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NIGERIA’S GAY COMMUNITY, GOVERNMENT AND HUMAN RIGHTS

By Rommy Mom, esq

In 2009, when Nigeria’s External Affairs Minister, Chief Ojo Madueke, stated before the Human Rights Council, HRC, of the United Nations during the country periodic review that there were no gays in Nigeria, even Nigerians back home were amused. The statement was inaccurate at best.  At the 2013 review, Nigeria took a slightly different position. The Attorney General and Minister of Justice, Mr. Bello Adoke, stated that Nigeria’s Government would not accede to same sex marriage because it is anti cultural.

This statement presupposes that gays do exist in Nigeria.

Nigerians know gays do exist in the country, have been with us and that we indeed have local and cultural appellations to describe homosexuality. In fairness to the then Honourable Minister as per the 2009 position, he was battling to justify the ever present Same Sex Bill in the Nigeria parliament, which seeks to criminalize Same Sex Conduct. The Minister did not avert his mind as to why Nigeria was preparing legislation for a nonexistent community.

As earlier stated, we have always had gays in Nigeria, so the question now is, why the furor about gays and criminalization of same sex conduct?

This question is however itself inaccurate.  Homosexuality is and has always been an offence or crime in Nigeria. Our existing laws refer to it as Sodomy. Section 284 of the Penal Code for Northern criminalizes homosexuality. These are laws inherited form Britain, Nigeria’s colonial masters.

It is wrong therefore, to say Nigeria is on the verge of criminalizing same sex conduct. This has always been the position. Over the years however, Nigerians have lived more in total neglect of the law than in its compliance. Nobody before now cared whether these laws existed. Gays lived their lives amongst fellow Nigerians, could be identified but nobody cared. It was an attitude of “do your thing so long as you do not involve me.”  Of course there is and there has always been social stigma but it was a situation of see no evil, hear no evil. Essentially, “don’t ask, don’t tell.” Yes we had gays, they lived among us, their lifestyle came with some social stigma, as is the case even in other parts of the world, but that was it.  Everybody went about their businesses.

To the question again, what changed? Why the attention now on homosexuality and the gay community? Why the reinvention of the wheel now to re criminalize same sex acts?

There are two schools of thought regarding this issue.

The 1st school of thought posits that when Nigeria hosted the 2005 International Conference on AIDS and Sexually Transmitted Infections in Africa, ICASA,  (an umbrella organization of societies for AIDS in Africa), gays were included in the deliberations with particular emphasis on preventing the spread of the virus. State officials, for whatever reason, stated at the time that Nigeria does not have homosexuals in existence and a group of those present disagreed. It was the silent gay minority now trying to poke a finger in the eye of authority. Persons of this school of thought say that this was the genesis of government’s resolve to crush this cluster of “social misfits” and do away with them.

A second school of thought has it that, failed politicians losing relevance, owing perhaps to their poor performance or other factors, decided to throw religion and dead sentiments into the equation of governance so as to maintain relevance. This, they claim, started with the introduction of Sharia and Christian fundamentalism into Nigerian politics which led to the demonization of homosexuality.

Arising from either of the two, or both, Nigerians were “sensitized” to the growing dangers of being gay and what it portends for our society, culture, and our chances of going to heaven. Of course being the cultural/passionate people we are, the religious people (not spiritual) we are, we started to fall over each other in a bid to decide whose voice could be heard the loudest in condemnation of homosexuality. Note, even before independence and from independence, our laws criminalized homosexuality.

Why was it so easy to whip Nigerians into a frenzy, so quickly into an anti gay disposition, if Nigerians had all along lived quietly with it and accepted gays, choosing only to ignore them?

The answer lies in the title of the proposed law and what the Nigerian on the street understands it to be. The Authorities cleverly styled the Bill “Same Sex Marriage Bill”. The word “marriage” is the catch. Nigerians imagined gays are now asking and demanding for the right to marry, have civil unions and so on.  Nigerians cannot accept nor live with gay marriages. Not now and not in the foreseeable future.

