Note: This is a rejoinder to an article written by Olumide Makanjuola in the Guardian.
By J.B Nwachukwu
I wish to commend Olumide Makanjuola for his boldness in writing on issues relating to Lesbian, Gay and Bisexual citizens (LGB), these issues though known aren’t issues that are publicly discussed by many because of its controversial and sentimental nature. Although I am surprised that, despite his advocacy for equal rights, he isn’t advocating for the rights of the Transgender, Queer, Intersex and Asexual citizens (TQIA). Don’t they need “equal rights” as well? Maybe equality is not so widespread, after all.
The said article which was published on the 17th of May raised many interesting issues, which if not addressed can mislead and impair reader’s judgment on the Same Sex Marriage (Prohibition) Act (SSMPA) and LGBTQIA issues.
Olumide seems to be surprised that despite the passage of the SSMPA, Nigerians are still respectful of the rights of the Lesbian, Gay and Bisexual citizens (LGB).
He said “Three years on from the passage of the Same Sex Marriage Prohibition Bill into law, it continues to enjoy a high level of public support, despite other indications that more Nigerians are respectful of the rights of Lesbian, Gay and Bisexual citizens”.
His surprise seems to be due, either to a total misunderstanding of the Act or a deliberate attempt to misconstrue what the Act provides for. This has to be true because further down in the article, Olumide argues that “by using the words “Same Sex marriage” what lawmakers did was to play on Nigerians fear for cultural change, with a controversial title, when really the law goes beyond banning same—sex marriage” he continues “one needs to go beyond the sensational title and talk about the content of the law that violates fundamental rights guaranteed in the Nigerian constitution. For example, clause 4.2 of the Act talks about public shows of amorous affection between people of the same sex. This is one of the sections aimed at criminalising freedom of association based on perceived identity, as well as criminalising people because of their association or knowledge of someone being lesbian, gay or bisexual”. He further argued that “Many Nigerian’s do not realize that with the way the Act is set up, the dangers of the law can affect anyone – even if they are not an LGB person. The definition of “same sex amorous affection” in section 4.2 of the law is so broad that it can apply to two male friends hugging or female friends hugging or female friends sharing a bed; in short any form of public affection between people of the same gender is criminalised”
I have painstakingly gone through the Act and nowhere does it provide for the things that Olumide is complaining of. This Act in question is so short-that if there was an award for the shortest Act in the history of Nigerian Legislation, this Act would most probably win it – that it should be subject to confusion.
The Act has eight (8) sections, Section 1-3 defines marriage to be a union between a man and woman and provides that any marriage between persons of the same sex either contracted in Nigeria or abroad is invalid in Nigeria. Luckily Olumide has no issues with this ones.
The section 4 which Olumide seems to have problems with, provides that the registration of gay clubs, societies and organisations, processions and meetings is prohibited. In sub section(2) it provides that the public show of same- sex amorous relationship directly or indirectly is prohibited.
Contrary to what Olumide posited, Section 4.2 doesn’t define “same-sex amorous affection”. That section merely prohibits public show of same sex amorous relationship. The Act did not provide for “affection” but “relationship”, these words mean two different things and I wonder what end Olumide seeks to achieve by changing them. The definition (which I must point out is personal to him) Olumide seeks to ascribe to the section with all due respect is absurd, and it’s geared at erroneously arousing people sentiments. It is important not to forget the qualifying word “amorous”. Amorous is a word that is not subject to misunderstanding. Assuming without conceding that Olumide doesn’t know what amorous means, I will take the pain to provide a definition. Oxford English Dictionary defines it to mean “showing, feeling or relating to sexual desire (emphasis on sexual). So for Olumide to say that, that provision can affect anyone even if they are not an LGB person is far from the truth. Or do members of the same family have amorous relationships? Can a father give either his son or daughter an amorous hug? Or do brothers give themselves amorous hugs?
Also, contrary to what Olumide said, nowhere does the Act criminalise people for knowing someone who is lesbian, gay or bisexual. Section 5(3) of the Act penalises those that witness, aid or abets the solemnisation of same sex marriage and those that support the sustenance of gay clubs and meetings and not those that know people that are LDB.
