Abstract
In 2011, the United Nations Human Rights Council passed its first resolution recognizing LGBT rights, following which the Office of the United Nations High Commissioner for Human Rights issued a report documenting violations of the rights of LGBT people, including hate crimes, criminalization of homosexual activity, and discrimination. There are reports of human rights violations based on real or perceived sexual orientation and gender identity in Nigeria. In 2018, the Initiative for Equal Rights and other organizations' reports show 213 human rights violations based on real or perceived sexual orientation and gender identity in Nigeria. Using a doctrinal method of analyses, the chapter examines critically the human rights provisions of the Nigerian law to determine whether or not sexual minority rights are recognised. The chapter concludes on the note that the Nigerian government has overstepped in regulating what transpires in the private affairs of two consenting adults of the same sex. It is the recommendation of the chapter that same sex sexual conduct should be decriminalised.
TopIntroduction
On January 7, 2014, Nigeria’s former president, Goodluck Jonathan, signed the Same-Sex Marriage (Prohibition) Bill (SSMPA) into law. The notional purpose of the SSMPA is to prohibit marriage between persons of the same sex (Human Rights Watch, 2016). One of the arguments of the critics of this legislation is that the Act only criminalises same sex marriage but it does not affect the rights of consenting adults of the same sex to engage in sexual activities. This argument however may be shortsighted by virtue of the provision of section 214 of the Criminal Code. The Nigerian state has made it clear that its decision to criminalise same sex practices conforms with one of the principles of criminalisation, albeit ‘legal moralism’. The Nigerian Constitution1 prohibits discrimination on several grounds including sex, community affiliation, ethnicity, place of origin, political opinion and religion. Compared to the South African Constitution which is broader in scope regarding equality and discrimination. The latter expressly provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
Discrimination based on sexual orientation is not actionable in Nigeria as the Constitution does not list ‘sexual orientation’ as one of the grounds upon which a Nigerian citizen may be discriminated against. Sexual orientation has been defined to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender (Yogyakarta, 2020). Nigeria is a signatory to the International Covenant on Civil and Political Rights (ICCPR) (Ashiru, 2021). The United Nations Human Rights Council in June 2011 adopted resolution 17/19 – the first United Nations resolution on human rights, sexual orientation and gender identity. The resolution was approved by a narrow margin but, significantly, received support from Council members from all regions. Its adoption paved the way for the first official United Nations report on the same subject, prepared by the Office of the High Commissioner for Human Rights. After decades during which the words “sexual orientation” and “gender identity” were rarely uttered in formal, intergovernmental meetings at the United Nations, a debate is unfolding at the Human Rights Council in Geneva on the rights of lesbian, gay, bisexual and transgender people. The discussions at the Council have focused political attention on discriminatory laws and practices at the national level and on the obligations of States under international human rights law to address these through legislative and other measures.2 Despite the warnings and recommendations of the United Nations on the recognition of the rights of the sexual minorities, individuals in Nigeria frequently suffer serious violations of rights protected under the ICCPR based on their real or perceived sexual orientation, gender identity and gender expression, including violations of the right to protection from nondiscrimination; the right to equal treatment of men and women; the right to equal treatment before courts; the right to equal protection before the law; the right to life; the right to liberty; the right to freedom from torture, cruel, inhuman, and degrading treatment; the right to privacy; the right to freedom of expression; the right to freedom of association; and the right to freedom of assembly.3
Key Terms in this Chapter
LGBTQ+: This term stands for lesbian, gay, bisexual, transgender, queer (or sometimes questioning), and others. The plus represents other sexual identities including pansexual and two-spirit.
Minority Rights: These are the normal individual rights as applied to members of racial, ethnic, class, religious, linguistic, or sexual minorities; and also, the collective rights accorded to minority groups.
Human Rights: These are the basic rights and freedoms that belong to every person in the world.
Sexual Orientation: Sexual orientation is a term used to refer to a person’s pattern of emotional, romantic, and sexual attraction to people of a particular gender (male or female).
SSMPA: Same-Sex Marriage (Prohibition) Act 2013 is a law signed by former President Goodluck Jonathan on 7 th January 2014. Several elements of the legislation contravene Nigeria’s Constitution as well as its binding international obligations, which guarantee fundamental rights to dignity, equality, non-discrimination, privacy, freedom from arbitrary arrest and detention and freedom of expression and association.