Abstract
That Nigeria ranks among the most homophobic countries globally is not in doubt. Africa's most populous nation took its ‘enviable' position in the comity of homophobic nations of the world with the passage of the Same-Sex Marriage (Prohibition) Act in the year 2013. With the passage of the SSMPA, sexual minorities in Nigeria not only find themselves in a complex situation, but also on an apparent collision course with the 1999 Constitution of the Federal Republic of Nigeria (CFRN). The complex dilemma being confronted by sexual minorities in Nigeria is therefore the choice between exercising their right to fully express themselves in line with their right to sexual orientation and becoming vulnerable to criminal prosecution in accordance with the provision of Nigeria's plethora of homophobic laws or obeying the dictates of homophobic laws. The Nigerian Constitution is regarded as the paramount law of the land, the grundorm, from which all other laws derive their legality and legitimacy.
TopStatus Of Sexual Orientation Laws In Nigeria Before The Emergence Of The Ssmpa
The SSMPA did not usher in the era of sexual orientation criminalisation in Nigeria. Long before the passage of the SSMPA, Nigeria had already put in place active penal law criminalising consensual adult same-sex practices. The laws are christened sodomy laws. The two main criminal legislation in Nigeria regulating criminal conduct are the criminal code and the penal code. While the criminal code regulates criminal conduct in the southern part of Nigeria, the penal code does the same for the northern part of Nigeria (see generally Okonkwo & Naish, 1980). Curiously, both codes have provisions ingrained in them out rightly prohibiting and penalizing consensual adult homosexual conduct. These criminal legislations operational in Nigeria are posted independence laws with colonial vestiges.
Consensual adult homosexual conduct and other related offences are termed ‘unnatural offences’ under the Criminal Code Act which regulates criminal conduct in southern Nigeria. Section 214 CCA states as follows:
Any person who-
- 1.
has carnal knowledge of any personal against the order of nature; or
- 2.
has carnal knowledge of any animal; or
- 3.
Permits a male person to have canal knowledge of him or her against the order of nature, is guilty of a felony, and is liable to imprisonment for fourteen years.
The CCA makes no categorical highlight of consensual adult homosexual conduct. The section, however, makes it clear that carnal sexual relationships between persons of same-sex or opposite-sex against the order of nature stands prohibited and penalized with fourteen years imprisonment. As noted by Agada (2018a p57), ‘the provision of this code automatically expands the prohibition of unlawful sexual act to also include an unnatural way of indulging in sex between heterosexual couples by the provision of section 214(3)’. Prohibition of consensual adult homosexual conduct, therefore, finds a vague interpretation under the above section of the CCA.
Key Terms in this Chapter
Human Rights: Human rights refer to rights which are innate and belong to every person. They are the basic rights and freedoms that belong to every member of the society from birth until death.
Nigeria: Nigeria is a country in West Africa. It is the most populous country in Africa. It is home to several indigenous pre-colonial states and kingdoms since the second millennium BC. Nigeria received independence from Great Britain on 1 st October 1960. It operates the common law legal system.
LGBT: This is an abbreviation for lesbian, gay, bisexual and transgender. It is an umbrella term used to refer to the community.
Same-Sex Relationship: This term refers to a romantic or sexual relationship between people of the same sex. Same sex marriage refers to the institutionalized recognition of such relationships in the form of a marriage or civil union.