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

By Victor Eboh Esq, Reproductive Right Officer

blacklgbt

 

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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SEX FOR GRADES: AN IGNORED FESTERING SORE

By: D.U Innocent Esq.

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Before I got into the university, I had seen movies where lecturers used undue influence to either extort money from students or sleep with female students. For those who dared to refuse, the lecturer basically destroyed their future by either failing them continuously or giving them lower grades than they deserved. So, I already had a fear for lecturers even before I got admitted into the university and all through my university days I did my best to avoid them.

There is a salient fear for lecturers especially male lecturers among students in tertiary institutions in Nigeria than even the fear of studies. For many years, Nigerians and indeed so many societies in West Africa have settled into this trend and some students have been forced to go even spiritual or diabolical on some lecturer s because of this seeming hole they put them in. These lecturers are seen as untouchable demi-gods.                                       As a student, I often heard a lecturer remark on how students prayed for him to die. He almost got it though, but he survived.

My name is Emma, in 2011 I got admitted to study Political Science in a prestigious university in Nigeria and like every other innocent 100 level student, I just wanted to get quality education.  I was made the class representative and by virtue of my office at the time, I had to interface with lecturers and students alike in carrying out my responsibilities. In the first semester of my first year, I encountered a lecturer, Mr. Ken. Mr. Ken is a core lecturer in the department and he lectured 2 important courses that had 3 point grade for each course in my time. His courses were very important for the success of my academic success, especially since they were core courses.  He was reputed for two things in the university community. First, his connection to a high management official and secondly his attraction and lust for fair slim girls.

On a fine day after lectures, he invited me to his office where he told me that he liked me and made advances at me, I left for my hostel bewildered. At this junction, I had two worries I am a fair complexioned, slim beautiful girl who just wanted to get an education. Secondly, this man in question was a force to reckon with because of his connection to the higher ups. It would be my word against his, who am I again? Yea that’s right; I’m a 100 level student.

This situation stressed my friends and I for months, it also got me depressed because Mr. Ken became even more hostile towards me as the exam period drew near. He kept threatening to keep me in school long after my mates, if I did not concede to his demands, I practically became depressed and on the verge of giving up. My school fees was about half a million excluding pocket money and my family only sent me here because of the quality of education we were promised I will get. During this period I was slowly becoming embittered and getting distracted from my studies. I was on the borderline of losing it because of my seeming helplessness. I was discouraged many times to attend classes but I knew I couldn’t give him anything to hang me on, so I kept pushing, showing up for classes and ensuring that I stayed on my lane as much as possible. We had more meetings were my pleas fell on deaf ears and his threats were blaring in my ears. I had already vowed to myself that I would not sleep with this man; I would not become a part of his statistics, trophy or prize.

Despite Mr. Ken’s threats, I forged ahead to write the exams without sleeping with him and Mehn! That man was true to his word. By the time results were out for the first semester the F and D on the board were staring at me, I had failed his two courses and those were the only courses I had issues with. My head kept whirring for the entire 1st semester break.  At this point, I knew that I couldn’t continue like this, I had three more years and because of his position in the department, he would be my lecturer for even more courses for the next three years, and I wasn’t ready for to continue going through the emotional and psychological torture I had endured throughout the 1st semester in my first year. I just needed my peace to enable me concentrate in school and I needed to act fast.

Thankfully, changing departments in my school at the time wasn’t a hassle and with advice from my friends and confirmation from my family, I switched to International Relations Department. Changing my department was at a cost. The cost was, not graduating from my dream department and course. Mr. Ken is a murderer; he murdered my baby in the womb of my spirit. He ended my dream of being a political scientist with his demands.

Now I think of it, I’m grateful for the strong girl I was in that season and for my amazing friends who stood by me through that period. That change was instrumental to what I have become today. Thankfully, in the International Relations department I had no lecturer issues and I graduated with my mates. I have served my country and I am currently working somewhere in Lagos Nigeria. I found a way out of that situation, but many girls in Nigeria are unable to escape and their experiences are much worse than mine. What these lecturers are doing is evil and their gory stories are beginning to come to light. I believe that this festering sore in the Nigerian tertiary educational system will at last begin to receive the treatment that will heal not just the educational system. It will also heal millions of Nigerian men and women who fell into the hands of these predators and very importantly it will cleanse our nation Nigeria and we will become great again.

