A few weeks ago over 50 Nigerian men were arrested by the Nigerian Police Force, under section 4 of the Same Sex Marriage (Prohibition) Act, 2014. In a video that went viral, we see a young man, James Obialor, contesting the validity of his arrest. Many found the boy’s choice of grammar amusing, others were amused by the surrounding facts of the case – as homosexuality and the Nigerian factor was raised.
The officer in charge of the case proudly described the arrests as occurring during an “initiation into the Gay and Homosexual club.” He stressed that the apprehension of the suspects had been premised on “credible intel” that elaborate initiation rites were being conducted aimed at initiating young men into homosexuality.
As a lawyer, I could not help but think about the validity of the law itself, as when looked at casually it seems to be a clear violation of one of our Fundamental Human Rights, protected by the Nigerian Constitution, which is Freedom Of Association.
This article discusses the facts surrounding this groundbreaking arrest by the Nigerian Police Force, and looks at the key points to note from the Same-Sex Marriage (Prohibition) Act, 2014.
Same Sex Marriage (Prohibition) Act, 2014 – What does it say?
Well, the Act is quite a brief one. I guess the legislators wanted to get right to the heart of the issue. The main points to note from the Act are as follows: –
- Same sex marriages, whether done in Nigeria or abroad, are strictly prohibited and will not be recognized as valid marriages:
- No church, mosque or any other place of worship in Nigeria shall formalize a marriage contract or civil union entered into between persons of the same sex;
- Marriage certificates issued for same sex marriages abroad shall not be valid in Nigeria;
- Gay clubs, organisations and societies shall not be registered in Nigeria;
- Public shows of same sex affection, whether directly or indirectly, is strictly prohibited;
- Persons who are found guilty of having entered into a same sex marriage will be liable to 14 years imprisonment;
- Anyone who registers, operates or participates in gay clubs or societies and organisations, and or makes a public show of same sex relations shall be liable to 10 years imprisonment;
- Anyone or group of persons who administers, aids, abets and witnesses the solemnization of a same sex marriage or supports the registration organization and existence of gay clubs, societies, organisations and meetings shall be liable to 10 years imprisonment.
To Be or Not To Be
Advocates and supporters stress that the absence of this law will gradually lead to a perverted society, thus jeopardizing the future of the human race, as homosexuality does not promote procreation. They argue that the law acts as a deterrent from LGBTQ behavior, thus eventually eradicating same from the Nigerian society.
However, others who are against the law argue that violence, blackmail, arrest and discrimination have always governed the lives of people of the Nigerian LGBTQ community and that this law has simply legalized this anti-social behavior towards them. They stress that at no point was there a nationwide clamor from the LGBTQ community for the right to marriage, nor was there a threat of LGBTQ societies and clubs taking prominence in Nigerian society, therefore on what premise was the law based.
Furthermore, they stressed that the Nigerian Constitution protects an individual’s right to freedom of expression and association, and that this law is a direct infringement of that right. Simply put, this law is giving the police and other mob vigilante groups the right to commit acts of violence against persons based on their real or perceived sexual orientation or gender identity. They stress “real or perceived” as in most instances, persons arrested under the Act are arrested based on anything other than “credible intel” as opposed to facts proving the matter beyond reasonable doubt.
Thoughts on arrest
The harsh reality of arrests made by virtue of this Act are that: –
- Police make arrests of suspected LGBTQ persons;
- Suspects are paraded and held at the police station for some days;
- Suspects may be tortured and treated unfairly in a bid to extract confessions of their crimes;
- Suspects are released without charge after bribing the police.
The truth is many of the persons held by virtue of this offence may have never been known to the police if not for this Act; now they face imprisonment for 10-14 years. Ironically 99.9% of the persons arrested have been from low-income backgrounds.
In reality, even the most homophobic person will be reluctant to send someone to prison for such a long time based on their dislike of the LGBTQ community; maybe this is why there has not been any convictions under this Act. However, when charged to court, judges have an obligation to abide by the sentencing guidelines of the Act if the prosecution successfully proves their case beyond reasonable doubt, thus a 10-14 year jail term is very very possible.
To me, this is a scary thought and somewhat harsh; I do not believe that this Act will successfully deter persons from homosexual behavior. Which then leads me to think, What is the point?
Personally, I believe that Nigeria’s problems reach far beyond the private affairs of some of its citizens. I believe that the energy expanded in the enactment of this act would have been better served enacting a law mandating that all elected officials and their immediate families receive health care in Nigeria, or that their children receive undergrad education in Nigerian federal institutions. I guess our leaders don’t agree with this train of thought.