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THE PARODY OF FREEDOM OF ASSOCIATION AND THE LGBTIQ COMMUNITY IN NIGERIA

By Victor Eboh Esq, Reproductive Right Officer

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Sometime in 2018, one PAMELA ADIE, a citizen of the Federal Republic of Nigeria, approached the Corporate Affairs Commission of Nigeria, for the registration of an organization with the name, (LESBIAN EQUALITY AND EMPOWERMENT INITIATIVE), whose goal was to advocate for the rights of female sexual minorities. The Corporate Affairs Commission contended that the name could not be approved because it was misleading, offensive, contrary to public policy and violates an existing law that prohibits same sex unions and associations in Nigeria.

Many adherents and sympathizers have wondered and questioned the veracity and otherwise behind the sentiments of the commission.

This piece, seeks to draw a line of contrast and spell out the parody between the constitutionally guaranteed right of freedom of Association, and the plight of the LGBTIQ community in Nigeria. But before we get down to brass tacks, let us first consider a general overview of the concept….. Freedom of Association.

 

CONCEPT OF FREEDOM

The word Freedom, has been succinctly rendered by Oxford Advanced Dictionary, as ‘the condition of being free, the power to Act or Speak or Think, without externally imposed restraints.’

FREEDOM OF ASSOCIATION on the other hand, encompasses both an individual’s right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interest of it’s members and the right of an association to accept or decline membership based on certain criteria.

According to the Human Rights House Foundation, Freedom of Association is one of the most basic rights enjoyed by humans. It ensures that every individual is free to organize and to form and participate in groups, either formally or informally.

Freedom of association involves an individual’s right to come together with other individuals to collectively express, promote, pursue and/or defend common interests without interference, and the right of the group to take collective action to pursue the interests of its members.   The right to freedom of association protects associations formed to undertake any activity or pursue any objective that an individual can undertake or pursue alone, provided that those activities or objectives are lawful. Freedom of association is a fundamental human right that is crucial to the functioning of a democracy and an essential condition for the exercise of other human rights. It provides space for the development of civil and political society, an arena for people to express different views, values or interests and a platform for such views, values or interests to be heard. Freedom of association complements and consolidates other individual freedoms and without it, individuals may not express themselves as a group, defend their common interests and positively contribute to the development of their societies.

 

BACKGROUND TO THE PRINCIPLE OF FREEDOM OF ASSOCIATION

The principle of freedom of association constitutes one of the basic tenets of the International Labor Organization (ILO) that was established by the TREATY Of VERSAILLES Of 1919, (source: Initiative for Strategic Litigation in Africa)  in the wake of the first world war to improve the condition of workers and achieve universal peace through social justice.  The ILO conventions on freedom of association were, and continue to be, primarily focused on the protection of the right to organize and bargain collectively.

 

Freedom of association is closely linked with the freedom of assembly and both are protected by Article 20 of the Universal Declaration of Human Rights (UDHR). The right is interrelated with other human rights and freedoms, such as the rights to freedom of expression and opinion and freedom of thought, conscience and religion. Giving the freedom of association protection in national and international law was not primarily to protect individual interests, but rather to seek to secure a more equitable distribution of power within the working environment and society as a whole. But individuals do deserve legal protection in this as other contexts so that their conscience, religious beliefs, freedom of expression, bodily integrity and so forth are safeguarded.

Consequently, freedom of association is both an individual and a collective human right.

 

LEGAL FRAMEWORK GOVERNING THE CONSTITUTIONALITY OF FREEDOM OF ASSOCIATION

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

The Constitution of the Federal Republic of Nigeria(1999) as amended, remains the ground norm of the land, and it is sacrosanct. The extent of its supremacy is spelt out in Section 1(3) to wit: ‘if any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void’

Of specific interest to the subject matter are the unambiguous provisions of Sections 38, 39 & 40

Section 38(1) ‘ Every person shall be entitled to freedom of thought, conscience and religion…..”

Section39(1) “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impact ideas and information without interference.”

Section 40 “ Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest

 

REGIONAL LEGAL FRAMEWORK

Article 10(1) of the African Charter on Human and Peoples’ Rights provides that “everyone shall have the right to free association provided that he abides by the law.”

Articles 12(3), 27(2) and 28 of the African Charter on Democracy, Elections and Governance guarantee the right to freedom of association.

ACHPR/Res. 5(XI)92: Resolution on the Right to Freedom of Association (1992)

  • The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the Constitution and international standards;
  • In regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom;
  • The regulation of the exercise of the right to freedom of association should be consistent with state’s obligations under the African Charter on Human and People’s Rights.

 

INTERNATIONAL LEGAL FRAMEWORK

Article 20(1) of the Universal Declaration of Human Rights provides that “everyone has the right to peaceful assembly and association.”

Similarly Article 22(1) of the International Covenant on Civil and Political Rights (ICCPR) states that “everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”

The second paragraph of Article 22 of the ICCPR states that no restrictions may be placed on the exercise of this right “other than those which are prescribed by law and which are necessary in a democratic society.”

Article 5(ix) of the International Convention on the Elimination of All forms of Racial Discrimination also provides for the right to freedom of peaceful assembly and association.

Article 7(c) of the International Convention on the Elimination of All forms of Discrimination Against Women obligates states to ensure participation, by women, in non-governmental organisations and associations concerned with the public and political life of the country.

Article 29 of the Convention on the Rights of Persons with Disabilities has similar provisions to the ICEDAW.

“States have an obligation to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, including persons espousing minority or dissenting views or beliefs and human rights defenders… seeking to exercise or to promote their rights and to take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.”

– UN Human Rights Council Resolution 21/26 (2012)

 

  • Article 11(1) of the European Convention for the Protection of Human Rights provides that “everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

Article 11(2) of the European Convention states that “no restriction shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protections of the rights and freedoms of others.”

The European Convention no. 124 on the Recognition of the Legal Personality of International Non-Governmental Organisations gives recognition to the formation of associations, foundations and other private institutions

The American Convention on Human Rights Art 16(1) states that “everyone has the right to associate freely for ideological, religious, political, economic, labour, social, cultural, sports, or other purposes.”

 

DUTIES AND OBLIGATIONS OF THE STATE IN ENSURING FREEDOM OF ASSOCIATION

It is the responsibility of the state to respect, protect and facilitate the exercise of the right to freedom of association.

States have a negative obligation to refrain from any interference with the right to freedom of association. It is responsible for violations of this right when the infringement occurs as a result of state interference or its failure to secure the right in domestic law and practice.

In Civil Liberties Organization v. Nigeria, Comm. No. 101/93 (1995), ACHPR, the Commission held that “freedom of association is enunciated as an individual right and it is first and foremost a duty for the state to abstain from interfering with the free formation of associations. There must always be a general capacity for citizens to join, without state interference, in associations in order to attain various ends.”

In International Pen and Others (on behalf of Ken Saro-Wira) v. Nigeria, ACHPR Comm. No 154/96 (1998), the African Commission found a violation of the right to freedom of association where the government took action against an association due to disapproval of its actions.  “Communication 154/96 alleges that Article 10.1 was violated because the victims were tried and convicted for their opinions, as expressed through their work in MOSOP. In its judgment, the Tribunal held that by their membership in MOSOP, the condemned persons were responsible for the murders, guilt by association, it would seem furthermore that, government officials at different times during the trial declared MOSOP and the accused guilty of the charges, without waiting for the official judgment. This demonstrates a clear prejudice against the organization MOSOP, which the government has done nothing to defend or justify. Therefore the Commission finds a violation of Article 10.1.” (at para 108).

 

The state has a positive obligation to ensure respect for the right to freedom of association. This includes an obligation to protect associations from interference by third parties and non-state actors.

Further, the state has a positive obligation to enact legislation an/or implement practices to protect the right to freedom of association from the interference of non-state actors, in addition to refraining from interference itself. The principle extends to cases of infringement committed by private individuals that the state could or should have prevented.

The positive obligation of the state to facilitate the exercise of the right includes creating an enabling environment in which formal and informal associations can be established and operate. This may include an obligation to take positive measures to overcome specific challenges that confront certain persons or groups such as minorities, people living with disabilities, women and youth etc. in their efforts to form associations.

 

States have an obligation to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, including persons espousing minority or dissenting views or beliefs and human rights defenders, seeking to exercise or to promote their rights.

It is first and foremost a duty for the state to abstain from interfering with the free formation of associations. There must always be a general capacity for citizens to join, without state interference, in associations in order to attain various ends.

Freedom of association also protects the right to refuse to join an association. There is no right for any individual to join a particular association if other members of the group decide not to include them or to expel them on the basis that their membership was not compatible with the aim and interests of the association. However, in relation to trade unions, if a decision not to include a person has adverse employment consequences, any such decision must not be unreasonable or arbitrary.

The right to freedom of association protects against the interference of the State in both the right to form an association and the right to join or remain a member of an existing one. The state is also obligated to guard against interference with the right by non-state actors and facilitate the exercise of freedom of association by creating an enabling environment in which associations can operate.

 

  • IT SHOULD FURTHER BE NOTED THAT Associations have the right to participate in matters of political and public debate, regardless of whether the position taken is in accord with government policy or advocates for a change in law.

“There is nothing…to suggest that it is immoral or unlawful to persuade those in power to change certain laws as long as that is done lawfully and peacefully. If the change advocated for is in the views of the lawmakers, likely to lead to or promote unlawfulness or any other undesirable situation or consequences, they are perfectly entitled to refuse to accede to such suggested changes. To refuse the applicants an opportunity to come together and register an organization to carry out peaceful and lawful advocacy for legal reforms…clearly violates their rights under the [Constitution]”

Thuto Rammoge v. Attorney General of Botswana, case no. MAHGB-000175-13 (High Court).

Legislation and policy concerning associations must be uniformly applied and must not discriminate against any person or group of persons on any grounds such as age, gender, gender identity, health condition, religion or belief, sexual orientation or other status. Membership or non-membership in an association shall not constitute grounds for the discriminatory treatment of persons.

Although an ‘association’ must have some degree of continuity, it need not have any formal or legal status (including legal personality) in order to be protected by international law.

The state cannot effectively negate the freedom of association by generally declaring the objectives of associations to be unlawful.

 

LEGAL EXCEPTIONS THAT NEGATES THE FULL ENJOYMENT OF FREEDOM OF ASSOCIATION

International human rights law allows restrictions to be imposed on rights where those restrictions are;

  • Provided by law,
  • Serve as a legitimate aim; and
  • Are necessary in a democratic society.
  • Prescribed by law– This implies that any restriction should have a basis in domestic law. Furthermore, the law itself should be of a certain quality; foreseeable as to its effect and accessible to the person concerned.
  • Legitimate aim– The interference in question should be necessary in a democratic society, in the interests of national security or public safety, for the prevention of disorder and crime, for the protection of health and morals or for the protection of rights and freedoms of others.