The shame of the rather misleading title of the Bill is that, neither individual Gay Nigerians nor the gay community in Nigeria have demanded nor stepped forward with any demand for civil unions or marriage for homosexuals in today’s Nigeria. This is why the Same Sex Marriage Bill is said to be a farce and meant merely to divert the attention of Nigerians from issues revolving around poor governance and plundering of state resources by politicians and others in positions of authority. In truth, all the noise about same sex marriages is a non-issue in Nigeria!

Yes, the Same Sex Marriage Bill defines “marriage” as any form of same sex conduct, but in truth less than 0.1% of Nigerians have seen the Bill or read it. The word marriage is the key to putting Nigerians up in arms against gays. Nigerians are protesting and will not allow gay marriages. This is not peculiar to Nigeria. Many countries including several states in the US are also yet to accept the concept of same sex marriage.  Eliminate the word “marriage” from the Bill and we head back to the old laws that Nigerians ignored.

The proposed Same Sex Marriage Bill, has however pushed the anti same sex conduct prohibition to fresh frontiers. Human Rights seem to be the least of its worries and advocacy for the rights of gays is now also proposed to be treated as a criminal act. Owing to the surge of negative attention, citizens are gradually resorting to hate crimes against known homosexuals.

The judiciary is also suddenly on the alert.  Based on the old laws, about 22 convictions have taken place in Nigerian Courts in Delta, Kaduna, Zamfara, and Nassarawa states in the last 6 years, as against 2 convictions in over 44 years before now. The Federal Capital Territory, FCT, is no exception.

The question of same sex marriage strictu sensu, it is argued, is at best an academic exercise in Nigeria. Gays in Nigeria are neither demanding nor advocating for same sex marriage. Their demands are simple: recognize our rights as humans in whatever position the government intends to take. Respect the human rights of all whether homosexual or heterosexual. It is the writer’s opinion that this is a fair argument and a very reasonable one at that too.

In fairness to the government, it has also opened up channels of communication and kept free the space for debate and argument on the Bill. Activists and Advocates even if within a hostile parliament, have been allowed to state their position.

This is hoping that whatever position is finally arrived at, human rights, particularly the rights to self-expression will continue to be respected and upheld. We all have the right to be different. Being in the minority is no reason or basis to have the majority take away minority rights where such exist.

 

 

 

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LAWYERS ALERT SUES THE FCT MINISTER, AND THE POLICE OVER CONTINOUS ARREST OF WOMEN AT NIGHTS IN ABUJA

LAWYERS ALERT SUES THE FCT MINISTER, AND THE POLICE OVER CONTINOUS ARREST OF WOMEN AT NIGHTS IN ABUJA

 

Lately the Nigeria Police and the Authorities in Abuja the Federal Capital territory have resorted to the practice of arresting women seen outside of their homes at night and prosecuting them on the obsolete law of wandering (read prostitution). The prosecution under the law of wandering, which itself is obsolete, because no law prohibits sex workers. The intention is however to intimidate perceived sex workers, but in the process, hundreds of women are affected and traumatized by arbitrary and dragnet arrests.

Commercial sex even though very high in major cities like Lagos and Abuja is highly frowned at by the Authorities.

Seeking to gain political mileage and also wanting to appear to fight crimes, the Politicians and the Police have lately resorted to intense harassment of commercial sex workers in Abuja. The practice is for the Police officers to swoop on them at nights and arrests dozens. A lot of women who are on other ventures have suffered a lot from this, as the mere appearance of a woman without a male escort at night can lead to arrest without questions. Several women have suffered this indignation. A female Banker was recently arrested when she parked her car and strolled across the street for Toiletries. It took the intervention of her employers next day for her to regain freedom.

As earlier espoused because the Police have no law to charge these women, they are charged under the obsolete law of wandering at night. Women are now being detained and imprisoned on this account. Curiously men “wandering” at night are not arrested.

