization of a same sex marriage or civil union, or supports the registration, operation, and sustenance of gay clubs, societies, organizations, processions or meetings in Nigeria commits an offence…”
With the aid of the Expressio unius rule of interpretation already explained above, and the definition of the term “witness” in the Act, it is manifestly clear that what this subsection criminalizes is the witnessing, aiding and abetting of the SOLEMNIZATION of same sex marriage or civil union ONLY. What is meant here is that anybody who helps (either by way of assistance or encouragement) or stands as a witness for persons of the same sex to celebrate their marriage will be caught by this provision without more. It does not in any way disallow anyone from offering their services, or relating with a gay person simply on that basis. Besides, what does it matter if a person is gay when seeking medical or legal assistance? Gay people are entitled to their rights as citizens of the Federal Republic of Nigeria, save for the solemnization of same sex marriage.
The other limb of the subsection criminalizes any form of support for the registration, operation and sustenance of gay clubs, societies, organizations, processions or meetings. This has been addressed hereinabove.
Lastly, some have argued that the term ‘civil union’ as defined in the Act is broad and might include any form of relationship between persons of the same sex. That is not the intendment of the Act.
“Civil Union” in the Act means any arrangement between persons of the same sex to live together as sex partners, and shall include descriptions as adult independent relationships, caring partnerships, civil partnerships, civil solidarity pacts, domestic partnerships, reciprocal beneficiary relationships, registered partnerships, significant relationships, stable unions etc”.
The ejusdem generis rule of interpretation states that where general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons, or things of the same general nature or kind as those enumerated. What this means is that in construing all such relationships listed in the definition, they would be understood to mean “any arrangement between persons of the same sex to live together as sex partners”.
In conclusion therefore, it should be known that the Act is not an “anti gay bill/law” as it does not prevent anyone from being gay, neither does it seek to change anyone’s sexual orientation. The Act basically prohibits same sex marriage or civil union and any form of public display of such tendencies by whatever means. That is understandable in view of the religious and cultural beliefs of Nigerians.
I would also suggest that the Federal, State and Local governments will do well to enlighten the people about the provisions of the Act as a lot of misconceptions have trailed same. Even our Law Enforcement Agencies should be made to understand that the law does not give them license to harass innocent citizens on mere unsubstantiated claims.
Furthermore, people should not confuse the Same Sex Marriage (Prohibition) Act with the Sharia Law which prohibits homosexuality (sodomy) in itself.
The application of the Sharia Law on homosexuality has been on since time immemorial and the Act is completely unrelated to it in substance.
Uzochi Uriel Okoroma
A lawyer based in Lagos, Nigeria
Follow me on twitter @UzoUriel