LGBT and The Law - Protecting The Rights of Minorities in Nigeria PDF

LGBT AND THE LAW:
PROTECTING THE RIGHTS OF MINORITIES IN NIGERIA
Okuefuna, Silas Obinna

(277208)
Masters Degree Thesis
MDP in Economic and Resources Law
Law School
University of Eastern Finland
Supervisor: Prof. K. Lindroos
October, 2016
ABSTRACT
Lesbians, Gays, Bisexuals, and Transsexuals popularly referred to as the LGBT community lately
have been on the news almost on a daily basis all over the world. Most European and Western
countries push for its world-wide acceptance while the East and most African countries, on the other
hand, oppose same and put up measures to counter the Western onslaught.
Is the Nigerian State justified in criminalising non-heterosexual conducts on morality grounds? Are
LGBT conducts a choice process? The research traces the history and root of LGBT conducts in
individuals, comparing different LGBT theories and identity models, and found that they could be
learned behaviours or inborn traits. The research considered the relationship between law and
morality, distinguishing between private and public morality, and found that LGBT conducts fall
within the sphere of private morality. Same-sex marriages, however, is an issue that belong to the
realm of public morality.
LGBT persons have the same constitutional rights as non-LGBT persons. Laws criminalising
conducts that fall within the sphere of private morality breaches the right to privacy as well as the
right to freedom from discrimination of the affected individuals. Nigerian laws on LGBT conducts
were found to be in breach of the fundamental rights of the LGBT persons and a breach of a host of
international obligations binding on Nigeria. A comparison of the Nigerian jurisdiction with that of
some select foreign jurisdictions showed that Nigeria is lagging behind in the comity of nations on
issues of fundamental rights protection.
Contents
BIBLIOGRAPHY ..........................................................................................................................v
Table of Cases ........................................................................................................................................ viii
LIST OF ABBREVIATIONS ............................................................................................................. xiv
CHAPTER ONE: INTRODUCTION ..........................................................................................1
1.1 Meaning of LGBT ....................................................................................................................... 1
1.2 Background to the Study ............................................................................................................ 2
1.3 Discrimination against the LGBT community ......................................................................... 4
1.4 History of LGBT legislations in Nigeria ................................................................................... 6
1.5 Statement of Problem ................................................................................................................. 8
1.6 The Need for Comparative Law ................................................................................................ 9
1.7 Research Methodology ............................................................................................................. 11
1.8 Objectives of the study.............................................................................................................. 12
1.9 Scope of the study...................................................................................................................... 12
1.10 Definition of Terms ................................................................................................................... 13
CHAPTER TWO: UNDERSTANDING LGBT .......................................................................16
2.1 Overview .................................................................................................................................... 16
2.2 LGBT Theories.......................................................................................................................... 16
2.2.1 Psychoanalytic Theory ............................................................................................................ 17
2.2.2 Learning Theory...................................................................................................................... 18
2.2.3 Psychobiological Theory......................................................................................................... 21
2.2.4 Fraternal Birth-Order Effect Theory ...................................................................................... 22
2.2.5 Transgender Theory ................................................................................................................ 24
2.3 LGBT Identity Models.............................................................................................................. 25
2.3.1 Vivienne Cass’ Homosexuality Identity Model ....................................................................... 25
2.3.2 Anthony D’Augelli’s Homosexuality Lifespan Development Model ....................................... 27
2.3.3 McCarn-Fassinger’s Lesbian Identity Development Model ................................................... 27
2.3.4 Arlene Istar Lev’s Transgender Emergence Model ................................................................ 28
CHAPTER THREE: LGBT IN NIGERIA................................................................................30
3.1 Fundamental Rights of LGBT Persons ................................................................................... 30
3.2 Criminalising LGBT acts ......................................................................................................... 31
3.3 Sodomy ....................................................................................................................................... 32
3.3.1 Legality and Constitutionality ................................................................................................. 33
3.3.2 Bentham’s Division of Offences .............................................................................................. 36
3.3.3 From Theory to Law ............................................................................................................... 38
3.4 Prohibition of Gay clubs and organisations............................................................................ 41
3.5 Prohibition of Same-Sex Marriage .......................................................................................... 44
3.6 The need for Nigeria to protect the Human Rights of LGBT persons ................................. 48
iii
CHAPTER FOUR: NIGERIA’S INTERNATIONAL OBLIGATIONS ...............................49
4.1 The African Charter on Human and Peoples’ Rights ........................................................... 49
4.2 The United Nations International Covenant on Civil and Political Rights ......................... 53
CHAPTER FIVE: COMPARATIVE REVIEW .......................................................................55
5.1 Call for decriminalisation and Western Cultures .................................................................. 55
5.2 LGBT and Africa ...................................................................................................................... 56
5.3 LGBT in the United Kingdom ................................................................................................. 61
5.4 LGBT in the United States ....................................................................................................... 63
CHAPTER SIX: CONCLUSION AND RECOMMENDATIONS .........................................66
6.1 Conclusion ................................................................................................................................. 66
6.2 Recommendations ..................................................................................................................... 67
iv
BIBLIOGRAPHY
OFFICIAL SOURCES (STATUTES/ INTERNATIONAL INSTRUMENTS)
Australian Statutes
Australian Human Rights (Sexual Conduct) Act (Cwth) No. 174 of 1994
Criminal Code Amendment Act 1997 (Tas), (No. 12 of 1997)
Nigerian Statutes
Interpretation Act, Cap I 23 LFN 2004
The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9
LFN 2004
The Constitution of the Federal Republic of Nigeria, 1999 (as amended)
The Criminal Code
The Criminal Code Act, Cap C28 LFN 2004
The Marriage Act, Cap M 6 LFN 2004
The Matrimonial Causes Act, Cap M 7 LFN 2004
The Penal Code
The Penal Code Law, Laws of Northern Region of Nigeria No. 18 of 1959
The Same-Sex Marriage (Prohibition) Act 2014
South African Statute

