By Victor Eboh, (Legal / Reproductive Right Officer)
Violence and discrimination against sexual minorities in Nigeria have been on the increase in recent times, no thanks to the promulgation of the Same Sex Marriage (Prohibition) Act 2014, (Herein after referred to as The Act) which has contributed negatively to the already dire circumstances of the Sexual minorities (Herein after referred to as The Community) in Nigeria. Members of the community have suffered an increasing wave of arbitrary arrest, unlawful invasion of privacy, assault and battery, sexual violence and extortion, among other ills, since the passing of the Act.
The average citizens of Nigeria, finds it very difficult to enjoy the protection of their rights and access to basic social services. It is rather more unfortunate for persons who are imputed to have sexual minority identities; they are faced with even more social isolation and discrimination by both states and non-state actors. Ironically, Public Authorities who are saddled with the responsibility to protect and ensure the fundamental rights of citizens are sustained, are most times at the forefront of the scourge of terror, intimidation, intolerance and violence against members of the community. The extreme intolerance, homophobia, bi-phobia and transphobia, make it even more dangerous for sexual minorities to reach out for help, hence most human rights violations against them, go unreported.
The cardinal principles of human rights include, universality and non-discrimination. The pre-condition for enjoying human rights is HUMANITY. However, the Nigerian society and Public authorities do not see the sexual minorities as part of those, whose humanity are guaranteed rights under the Nigerian Constitution. Thus, their humanity is disregarded solely because of their sexual orientation or gender identity or expression, which exposes them to all forms of violence.
LEGAL FRAMEWORK GOVERNING SEXUAL MINORITIES ISSUES WITHIN THE NIGERIAN CONCEPT
The combined efforts of both the Domestic, Regional and International frameworks, all ensure equality of all persons regardless of their sexual orientation and gender identity.
DOMESTIC LEGAL FRAMEWORK
- DOMESTIC FRAME WORK: 1999 CONSTITUTION OF FED. REPUBLIC OF NIGERIA
- The preamble of the constitution
- SECTION 1(1) & (3)
- SECTION 17 (3) (C & D)
- THE FUNDAMENTAL RIGHTS OF EVERY CITIZENS:
- CHAPTER 4 of the constitution section 33-40
- SECTION 33: “Every person has a Right to Life and no one shall be deprived intentionally of his Right to life
- SECTION 34: “ Every individual is entitled to Respect for the dignity of his person and no person shall be subjected to torture or inhuman or degrading treatment.
- SECTION 35: “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty.
- SECTION 36: “Every person shall be entitled to fair hearing
- SECTION 37: “ The privacy of citizens, their homes, correspondence, telephone conversation and telegraph communications is hereby guaranteed and protected
- SECTION 38: “ Every person shall be entitled to freedom of thought, conscience and religion
- SECTION 39: “Every person shall be entitled to freedom of expression
- SECTION 40: “ Every person shall be entitled to assemble freely and associate with other persons …or any other association for the protection of his interest.
REGIONAL LEGAL FRAMEWORK
the African Charter on Human and Peoples Right, (hereinafter referred to as ACHPR), a document which has been domesticated and forms part of the body of laws in Nigeria, clearly and unequivocally guarantees freedom from discrimination and equal protection and equality of individuals before the law. The treaty was signed in 1981, but did not become a law in Nigeria until when the National Assembly ratified and enforced it as applicable law in Nigeria. The Charter is now known as the AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS (RATIFICATION AND ENFORCEMENT) ACT (CAP 10) OF THE FEDERATION OF NIGERIA 1990
Article 2 of the Act, clearly provides that ‘ Every individual shall be entitled to the enjoyment of the rights and freedom recognized and guaranteed in the present charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status’
Other relevant sections of the Act are as follows:
- The preamble
- ARTICLE 1
- ARTICLE 2
- ARTICLE 3
- ARTICLE 4
- ARTICLE 13 (2)
- ARTICLE 16 (1 & 2)
- ARTICLE 19
The African Commission, the body responsible for monitoring compliance with the African Charter, has in various communications, denounced acts of discrimination. The ACHPR has clearly established that the expression ‘OTHER STATUS’ as used in the Act can broadly be interpreted to include grounds, other than those explicitly listed under that provision of the Charter. The rights to dignity, liberty and security of persons and freedom of association are among rights clearly proclaimed by the African Charter and the Charter clearly states that every human being is entitled to these rights.
