Abstract
To the Nigerian state, consensual sexual activity among persons of the same sex is against the order of nature and must be punished as a crime. On the other hand, to persons who engage in sexual activity with persons of the same gender and to rights' activists, the act is a right, like any other, which should be respected and protected. This chapter examines the cultural issues, the human rights angle, and the future of the criminalization of same-sex sexual conduct conundrum in Nigeria. Using the doctrinal method of legal research methodology, the chapter reviews laws criminalizing homosexuality in Nigeria in juxtaposition with human rights provisions both in the international and domestic context in search of a solution to the problem. Accordingly, it is recommended that while the law should protect cultural values, human rights are sacrosanct and must not be sacrificed.
TopThe Criminalization Of Same-Sex Relationships In Nigeria
To begin with, it is pertinent to define what a crime is. No one has offered and none will possibly offer a definition of the term ‘crime’ that will be accepted universal. In a legal sense, a crime is said to be committed when there is a breach of a legal rule or law for which some governing authority can prescribe a conviction (Adebayo, 2013). A crime is an act or omission against public interest, and which is prescribed by law enacted by the legislature in the interest of the public, and to which prescribed punishment is attached in the event of violation (Danbazau, 1994). Crimes, legally speaking are considered to be acts or omissions forbidden by written law that can be punished by imprisonment and/or fine (Chukkol, 1981). In the same vein, the 1999 Constitution of the Federal Republic of Nigeria (as amended) states categorically that for a conduct to be considered as a crime, it must be prohibited by a written law.1 This is based on the legal principle of nullum crimen sine lege, an expression in Latin which means ‘no crime without law’ (Schaack, 2008). For the purpose of this article, the following definition of crime is apt:
A crime is held to be an offence which goes beyond the personal and into the public sphere, breaking prohibitory rules or laws, to which legitimate punishments or sanctions are attached, and which requires the intervention of a public authority…for a crime to be known as such, it must come to the notice of, and be processed through, an administrative system or enforcement agency. It must be reported and recorded by the police (or other investigator); it may then become part of criminal statistics; may or may not be investigated; and may or may not result in a court case (Scott & Marshall, 2009: 139).
Key Terms in this Chapter
Marriage: The process by which two people make their relationship public, official, and permanent.
Carnal Knowledge: An archaic or legal euphemism for sexual intercourse.
Sharia Law: A religious law forming part of the Islamic tradition.
Nigeria: Country located on the western coast of Africa.
Same-Sex Relationship: A relationship between people of the same sex and can take many forms, from romantic and sexual, to non-romantic.
Homosexuality: Romantic attraction, sexual attraction, or sexual behavior between members of the same sex or gender.
LGBT: Community also referred to as the gay community, is a loosely defined grouping of lesbian, gay, bisexual, transgender.
Sodomy: Anal or oral copulation with a member of the same or opposite sex.
Crime: An unlawful act punishable by a state or other authority.