PS:  This is a real life story of a Nigerian, but the real names of the characters are not used.

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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THE IMPLICATION OF SAME SEX MARRIAGE PROHIBITION ACT 2014 AND THE RIGHTS OF SEXUAL MINORITIES IN NIGERIA.

By Victor Eboh, (Legal / Reproductive Right Officer)

blacklgbt

 

Violence and discrimination against sexual minorities  in Nigeria have been on the increase in recent times, no thanks to the promulgation of the Same Sex Marriage (Prohibition) Act 2014, (Herein after referred to as The Act) which has contributed negatively to the already dire circumstances of the Sexual minorities (Herein after referred to as The Community) in Nigeria. Members of the community have suffered an increasing wave of arbitrary arrest, unlawful invasion of privacy, assault and battery, sexual violence and extortion, among other ills, since the passing of the Act.

The average citizens of Nigeria, finds it very difficult to enjoy the protection of their rights and access to basic social services. It is rather more unfortunate for persons who are imputed to have sexual minority identities; they are faced with even more social isolation and discrimination by both states and non-state actors. Ironically, Public Authorities who are saddled with the responsibility to protect and ensure the fundamental rights of citizens are sustained, are most times at the forefront of the scourge of terror, intimidation, intolerance and violence against members of the community. The extreme intolerance, homophobia, bi-phobia and transphobia, make it even more dangerous for sexual minorities to reach out for help, hence most human rights violations against them, go unreported.

The cardinal principles of human rights include, universality and non-discrimination. The pre-condition for enjoying human rights is HUMANITY.  However, the Nigerian society and Public authorities do not see the sexual minorities as part of those, whose humanity are guaranteed rights under the Nigerian Constitution. Thus, their humanity is disregarded solely because of their sexual orientation or gender identity or expression, which exposes them to all forms of violence.

 

LEGAL FRAMEWORK GOVERNING SEXUAL MINORITIES ISSUES WITHIN THE NIGERIAN CONCEPT

The combined efforts of both the Domestic, Regional and International frameworks, all ensure equality of all persons regardless of their sexual orientation and gender identity.

DOMESTIC LEGAL FRAMEWORK

  • DOMESTIC FRAME WORK: 1999 CONSTITUTION OF FED. REPUBLIC OF NIGERIA
  • The preamble of the constitution
  • SECTION 1(1) & (3)
  • SECTION 17 (3) (C & D)
  • THE FUNDAMENTAL RIGHTS OF EVERY CITIZENS:
  • CHAPTER 4  of the constitution  section 33-40
  • SECTION 33: “Every person has a Right to Life and no one shall be deprived intentionally of his Right    to life
  • SECTION 34: “ Every individual is entitled to Respect for the dignity of his person and no person shall be subjected to torture or inhuman or degrading treatment.
  • SECTION 35: “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty.
  • SECTION 36: “Every person shall be entitled to fair hearing
  • SECTION 37: “ The privacy of citizens, their homes, correspondence, telephone conversation and telegraph communications is hereby guaranteed and protected
  • SECTION 38: “ Every person shall be entitled to freedom of thought, conscience and religion
  • SECTION 39: “Every person shall be entitled to freedom of expression
  • SECTION 40: “ Every person shall be entitled to assemble freely and associate with other persons …or any other association for the protection of his interest.