Secondly, the Act doesn’t infringe on anyone’s freedom of Association nor does it prevent people of the same sex from staying, meeting or leaving together, if it did, then same sex hostels, schools etc, would have been banned by now. What it prevents is the registration and meetings of gay clubs, societies etc. The Act doesn’t even criminalise Homosexuality, Homosexuality is clearly criminalised under chapter 21 of the Criminal Code. Moreover, it is imperative to point out that the right to association is not even absolute, Section 45 of the 1999 Constitution (as amended) clearly provides that such right can be derogated from, in the interest of public morality and public health.
Continuing, Olumide argues that because of the SSMPA, the police, other state and non- state actors have been empowered to think violence, hate and prejudice towards LBG persons. According to him, his organisation has documented evidence to prove that since the Act was passed there has been an increase in the human rights violations against LGB persons. Without demanding for the evidence, I concede that there are violations against LBG persons just as there are violations against many others and I condemn such violations vehemently. But I must quickly point out that those that violate LGB persons do so out of culpable ignorance and if found (indeed they must be found) they should be condemned and prosecuted accordingly. Such persons think that LGB persons are inherently bad or possessed by some evil spirt. I don’t subscribe to such. I believe that LGB persons just like any human being, can be intelligent, hard-working, virtuous, responsible etc. The only contention issue is their sexual orientation. Is it a new way of life or an abnormality / illness? Till date there has been no conclusive evidence to prove that homosexual persons are born that way, indeed it is widely held to be a nurture rather than a nature development. So why do we need to legitimise an act that is not natural or scientific? Indeed the mere fact that one has the same-sex attraction (SSA) doesn’t mean, one must exhibit it, just the saw way that the mere fact an heterosexual man has attraction to multiple women doesn’t mean he has a right to exhibit it. Indeed, attractions need not dictate our relationships.
As regards the violations by the law enforcement agencies, it is wrong to blame such violations on the SSMPA, as we have examined above, nowhere does the Act empower anyone to violate anyone right including those of LGB. I think that if Olumide is sincere, he will agree that our law enforcement agencies are fraught with lots of irregularities. We’ve heard of numerous instances where for example, policemen enter a bar and accuse those drinking of a crime, all in the name to extort from them, it’s the same policemen that will castigate a woman when she goes to report her husband for battery. Will you blame the law for these infractions? A friend of mine, an adult, who decided to stay on his own had his house raided by his father. When he reported to the police, the police condemned him for being stubborn and obedient. Which law will you blame? It’s the law enforcement agencies and not the law. Indeed LGB persons rights are protected by the laws of Nigeria, there need not be an enactment or repeal of any law. Under the law of Tort and fundamental Human Right, they have lots of remedies available to them.
Based on a survey conducted by his organisation, Olumide further argues that Nigerians agree that LGB citizens deserve equal access to public health, housing and education. This is very important, I agree with Olumide that LGB need access to public health, they already have access, but I am ready to campaign that they even need a higher access to public health than many of us because of the extreme health risks associated with Men who have sex with Men (MSM). The most recent report by the Centres for Disease Control and prevention (CDC) in the US, provides that more than 9 in 10 new HIV cases among young men and boys ages 13 to 24 in the U.S occur among homosexuals and bisexuals and the LGBT population has the highest number of people living with this virus when compared to other population. They are also at an increased risk of other STDs like syphilis, gonorrhoea and chlamydia. This very clearly proscribes the LGBT lifestyle as an unhealthy one.
Olumide made me laugh when he stated authoritatively that the Nigerian LGB community isn’t clamouring for same sex marriage, really. No country in the world where Gay marriage has been legalised, started advocating for gay marriage from day one. They started by asking for the repeal of sodomy law, to provision of civil partnership, etc. before they got the icing of the cake which is Gay Marriage.
I do agree with Olumide that Nigerians lack understanding on the subject of sexuality and human rights, I wish they knew, because if they knew, not only would they wake up from their somnolence, they will also resist any attempt to apathy and indifference and ensure that the LGBTQIA dictatorship in western countries doesn’t it repeat itself here.
Nwachukwu is a Legal Practitioner and a writer. firstname.lastname@example.org