In Monim Elgak, Osman Hummeida & Amir Suliman (represented by International Federation for Human Rights & World Organisation Against Torture) v. Sudan, ACHPR Comm. No. 379/09 (2014), para 119, the ACHPR found that “the only reason that KCHRED and its director were targeted was on account of their perceived links with the ICC.  The Respondent State has not provided any information showing that the activities of the organization endangered national security, morality, or the rights of other people in Sudan.  In the circumstances, the Commission considers that the State’s interference with the activities of the organization and its staff was unjustifiable and arbitrary and finds a violation of Article 10 of the Charter.”

 

  • Necessary in a democratic society– This implies two conditions;
    • There has to be a pressing social need for the interference, and in particular,
    • The interference should be proportionate to the legitimate aims pursued. They must be proportionate to achieve their protective function; they must be the least intrusive instrument amongst those which achieve their protective function; they must be proportionate to the interest to be protected.
  • In Attorney General of Botswana v. Thuto Rammoge [2016] Civil Appeal No. CACGB-128-14, Botswana Court of Appeal held the Registrar violation of the LGBT group’s right to association was not a proportional restriction. “In my judgment the refusal of registration of a society to further address that social ill could only be justified if it could be shown clearly that the society proposed to actively participate in or to encourage the commission of crimes against those sections. That is not the case.  Nor can it be said to be proportional if a society formed to pursue a number of honourable objectives, including advocacy, public health and education, was refused registration purely because, in the subjective view of the Registrar (or of the Minister), it was suspected of being likely to promote unlawful activities.  There must, as I have said, be some evidential basis for such a conclusion.  Here there was none.”

 

JUDICIAL DECISIONS VIS-À-VIS FREEDOM OF ASSOCIATION OF LGBTIQ MEMBERS

 

In 2013 in Kenya, the NGO Co-ordination Board refused to register an organization under the name Gay and Lesbian Human Rights Council.  The Board defended its rejection on the basis that the proposed names were inconsistent with laws criminalizing same sex conduct.  The High Court in Nairobi held that the Kenyan Constitution guarantees every person the right to freely associate and form an association of any kind.  As the judiciary is enjoined to apply the Constitution without prejudice, the right to freedom of association must be realized for all persons regardless of sexual identity or gender.   The Board, as a state entity, is required to act in accordance with the Constitution regardless of the personal views of its members and public opinion holding that homosexuality is reprehensible.

The Court found that limiting the petitioners’ right to freedom or association was not justifiable under Article 24 of the Kenyan Constitution, since can only be limited if it is reasonable and justifiable in a “democratic society based on human dignity, equality and freedom.”  The criminal ban on same sex conduct does not prohibit LBGT persons from existing or associating and thus is not reasonable nor justifiable.

Eric Gitari v Non-Governmental Organizations Co-Ordination Board [2015] eKLR, Petition No. 440 of 2013 (at paras 73-99).

 

In Jacqueline Kasha Nabagesera v Attorney-General Misc. Cause 33 of 2012, Freedom and Roam Uganda and Sexual Minorities of Uganda organized a workshop in order to train LGBTI activists.  The Minister of Ethics and Integrity ordered the forcible closure of the workshop, alleging that it was an illegal gathering of homosexuals prohibited by section 145 of the Ugandan Penal Code, which criminalizes same sex conduct.  The workshop organizers challenged the actions of the Minister as a violation of their constitutional rights to freedom of expression, political participation, freedom of association and assembly, and equality before the law.

The Ugandan High Court accepted that the applicants were exercising their rights to freedom of expression, association, and assembly.  Yet, it also found that Article 43 of the Ugandan Constitution, which allows justifiable limitations of human rights in the public interest, was applicable in this circumstance.  The Court found that the workshop promoted prohibited and illegal same sex acts and such promotion was prejudicial to the public interest, thus the Minister was justified and did not violate the applicants’ aforementioned rights.   The Ugandan High Court declared that the “promotion of morals is widely recognized as a legitimate aspect of public interest which can justify restrictions”.

 

In Pamela Adie v Corporate Affairs Commission (2018) Federal High Court of Abuja, the CAC refused the registration of an organization named Lesbian Equality and Empowerment Initiatives whose goal was to advocate for the rights of female sexual minorities. The CAC contended that the name could not be approved because it was misleading, offensive, contrary to public policy and violates an existing law that prohibits same-sex marriage in Nigeria.

The Court held that in so far as the Same Sex Marriage (Prohibition) Act is still operative in Nigeria and has not been repealed, the right to form same sex and gay unions and associations is prohibited and CAC was justified to have rejected the application for being in contravention of public policy and morality.

 

RECOMMENDATION

The right to freedom of Association is core to any society, it is an indispensable right in enabling citizens to monitor the Human rights situations in a country and to support the implementation of Human Rights policies. It is key for the work of Human Right defenders.

Registration should never serve as a tool to control the establishment of organizations, but rather as a tool to provide them with a legal status in jurisdictions that require such a measure.

Denying registration to NGOs that challenge or criticize the government is a violation of the right to freedom of association which forces civil action underground and delegitimizes NGO work. Registration as a form of repression also hinders the formation of an open and pluralistic society, by excluding civil society from public dialogue.

In many countries with a high level of civil society engagement and indeed an enabling environment, prior registration is not mandatory. If such regulations are in place, the UN has underlined that principles guiding the rule of law also apply to these regulations, meaning that they should be determinable, non-retroactive, lawful, proportional, non-discriminatory, and necessary. Furthermore, registration procedures should be expeditious, and not be used as a tool to slow down the establishment of organizations.

The possibility to appeal a decision should be included in the regulation, to provide civil society organizations with fair access to obtaining legal status. Provisions should not require re-registration, enabling organizations to be sustainable and look to the long-term.

Procedures governing the registration of civil society organizations play an important role in the control of civil society space. With this in mind, the power to limit the right to freedom of association must be appropriately framed. States should not impose lengthy, burdensome or overly bureaucratic registration processes, as this would undermine the effective functioning of NGOs.

In some countries, registration applications filed by associations can take up to a month to be considered for approval, while business registration is considered complete, the moment the application is filed.

Burdensome re-registration and reporting requirements usually do not meet the criterion of necessity, as they are solely used to control the activities of NGOs. Nor do they follow the principle of non-discrimination, as often more requirements are placed on civil society than on businesses. There are also doubts that such requirements are proportional, given the heavy requirements with regard to the budget of NGOs, in comparison to businesses for example.

CONCLUSION

FROM All The ABOVE CONSIDERATION, then comes the parody,… can the express provision of the Same Sex Marriage Prohibition Act 2014, negate, subjugate and undermine the express provision of the Constitution of the Federal republic of Nigeria?

Section 4(1) SSMPA “The registration of gay clubs, societies and organizations, their sustenance, processions and meetings, is prohibited”

Section 40, 1999 constitution “ Every person SHALL be entitled to ASSEMBLE freely and ASSOCIATE with other persons and in particular he may FORM or BELONG to ANY political party, trade union or ANY OTHER ASSOCIATION for the protection of his interest”

THERE LIES THE PARODY, WHERE LIES THE SUPREMACY?

 

CAVEAT

Lawyers Alert hereby puts our readers on notice that this article is based on the writers opinion and do not necessarily represent the views of the organization except otherwise stated.

 

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SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS (SRHR) VIOLATIONS OF SEXUAL MINORITIES

By Doris U Innocent Esq

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Sexual and Reproductive Health and Rights or SRHR is the concept of human rights applied to sexuality and reproduction and these rights are protected by international laws. SRHR guarantees a number of rights to individuals, some of these rights are; The right to equality and non-discrimination, the right to life, liberty and security of the person, the right to autonomy and bodily integrity, the right to be free from torture and cruel, inhuman, or degrading treatment or punishment, the right to be free from all forms of violence and coercion, the right to privacy, the right to the highest attainable standard of health, including sexual health; with the possibility of pleasurable, satisfying, and safe sexual experiences. In our society today, there are sexual minority groups which these laws seek to protect and among them are the Sexual minorities.

The concept of Sexual minorities is fairly new to our continent Africa and our country Nigeria. It is proven that man fights and opposes anything he is not familiar with. The concept is alien to our society’s tradition, culture, religion and beliefs. Thus the concept is met with hostility and adverse opposition. Most communities are part of the sexual minority groups presently, in Nigeria. Due to the peculiar nature of their circumstance, Sexual minorities suffer a lot of Sexual and Reproductive Health Rights (SRHR) violations in the hands of members of the society. The passage of the Same-Sex Marriage (Prohibition) Bill (SSMPA) 2014 into law in Nigeria has heightened the rate of violations suffered by members. Over the years many of these groups have experienced homophobic stigma, discrimination and violence. This has driven sexual minorities to hide their identity and sexual orientation. Many fear a negative reaction from members of the society. Reports of indiscriminate arrests by law enforcement officers were also made from different parts of the country. These acts of injustice, discrimination and violence have led to the intervention of some civil society organizations in ensuring that the human rights of these affected persons are protected. It has also led to the rise of the SRHR movement in the country, which has consequently led to the nationwide awareness and sensitization programs held by different Civil Society Organizations (CSOs). This write up is aimed at giving you credible information on the SRHR violations of communities in Nigeria.

In partnership with AmplifyChange, Lawyers Alert an NGO, in the last two years has been monitoring and documenting Sexual and Reproductive Health and Rights violations in Nigeria. Within these two years, they have released findings on these rights violations with regard to the sexual minorities. Their findings are published and updated every six months. Their reports can be found at http://www.lawyersalertng.org/res.php

This documentation is done via their online tool styled “LadockT” http://colahr.org/lawyersalert/index.php  which automatically analyzes these violations across locations with regard to State and Local Government.

It is important to note that, as it relates to Nigeria as a geographical entity, the findings here may not represent the entire facts nationally. The project that birthed this tool is focused in 12 states.

Nevertheless, these findings are critical owing to their veracity and mode of collation.

Based on the analysis on communities, Ikeja in Lagos State has the highest reported violation rate, followed by Kosofe in the same Lagos State, while Gboko in Benue State ranks third on violation rate. Damban in Bauchi State and Gwagwalada in the Federal Capital Territory both rank forth. Lastly Biu in Bornu State ranks the least with regards to MSM violation rate.

On the analysis of age range with regards to these groups, 25-40 years and 20-24 year both have the highest violation rate with 38% while 10-19 years with 24%.