 

REGIONAL LEGAL FRAMEWORK

the African Charter on Human and Peoples Right, (hereinafter referred to as ACHPR),  a document which has been domesticated and  forms part of the body of laws in Nigeria, clearly and unequivocally guarantees freedom from discrimination and equal protection and equality of individuals before the law. The treaty was signed in 1981, but did not become a law in Nigeria until when the National Assembly ratified and enforced it as applicable law in Nigeria. The Charter is now known as the AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS (RATIFICATION AND ENFORCEMENT) ACT (CAP 10) OF THE FEDERATION OF NIGERIA 1990

Article 2 of the Act, clearly provides that ‘ Every individual shall be entitled to the enjoyment of the rights and freedom recognized and guaranteed in the present charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status’

Other relevant sections of the Act are as follows:

  • The preamble
  • ARTICLE 1
  • ARTICLE 2
  • ARTICLE 3
  • ARTICLE 4
  • ARTICLE 13 (2)
  • ARTICLE 16 (1 & 2)
  • ARTICLE 19

 

The African Commission, the body responsible for monitoring compliance with the African Charter, has in various communications, denounced acts of discrimination. The ACHPR has clearly established that the expression ‘OTHER STATUS’ as used in the Act can broadly be interpreted to include grounds, other than those explicitly listed under that provision of the Charter. The rights to dignity, liberty and security of persons and freedom of association are among rights clearly proclaimed by the African Charter and the Charter clearly states that every human being is entitled to these rights.

Concerned by the increasing violence against the community, the ACHPR at its 55th session adopted a landmark resolution on the Protection Against Violence and Other Human Rights Violations against persons on the basis of their Real or imputed Sexual Orientation or Gender Identity. The Resolution unequivocally condemns violence against persons on the basis of their real or imputed sexual orientation and gender identity. It calls on states to stop all violence committed by state and non-state actors and to enact and implement laws condemning violence against all persons regardless of their sexual orientation or gender identity. States were also urged to promptly investigate and punish all acts of violence against persons based on their real or perceived sexual orientation and gender identity.

 

 

INTERNATIONAL LEGAL FRAMEWORK

The International legal framework governing Human rights apply equally to all sexual minorities in all parts of the world. The principle of equality, non-discrimination and universality are fundamental in ensuring the human rights for all persons including sexual minorities. It has been established that the grounds of discrimination enumerated in the International Covenant on Civil and Political Rights and the International Covenant of Economic, Social and Cultural Rights are non-exhaustive and “other status” includes sexual orientation and gender identity.

 

THE SAME SEX MARRIAGE PROHIBITION ACT 2014

The promulgation of the Same Sex marriage prohibition Act has to a great extent heightened the level of violence against the sexual minorities. The law has been used and utilised by both state and non state actors to subject community members to all sorts of violations, ranging from public humiliation, to battery, assault, blackmail, extortion and other forms of violations and violence.

The Act has further encouraged and in fact, breeds a culture of intimidation, suppression and violence against community members in Nigeria. The Act, apart from prohibiting same sex marriage, goes further to prohibit and criminalizes the association of persons and organizations who purport to promote the interest of Sexual minorities in Nigeria. It prohibits and criminalizes the ‘Public show of same sex amorous relationship directly or indirectly without defining what qualifies as “same sax amorous relationship”

The negative effect of this law was immediate and still persists, as and thus the community members are subjected to an unimaginable level of futility being victims of a wave of arbitrary arrest, invasion of privacy, blackmail, extortion and violence of which state actors are also perpetrators of this hideous practices.

 

 

RECOMMENDATIONS

From the above consideration, it suffices to say that if the rendition of the constitution “WE THE PEOPLE” is the have a meaningful impact, then it must have the force of general application without prejudice.

The following recommendations are worthy of consideration:

  1. The Government should act timeously in condemning the on-going violence against persons based on their real or perceived sexual orientation and gender identity expression.
  2. A review of discriminatory laws that trigger violence against sexual minorities should be given priority.
  3. Enforce constitutional and treaty provisions on universal human rights in public and private institutions across the country.
  4. Human rights violations based on sexual orientation or gender identity expression, should be investigated and perpetrators brought to book.
  5. Embark on a holistic campaign to promote an end to hate speech and statements inciting violence against sexual minorities in Nigeria from religious leaders, politicians and others and establish a link with sexual minorities human rights organizations, regarding ways to promote awareness on issues affecting sexual minorities.
  6. Establish a reporting process for informing the Human Rights Commission and other related bodies, on human rights abuses experienced by sexual minorities.
  7. State actors should discourage incidences of police raids, arbitrary and indiscriminate arrests and searches of individuals based on perceived or actual sexual orientation or gender identity expression.
  8. The police should be at the forefront in investigating and prosecuting incidents of violence against sexual minorities and refrain from harassing, arresting or prosecuting members of the sexual minorities support organizations and human rights advocates on account of their work on sexual minority rights.
  9. Civil society organizations should be encouraged to mainstream sexual minority’s awareness and rights into their relevant health, gender and human rights programmes.
  10. Mainstream stakeholders and the general public should be educated on human rights issues affecting sexual minorities. Sensitization workshops with government agencies, health workers and other law enforcement agencies be developed, on the need to promote and protect rights of sexual minorities as citizens of Nigeria.

