Human Rights for Me Not Thee: The Prohibition of Same Sex Marriage in Nigeria
September 23, 2020 by Digital Editor
By: Nneka Ewulonu
Over the past several decades, a debate has raged on whether LGBTQ rights fall under the umbrella of general human rights. Same sex relationships and marriage have experienced varying degrees of acceptance and judgment throughout human history, with the current era ushering in new heights of mainstream LGBTQ acceptance. Global research from the 1990s to mid-2010s showed growing support for same sex marriage, with many North American and European countries recognizing same sex marriages in this time frame. In 2001, the Netherlands became the first country to permit same sex marriages, followed by Belgium in 2003. The following decades saw a flurry of legalization and recognition of same sex marriages. As of mid-2019, 29 countries recognize same sex marriages, with Taiwan being among the most recent countries to legalize these marriages and the first in Asia to do so.
Despite these global trends, same sex marriage has remained taboo in the majority of Africa. Same sex marriage unfavourability has not changed significantly in the past decade on the continent, especially in most of Sub-Saharan Africa. As of 2017, 33 of 54 African countries criminalize same sex behavior or attraction. South Africa is the only African country to recognize same sex marriages, having done so in 2006. In 2013, just two years before the United States would legalize same sex marriages nationwide, Nigeria passed the Same Sex Marriage (Prohibition) Act, or SSMPA. This Act criminalized entering into, witnessing, or aiding a same sex marriage or civil union, along with criminal penalties for operating or supporting LGBTQ rights organizations. Through international pressure and outcry from international human rights organizations and foreign governments, Nigeria has maintained this law in the years since and has used it to discriminate against LGBTQ individuals in Nigeria.
The SSMPA brings Nigeria into conflict with international bodies of law. Nigeria’s prohibition of same sex marriages violates The United Nation’s International Covenant on Civil and Political Rights (ICCPR) a treaty of which Nigeria is a party. Nigeria must adhere to its commitment to human rights as enshrined by its ratification of this treaty and abolish the SSMPA. The ICCPR was adopted by the United Nations General Assembly in 1966. This treaty commits its signatories to protecting and respecting the civil and political rights of citizens; the Covenant and two others make up the United Nations’ International Bill of Human Rights. Nigeria ratified this covenant and brought it into effect in 1993.
There are several provisions in the Covenant that can and should protect LGBTQ rights. Article 2 section 1 of the Covenant requires states “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Article 19 Sections 1-2 state, “[e]veryone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers. . . .” Article 23 Sections 2-3 state “[t]he right of men and women of marriageable age to marry and to found a family shall be recognized. No marriage shall be entered into without the free and full consent of the intending spouses.” Finally, Article 26 states “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” While these articles do not explicitly describe rights relating to sexual orientation and same sex marriage, the word “sex” has since been interpreted to include sexual orientation. In the 1994 case Nicholas Toonen v. Australia, the Human Rights Committee stated in paragraph 8.7 of the case record that the word “sex” in Articles 2 and 26 of the Covenant includes sexual orientation. Interpreting the word sex in this manner extends guarantees of equal protection, anti-discrimination protection, freedom of expression, and marriage rights to the LGBTQ population.
The SSMPA criminalizes participating in, witness, or aiding a same-sex marriage a punishable offense; supporting or creating entities that advocate for LGBTQ rights within the country is also a criminal defense under this Act. Section 1 Part 1 of the Act states, “[a] marriage contract or civil union entered into persons of the same sex: (a) are prohibited in Nigeria; and (b) shall not be recognized as entitled to the benefits of a valid marriage.” Section 3 states, “only a marriage contracted between a man and a woman shall be recognized as valid in Nigeria.” Section 5 Part 1 states, “a person who enters into a same sex marriage contract or civil union commits an offence and is liable on conviction to a term of 14 years in prison.” Section 5 Part 3 states, “a person or group of persons who . . . supports the registration, operation, and sustenance of gay clubs, societies, organisations, processions, or meetings in Nigeria commits an offence and is liable on conviction to a term of 10 years imprisonment.”