Information gotten from the Lawyers Alert’s tool shows the report of violations as regard to the group, within the time range ( July, 2017 – April, 2019) 20-24 years and 25-40 years has been leading age group in the increase to reported violations in local government areas in States, followed closely by 10 – 19 years age group. From the tool it is also shown that, Physical abuse and Verbal Abuse have the highest reported violation rate with 13%. Followed closely by Emotional Abuse having 12%, Blackmailing and Sexual Expression both rank third with 11% each. Personal Security and Freedom to Associate both rank fourth with 10% respectively. Forced Detention has 7%, Freedom of Movement and Economic Abuse both have 6% each. Quality Healthcare has 4%, Harassment has 3%. Privacy has 2%, Sexual Exploitation and Rape both have the least amount with 1% each. These facts are stated more clearly in the table below.

VIOLATION TYPES – MSM JULY 2017 APRIL 2019
Physical Abuse 13%
Rape 1%
Verbal Abuse 13%
Harassment 3%
Emotional Abuse 12%
Freedom to Associate 10%
Economic Abuse 6%
Blackmailing 11%
Privacy 2%
Freedom of Movement 6%
Quality Healthcare 4%
Sexual Expression 11%
Personal Security 10%
Forced detention 7%
Sexual Exploitation. 1%

 

It is hoped that this document will help to highlight the dangers of communities exposed to. It should also be stated that the data represented in this report is based only on that obtained from the Lawyers Alert online portal. It is important to note that, all violations recorded were verified. Flowing from all of the above it is clear that members of  communities, are beginning to speak up and that the society is becoming a more SRHR conscious one with regard to communities. Nevertheless, there is still need for more awareness programs as many victims of these violations are still stuck in their shells and many more members of the society need to be enlightened.

 

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SRHR with Regards to LGBTI Community

by Solumtochukwu P. Ozobulu  Esqlgbti

Sexual and reproductive health right (SRHR) is a growing movement around the world and in Nigeria. The movement is borne out of the need to encourage individuals to explore their sexuality without fear of stigmatization, physical abuse or any other kind of violation as a matter of Right.

The growing nature of SRHR movement is aimed at protecting the vulnerable and Key Affected Persons including the LGBTI community. LGBTI is an acronym for Lesbians, Gay, Bisexual, Trans- gender and Inter- sex. This community with a different and peculiar kind of sexuality has been viewed with negative and discriminatory tendencies especially in Nigeria and other African Countries. This unfortunate trend has sent the LGBTI Community into hiding due to the legal, social and religious environment in our country with attendant consequences.

It is no news in Nigeria that many LGBTI Persons are still being denied key sexual and reproductive health rights and services i.e. their right to enjoy control over and make decisions on their sexual and reproductive health without discrimination.

The homophobic nature of the citizenry draws its link from socio-cultural and religious beliefs and practices. The culture of the people of Nigeria largely frowns at homo sexual practice as it is said to be foreign to the indigenous practices and beliefs. The religious beliefs and teachings also view same sex practice as sinful, unnatural and therefore unacceptable.

The aggregate Socio Cultural opposition to same sex practice and relationships in Nigeria led to the enactment of the same sex marriage (prohibition) Act 2014. The same sex marriage (prohibition) Act together with the criminal and penal code totally criminalizes homosexual activities in Nigeria. According to the words of the criminal/ Penal code,  homosexual act is regarded as “an act against the order of nature”. The maximum punishment in the northern states that have adopted the sharia law is death by stoning among other punishments. That law applies to all Muslims and to those who have voluntarily consented to application of the sharia courts. In the southern Nigeria the maximum punishment for same sex sexuality activity is 14years imprisonment. The various laws forbidding gay practice providing different punishment varying from the state of commission did not take into cognizance the sexual and reproductive health rights of the LGBTI community.

The provision/ enacting of the laws led to an unprecedented violations of the Rights of the LGBTI community in Nigeria even on grounds of suspicion and hearsay.For example in Lagos Nigeria, over 40 Young People were arrested on the suspicion of holding a gay party. The different violations range from physical abuse, verbal abuse, denial of freedom of association, denial of privacy, emotional abuse, rape, denial of quality healthcare among others. These various violations of the LGBTI community prevailed in Nigeria as both the law enforcement agencies and individuals took justification from the various laws prohibiting homosexuality to violate the rights of the sexual minorities at random.

Since most members of the LGBTI community  are seemingly oblivious of their sexual and reproductive health rights, they find it difficult to open up by reporting these violations due to fear of stigmatization. This has led to strong need for  massive sensitization and awareness creation in the area of sexual and reproductive health right and reporting of violations for effective interventions by Civil society organizations and Nongovernmental organizations both local and international in Nigeria.

Part of this sensitization is currently being carried out by Lawyers Alert in its legal literacy project for vulnerable groups in Nigeria. The positive effect of the sensitization is that more awareness of the Rights of KAPs is being recorded across Nigeria, leading  to a decrease in some violations. This can be clearly seen in the Lawyers Alert published findings on Sexual and Reproductive Health Right violations in Nigeria between 2017 and 2019. These findings can be accessed at http://www.lawyersalertng.org/res.php.

 

According to the recent released report of Lawyers Alert on its website in April 2019, Benue state seems to have the highest rate of LGBTI violations among other states in Nigeria. It can be deduced from the published finding that the age bracket more susceptible to be violated in the LGBTI community are those between 20-24years which can be categorized as youth with 58% of violations in 2019 and 63% in 2017. Although the statistics shows a level of decrease yet it is alarming. A critical analysis of the reports brings to limelight the occurance of these right violations, while some are on the increase others are on the decrease. Violations like physical abuse breach of privacy, denial of freedom to associate, sexual expression and  rape seems to be on the increase with 2%, 3%, 4%,1% and 4% respectively while blackmailing, verbal abuse and emotional abuse are on the decrease with 5%, 1% and 2% respectively. Regardless of the increase and decrease of each of the violations emotional abuse still top the chart as it represents 20% of the violations followed by verbal abuse and denial of sexual expression with 18% each. Although some of the right violations like rape and breach of privacy e.t.c represent a little fraction of the violation but it is important to know that every little piece matters when it is in relations to a person’s sexual and reproductive health right.

It is trite to know that the published finding is not all inclusive as just reports from 12 states out of the 36 states in Nigeria were used. Nevertheless, it shows the growth of SRHR movement and the need to deepen and expand the scope in other to curb the menace.

As we all aspire to be part of a society where individuals have knowledge, skills and resources to enjoy their sexual and reproductive health right without violations and subsequently bequeath same to future generations; there is a need to deepen sensitization on sexual and reproductive health right.

 

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Nigeria Rebukes UN High Commissioner For Pushing LGBT as Human Rights

NEW YORK, July 10 (C-Fam) Nigeria publicly chastised the UN human rights office for trampling on universally-agreed rights as it seeks to impose same sex marriage and outlaw commonly-held views on homosexuality. The sharp rebuke accused the UN officials of infringing on the right to democracy, religious freedom, and cultural standards that strengthen families.

The statement, delivered last week in Geneva, came in response to a report released last month by the UN human rights office. The report on discrimination and violence against individuals based on sexual orientation and gender identity criticizes laws protecting children from LGBT propaganda and condemns therapy to help people with unwanted sexual attractions. Expressing negative views on homosexuality contributes to violence, the report claims.

The UN report, which governments are free to ignore but which will be used to pressure them, also tells countries to legalize same sex marriage or unions, and provide benefits.

The majority of countries define marriage as the union of a man and woman. Nigeria strengthened its law in 2014.

Nigeria rebuked the UN officials for disrespecting the democratic process and endangering universally-agreed human rights.

Religious freedom and cultural rights are “fundamental parts of the Universal Declaration of Human Rights,” Nigeria stated. Countries have a “duty to ensure the family values, the religious values and the cultural values of its citizens are protected,” which are “the bedrock of the moral values of the individual.”

Nigeria’s marriage law “is intended to uphold and strengthen these values.”

Nigeria has the largest population in Africa and the majority of its 170 million citizens are Christian or Muslim.

The law “synchronizes” Nigeria’s culture, traditions, and two main religions, all of which reject “unreservedly, same sex marriage, homosexuality, lesbianism, gay and transgender attitudes.”

The Nigerians also said gay rights and orientation “will limit population” and “impose unintended consequences on the family as an institution.”

The UN human rights office ramped up its campaign to promote lesbian, gay, bisexual and transgender (LGBT) behavior in 2011, based on a Human Rights Council resolution expressing “grace concern” at violence and discrimination against persons based on sexual orientation and gender identity. The recent report concedes “data are patchy” on homicides. Persons identified as LGBT may be targeted by terrorist groups, and are victims of honor killings.

But the UN report strays from acts of violence to lump in expressing religious beliefs and counseling. It “condemns” reparative therapy to help with unwanted homosexual attractions, and describes statements on homosexuality by Catholic leaders as contributing to stigma and violence against adolescents and children.

Legalizing same sex marriage is not required, the report concedes, yet goes on to tell countries to recognize same sex unions. Countries should run public education campaignson sexual orientation and repeal policies that impact rights to health, education, work, housing and social security – providing an opening for attacks on faith-based organizations and individuals that decline to participate or assist in homosexual activities.

The UN human rights office is currently mired in scandal and rumors of corruption. Its officials are accused of mishandling an investigation of French soldiers sexually abusing African boys. Staffers are rumored to be cozy with officials from governments seeking to influence decisions inside the UN office.

Nordic countries funded the UN office’s campaign for LGBT rights, even as the UN human rights chief pled for funding to do its basic work.

Privately African and other delegates express immense frustration at what they see as an obsession with LGBT issues by UN personnel and some governments.

 
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Posted by on July 12, 2015 in Human Rights

 

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An Easy Target: Homophobia For Political Ends

 
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Posted by on May 4, 2015 in Human Rights

 

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LAWYERS COME TOGETHER TO PROVIDE LEGAL ASSISTANCE TO KEY POPULATIONS AND VULNERABLE GROUPS

Volunteer Lawyers across 23 states in Nigeria came together in Abuja between the 2nd to 6th of February 2015 to educate themselves on the plight of key population and vulnerable groups in Nigeria at a training organized by Lawyers Alert a human rights NGO, with the support of UNAIDS Nigeria office.

At the end of the meeting, the lawyers numbering over 30, resolved to act under a coalition with the specific mandate of servicing vulnerable groups to include Persons Living with HIV, Persons with Disabilities, Women and other key populations impacted most by HIV.

The Chairman of the National Human Rights Commission, Prof Chidi Odinkalu who was present at the meeting, emphasized the anti-human rights effect of discrimination and stigmatization, stating human rights are universal and interdependent. While we may not agree on everything, we must respect the right of others nonetheless he stated. He commended the lawyers for the bold initiative and assured them of the NHRC support at all times.