Women arrested are sometimes raped by the arresting officers and let to go home. Their only offence, at least by the constitution of Nigeria is that they are females who dare to come out at night. Prostitution is stritu sensu not an offence in Nigeria.

The practice of arrest, detention and imprisonment of women on this account is now gaining popularity as women are increasingly coming under some sort of siege in cities like Port Harcourt, Kaduna and Ibadan. Women rights to freedom and liberty is now gradually being eroded and marginalized on account of suspicion of sex hawking. Recently an Abuja court sentenced to jail several women on this account. Daily Trust of Friday, June 3, 2011 page 63, www.dailytrust.com.

As earlier stated, these actions are as illegal as they contravene the constitution. The need is now urgent to legally challenge the constitutionality or otherwise of these actions to put an end to it.

The Police normally charge these women in the lower courts and not the High Courts where their actions cannot be legally closely scrutinized. The lower courts are courts of summary trials.

Lawyers Alert has now approached the Abuja High Court to have the court make a declaration that this is constitutionally illegal.  Thousands of women will be the beneficiaries and the court decision will no doubt be an Authority or Locus Classicus on women rights in Nigeria and other parts of Africa. A favorable decision of Court will be a reference for lower courts and also the police to desist forthwith from these acts.

This proposed Action is urgent, because women are continually been sent to prison on almost weekly basis. Freedom and liberty is by far one of the most precious rights and the continuous illegal denial and abuse of this makes this matter very urgent in being addressed. Left to the authorities and time to rectify this situation might take years alongside the spillover effect in its spread across other regions in Nigeria.

 

Law and Advocacy are two key strategies presently being put to use by Lawyers Alert in advancing women rights in several spheres be it political, economic or social.

The present case fits into Lawyers Alert broader strategy in terms of advancing the rights of women to move freely and not be subject to any restraint, abuse or harassment so long as they are within the laws of the land.

Find below our Argument in Abuja High Court

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY

HOLDEN IN ABUJA

SUIT NO ……………………………          

 

IN THE MATTER OF THE APPLICATION FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS OF WOMEN RIGHTS OF MOVEMENT IN THE FEDERAL CAPITAL TERRITORY

IN THE MATTER OF FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009

 

BETWEEN:

LAWYERS ALERT ASSOCIATION

 

AND

 

1        HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY

2        COMMISSIONER OF POLICE, FEDERAL CAPITAL TERRITORY

3        INSPECTOR GENERAL OF POLICE

4        NIGERIA POLICE FORCE

5        ATTORNEY GENERAL OF THE FEDERAL REPUBLIC OF NIGERIA

ORIGINATING SUMMONS TAKEN OUT PURSUANT TO SECTIONS 35, 41 AND 42 OF THE 1999 CONSTITUTION AND ORDER 2 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009 AND ARTICLES 2 AND 19 OF THE AFRICAN CHARTER OF HUMAN AND PEOPLE’S RIGHTS

PLAINTIFFS WRITTEN ADDRESS/ARGUMENT IN SUPORT OF ORIGINATING SUMMONS

FACTS

Following the pronouncement of the 1st Defendant to rid Abuja of prostitutes, the 2nd and 3rd Defendants, through members of the Nigeria Police Force commenced the mass arrests and harassment of women seen at nights in Abuja. The sole reason for these arrests is that these women are seen at night as the arrests do not occur in the afternoons.

Men are however not arrested.  The practice has continued throwing fear into women of going out at nights for fear of arrest and molestation by the police.

ISSUES FOR DETERMINATION

Whether the incessant harassment, intimidation, and arrest of women in Abuja at nights on suspicion of prostitution is  not only unconstitutional but also  a violation of women’s human rights.

ARGUMENT

Every Citizen is guaranteed the right of movement without restrictions at ALL times of the day by the Constitution of the Federal Republic. This is especially stated in 35(1) of the Constitution  which expressly provides thus

“Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law.”

The exceptions as provided by the Constitution for the denial of these rights are limited to instances of compliance with a sentence of a court, failure to comply with order of Court, or at other instances which certainly do not extend to arrest of women to rid a town of prostitution or arrest of women when seen at nights.