This law has legitimized and sanctioned violence from both individuals and the state against the LGBTQ population. LGBTQ Nigerians report increases in mob violence and harassment from police; hundreds of Nigerians have been arrested and detained, often forced to pay bribes to officials for their freedom. This institutional discrimination began almost immediately after the SSMPA was signed into law. Within a few weeks of its signing, both secular Nigerian law enforcement and Sharia police had created lists of suspected homosexuals. Law enforcement quickly began arresting and detaining individuals suspected of homosexuality and almost always held them in isolation without access to a lawyer. In February 2014, a mob of fifty individuals dragged fourteen men suspected of being homosexuals from their homes and attacked them with machetes, clubs, whips, and metal wires. In 2017, fifty-three individuals were arrested and charged with witnessing a same sex marriage, though whether or not a same sex marriage was actually performed is disputed. Bail for these individuals was set at $1,600, an extraordinary amount for the average Nigerian. Few people, if anyone, have been convicted under the SSMPA, with most individuals arrested paying bribes to law enforcement ranging from approximately $30 to $300. In 2019, a spokesperson for Lagos State Police Command encouraged homosexual Nigerians to “leave the country or face prosecution.” There has been continued condemnation from the international community, including the African Commission on Human and Peoples’ Rights. The Commission urged Nigeria to review the SSMPA to combat violence against the Nigerian LGBTQ community. Despite this, the SSMPA remains in effect in Nigeria.
There are several articles in the ICCPR that conflict with the SSMPA. The Covenant holds states accountable for protecting human rights on the basis of sex and sexual orientation. Both Articles 2 and 26 charge states with the responsibility of promoting and protecting human rights regardless of sex. The Human Rights Committee has clarified in a subsequent case that the word sex in these articles includes sexual orientation. Article 23 outlines marriage as a right afforded to those of a marriageable age that should be recognized by the state. In combination, these articles make marriage a human right that cannot be infringed upon on the basis of sex or sexual orientation. The SSMPA is a clear failure to adhere to the duties afforded states by this Covenant. The Act both prohibits individuals from entering into a same sex marriage or union and refuses to recognize these marriages as legally valid. This affords different rights to straight individuals and LGBTQ individuals. The Act violates the right of LGBTQ individuals by denying them the ability to marry a partner of their choice if that partner is of the same sex, a right afforded to all humans by the ICCPR regardless of an individual’s sex or sexual orientation.
The SSMPA is also an abdication of Nigeria’s duty to protect the freedom of opinion and expression as dictated in Article 19 sections 1 and 2 of the Covenant. These sections outline a state’s obligation to grant everyone the right to hold an opinion, express themselves freely, and share ideas and information without interference from the state. The article explicitly states that individuals have the right to “information and ideas of all kinds . . . .” with no mention of a state’s ability to restrict the kind of information shared by individuals. By making the promotion and display of support for LGBTQ population illegal, the Act impermissibly makes the expression of an opinion illegal. The law violates the rights of both LGBTQ individuals and allies to express their support for the community and its existence within Nigeria. LGBTQ Nigerians have the right to express their opinions and acceptance of same sex marriage as well as express their sexuality in the same ways as their heterosexual counterparts. The Act denies individuals from engaging in such expression, placing a stranglehold on LGBTQ advocacy and preventing the general population from learning more about the LGBTQ community and growing to accept them. The SSMPA is fundamentally at odds with the rights to free expression and opinion as outlined by the Covenant.
Nigeria, like much of Africa, has refused to embrace the trend of LGBTQ rights and acceptance. In contrast to the majority of Europe and North America, Nigeria has taken steps to criminalize the LGBTQ community. The National Assembly, Nigeria’s legislature similar to that of the United States Congress, should pass new legislation to repeal the SSMPA because it brings Nigeria into conflict with international bodies of law. Nigeria has pledged a commitment to protecting and promoting human rights. The Act is a direct violation of LGBTQ individuals’ rights to marriage, self-determination, and expression. Regardless of its cultural or religious views, Nigeria must recognize that human rights include LGBTQ rights as expressed in treaties, covenants, and subsequent litigation. Because of these conflicts with international human rights laws, Nigeria can and indeed must abolish the SSMPA.
Nneka Ewulonu is a 3rd year law student at the University of Georgia School of Law. They achieved bachelor’s degrees in Biology and French from the University of Georgia. During their undergraduate studies, Nneka was and remains involved with the Roosevelt Network, where they became enamored with social change through policy and advocacy. As a law student, they have interned at East Bay Community Law Center, the Community Health Law Partnership Clinic, the ACLU of North Carolina, and the First Amendment Clinic. Nneka will have a career in public interest, serving the needs of Black, LGBTQ, or otherwise marginalized individuals.