UNAIDS Country Director, Dr Camara Bilali, who was also present, commended the lawyers for their passion, commitment and sacrifice in terms of free representation of key population. The challenges are enormous in the sphere of policy, laws and other interventions, and lawyers are best equipped to tackle these, given their training, spread and community presence he stated.

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Rommy Mom, President of Lawyers Alert, said he was particularly excited at the prospect of what can be achieved going forward in terms of legal representation to these vulnerable groups by the initiative. He commended his Colleagues for their volunteerism while wishing more lawyers could be coopted from other states going forward.

At the end of the 3 day training the lawyers resolved to come together under a Coalition of “Lawyers for Rights of Vulnerable Groups” for the purpose of legal aid and other interventions on behalf of Persons Living With HIV, Persons With Disabilities, Women, Sex Workers, Sexual Minorities, etc.

A Participant from Maiduguri in Borno state, Barrister Merama Balami, and Barrister  Abigail Dahiru from Gombe, in Gombe state stated not minding the insurgency, they will work within the spaces provided to also reach out to Internally Displaced Persons, IDPs, within the context of key populations.

Participants were presented with certificates at the end of the training.

The Coalition resolved to hold an inaugural meeting in the very near future to develop a strategic plan to guide them in the first three years of their work.

 

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Nigerian Gay activist Bisi Alimi speaks on living with HIV and how he was nearly killed for being gay

In an interview with NPR.com, Nigerian Gay rights activist, Bisi Alimi, who was the first person to come out as gay on Nigerian TV, talked about the challenges of living as a gay Nigerian man, living with the HIV virus, his relationship with his immediate family members and also about the Nigerian anti-gay law. Find excerpts from the revealing interview below…

Alimi’s acting career was just starting to take off when his sexuality stole the spotlight. The student newspaper at University of Lagos, where he was studying theater, threatened to publish a photo of him with his then-boyfriend. So Alimi beat them to the punch. He went on “New Dawn with Funmi,” one of the most popular talk shows in Nigeria, and challenged a long-held belief that homosexuality was brought to Africa by white colonizers. That was also the year Alimi was diagnosed with HIV.

Suddenly, his home country no longer saw him as a rising star. Alimi lost his roles on TV and on stage, many of his friends shunned him and the police even arrested him on unexplained charges. In 2007, things got worse. He was detained at the airport on his way back from the United Kingdom, where he gave an interview to BBC Network Africa, and was released two days later. Then a group of men entered his home and attempted to kill him. Alimi fled to the U.K. and hasn’t been back to Nigeria since.

Why are you happy about Nigeria’s harsh anti-gay law? 
I see the law as a catalyst for change for good in Nigeria. You don’t understand what it is like to fight a beast that you cannot see. Before the signing of that law, between 95 and 98 percent of Nigerians were in support of it. The latest poll says 88 percent of Nigerians now support the law. That’s a 10 percent drop. Some people who are not LGBT are now saying, “Did we just support a law that criminalizes people … for falling in love?” [When] you see that your uncle or cousin is gay, it kind of changes the conversation.

Speaking of family, how does your family feel about your identity?
I’m in a relationship that I can’t talk to my parents about — it’s like a big elephant in the room. But [the fact that] they want to accept me [as gay] is a form of support.
I was diagnosed [with HIV] in 2004, and I’ve never discussed it with my parents. This is my personal life, and I don’t want them to get involved with it. Many times when I struggle with the challenges of being gay and being [HIV] positive, even living in diaspora and so many other things, I just really want to have somebody I can cry to who has blood lineage but I just said no.
So who is in your support network?
Mostly close friends. Many times it’s people I don’t know. I remember one incident when I was at my university. I was going back to my room at night and I was stopped by two guys. They were making very derogatory statements and becoming really aggressive. There was a [student] coming. So I raised my voice: “What did I do to you, why are you guys so frustrated with me?” ]The student] stopped and said, “What’s going on?” I told her these guys were attacking me, and they said, “Oh he’s gay, he’s a faggot.” She just looked at them and said, “What if he’s a faggot? What’s your problem?” She stood up to them. These are the unsung heroes of my existence because anything could have happened that night.
Back in 2007, a group of guys tried to kill you and that’s when you fled the country. But did you ever want to leave Nigeria before then?
I was lucky enough to go through a 2-hour ordeal of being beaten and almost being shot in the head and escaping. If those guys are still alive, they might have read one or two of my interviews. I wonder how they feel that they almost killed me. But I felt that leaving was never a choice until my mother said, “Do you still have reason [to stay]? I think you should leave.”
How did you react when when you were diagnosed with HIV?
By 2001 I started working in HIV prevention because I lost my best friend [to the disease]. So I was kind of aware. That was why my diagnosis was a shock to me. I broke down and started crying and thought like this is the end of my life because I have seen my friends die. It’s such a big thing that even within the gay community, if you’re positive, that’s the end of it. Nobody wants to talk to you or date you, but you become the story everyone wants to talk about. So I didn’t tell anybody. I carried it for three years before leaving Nigeria. I didn’t start medication until 2009.
If you had known about the treatments and support for HIV then, would you have reacted differently?
No, because then I might still be in Nigeria. And I still wouldn’t want to talk about it because it would still be a death sentence. Treatment is a big challenge and people [in Nigeria] still don’t have access to it. And the support system is still not there because of the stigma against gay men — it’s a belief that [HIV] is a punishment from God. So it’s very difficult to exist with that system.
How would you assess the progress across Africa in providing HIV treatment?
We are still betraying generations when it comes to HIV prevention and treatment. Many people still need access to this treatment and we still have children being born with the virus when we know we can prevent it. We’re lacking political willpower and funding to HIV projects. It has become a political game.
Being an advocate gives you a different kind of stage than acting does. If you had a choice, would you go back in to acting?
I think I studied theater because I was pretty much a drama queen [laughs]. Acting is my biggest passion. The unfortunate thing is that it’s something I would never touch again because it left a big scar in my life. Even when I did try to go back to acting, I kept thinking, “If you keep doing this, you’re going to bring up media interest again.” I have media interest now but it’s very humane. It’s not about who I kissed last night or who I’m hanging out with.
So you’re done with theater?
If there’s anything I want to go back to, it’s acting. I want to be back on stage dancing and acting, but I’m also very scared of it.
 
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Posted by on December 30, 2014 in Human Rights

 

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A look at Africa’s anti-gay laws

By Denis Nzioka

When India’s Supreme Court – in a surprising ruling – upheld a 150 year old ban on same sex acts among consensual adults, the world reacted with shock at how, in just under four years – it was in 2009 that the High Court decriminalized consensual same sex acts – the law can change easily against homosexual persons.

Unfortunately, as the world – and by large, the global LGBTI, and to some extent, the sex work community – focused on the ruling, there is a worrying trend in the African continent as countries formulate new laws or amplify existing ones to further criminalize same sex persons.

In five countries around the world, same sex sexual conduct carries the death penalty while across the Commonwealth – with most African countries being members – penalties for homosexuality include jail sentences, flogging or death. According to the Human Dignity Trust (HDT), half a dozen Commonwealth countries specify life imprisonment.

38 African countries criminalize homosexuality . This criminalization stems from imported British laws in place in the late nineteenth century that, at that time, outlawed homosexual acts. Despite a 1967 Sexual Offences Act in England and Wales that repealed its own legislation and until the 1980s before Scotland and Northern Ireland did the same, these laws originally imposed during colonial times remain largely in place in these African, even in a post-independence era.

Of these 38, 10 have taken the extraordinary step of targeting LGBTI persons by strengthening existing sexual offences laws, or formulating ‘moral’ Bills that outlaw all forms non-heterosexual conduct or create anti-homosexuality specific laws. Here are some of them.

DEMOCRATIC REPUBLIC OF CONGO (DRC)

The DRC has joined the league of African nations proposing for ‘preserve African cultural values’ by outlawing non-heterosexual practices from pornography to zoophilia to homosexuality. Recently, the National Assembly Member Steve Mbikayi, sponsored a Bill in Parliament which, he insists is meant to avoid “moral depravity” and protect the Congolese youth from “western morals.” The bill is necessary in order to “preserve African values,” which, he insists, “have never tolerated romantic relationships between persons of the same sex.” The bill ‘complements’ a 2010 proposed legislation, Sexual Practices Against Nature Bill, that was presented before Parliament aiming to criminalise homosexuality and zoophilia as sexual practices ‘against nature.’ Section 2 of the proposed Bill singles out zoophilia (sex with animals) and homosexuality as sexual practices against nature. It also criminalises any activities that directly or indirectly aim to promoting the rights LGBTI persons, therefore, in accordance with section 174h3 of the Bill, “all publications, posters, pamphlets, (or) films highlighting or likely to arouse or encourage sexual practices against nature are forbidden within the territory of the DRC (Section 174h3)” and “all associations that promote or defend sexual relations against nature are forbidden within the territory of the DRC.”

NIGERIA

In May 2013, Nigeria’s House of Representatives passed a Law that further criminalised homosexuality by punishing those who try to enter same-sex marriages with a possible 14 years prison term. The bill, Prohibition of Same Sex Act, which passed through the Senate – Nigeria’s highest chamber – in December 2011 also punishes those “witnessing” or “abetting” same sex relationships with custodial sentences of at least eight years, and groups that advocate for LGBT rights were also penalised by the new bill. The bill – which was awaiting President Jonathan’s Goodluck signature to make it into law – re-emerged this December when reports said the Nigerian Senate ‘unanimously’ passed a harmonised Conference Committee report banning same sex marriage in Nigeria. It is also reported pressure is mounting on Goodluck to sign the Bill with Senate President, David Mark calling on him to sign the Bill into law. “We have been under series of attack from different quarters. I think we believe in this Bill. The earlier we sign it into law, the better. We (Nigeria) have many shortcomings, we don’t one to add this one (same sex marriage) to it,” Mark is reported to have said.

ZIMBABWE

Since 1995, the Zimbabwe government has carried out campaigns against both homosexual men and women. However, in 2006, the Government – under President Robert Mugabe whose own anti-gay public speeches are described as fiery and explicit (at one point, he called for the beheading of gays) – passed laws that criminalize any actions perceived as homosexual. It is now a criminal offense for two people of the same sex to hold hands, hug, or kiss. The “sexual deviancy” law is one of 15 additions to Zimbabwe’s Criminal Code. The sections involving gays and lesbians are part of an overhaul of the country’s sodomy laws. Before then, laws against sodomy were limited to sexual activity, and the revised law now states that sodomy is any “act involving contact between two males that would be regarded by a reasonable person as an indecent act.” In the run-up to the last elections, there was concern from LGBTI activists that following the re-election of Mugabe, who pledged during campaign rallies to impose tighter anti-gay legislation and called for gays to be jailed or beheaded, things might turn worse. Mugabe in his campaigns had been promising tougher measures against LGBTI people, including long prison sentences, and at one point called for beheading gays.

