Nigeria’s same-sex marriage bill violates human rights

Law-makers in Nigeria are subjecting the lesbian, gay, bi-sexual, transgender and intersex (LGBTI) community to a bad case of déjà-vu. On 31 October 2011, the Nigerian Senate began public hearings on legislation intended to criminalise same sex conduct. The Same Gender Marriage Prohibition Bill, spear-headed by Senator Domingo Obende, imposes sanctions on persons who enter a ‘same gender marriage contract.’ This is defined as the ‘coming together of persons of the same sex with the purpose of living together as husband and wife or for other purposes of same sex relationship.’ Couples can be convicted to serve three years imprisonment. Individuals or groups that ‘witness’, ‘abet’ or ‘aid’ such a relationship also risk a fine and/or five years imprisonment.

This expansive approach also has the potential to criminalise human rights defenders who work to promote and protect the rights of sexual minorities – who are recognised by the international community through the UN Declaration of Human Rights Defenders. The proposed law is broad and ambiguous and can easily lead to arbitrary arrests and harassment of sexual minorities and those who defend their rights.

Unfortunately, this is not the first anti-homosexuality legislation to be introduced in Nigeria. Bills have been proposed twice before, in 2006 and 2008. The draft legislation in 2006 proposed to take an even stronger stance and ban organisations, clubs and societies for sexual minorities. It also intended to forbid any media that showed same-sex relations. However, local and international actors responded in protest and the outcry prevented both draft bills from becoming law.

Adult same-sex conduct is already prohibited under the Nigerian Criminal Code and carries a penalty of 14 years imprisonment. In some regions in the north where Sharia law applies, same-sex conduct is punishable by death. It must be questioned why the Nigerian senate is debating legislation on already criminalised conduct.

The Same Gender Marriage Prohibition Bill serves to undo the rights enshrined in the national constitution and human rights instruments that Nigeria is a state party to. Human rights standards as expressed in the African Charter on Human and Peoples Rights and the International Covenant on Civil and Political Rights amongst others clearly prohibit such discrimination. By acceding to these instruments, Nigeria has pledged to protect the dignity and equality of all persons. Nigeria’s obligations render the draft bill superfluous and it needs a clear signal that the criminalisation of same-sex conduct grossly impinges on the dignity and rights of sexual minorities.

While the LGBTI community has spoken out against the proposed bill, homophobia remains deeply entrenched within Nigerian society. Sexual minorities are marginalised and vulnerable to threats and harassment, abuse and violence. In solidarity with local LGBTI activists, the NGO forum at the recently concluded 50th African Commission on Human and Peoples Rights (ACHPR) adopted a resolution condemning human rights violations against the LGBTI community, including the proposed bill in Nigeria, and called on the ACHPR to take a strong, visible and proactive stance.

Homophobia in Africa is no secret. The Ugandan ‘Kill the gays Bill’, submitted by parliamentarian David Bahati, has resurfaced time and again, like a dormant volcano awaiting a potential eruption. In Malawi, President Bingu wa Mutharika, due to international pressure, pardoned a young gay couple that were sentenced to 14 years imprisonment, but his regime still does not support nor accept homosexuality. Former President of Botswana Festus Mogae has publicly admitted that he did not take up LGBTI rights when in office for fear of losing national elections.

Nigeria’s proposed bill comes at a time when the UK government has threatened to cut foreign aid to countries that restrict the rights of sexual minorities and discriminate based on sexual orientation and/or gender identity. The UK position is intended to pressure African governments in particular to repeal legislation that criminalises same sex conduct. Instead of bowing to this pressure, political leaders such as in Ghana, Tanzania and Zambia have publicly vowed not to give in to what they deem as coercive measures. The Nigerian government, by re-introducing this bill, appears to harbour sentiments similar to its African counterparts.

It, however, would be incorrect to call such rigid positioning a pan-African phenomenon. Some African countries like Rwanda and Mozambique have spoken out against the criminalisation of homosexuality. South Africa goes even further: its constitution protects the rights of persons to be free of discrimination based on their sexual orientation. South Africa also became the first African country to propose a resolution to the UN Human Rights Council defending the rights of LGBTI persons.

The criminalisation of same sex-conduct is endemic to the Commonwealth. Homosexuality is illegal in 41 out of 54 Commonwealth countries. The Commonwealth Heads of Government Meeting (CHOGM) 2011 held at Perth recently saw Kamalesh Sharma, Secretary General of the Commonwealth, allude to the human rights gaps created by discriminatory laws based on sexual orientation and gender. Commonwealth Heads have, however, delayed to adopt a proposal made by the Commonwealth Eminent Persons’ Group (EPG) in their report, ‘A Commonwealth of the People: Time for Urgent Reform’, wherein they recommended the ‘repeal of discriminatory laws that impede the effective response of Commonwealth countries to HIV/AIDS epidemic…’ This proposal has instead been deferred to a task force of ministers for deliberations. The CHOGM communiqué makes no mention of LGBTI rights, nor does it condemn alarming legislation, abuse and attacks faced by LGBTI persons in the Commonwealth.

As the dust settles after the CHOGM, Commonwealth government leaders need to rise to fulfil their fundamental obligations and responsibilities to the citizens of the Commonwealth to overcome this colossal human rights violation and protect the rights and dignity of all, including sexual minorities.

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* Sanyu Awori and Rithika Nair work for the Strategic Initiatives Programme, Commonwealth Human Rights Initiative.
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