 

CONCLUSION

From the above consideration, one fundamental principle looms larger, that violence and discrimination against any individual or groups of persons is unacceptable. OUR HUMANITY should be paramount in ensuring dignity and rights to ALL PERSONS.

 

CAVEAT

Lawyers Alert hereby puts our readers on notice that all articles on this page are of the writers opinion and do not necessarily represent the views of the organization except otherwise stated.

 

 

 

 

 

 

 

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SEXUAL RIGHTS VIOLATION IN NIGERIA

By Doris U. Innocent Esq

lawyers alert

Sexual rights embrace certain human rights that are already recognized in national laws, international human rights documents, and other consensus documents. They rest on the recognition that all individuals have the right—free of coercion, violence, and discrimination of any kind—to the highest attainable standard of sexual health; to pursue a satisfying, safe, and pleasurable sexual life; to have control over and decide freely, and with due regard for the rights of others, on matters related to their sexuality, reproduction, sexual orientation, bodily integrity, choice of partner, and gender identity; and to the services, education, and information, including comprehensive sexuality education, necessary to do so.

Sexual and Reproductive Health and Rights SRHR, in Nigeria is an area which, owing to culture and religion, is neither making as much progress nor being given as much space for expression in comparative terms with more “acceptable” rights. Violence against Women and Girls, Abortion, Same Sex Relationships, Female Sex Work, Rights of Persons Living with Affected by or Most at Risk of HIV, Female Genital Mutilation, Unlimited Access to Family Planning, Rights of Persons Living With Disabilities etc. are all issues that citizens regularly confront yet fail to attract the commensurate attention in the positive, from authorities.

The cry out against sexual rights violations in Nigeria is a very serious issue. Sexual rights violations are real and they stare at us every day in our neighborhoods, families and different circles of association. We believe that the first thing we must understand about these individuals is that they are human beings. They are entitled to their basic human rights, they are deserving of love, understanding and acceptance. A lot of organizations have carried out public sensitization, awareness and campaigns through various channels in Nigeria regarding issues related to Sexual and Reproductive Health and Rights. This is an applaud-able approach to dealing with the glaring issues of SRHR violations inherent in our society. There still remain quite a number of people who are either victims of sexual violations or are at risk of becoming victims of sexual rights violation. These victims are usually at left at their own peril, they are seen as objects of constant abuse and discrimination by members of the society.

Lawyers Alert is an established Human Rights Organization with an internationally recognized track record of successful interventions in relation to Human Rights abuses in Nigeria. It is made up of lawyers and other professionals with members across the 36 states of Nigeria. It builds capacity on essentially eco-socio rights, advocacy/legislative engagement, and organizational development. Its programs are essentially the monitoring of rights violations, legal assistance and interventions geared towards enhancing good governance. Lawyers Alert was founded in the year 2000, it was birthed from the place of passion to fight and restore the rights of those whose human rights have been infringed upon. Lawyers Alert has been in the forefront of promoting women’s rights in Nigeria ever since. We have carried out many projects which have impacted positively on the lives of thousands of women and children. Presently, we are implementing projects aimed at eliminating all forms of violence against women and girls, eliminating sexual and reproductive health and rights violation and providing free legal services to victims.