BOTSWANA

In November 2013, the Botswana Government was harshly criticized by human rights, sex workers rights and LGBTI groups after a new national policy draft HIV “Strategies to Address Key Populations” was said to provide for the police and immigration authorities to “arrest” local MSM and sex workers and “deport and evoke permits” of foreigners – with the authorities “even availing themselves over weekends” to enforce the crackdown. The policy was an HIV survey of MSM, female sex workers (FSW), and people who inject drugs (PWID) in the country and these provisions were part of the recommendations of the policy. Despite the Botswana Government refuting this, Botswana Network on Ethics, Law and HIV/AIDS (BONELA), said the government did the ‘totally unexpected and deviated from the study findings by taking punitive, discriminatory, homophobic and xenophobic measures.’ However, the most surprising thing is that the Employment Act of Botswana has prohibited employment discrimination on the basis of sexual orientation since 2010 even though same-sex sexual acts remain illegal.

MALAWI

In November 2012, it was reported that President Joyce Banda had suspended all laws that criminalized homosexuality. This was after Malawi’s justice minister said the government would review anti-gay legislation “in view of the sentiments from the general public and in response to public opinion regarding certain laws.” Surprising, the government later denied issuing the statement thus the laws that criminalise same sex acts remain in place.

LIBERIA

Lawmakers in Liberia introduced two bills in 2012 that would strengthen existing anti-gay provisions in the criminal code. One of the bill, prohibiting and criminalizing same-sex marriages, was unanimously passed in the Senate but has yet to be taken up by the House of Representatives. Another bill in the House of Representatives is much broader, and includes a provision banning the “promotion” of gay sex. The bill has yet to be voted on.

CAMEROON

Often said to be the only country in the world that ‘actively’ persecutes homosexual people, Cameroon occupies a unique place as the only country that has arrested more real or perceived gay persons than any other African nation. In addition to sustained media outings – of as many people as 50 – the justice system has jailed persons suspected of same sex acts. Further, a national association has now decided to mark the 21 of August as a national anti-gay, promising a homophobic parade through the streets of the capital in a bid to push for enactment of stricter anti-gay laws. Several human rights and LGBT groups criticized plans by Cameroon to increase the penalties for consensual same-sex sexual acts under the law to 15 years’ imprisonment and a fine of 2 million francs CFA (£2660 GBP or $ 4104 USD).

GAMBIA

Gambia’s President Yahya Jammeh said in 2008 that laws “stricter than those in Iran” against homosexuals would soon be introduced and vowed to “cut off the head” of any homosexual caught in the country. He further gave homosexuals 24 hours to leave the country. “Those who promote homosexuality want to put an end to human existence,” he told a gathering of world leaders. “It is becoming an epidemic and we Muslims and Africans will fight to end this behavior.” Jammeh even went further and ordered the director of the Gambia Immigration Department to “weed bad elements in society.” He further advised army chiefs to monitor the activities of their men and deal with soldiers practicing lesbianism in the military.

UGANDA

Uganda’s Anti Homosexuality Bill was a private member’s bill by MP David Bahati in 2009 causing worldwide condemnation. Provision of the bill include the death penalty for same sex acts in certain circumstances. People who are caught or suspected of homosexual activity would be forced to undergo HIV tests; Ugandans who engage in same-sex sexual relations outside Uganda will likewise fall under the jurisdiction of this law, and may be extradited and charged with a felony. It also provided anyone who is aware of a person who is gay to report them within 24 hours lest they face imprisonment. After much international pressure, the Bill was shelved and is awaiting a committee report that some optimists say may have ‘watered it down.’ It has been reported that the members of the Ugandan Parliament are looking to hold debate behind closed doors due to what one legislator said was the ‘sensitive nature of the bill.’

*Denis Nzioka is a LGBTI rights activist based in Nairobi, Kenya

 
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Posted by on March 27, 2014 in Human Rights

 

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CLAUSE BY CLAUSE ANALYSIS OF NIGERIA SAME SEX MARRIAGE (PROHIBITION) LAW, 2013.

………Coalition for Sexual Rights in Nigeria

1. Clause 1(1): Marriage contract or civil union entered into between
persons of same sex is hereby prohibited in Nigeria.

Nigeria has never reckoned with contracts between same-sex couples. For
marriage to be valid. It must be a union between a man and a woman.
Marriages between same-sex couples are void ab initio, have no legal backing
in Nigeria and therefore needs no further prohibition. From the Provision of
Sections 3 (1) and Section 5 of the Matrimonial Causes Act, Cap M7, Laws of
the Federation, 2004, this clause serves no particular legitimate purpose. Since
same sex marriage contract is not recognised by the Marriage Act, there is no
impending harm that this bill intends to stem. This clause is therefore not
necessary.

Sub Clause (2): A Marriage contract or civil union entered between
persons of same sex is invalid and illegal and shall not be recognised as
entitled to the benefits of valid marriage.

This is the position of the law in Nigeria presently (save customary practices
that exist from time immemorial) and requires no restatement. The Marriage
Act does not recognize marriages between persons of same sex, so why this
clause?

However, this clause is unconstitutional as it contradicts S.42 of the 1999
Constitution of Nigeria (as amended) which provides thus:

“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 practical 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 origin, sex,
religions or political opinions are not made subject…”

We hold the strong view that sex as used in the above provision is not limited
to gender or intercourse but includes the sexual orientation of the citizen.
Thus, the provision being unconstitutional is therefore, null and void and of no
effect whatsoever…per S.1(3) of The Constitution of the Federal Republic of
Nigeria.

In practical terms, criminalisation of same sex marriage or union will restrict
same sex couples from access to medical and healthcare services, educational
services and employment opportunities available to other people of different
sexual orientation. It will also deprive spouses of such marriage from
benefitting from their marriage such as inheritance, succession, administration
of estates, Etc.

Sub Clause (3) A marriage contract or civil union entered into between
persons of the same sex by virtue of certificate issued by a foreign country
shall be void in Nigeria, and any benefits accruing there from by virtue of the
certificate shall not be enforced by any court of law in Nigeria.

The provision of this clause is contrary to Nigeria’s obligation in the
international law as a member of the civilized world. It is also disrespectful to
foreign nationals or Nigerians legally married within the enabling laws of other
nations. Such foreigners or Nigerians married abroad would be unable to lay
claims to their rights such as property, freedom from discrimination, insurance
Etc. because of the provisions of this bill. This will negate the provisions of
Section 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended)

Besides, Nigeria is obligated to the comity of Nations under the United Nations
and the Africa Union because she is a party to some international treaties
namely;

a. The International Covenant on Civil and Political Rights which was
acceded to on the 29th of July, 1993. Please refer to Arts. 2(1) and 26
of the Convention which recognise right to equal protection for all
and freedom from discrimination. The United Nations Human Rights
Commission held that based on the above Articles, discrimination on
the bases of Sexual Orientation in an attempt to protect public
morality through a penal law in Australia was wrong. This was in the

case of Toonen Vs Australia, case 488/92. The same opinion was held
by the Commission in the case of Young Vs Australia, UN Doc
CCPR/C78/D/941 in 2003.
b. The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment which was signed on the 28th
day of July, 1988 and ratified on the 28th day of June, 2001.
c. The Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) which Nigeria ratified in June, 1985 and
notably the
d. African Charter on Human and Peoples Rights (ACHPRs) which clearly
recognises that “ every individual shall be entitled to enjoyment of
the rights and freedoms recognised 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
or social origin, fortune, birth or status” It is pertinent to note that
ACHPRs already forms part of our local laws since it was passed by
the National Assembly in line with section 12(1) of the Constitution
which provides that “ No treaty between the federation and any
other country shall have the force of law except to the extent to
which any such treaty has been enacted into law by the National
Assembly” The implication is that, violating its provision tantamount
to violating our local laws as well as our obligation to African Union.
This is a serious challenge both to our legal system and International
Law. Other likely consequences of the clause include but not limited
to:
a. Making Nigeria a safe haven for persons who wish to evade
matrimonial obligations abroad;
b. It will overreach and deprive partners of diplomats of their
diplomatic privileges.
c. Nigeria can no longer fulfil her obligations on diplomatic
reciprocity.
d. Children of marriages of same sex partners contracted outside
the country will be frustrated in Nigeria.

e. Ridiculing Nigerians efforts to justify polygamy for
International/diplomatic privileges like visa, medical benefits
and scholarships.

Clause 2: (1) Marriage or civil union entered between persons of same
Gender shall not solemnized in any place of worship.
Either church or Mosque in Nigeria.

Section 10 of the 1999 Constitution of the Federal Republic of Nigeria is very
clear on the secularity of Nigeria as a country. This Section provides as follows

The Government of the Federation or of the state shall not adopt any
religion as State Religion.

This provision clearly states that no religion is state religion or has superiority
over another. It portrays the diversity of religion in Nigeria and the need to
respect and tolerate other peoples’ religion.

The Legislative Houses in Nigeria will also be acting ultra vires when it dictates
to religious bodies what kind of marriages they are expected to celebrate and
which they should not. It is dictating religious doctrines and infringing on the
right to worship of Nigerians.

(2) No marriage certificate issued to parties of same sex marriage or civil
union shall be valid in Nigeria.

The provisions of this clause is made out of over abundance of caution and
unnecessary. It is a wasteful exercise of legislative prowess and a usurpation of
customary practices in Nigeria where women marry their fellow women for
support. This has been the practice from time immemorial in the Southern and
Eastern parts of Nigeria (consisting of the Igbos, Ijaws, Efiks and Ibibios).
Another implication of this clause is the potential of retribution by countries
whose marriage certificates are not recognised in Nigeria through rejection of
marriage certificates belonging to Nigerians. A serious risk for all Nigerians that
might have stake in such countries.

Clause 3: Only marriage contracts between a man and a woman either under
Islamic Law, Customary Law and Marriage Act is recognised in Nigeria.

This again impugns on the secular nature of Nigeria. The Legislative Houses
have again acted in excess of the powers vested upon them by the 1999
Constitution of the Federal Republic of Nigeria (as amended)

Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as
amended provides thus: The National Assembly shall have the power to make
laws for the peace, order and good government of the Federation or any part
thereof for with respect to any matter included in the Exclusive Legislative List
set out in Part 1 of the Second Schedule to the Constitution.