Concerned by the increasing violence against the community, the ACHPR at its 55th session adopted a landmark resolution on the Protection Against Violence and Other Human Rights Violations against persons on the basis of their Real or imputed Sexual Orientation or Gender Identity. The Resolution unequivocally condemns violence against persons on the basis of their real or imputed sexual orientation and gender identity. It calls on states to stop all violence committed by state and non-state actors and to enact and implement laws condemning violence against all persons regardless of their sexual orientation or gender identity. States were also urged to promptly investigate and punish all acts of violence against persons based on their real or perceived sexual orientation and gender identity.
INTERNATIONAL LEGAL FRAMEWORK
The International legal framework governing Human rights apply equally to all sexual minorities in all parts of the world. The principle of equality, non-discrimination and universality are fundamental in ensuring the human rights for all persons including sexual minorities. It has been established that the grounds of discrimination enumerated in the International Covenant on Civil and Political Rights and the International Covenant of Economic, Social and Cultural Rights are non-exhaustive and “other status” includes sexual orientation and gender identity.
THE SAME SEX MARRIAGE PROHIBITION ACT 2014
The promulgation of the Same Sex marriage prohibition Act has to a great extent heightened the level of violence against the sexual minorities. The law has been used and utilised by both state and non state actors to subject community members to all sorts of violations, ranging from public humiliation, to battery, assault, blackmail, extortion and other forms of violations and violence.
The Act has further encouraged and in fact, breeds a culture of intimidation, suppression and violence against community members in Nigeria. The Act, apart from prohibiting same sex marriage, goes further to prohibit and criminalizes the association of persons and organizations who purport to promote the interest of Sexual minorities in Nigeria. It prohibits and criminalizes the ‘Public show of same sex amorous relationship directly or indirectly without defining what qualifies as “same sax amorous relationship”
The negative effect of this law was immediate and still persists, as and thus the community members are subjected to an unimaginable level of futility being victims of a wave of arbitrary arrest, invasion of privacy, blackmail, extortion and violence of which state actors are also perpetrators of this hideous practices.
From the above consideration, it suffices to say that if the rendition of the constitution “WE THE PEOPLE” is the have a meaningful impact, then it must have the force of general application without prejudice.
The following recommendations are worthy of consideration:
- The Government should act timeously in condemning the on-going violence against persons based on their real or perceived sexual orientation and gender identity expression.
- A review of discriminatory laws that trigger violence against sexual minorities should be given priority.
- Enforce constitutional and treaty provisions on universal human rights in public and private institutions across the country.
- Human rights violations based on sexual orientation or gender identity expression, should be investigated and perpetrators brought to book.
- Embark on a holistic campaign to promote an end to hate speech and statements inciting violence against sexual minorities in Nigeria from religious leaders, politicians and others and establish a link with sexual minorities human rights organizations, regarding ways to promote awareness on issues affecting sexual minorities.
- Establish a reporting process for informing the Human Rights Commission and other related bodies, on human rights abuses experienced by sexual minorities.
- State actors should discourage incidences of police raids, arbitrary and indiscriminate arrests and searches of individuals based on perceived or actual sexual orientation or gender identity expression.
- The police should be at the forefront in investigating and prosecuting incidents of violence against sexual minorities and refrain from harassing, arresting or prosecuting members of the sexual minorities support organizations and human rights advocates on account of their work on sexual minority rights.
- Civil society organizations should be encouraged to mainstream sexual minority’s awareness and rights into their relevant health, gender and human rights programmes.
- Mainstream stakeholders and the general public should be educated on human rights issues affecting sexual minorities. Sensitization workshops with government agencies, health workers and other law enforcement agencies be developed, on the need to promote and protect rights of sexual minorities as citizens of Nigeria.
From the above consideration, one fundamental principle looms larger, that violence and discrimination against any individual or groups of persons is unacceptable. OUR HUMANITY should be paramount in ensuring dignity and rights to ALL PERSONS.