A RE-VISIT TO THE GAY-RIGHT CONTROVERSY IN NIGERIA: An Analysis of the Same Sex Marriage (Prohibition) Act, 2013

It’s over two years since the enactment of the Same Sex Marriage (Prohibition) Act in Nigeria. The Same Sex Marriage (Prohibition) Act, 2013 is probably the most draconian law ever enacted in Nigeria. Homosexuality is not alien to Nigeria or Africa as many Nigerians will have us believe. This however, is not the focus of this essay. This essay intends to review the SSM (Prohibition) Act and reveal why it is totally uncalled for and unconstitutional.

Homosexuals in Nigeria are mostly hidden. They are ostracized by the communities they live in and are often targets of violent mob actions. The colonial bequeathed Marriage Act and Matrimonial Causes Act does not recognise the right of persons of same sex to get married. It is this injustice that drove other societies (including the ‘colonial masters’) to recognise the right of homosexuals, but reverse is the case in Nigeria. Instead of broadening the reach of civil liberty, Nigeria has succeeded in tightening the noose on the already suffocating neck of minorities. Below is an analysis of the totalitarian law:

Section 1 expressly prohibits marriage and civil union contracted by persons of same sex in Nigeria. It went further to pour vinegar on the cordial relationship Nigeria may enjoy with countries where same sex marriage is recognised by declaring any certificate of marriage issued to same sex couples in another country void. It is this kind of laws that makes you wonder what Nigerian legislators smoke.

Section 2 infringes on religious freedom by declaring that same sex marriage shall not be solemnised in a church, mosque or any other place of worship in Nigeria. This is written under the careless assumption that all religious sects prohibit same sex marriage. There are several homosexuals who are equally religious. Most of the ‘yen daudu’ in Northern Nigeria are practising Mulsims. … is a Nigerian gay pastor

Section 2(1) reiterates Section 1(2) why?! I’m sorry, but that is a question we may never find answer to. Shabby legislation! A good-thinking first year law student should do a better job.

Section 3 states that only a marriage contracted between a man and a woman shall be recognised as valid in Nigeria. Is it just me or this same thing as been said over and over…This is what you get when legislation is driven by sentiment and the urge to oppress minorities.

Section 4(1): ‘The Registration of gay clubs, societies and organisations, their sustenance, processions and meetings is prohibited.’

Wow, I had to pinch myself to confirm that I actually live in this banana republic. What can be more draconian than this? What happened to the right to peaceful gathering and freedom of association? The government should never legislate on what we can think or not think. Homosexuals are not criminals, they are not occults, yet they cannot gather to discuss their welfare? This provision is ridiculous. It reminds me of the classic novel – ‘1984’ by George Orwell. The Nigerian government is fast becoming a dreaded ‘Big Brother,’ watching and legislating over everything, including our thoughts and conscience.

Section 4(2) prohibits the public show of ‘same sex amorous relationship directly or indirectly.’ This provision makes you want to laugh and cry at the same time. Just how do you define that? So much hypocrisy for a country where sex and porn sell like hot cake. Nigerians love porn (Yes you heard it from me) and not just heterosexual porn, Nigerians love watching lesbians, gay, threesome, orgies…you name them. You don’t need a survey to find this gospel truth, just visit any kiosk where pirated movies are sold (most CDs in circulation in Nigeria are pirated anyway) and you will see them on display, X-rated movies for adults and minors alike (No one will ask for your age as long as you are paying).

Section 5 – this is the climax. 14 years jail term for any person who contracts same sex marriage in Nigeria. Really? Ok

Assuming but not conceding to the position that civil unions between two consenting adults is indeed a terrible offence compared to marriage of a child by a serving senator of the godly-secular republic– should imprisonments of all offenders be the best approach considering the fact that our prisons are overcrowded and the facilities in terrible condition. We have inmates awaiting trial for 5 years or more, do thing imprisoning the entire LGBT community is a good idea?

Ok, assuming homosexuality is indeed responsible for draught, thunder, famine, road accidents, plane and the forth coming apocalypse like the dooms day preachers of Nigeria will have us believe. Shouldn’t we embrace a reformative approach rather than a punitive one? For example, we arrest a gay club of 15 members while conducting a secret wedding and summarily imprison them. Are we killing the spirit or building it? That makes the movement stronger; they will reconnect in jail, meet new members, re-strategize and become violent upon being released. Nigeria is a country that never learns. The ‘Maitasine,’ ‘Niger-Delta up-rising’ and ‘Boko-Haram’ came with lessons but sadly, we never learn.

The above analogy is to lend a brain to the Nigerian government; I don’t believe homosexuals are reprobates, neither do I believe they are sick or needing some pseudo-scientific cure. Homosexuals are normal members of society with different sexual orientation just like I am born left-handed and can virtually do nothing about it. That the majority of humans are right-handed does not make me evil or less human – the majority is not always right.

Section 5(2) is a dangerous provision that punishes participation directly or indirectly in ‘same sex amorous relationship’ with 10 years’ imprisonment. This section is a potent tool of witch-hunting – for what exactly is the extent of ‘participating indirectly in amorous relationship?’ This provision is highly sentimental and emotional.

Section 5(3): ‘A person or group of persons who administers, witnesses, abets or aids the solemnization of a same sex marriage or civil union, or supports the registration, operation and sustenance of gay clubs, societies, organisations, processions, or meetings in Nigeria commits an offence and is liable on conviction to a term of 10 years imprisonment.’

It’s like it gets worst by the sections. What can be more arbitrary than this? The above provision can be extended mean punishment for daring to write against this unjust law like I am doing. This law contravenes several provisions of the constitution but the sentiment laden majority had their eyes closed while calling for the heads of harmless homosexuals. This law is not good for anyone, gay or straight – unless you are a bigot of course.

Section 6 confers the jurisdiction to try offences under the SSM (Prohibition) Act on the High Court of a State or the Federal Capital Territory.

This section is quite a relief (assuming there is an actual offence to be tried). At least the ‘hypothetical offence’ gets to be tried in court – and that is if the ‘hypothetical suspects’ survive the mob action on the streets and torture in the police cells.

Section 7 defines – ‘marriage,’ ‘court,’ ‘same se marriage,’ ‘witness’ and ‘civil union.’

Seven sections, just seven dangerous and heart-breaking sections; this law is probably the shortest legislation in Nigeria. I remembered being perplexed at the speed at which the Bill was proposed and passed into law. I couldn’t help but compare it to how long it took to pass the Freedom of Information Act. I am disgusted. There were several more pressing issues to attend to like Section 2 of the Constitution (Fundamental Objectives and Directive Principles of State Policies) which remains unjusticiable i.e. you cannot enforce your right to education or sustainable economy and environment among other things in Nigeria.

Your Representatives, Our Representatives felt witch-hunting gay people was a more pressing National issue that requires urgent attention than making right to free education and social welfare justiciable; they felt it was more pressing than legislating on hate crime or women’s right.

While other countries were painstakingly paving way for a free and better society, the Nigerian law makers were taking one step forward and centuries backward – plunging us into dark abyss with legislations fit for a stone-age civilisation.

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