The Exclusive Legislative List, Part 1, Second Schedule, item 61 of the
Constitution of the Federal Republic of Nigeria provides thus: the formation,
annulment and dissolution of marriages other than marriages under Islamic
law and Customary Law, including matrimonial causes relating thereto.

These provisions of the constitution does not vest in the National Assembly the
power to dictate which type of marriage shall be recognised as valid in Nigeria.
It has simply acted in excess of its jurisdiction by so doing.

The bill is also in error by stating that only marriages between a man and a
woman shall be recognised in Nigeria. It did not address the issue of polygyny
where one man can wed multiple wives at the same time.

Clause 4(1) The Registration of gay clubs, societies and organisations, their
sustenance, possessions and meetings are hereby prohibited.

This provision clearly contradicts Section 40 of the Constitution which clearly
provides that:

“Every person shall be entitled to assemble freely and associate with other
persons , and in particular he may form or belong to any political party, trade
union or any other association for the protection of his interests.”

Nigeria is a democratic Society and the provisions of this bill will be setting a
very dangerous precedent for democracy.

By proscribing LGBTI organisations, the interest of the community such as
health, education and capacity building (human Development) which such
organisations provide to fill the gap created by government, can lead to a
broken community with chronic problems that are neither attended to by

government, nor LGBTI organisation. The result will be unattended issues
spreading all over, in form of diseases, poverty and increased crime rate.

Also nationals that work in LGBTI organisations will thus be deprived of their
right to livelihood which has been interpreted to be an integral aspect of the
right to life as guaranteed by the constitution Section 33.

It is pertinent to note that LGBTI organizations in Nigeria operate basically not
to promote homosexual practices but to attend to public health issues as it
affects this particular community. Proscribing LGBTI organizations will have
very negative health implications on the country and will be contrary to the
provisions of the constitution Sections 37, 38, 39 and 40 which can only
conditioned on the grounds of defence, public safety, public order, public
morality and public health. In this case the LGBTI organizations are about being
proscribed without consideration for overriding public health implication.

Another socio – economic implication of this clause is the loss of employment
opportunities by many Nigerians who are employed in these organisations
either as program officers or consultants accompanied with their family
benefits. The clause is also capable of affecting diaspora in-flow. This will also
have negative impacts on Nigeria’s credence after her expression of interest to
implement programmes on HIV/AIDS and receiving funds for same. It will not
speak well of Nigeria to rescind her interest upon expending the huge sectoral
budget on health from Implementing partners.

Clause 4 sub (2) the public show of same sex amorous relationship directly or
directly is hereby prohibited.

This provision of the bill is open-ended and vague. It has the overt potential of
criminalizing filial relationship and any form of show of affection between
persons of same sex. The parameter for ascertaining same sex amorous
relationship is not defined.

More so, the law will charge the polity as it potentially criminalizes filial
affection with resultant effect of fear of being targets of hate crimes and
violence. The closely knitted fabric of love, peace and harmony inherent in the
African society will begin to erode with the presence of this law, since the law

is imprecise on what form of affection can be allowed and disallowed and what
it intends by the use of the word ‘directly’ or ‘indirectly’

Laws are not meant to be imprecise and vague. This law should be disallowed
for vagueness and lack of precision.

State actors and non state actors can capitalize on this to make indiscriminate
arrest, blackmail and extort people based on subjective interpretation of what
same sex amorous relationships are.

Clause 5 sub (1) Persons who entered into a same sex marriage contract or
civil union commits an offence and are each liable on conviction to a term of
14 years imprisonment.

This bill will create undue hardship on Nigerians: socially and economically as
civil union is defined to include almost all manner of co-habitation. In Nigeria,
friends live together in same apartments for several reasons: social, fraternal
and economic reasons. Nigerians are communal in nature but this bill did not
put into consideration the hardship it will create on this ground.

This is invasive of the privacy and family life of Nigerians that is guaranteed
under the Section 37 of the Constitution, which provides that, “the privacy of
citizens, their homes, correspondence, telephone conversations and
telegraphic communications is hereby guaranteed and protected”.

“The right to privacy implies a right to protect one’s thought; and one’s body
from unauthorized invasion… the sum total of the rights to privacy, and
freedom of thought, conscience or religion which an individual has, put in a
nutshell, is that an individual should be left alone to choose a course of life,
unless a clear and compelling overriding state interest justifies the contrary”.
Per Ayoola JSC in the case of M.D.P.D.T. v Okonkwo (2001) FWLR (PT. 44) 542.
The interest as adduced by the sponsors of this bill is inimical to overriding
public interest.

Cluase 5 Sub (2)- Any person who registers, operates or participates in gay
clubs, societies and organizations, or directly or indirectly make public show
of same sex amorous relationship in Nigeria commits an offence and shall be
liable on conviction to a term of 10 years imprisonment.

The provisions of this clause is targeted at organizations that may be providing
services to members of the society based on their sexual orientation. It
criminalizes such forms of service delivery as sex education and condom
promotion must no more speak to, or address sexual minorities in obedience
to this law.

This law is potentially harmful and capable of sending sexual minorities into
their closet, truncating the national response to HIV/AIDS in Nigeria. This law
will negatively impact the public health of Nigerians, should sexual minorities
become closeted.

According to Chidi Odinkalu, Chairman of Nigeria’s Human Rights Commission,
stresses this point when he said “But African cultures of family values have
always cohabited quiet happily with our culture of public show of affection and
compassion”

This bill if passed into law will create a fertile ground for state agent to clam
down on person perceived to be gay, whether or not they are, if seen
displaying love and affection publicly. The bill is very subjective in this regard.

Clauses 5 Sub (3) Any person or group of persons that witness, abet and aids
the solemnization 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 commits an offence and shall be liable on
conviction to a term of 10 years imprisonment.

This clause is also laden with ambiguity as to the meaning of abetting and
aiding. Lawyers and human rights activists who defend the rights of gay people
would be offending the provisions of this clause as their actions are capable of
being construed as supporting either the registrations, operations and
sustenance of same sex societies and organizations.

Family members may be guilty of aiding and abetting, clergies who take
confessions may be victims of this bill for refusal to report a member who
confesses to them, professionals such as doctors, nurses and laboratory
technicians can also be proscribed for failure to report any incident of ailment
resulting from same sex relationships. The list of persons who can be
proscribed is endless because the law is not precise in its definition.

Clause 6:The High court of a state or the Federal Capital Territory shall have
jurisdiction to entertain matters arising from the breach of the provisions.

Vesting the High Court in the state with Jurisdiction over the provisions of this
Act is a deliberate ploy to ensure that persons arraigned in court are remanded
in prisons custody pending formal application for bail brought before the High
court.

In practice, the police do not arraign a suspect directly at the High court for an
offence over which only the High court is vested with jurisdiction. Arraignment
is usually at the Magistrate court, from where the accused person is remanded
in prison custody pending the outcome of the advice of the Director of Public
Prosecution of the state and a formal application brought before the High
court with all accompanying processes. This is not usually very expedient as
the accused person may spend a minimum of three weeks in prison custody
before bail is applied for, granted and perfected.

This is invasive of the fundamental rights to personal liberty of any accused
person under charge. It is a very conscious provision and a veritable tool that
can be used to ruin every organization perceived to provide services to, and/or
protect the right of same gender persons.

CONCLUSION

From the clause to clause analysis of the proposed Act awaiting the assent of
the president to become law, it is our very considered opinion that THE BILL
IF ASSENTED TO, will create undue hardship on Nigerians both the LGBTI and
heterosexual community alike.

Very informed Nigerians have made critiques against the law, its intentions
and consequences, like the Noble Laureate, Professor Wole Soyinka and Mr.
Jiti Ogunye, a human rights lawyer and a former chair of the Ikeja branch of
the Nigerian Bar Association, have spoken extensively and critically on the
bill and its negative implications on the citizenry and said it is an unnecessary
publicity stunt.

the bill will formalise discrimination against perceived gay persons; their
family members and friends; organizations, professionals and human rights
defenders who provide services and support to them, and have wide ranging
effects on civil liberties in the country; and also stir up hate crimes, violence,
harassment, victimization, unlawful detention and imprisonment on
innocent Nigerians.

It will also criminalise and the freedom of speech, association, assembly and
compromise the right to privacy and property.

Nigeria has the second largest HIV/AIDS burden in the and the bill will
frustrate the national response (NACA statement on HIV/AIDS burden), by
criminalising those conducting outreach programmes as well as driving the
most at risk population underground.

Economically, the bill will affect the investment drive of government; scare
away potential foreign investors and Nigerians same sex couples from
coming home to contribute their quota to the economy.

The bill is also laden with manifest ambiguities which are capable of variant
interpretation to serve punitive intentions and suit the whips and caprices of
state agents and non state actors.

The bill is unconstitutional as it compromises some fundamental rights
enshrined in the constitution of the Federal Republic of Nigeria, 1999 (As
amended).

The bill does not comply with the provisions of the constitution and is
unconstitutional, null and void. See the case of ATTORNEY-GENENRAL OF
LAGOS STATE V ATTORNEY-GENERAL OF THE FEDERATION (2004) 20 NSCQR
99.

It is well settled that the constitution is Supreme; it is the organic,
fundamental law and the ground norm of Nigeria and all enactment must
comply with the provisions of the constitution. See the case of FASAKIN
FOODS VS HOSANYA (2006) 26 NSCQR (PT).

It is also clear that the National Assembly has acted ultra vires by exceeding
their legislative powers. The provisions of clauses 2 and 3 of this bill where
made without constitutional powers. The National Assembly cannot exercise
legislative powers in matters not included in the Exclusive Legislative List. See
the case of ATTORNEY GENERAL OF ABIA STATE V ATTORNEY GENERAL OF
THE FEDERATION (2006) 28 NSCQR 161 at 167.

CLAUSE BY CLAUSE ANALYSIS OF THE SAME SEX MARRIAGE
(PROHIBITION) LAW, 2014.

1. Clause 1(1): Marriage contract or civil union entered into between
persons of same sex is hereby prohibited in Nigeria.

Nigeria has never reckoned with contracts between same-sex couples. For
marriage to be valid. It must be a union between a man and a woman.
Marriages between same-sex couples are void ab initio, have no legal backing
in Nigeria and therefore needs no further prohibition. From the Provision of
Sections 3 (1) and Section 5 of the Matrimonial Causes Act, Cap M7, Laws of
the Federation, 2004, this clause serves no particular legitimate purpose. Since
same sex marriage contract is not recognised by the Marriage Act, there is no
impending harm that this bill intends to stem. This clause is therefore not
necessary.

Sub Clause (2): A Marriage contract or civil union entered between
persons of same sex is invalid and illegal and shall not be recognised as
entitled to the benefits of valid marriage.

