Colonial History of Anti-LGBTQ+ laws in Nigeria
Prior to Nigeria’s colonisation, there is nothing to show violence was perpetrated against LGBTQ+ individuals because of their sexual orientation or gender identity, nor did any anti-LGBTQ+ laws exist. So how did Nigeria become one of the most unsafe places for LGBTQ+ persons to exist?
Colonisation and the spread of Christian doctrines from the British meant that a large part of Nigeria lost their previous cultural attitude towards sexual orientation and gender identity and were forced to adopt “new” values from British colonists. Homophobia was legally enforced by colonial administrators and Christian missionaries. As a result, anti-LGBT ideas were not only written into our laws but also into the minds of our people through religion.
Even after gaining independence, the Nigerian Legal System remains largely based on the English Common Law and legal tradition by virtue of colonisation. As a matter of fact, one of the main sources of laws in Nigeria is the Received English Law (common law, equitable doctrines and statutes of general application that were in force in England on 1 January 1900). This means that the legal system of this Country continues to operate old English Statutes, (some of these statutes have either been repealed in England or gone through several amendments) and English case laws continue to serve as persuasive precedents for our Courts.
Laws are meant to be a reflection of the people. However, Nigeria continues to be bound by English statutes and case laws that are of little or no relevance to our behaviour and human experience. One example of this is how most of the provisions in the Criminal Code and Penal Code criminalising homosexuality in Nigeria are modelled after the English Sexual Offences Act (1956).
Another example is how the driving force behind one of the country’s violent anti-LGBTQ laws, The Same-Sex Marriage Prohibition Act, 2013 (SSMPA) can be traced to the borrowed definition of marriage in the 1866 English case of Hyde v. Hyde (L.R.) 1 P. & D. 130 wherein Lord Penzance stated as follows;
“I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”
This judgement has been an influential consideration in cases like Wilkinson v. Kitzinger (2006) H.R.L.R. 36 and a host of other cases concerning same-sex marriages.
It has also influenced various legislative enactments (such as the United Kingdom’s Civil Partnership Act 2004, Australian’s Marriage Act 1961, Nigeria’s Marriage Act 2004 and of course the Same Sex Marriage Prohibition Act 2013} with some legislators and judges choosing to reject said definition.
It is quite worrying for various reasons that countries like Nigeria continue to rely heavily on Lord Penzance’s definition in this day and age. First, the original statement formed part of the Obiter Dictum (by the way statement) of the judgement in Hyde v. Hyde meaning it did not even establish a binding precedent.
Furthermore, Christianity was the yardstick for this definition and there has since been enormous changes in the social and religious life of people since this statement was made.
Finally, society’s attitudes towards same sex unions in the country where these homophobic ideas originated have moved from treating such relationships as an anomaly to a ready acknowledgment that they are entitled not merely to respect and basic decency, but also to equal rights and protection under the law.
This begs the question; Why are Nigerian law makers holding onto homophobic laws which resulted from British import and were developed without the consultation of the people for whom the laws were made for?
• Anti- LGBTQ+ Laws in Nigeria
1. Criminal Code Act: Sections 214 and 215 of the Criminal Code Act which applies in Southern Nigeria makes ‘carnal knowledge of any person against the order of nature,’ a felony punishable by fourteen years imprisonment. Section 217 of the Criminal Code also states that any male person who commits any act of gross indecency with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for three years.
2. Penal Code: Section 284 of the Penal Code which applies in Northern Nigeria makes carnal knowledge against the order of nature with a man, woman or animal an offence punishable by fourteen years imprisonment and fine. Section 405 also provides that a male person who dresses like a woman in a public place is a vagabond and section 407 prescribes the punishment for being a vagabond as one year imprisonment and/or fine.
There is also a heavier punishment of two years imprisonment and/or fine for repeat offenders under section 408. This section targets crossdressers and trans folks who seek to express their gender identity through clothing.
3. Sharia Penal Code: This law has been adopted by twelve northern states; Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe and Zamfara. It applies to anyone who voluntarily consents to the jurisdiction of a Sharia Court and to all Muslims. This law criminalises sodomy; which is defined as carnal intercourse against the order of nature with any man or woman through her rectum. In most of these states a person who commits the offence of sodomy is punished with stoning to death.
Section 133 and 134 of the Sharia Penal Code also criminalizes lesbianism which is described as a woman engaging another woman in carnal intercourse through her sexual organ, or by means of stimulation or sexual excitement of one another. The punishment for lesbianism ranges from caning to a prison term of six months to five years, as well as stoning to death depending on the state.