Notwithstanding, Lawyers Alert’s vision remains clear: A developed Nigeria where the rights of vulnerable groups, especially women are respected. Similarly, her mission has not changed: To promote the rights of vulnerable groups, especially women through advocacy and through provision of free legal services. We are not relenting. We will keep doing the best we can to ensure we carry out our mission and achieve our vision. Denial of an individual’s rights is denial of the rights of all. We will always have mothers, wives, aunt, sisters and daughters with us. They are all entitled to their rights. We should individually and collectively stop violating their rights. And we should do the best we can to protect and defend their rights. This is our yearning for Nigeria, and together we can achieve this. Here at LawyersAlert, we have taken up the responsibility to bear the burdens of people whose sexual rights have been violated or at risk of being violated. We also make periodic violation reports, with instrumentality of our web based tool. You can get to know us better through our website http://lawyersalertng.org/ .

It is on this premise that we invite the general public as always to report human right and sexual rights violation against them and other people, we also encourage you to refer people in need of our services to us. We assure you, that we will work to ensure that justice is served.

 

 

 

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Lawyers Alert sensitize Journalists on Sexual Reproductive Health Rights

The training was organized by Lawyers Alert for journalists as part of a sensitization and advocacy drive within the media community. The objective is to educate journalists on the subject of SRHR and how they can effectively report violations of same and also getting the participants to cascade knowledge gained to other journalists.

Facilitators at the training were:

  1. Rommy Mom, Esq. – President, Lawyers Alert.

2.  Mrs. Abubakar Abubakar – Director, UNFPA.

3.  Charles – Director, UNAIDS.

SRH, HIV & GENDER ISSUES IN NIGERIA

Facilitator – Zubaida Abubakar, UNFPA

Topic – “SRH, HIV and Gender Issues in Nigeria.” (Focus: Key Populations)

She began by acknowledging the vital role journalists play as watchdogs of the society in ensuring the protection of Human Rights. “We need to engage the media,” she enthused, “our work is based on evidence. Children and girls are mostly victims of SRHR violations. They are victims of rape, violence, etc. We have to educate them and the media can help achieve this.”

To buttress her claims that children and teenage girls were the most vulnerable in terms of SRHR violations, Mrs. Abubakar reinforced her facts with statistics shown below:

  • In Nigeria, girls particularly between the ages of 18-22 years of age are likely to get pregnant before marriage. The North has a preponderance of early marriage.
  • Female hawkers are particularly vulnerable to rape.
  • Owing to poverty, religious and cultural issues, girls are married off at the young ages of 9-22. They are most at risk of HIV and Vesico-Vaginal Fistula, a condition that frequently occurs when underage girls give birth. Nigeria has up to 600,000 cases of VVF. Girls with the condition tend to be stigmatised and isolated.
  • 47.6% of illiterate girls get pregnant early. They have no idea of the use of contraceptives.
  • Maternal and child mortality rate is high in Nigeria: For every 100,000 births, 576 infants die, while approximately 111 of the mothers die in childbirth.

Consequences

On the consequences of the violations of the SRHR of girls, Mrs. Abubakar pointed out that:

  • There is no opportunity for their being educated (attending school).
  • The vicious cycle of poverty is continued.
  • They are isolated.
  • 25% of the girls whose SRHR are violated contribute nothing to the economy.

What to Address

On what to address, Mrs. Abubakar explained

  • Girls should be kept in school to discourage child marriage.
  • Girls who do not get formal education should be empowered through vocational skills.
  • The health and well-being of children should be prioritised.
  • Girls should be trained in the use of contraceptives.
  • There should be a conducive environment for children and girls.
  • Keepers of the traditional institutions should be enagaged in these efforts to obtain their support which could in turn influence parents to change their beliefs.
  • Children and girls should be given comprehensive HIV education.
  • Young people should be co-opted into the information dissemination process.
  • Social could also be a useful tool in this effort.

UNFPA Projects

On the projects being carried out by UNFPA, Mrs. Abubakar noted:

  • 4,150 are being supported with the help of Canada. In Nigeria’s North, UNFPA provides support in the education sector. In Lagos (the suburbs of Lagos State), out of school children are being supported by training them in vocational work. 270 of the girls were able to impact 20,000 others.
  • Campaign launched last year to end child marriage in Nigeria.
  • A forum was set up to educate various communities on the negative effects of early marriage.
  • UNFPA collaborates with local NGOs to carry out their work with ongoing projects in Kaduna and Kebbi States.
  • Support is being provided for girls suffering from VVF

EFFORTS AT ENHANCING SRHR REPORTAGE IN NIGERIA

Facilitator – Charles, UNAIDS

Topic – “Efforts at Enhancing SRHR Reportage in Nigeria.”