This is the position of the law in Nigeria presently (save customary practices
that exist from time immemorial) and requires no restatement. The Marriage
Act does not recognize marriages between persons of same sex, so why this
clause?

However, this clause is unconstitutional as it contradicts S.42 of the 1999
Constitution of Nigeria (as amended) which provides thus:

“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 practical 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 origin, sex,
religions or political opinions are not made subject…”

We hold the strong view that sex as used in the above provision is not limited
to gender or intercourse but includes the sexual orientation of the citizen.
Thus, the provision being unconstitutional is therefore, null and void and of no
effect whatsoever…per S.1(3) of The Constitution of the Federal Republic of
Nigeria.

In practical terms, criminalisation of same sex marriage or union will restrict
same sex couples from access to medical and healthcare services, educational
services and employment opportunities available to other people of different
sexual orientation. It will also deprive spouses of such marriage from
benefitting from their marriage such as inheritance, succession, administration
of estates, Etc.

Sub Clause (3) A marriage contract or civil union entered into between
persons of the same sex by virtue of certificate issued by a foreign country
shall be void in Nigeria, and any benefits accruing there from by virtue of the
certificate shall not be enforced by any court of law in Nigeria.

The provision of this clause is contrary to Nigeria’s obligation in the
international law as a member of the civilized world. It is also disrespectful to
foreign nationals or Nigerians legally married within the enabling laws of other
nations. Such foreigners or Nigerians married abroad would be unable to lay
claims to their rights such as property, freedom from discrimination, insurance
Etc. because of the provisions of this bill. This will negate the provisions of
Section 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended)

Besides, Nigeria is obligated to the comity of Nations under the United Nations
and the Africa Union because she is a party to some international treaties
namely;

a. The International Covenant on Civil and Political Rights which was
acceded to on the 29th of July, 1993. Please refer to Arts. 2(1) and 26
of the Convention which recognise right to equal protection for all
and freedom from discrimination. The United Nations Human Rights
Commission held that based on the above Articles, discrimination on
the bases of Sexual Orientation in an attempt to protect public
morality through a penal law in Australia was wrong. This was in the

case of Toonen Vs Australia, case 488/92. The same opinion was held
by the Commission in the case of Young Vs Australia, UN Doc
CCPR/C78/D/941 in 2003.
b. The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment which was signed on the 28th
day of July, 1988 and ratified on the 28th day of June, 2001.
c. The Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) which Nigeria ratified in June, 1985 and
notably the
d. African Charter on Human and Peoples Rights (ACHPRs) which clearly
recognises that “ every individual shall be entitled to enjoyment of
the rights and freedoms recognised 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
or social origin, fortune, birth or status” It is pertinent to note that
ACHPRs already forms part of our local laws since it was passed by
the National Assembly in line with section 12(1) of the Constitution
which provides that “ No treaty between the federation and any
other country shall have the force of law except to the extent to
which any such treaty has been enacted into law by the National
Assembly” The implication is that, violating its provision tantamount
to violating our local laws as well as our obligation to African Union.
This is a serious challenge both to our legal system and International
Law. Other likely consequences of the clause include but not limited
to:
a. Making Nigeria a safe haven for persons who wish to evade
matrimonial obligations abroad;
b. It will overreach and deprive partners of diplomats of their
diplomatic privileges.
c. Nigeria can no longer fulfil her obligations on diplomatic
reciprocity.
d. Children of marriages of same sex partners contracted outside
the country will be frustrated in Nigeria.

e. Ridiculing Nigerians efforts to justify polygamy for
International/diplomatic privileges like visa, medical benefits
and scholarships.

Clause 2: (1) Marriage or civil union entered between persons of same
Gender shall not solemnized in any place of worship.
Either church or Mosque in Nigeria.

Section 10 of the 1999 Constitution of the Federal Republic of Nigeria is very
clear on the secularity of Nigeria as a country. This Section provides as follows

The Government of the Federation or of the state shall not adopt any
religion as State Religion.

This provision clearly states that no religion is state religion or has superiority
over another. It portrays the diversity of religion in Nigeria and the need to
respect and tolerate other peoples’ religion.

The Legislative Houses in Nigeria will also be acting ultra vires when it dictates
to religious bodies what kind of marriages they are expected to celebrate and
which they should not. It is dictating religious doctrines and infringing on the
right to worship of Nigerians.

(2) No marriage certificate issued to parties of same sex marriage or civil
union shall be valid in Nigeria.

The provisions of this clause is made out of over abundance of caution and
unnecessary. It is a wasteful exercise of legislative prowess and a usurpation of
customary practices in Nigeria where women marry their fellow women for
support. This has been the practice from time immemorial in the Southern and
Eastern parts of Nigeria (consisting of the Igbos, Ijaws, Efiks and Ibibios).
Another implication of this clause is the potential of retribution by countries
whose marriage certificates are not recognised in Nigeria through rejection of
marriage certificates belonging to Nigerians. A serious risk for all Nigerians that
might have stake in such countries.

Clause 3: Only marriage contracts between a man and a woman either under
Islamic Law, Customary Law and Marriage Act is recognised in Nigeria.

This again impugns on the secular nature of Nigeria. The Legislative Houses
have again acted in excess of the powers vested upon them by the 1999
Constitution of the Federal Republic of Nigeria (as amended)

Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as
amended provides thus: The National Assembly shall have the power to make
laws for the peace, order and good government of the Federation or any part
thereof for with respect to any matter included in the Exclusive Legislative List
set out in Part 1 of the Second Schedule to the Constitution.

The Exclusive Legislative List, Part 1, Second Schedule, item 61 of the
Constitution of the Federal Republic of Nigeria provides thus: the formation,
annulment and dissolution of marriages other than marriages under Islamic
law and Customary Law, including matrimonial causes relating thereto.

These provisions of the constitution does not vest in the National Assembly the
power to dictate which type of marriage shall be recognised as valid in Nigeria.
It has simply acted in excess of its jurisdiction by so doing.

The bill is also in error by stating that only marriages between a man and a
woman shall be recognised in Nigeria. It did not address the issue of polygyny
where one man can wed multiple wives at the same time.

Clause 4(1) The Registration of gay clubs, societies and organisations, their
sustenance, possessions and meetings are hereby prohibited.

This provision clearly contradicts Section 40 of the Constitution which clearly
provides that:

“Every person shall be entitled to assemble freely and associate with other
persons , and in particular he may form or belong to any political party, trade
union or any other association for the protection of his interests.”

Nigeria is a democratic Society and the provisions of this bill will be setting a
very dangerous precedent for democracy.

By proscribing LGBTI organisations, the interest of the community such as
health, education and capacity building (human Development) which such
organisations provide to fill the gap created by government, can lead to a
broken community with chronic problems that are neither attended to by

government, nor LGBTI organisation. The result will be unattended issues
spreading all over, in form of diseases, poverty and increased crime rate.

Also nationals that work in LGBTI organisations will thus be deprived of their
right to livelihood which has been interpreted to be an integral aspect of the
right to life as guaranteed by the constitution Section 33.

It is pertinent to note that LGBTI organizations in Nigeria operate basically not
to promote homosexual practices but to attend to public health issues as it
affects this particular community. Proscribing LGBTI organizations will have
very negative health implications on the country and will be contrary to the
provisions of the constitution Sections 37, 38, 39 and 40 which can only
conditioned on the grounds of defence, public safety, public order, public
morality and public health. In this case the LGBTI organizations are about being
proscribed without consideration for overriding public health implication.

Another socio – economic implication of this clause is the loss of employment
opportunities by many Nigerians who are employed in these organisations
either as program officers or consultants accompanied with their family
benefits. The clause is also capable of affecting diaspora in-flow. This will also
have negative impacts on Nigeria’s credence after her expression of interest to
implement programmes on HIV/AIDS and receiving funds for same. It will not
speak well of Nigeria to rescind her interest upon expending the huge sectoral
budget on health from Implementing partners.

Clause 4 sub (2) the public show of same sex amorous relationship directly or
directly is hereby prohibited.

This provision of the bill is open-ended and vague. It has the overt potential of
criminalizing filial relationship and any form of show of affection between
persons of same sex. The parameter for ascertaining same sex amorous
relationship is not defined.

More so, the law will charge the polity as it potentially criminalizes filial
affection with resultant effect of fear of being targets of hate crimes and
violence. The closely knitted fabric of love, peace and harmony inherent in the
African society will begin to erode with the presence of this law, since the law

is imprecise on what form of affection can be allowed and disallowed and what
it intends by the use of the word ‘directly’ or ‘indirectly’

Laws are not meant to be imprecise and vague. This law should be disallowed
for vagueness and lack of precision.

State actors and non state actors can capitalize on this to make indiscriminate
arrest, blackmail and extort people based on subjective interpretation of what
same sex amorous relationships are.

Clause 5 sub (1) Persons who entered into a same sex marriage contract or
civil union commits an offence and are each liable on conviction to a term of
14 years imprisonment.

This bill will create undue hardship on Nigerians: socially and economically as
civil union is defined to include almost all manner of co-habitation. In Nigeria,
friends live together in same apartments for several reasons: social, fraternal
and economic reasons. Nigerians are communal in nature but this bill did not
put into consideration the hardship it will create on this ground.

This is invasive of the privacy and family life of Nigerians that is guaranteed
under the Section 37 of the Constitution, which provides that, “the privacy of
citizens, their homes, correspondence, telephone conversations and
telegraphic communications is hereby guaranteed and protected”.

“The right to privacy implies a right to protect one’s thought; and one’s body
from unauthorized invasion… the sum total of the rights to privacy, and
freedom of thought, conscience or religion which an individual has, put in a
nutshell, is that an individual should be left alone to choose a course of life,
unless a clear and compelling overriding state interest justifies the contrary”.
Per Ayoola JSC in the case of M.D.P.D.T. v Okonkwo (2001) FWLR (PT. 44) 542.
The interest as adduced by the sponsors of this bill is inimical to overriding
public interest.

Cluase 5 Sub (2)- Any person who registers, operates or participates in gay
clubs, societies and organizations, or directly or indirectly make public show
of same sex amorous relationship in Nigeria commits an offence and shall be
liable on conviction to a term of 10 years imprisonment.

The provisions of this clause is targeted at organizations that may be providing
services to members of the society based on their sexual orientation. It
criminalizes such forms of service delivery as sex education and condom
promotion must no more speak to, or address sexual minorities in obedience
to this law.

This law is potentially harmful and capable of sending sexual minorities into
their closet, truncating the national response to HIV/AIDS in Nigeria. This law
will negatively impact the public health of Nigerians, should sexual minorities
become closeted.