Furthermore, Section 41 (1) of Constitution provides that:

“Every Citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen shall be expelled from Nigeria or refused entry thereto or exit therefrom.” Emphasis provided.

It is submitted that movement here is closely tied to right of liberty as women can constitutionally move freely in Nigeria whether in the daytime or nighttime. Nothing differentiates the day and night for a particular sect of citizens to be targeted at nights for arrest on being sighted. This is discriminatory and violates Section 42(1) of the Constitution which provides

“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person –

(a)   Be subjected either expressly by, or in the application of, any law in force in Nigeria or any executive or administrative action of the government , to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of religion, sex, religious or political opinions are not made subject, or

The above section clearly prohibits any restriction or enjoyment of any rights ordinarily accorded to citizens like liberty, movement etc in the implementation of any law, executive or administrative act based on grounds like sex .i.e. gender.

For women in Abuja to be subjected to arrest, purely on the ground of their sex at nights in Abuja we submit is discriminatory as men can and do move about without any molestation or  harassment. We implore the court to note that these restrictions are pursuant to the executive orders of the 1st Defendant.

The Courts have been enjoined by the Preamble of the Fundamental Rights( Enforcement Procedure) Rules , 2009   under 3 as Follows:

“3.The overriding objectives of these rules as follows:

(a)   The constitution, especially Chapter IV, as well as the African charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protection intended by them.”

We therefore implore the Court to expansively interpret the above sections of the law in advancing the rights of women in Nigeria and protect women from abuses and discrimination owing solely to the fact that they are women.

The relevant sections of the constitution as quoted finds amplification in Articles 2 and 19 of the African Charter on Human and Peoples Rights which adumbrates the sanctity of  equality and equal treatment without discrimination where it is stated thereof:

Article 2

“Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without discrimination of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status”

Article 19

“All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another”

The rights and freedoms as provided for in the African Charter falls on same grounds with the relevant ones as guaranteed by the Constitution, only in this instance its amplified.

It is clearly therefore without any basis for the directive of the 1st Defendant , a male, to subject women to domination by men, where men can conduct their businesses and other chores at nights without fear of molestation, but women cannot, owing to fears of arrests and intimidation by Agents of the 2nd and 3rd Defendants.

For women to be indiscriminately harassed and arrested in Abuja because they are seen exercising their rights of movement is therefore a breach of the Constitution and the African Charter.

We concede the Constitution does not make these rights absolute, but it expressly provides the instances and circumstances where these rights can be restricted as quoted under the exceptions under Section 35 of the constitution.

Where therefore the Defendants are contravening these rights outside these accepted instances it is submitted this amounts to violation of women rights in Abuja.

The Defendants may make the arguments that the women arrested at the directives of the 1st Defendant are premised on his war against prostitution in Abuja. However nowhere are women going out or seen at night is interpreted as prostitution. Prostitution involves very direct act of soliciting, in this instance all that is required for an arrest is for the women to be seen at nights.

It is therefore submitted that the actions of the Defendants is simpliciter  to harass women by denying them freedom of movement, liberty and discriminatory solely on ground that they are women  thereby occasioning inequality before the law and subjecting women to men.

CONCLUSION

Over the years women have suffered several cultural and social violation and inequality which has hampered the development of our women, sisters and mothers in especially Africa. We urge the court to send a very clear signal that men in Authority should not further reason l to institutionalize this by the passage of arbitrary orders and laws that will continue this practice.

We urge the court be swayed by the preamble of the Fundamental Rights( Enforcement Procedure) Rules , 2009   which enjoins the courts to expansively and purposely interpret and apply Chapter IV of the Constitution with a view to advancing and realizing the rights and freedoms contained in them and affording the protection intended by them.

Women need this protection and they should be treated in like and equal manner as their male counterparts for after all we are all Human beings.

Dated  this 18th day of  June 2012

 
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Posted by on June 19, 2012 in Women Rights and Gender

 

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