Mr. Charles introduced a five-page news report culled from The Associated Press, which he distributed to all participants titled: “Rampaging Sudan Troops Raped Foreigners, Killed Locals.” Using the news report as a yardstick for measuring reports on SRHR, he asked participants to read the report and critique.

Most participants condemned the detailed style of reporting. They were of the view that The Associated Press was so detailed in the reportage that within days of publication, Sudanese citizens were able to identify victim of the gang rape perpetrated by 15 South Sudanese soldiers.

A participant, (a female journalist with the Daily Trust), was of the view that the victim’s identity ought to have been protected in line with the ethics of the profession. Though her name was withheld, the description of the location and the race of the victim, were so vivid that Sudanese citizens had no problem identifying the victim.

A few of the participants, however, had a dissenting opinion. One of them was of the view that the detailed reportage was what led to further investigations.

The Facilitator left the critiquing to the professionals only pointing out the following issues:

  1. The news is about sexual violence in the context of armed conflict.
  2. Giving tips (reports) to journalists helps with exposing SRHS violations.

HUMAN RIGHTS DIMENSION

Facilitator – Rommy Mom (Lawyers Alert President)

Topic – “Human Rights Dimension on Violations of SRHR,”

Citing the cases of the FSWs in Abuja and the suspected gay people in Gishiri village, in Abuja, Lawyers Alert intervened, Mr. Mom emphasized the need to protect key affected populations. To buttress his point, he cited the case of a Customs Officer who was accused of theft in a market in Jalingo, Adamawa state and subsequently beaten to death. It was only after the mob action that his identity was revealed.

Mr. Mom rounded off his session with a quote he once saw in a prison in a prison he visited. The placard read: “A society is judged by how it treats the weakest among them.”

QUESTION AND ANSWER SESSION

The issue of homosexuality in Nigeria is a touchy one especially since the country has enacted laws criminalising same sex relationship and marriage. It was no wonder therefore that the following questions came up:

Q – “If I heard you clear, you mean you offer free legal services to homosexuals?”

Rommy Mom – “Yes, if we offer 10 free legal services to victims of SRHR violations, including homosexuals.”

Q – “How do you marry this with the Nigerian laws which prohibit homosexuality?”

  1. M – “Years ago, in Gishiri village, a pastor mobilised a mob to attack some persons alleged to be homosexuals. They broke into their houses, assaulted them, took them to the police station, and they were detained. This to the Pastor and his believers was in keeping with the law. We urge you however to examine the process. It is an offence to break into a persons’ home, assault the person etc. Yet we choose to ignore this. It is so much as the law, the process. We don’t violate rights, in getting to the end of the law. Lawyers Alert is about rights of ALL. Remember again, it is the court that determines culpability at the end of the day. The law does not permit any person to break the doors of people on ground of suspicion of being homosexual. It is the court that will determine the guilt of any person alleged to have committed a crime. Homosexuals, like other groups be they Female Sex workers, Persons Living With HIV, Persons who use Drugs etc are the vulnerable people in the society. How we treat and relate with them is different with coloration of stigma and discrimination. Ours is to focus on the rights of these key population groups.”

Q – “Do you also offer services to children and victims of domestic violence?”

  1. M – “Yes, we offer free legal services to children and victims of domestic violence. A 10-year old girl was raped recently. Her mother could not afford to pay transport fare. We offered her free legal services and we also paid for her transport fares.”

WAY FORWARD

On way forward, all participants agreed that:

  1. We should keep journalist informed as journalists are human beings and not ghosts that should know everything that happens in the society.
  2. Outcome of meetings should be shared. It could be visual, audio or text.
  3. Lawyers Alert could organise meetings to keep journalists informed.

CONCLUSION

Mr. Mom thanked all participants and assured them that the training just held was just one of many more to be held, and that from time to time, Lawyers Alert will hold refresher trainings for those in attendance.

 

 

 

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