According to Chidi Odinkalu, Chairman of Nigeria’s Human Rights Commission,
stresses this point when he said “But African cultures of family values have
always cohabited quiet happily with our culture of public show of affection and
compassion”

This bill if passed into law will create a fertile ground for state agent to clam
down on person perceived to be gay, whether or not they are, if seen
displaying love and affection publicly. The bill is very subjective in this regard.

Clauses 5 Sub (3) Any person or group of persons that witness, abet and aids
the solemnization 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 commits an offence and shall be liable on
conviction to a term of 10 years imprisonment.

This clause is also laden with ambiguity as to the meaning of abetting and
aiding. Lawyers and human rights activists who defend the rights of gay people
would be offending the provisions of this clause as their actions are capable of
being construed as supporting either the registrations, operations and
sustenance of same sex societies and organizations.

Family members may be guilty of aiding and abetting, clergies who take
confessions may be victims of this bill for refusal to report a member who
confesses to them, professionals such as doctors, nurses and laboratory
technicians can also be proscribed for failure to report any incident of ailment
resulting from same sex relationships. The list of persons who can be
proscribed is endless because the law is not precise in its definition.

Clause 6:The High court of a state or the Federal Capital Territory shall have
jurisdiction to entertain matters arising from the breach of the provisions.

Vesting the High Court in the state with Jurisdiction over the provisions of this
Act is a deliberate ploy to ensure that persons arraigned in court are remanded
in prisons custody pending formal application for bail brought before the High
court.

In practice, the police do not arraign a suspect directly at the High court for an
offence over which only the High court is vested with jurisdiction. Arraignment
is usually at the Magistrate court, from where the accused person is remanded
in prison custody pending the outcome of the advice of the Director of Public
Prosecution of the state and a formal application brought before the High
court with all accompanying processes. This is not usually very expedient as
the accused person may spend a minimum of three weeks in prison custody
before bail is applied for, granted and perfected.

This is invasive of the fundamental rights to personal liberty of any accused
person under charge. It is a very conscious provision and a veritable tool that
can be used to ruin every organization perceived to provide services to, and/or
protect the right of same gender persons.

CONCLUSION

From the clause to clause analysis of the proposed Act awaiting the assent of
the president to become law, it is our very considered opinion that THE BILL
IF ASSENTED TO, will create undue hardship on Nigerians both the LGBTI and
heterosexual community alike.

Very informed Nigerians have made critiques against the law, its intentions
and consequences, like the Noble Laureate, Professor Wole Soyinka and Mr.
Jiti Ogunye, a human rights lawyer and a former chair of the Ikeja branch of
the Nigerian Bar Association, have spoken extensively and critically on the
bill and its negative implications on the citizenry and said it is an unnecessary
publicity stunt.

the bill will formalise discrimination against perceived gay persons; their
family members and friends; organizations, professionals and human rights
defenders who provide services and support to them, and have wide ranging
effects on civil liberties in the country; and also stir up hate crimes, violence,
harassment, victimization, unlawful detention and imprisonment on
innocent Nigerians.

It will also criminalise and the freedom of speech, association, assembly and
compromise the right to privacy and property.

Nigeria has the second largest HIV/AIDS burden in the and the bill will
frustrate the national response (NACA statement on HIV/AIDS burden), by
criminalising those conducting outreach programmes as well as driving the
most at risk population underground.

Economically, the bill will affect the investment drive of government; scare
away potential foreign investors and Nigerians same sex couples from
coming home to contribute their quota to the economy.

The bill is also laden with manifest ambiguities which are capable of variant
interpretation to serve punitive intentions and suit the whips and caprices of
state agents and non state actors.

The bill is unconstitutional as it compromises some fundamental rights
enshrined in the constitution of the Federal Republic of Nigeria, 1999 (As
amended).

The bill does not comply with the provisions of the constitution and is
unconstitutional, null and void. See the case of ATTORNEY-GENENRAL OF
LAGOS STATE V ATTORNEY-GENERAL OF THE FEDERATION (2004) 20 NSCQR
99.

It is well settled that the constitution is Supreme; it is the organic,
fundamental law and the ground norm of Nigeria and all enactment must
comply with the provisions of the constitution. See the case of FASAKIN
FOODS VS HOSANYA (2006) 26 NSCQR (PT).

It is also clear that the National Assembly has acted ultra vires by exceeding

their legislative powers. The provisions of clauses 2 and 3 of this bill where
made without constitutional powers. The National Assembly cannot exercise
legislative powers in matters not included in the Exclusive Legislative List. See
the case of ATTORNEY GENERAL OF ABIA STATE V ATTORNEY GENERAL OF
THE FEDERATION (2006) 28 NSCQR 161 at 167.

 
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Posted by on January 22, 2014 in Uncategorized

 

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NIGERIA HUMAN RIGHTS DEFENDERS, GROUPS, INDIVIDUALS AND CSOs CONDEMN THE PASSAGE OF THE SAME SEX MARRIAGE PROHIBITION BILL IN THE HOUSE OF REPRESENTATIVES AND CALL FOR ITS IMMEDIATE WITHRAWAL

We, the undersigned human rights defenders, groups, individuals and civil society organizations 

hereby demand that the recent passage of the ‘Same Sex Marriage Prohibition Bill and
other Related Matters’ by the House of Representatives of the Federal Republic of Nigeria be
rescinded. The provisions of the propose bill infringe upon the fundamental rights provisions of
the Constitution.

On the 30th May 2013, the Nigeria House of Representatives passed the bill titled “Same Sex
Marriage Prohibition Bill’’. The Bill prohibits marriage between persons of same sex, criminalize
organizations and persons who directly or indirectly aid or abate such a union. This Bill will
deprive Nigerians of their fundamental human rights as guaranteed in Chapter IV of the 1999
Constitution. This includes the right to peaceful assembly and association, right to life, right to
privacy and security of the person, right to private and family life, right to freedom from
discrimination, right to freedom of expression and press, right to fair hearing, right to dignity of
the human person and right to personal liberty.

This draconian legislation contravenes the provision of the constitution of the Federal Republic
of Nigeria, which protects fundamental human rights of individual with no reference to their
sexuality, their choice of spouses, private life, sex, creed or religion.

We are concerned that the Same Sex Marriage prohibition bill defines marriage not as an act
between a man and a woman, but includes any two people of the same sex living together. This
renders all Nigerian of the same sex living together as potential target of this law.

Many people share housing for economic reasons. Two roommates of the same sex
could be accused by anybody with whom they have a personal or public dispute of “living
together as husband and wife” and be prosecuted under this law.

Their relatives, friends or visitors could be accused of indirectly supporting in private a
same sex amorous relationship just by visiting them.

In a tactile society like Nigeria where people of same sex frequently and freely hold each other’s
hands, wrap their arms around each other’s waist, can be seen in warm embrace, such
innocuous gesture is likely to be misconstrued, invested with sexual meaning and misused for
malicious purpose. With the passage of this bill we are likely to see increased rate of
harassment, witch-hunt and vindictive accusations which will impact on every Nigerian.

In the hands of unscrupulous politicians and aspirants, the legislation could be used as a
powerful tool to undermine and discredit opponents thus subjecting prospective candidates to
political blackmail or defamation of character and integrity.
Under the proposed legislation, it will be an offense to advocate against the law without being
found guilty of indirectly supporting same sex marriage or relationships. This would be an
inherent contradiction for a democratic system.

 

Under this legislation lawyers will be unable to offer legal representation. In fact such
lawyers would be criminalized for representation and defense of perceived same sex related
cases.

 

The Bill passed by House of Representatives defined marriage to be a legal union between
persons of opposite sex in accordance with the marriage act, Islamic law or customary law. We
believe that by virtue of the Constitution, powers enabling the National House of Assembly to
make laws over matters that are under the exclusive lists. Marriage by law is under the residuary
list, which is the exclusive prerogative of each state of the Federation.

We are concerned that the passage of this bill would further encourage security agents such as
the police to arbitrarily accuse, harass and arrest citizens on spurious grounds creating fear,
suspicion and anxiety among the populace.

We are further concerned that before the passage of the bill, the principle of fair hearing was not
put into consideration. The Bill contravenes the spirit of the 1999 constitution Chapter II section
17 (1), (2) (a-c) which states that social order is founded on ideals of freedom and equality and
that every citizen shall have equal rights, obligations and opportunities before the law and shall
uphold the sanctity of every person and enhance human dignity and ensure that all
governmental actions shall be humane.

Democracy is about the rule of law, and as a secular state the evocation of religion and morality
to police citizens’ private lives does not reconcile with democratic principles. Democracy gives
all citizens freedom of expression, association and equality before the law. The passage of the
Bill not only directly conflicts with and violates the principles of democracy; it also returns
Nigeria to the autocracy of the military era.

In the light of the above concerns, we call on the Senate, the House of Representatives and the
Office of the President of the Federal Republic of Nigeria to;

1. To immediately consult with the National Human Rights Commission, Civil Society
Organizations and other stakeholders on the human rights implications of this Bill;
2. To immediately withdraw the Bill and uphold the mandate as available in Chapter IV of
the 1999 Constitution of the Federal Republic of Nigeria which stipulates the protection
and promotion of fundamental human rights of all citizens.

 

STATEMENT SIGNED BY:

Organizations

AL- Centre for Human Development

Alliance for Africa and Nigeria Feminist forum

Changing Attitude Nigeria

Coalition for the Defence of Sexual Rights
International Centre for Advocacy on Rights to Health

International Centre for Reproductive Health and Sexual Rights

Improved Youth Health Initiative

Legal Defence and Assistance Project

Queer Alliance

The Initiative for Equal Rights

The Initiative for Improved Male Health

Women’s Health and Equal Rights Initiative

_____________________________________

Aken’Ova Dorothy

Alimi Bisi

Ayo Obe

Akoro Joseph Sewedo

Ayesha Imam

Akudo Oguaghamba

Abayomi Aka

Akin Ayo

Anyaegbunam Onyinye

Bibi Bakare Yusuf

Chino Obiagwu

Chris Kwaja

Davis Mac- Iyalla

Dumebi Chukwuka

Emmanuella D. David-ette

Emmanuella Ndunofit

Ifeanyi Kelly Orazulike

Iyayi Osazeme Odgie Oyegun

John Adeniyi

Kole Shettima

Kemi Williams

Michael Akanji

Otibho Obianwu

Owen Ibukun

Olumide Makanjuola

Rashidi Williams

Stephen Chukwumah

Shola Ajibola

Tope Oke

Uche Sam

Victor Ogbodo

Yemi Candide Johnson

Zaharadeen Gambo

 
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Posted by on January 22, 2014 in Uncategorized

 

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