Another offence under this law is Gross indecency which is characterised by kissing in public or exposure of nakedness in public and is usually punished by caning, one year imprisonment or fine depending on the state.
This law also punishes Vagabonds i.e men who dress in the fashion of women or women who dress in fashion for men.
4. Same Sex Marriage Prohibition Act (SSMPA): Section 1 of the SSMPA prohibits same sex couple from entering a marriage or civil union. It goes further to state that only a marriage contracted between a man and a woman shall be recognised as valid in Nigeria.
Section 4 prohibits the Registration and meetings of gay clubs, societies and organisations, as well as the direct or indirect public show of same sex amorous relationship.
These provisions are very dangerous for the existence of queer folks in Nigeria. For instance the criminalisation of gay clubs, societies and organizations will restrict the ability of queer folks to organize in defence of their human rights and safety. Furthermore, these provisions make it harder for human rights organisations to work with, and protect the rights of LGBTQ+ community members. Some of these provisions are vague enough that they could also affect heterosexual Nigerians who publicly display affection to or live with their platonic friends.
Section 5 of the SSMPA sets out the punishments for the earlier mentioned offenses as:
Fourteen years imprisonment for any one entering into a same sex marriage or civil union
Ten years imprisonment for anyone who registers or participates in gay clubs or organizations or makes public display of same sex relationship.
Ten years imprisonment for anyone who administers, witnesses, abets or aids the solemnisation 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.
What these anti LGBTQ+ laws do is single out a group of Nigerian citizens and deny them the basic rights and simplest pleasures that are accorded their cis-heterosexual counterparts.
These laws contribute to the audacity with which homophobes commit crimes (crimes that include physical and sexual violence) against queer folks. Various reports show that since the passing of the SSMPA, there has been high levels of violence, including mob attacks and extortion against LGBTQ+ people in the country. There have been cases of arbitrary arrests. Most recently, the Egbeda 57 who were arrested just for being at a birthday party.
These laws also prevent queer folks who are victims of hate crimes from reporting these crimes to appropriate authorities because there is fear of exposure and arrest as well as the risk of being harassed, extorted and even killed by the state’s security forces.
Rights of Queer Folks Existing within these Laws
• The constitution of the federal republic of Nigeria is the grundnorm of the country, it is supreme and every other law contrary to it is void to the extent of such inconsistency. Thus while there are no specific enacted legislations protecting LGBTQ+ persons from discrimination or harassment on the basis of their perceived sexual orientation or gender identity the Constitution contains certain provisions that guarantees all citizens equal rights (Section 17(2)(a)) as well as other rights, including equal opportunity in the workplace (Section 17(3)(a)) and adequate medical and health care (Section 17(3)(d)).
• Chapter 4 of the constitution goes further to guarantee every citizen regardless of sexual orientation or gender identity the right to life, privacy, freedom of association and assembly, freedom of expression and right to human dignity.
• Nigeria has also ratified various Human Rights charters like the African Charter on Human and People’s Rights and Universal Charter on Human Rights which guarantee freedom from discrimination, equal protection and equality of individuals before the law.
Despite these constitutional provisions, because there is no specific legal protection against discrimination or harassment of LGBTQ+ folks it is still very easy for homophobia to be weaponized. The result is queer folks often lose jobs and housing when they get outed to their family and/or employers.
The way forward …
As earlier highlighted, the SSMPA prohibits and criminalises fundamental freedoms to associate and assemble, registering of clubs and the indirect public show of same sex relationships.
These provisions infringe constitutional rights and while there are organisations in Nigeria like The Initiative for Equal Rights (TIERs), International Centre for Advocacy on Rights to Health (ICARH), One Action Foundation and a few others doing the work to help minorities; it is not enough. Everyone needs to be equally angry whether or not the discrimination affects them directly.
We need to join voices and call for the repealing of the various anti LGBTQ+ laws that exist in the country. We need to condemn violence against people on the basis of their perceived sexuality.
There’s the need to acknowledge LGBTQ+ rights as human rights and amplify the issues queer folks face in spaces and platforms queer folks cannot get to. We need to demand accountability from the agencies that are meant to protect the citizens of Nigeria. If we do not, the lawlessness and injustice will get to us sooner or later.
- Originally published here.
Timinipre is a Lawyer and a Writer exploring understated angles of the complex lives of women and members of the LGBTQ+ community.
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