The Constitution of the Republic of South Africa Act 108 of 1996
United States Statute
The Constitution of United States of America 1789 (rev. 1992)
United Kingdom Statutes
v
The Buggery Act, 1533
The Buggery Act, 1563
The Civil Partnership Act, 2004
The Criminal Justice (Scotland) Act 1980
The Homosexual Offences (Northern Ireland) Order 1982
The Marriage (Same Sex Couples) Act 2013 for England and Wales
The Sexual Offences Act, 1967
International Instruments
The African Charter on Human and Peoples Rights which came into force on 21st October, 1986
The European Convention on Human Rights, adopted in Rome and opened for signature in 1950
but came into force in 1953
The International Covenant on Civil and Political Rights, 1966 of the United Nations which came
into force on 23rd March 1976
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viii
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ix
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people and their families (New York: Haworth Press, 2004);
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passersby-watch/
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xii
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xiii
LIST OF ABBREVIATIONS
AC: APPEAL CASES
AG: Attorney-General
Arch Neurol Psychiatry: Archives of Neurology and Psychiatry
Arch Pediatr Adolesc Med: Archives of Paediatrics and Adolescent Medicine
Arch Sex Behav: Archives of Sexual Behaviour
BCLR: Butterworths Constitutional Law Report
CA: Court of Appeal
CALS: Centre for African Legal Studies
CC: Criminal Code
CCT: Constitutional Court
CFRN: Constitution of the Federal Republic of Nigeria
Cap: Chapter
Cwth: Common Wealth
ECHR: European Convention on Human rights
ECtHR: European Court of Human Rights
Ed: Edition/ Editor
FHC: Federal High Court
J Pediatr Psychol: Journal of Paediatrics Psychology
LER: Legalpedia Electronic Report
LFN: Laws of the Federation of Nigeria
xiv
LGBT: Lesbian, Gay, Bisexual, and Transgender
LPELR: Law Pavilion Electronic Law Report
N Engl J Med: New England Journal of Medicine
NCLR: Nigerian Constitutional Law Report
NGO: Non-Governmental Organisation
NWLR: Nigerian Weekly Law Report
No.: Number(s)
Ors: Others
P: Page(s)
PC: Penal Code
Rev Endocr Metab Disord: Reviews in Endocrine and Metabolic Disorders
Rev: Revised
S/ Secs: Section(s)
SA: South Africa
SC: Supreme Court
Tas: Tasmania
UK: United Kingdom
US: United States
Wash U. L. Rev: Washington University Law Review
ZACC: South African Constitutional Court
eKLR: Electronic Kenyan Law Repo
xv
The man dies in all who keep silent in the face of oppression
~Wole Soyinka1
1
SOYINKA W., The Man Died (New York: Harper & Row, 1972) p. 13.
xvi
CHAPTER ONE: INTRODUCTION
1.1 Meaning of LGBT
LGBT is an acronym which simply means Lesbian, Gay, Bisexual, and Transgender. It is an
acronym which has gained popularity overtime among internet users and it is used to refer to
anyone whose sexual orientation is non-heterosexual or non-cisgender and not exclusively to
people who are lesbian, gay, bisexual, or transgender. LGBT(Q) as an acronym was developed in
the 1990s and replaced what was formerly known as “the gay community” and it is used to refer
to a community of people whose sexual identities can create shared political and social concerns.
Individually, the persons falling under the term LGBT are identified with the respective sexual
orientation they exhibit but are collectively grouped together under the umbrella of LGBT which
is a form of a community or association that serves as a pressure group advancing the cause of its
members and persons who fall under either of the terms that make up the LGBT. The acronym
LGBT in this sense is used to refer to the sexual orientations of people who are not heterosexual,
and does not necessarily cover the actual doing of a non-heterosexual sexual act, as some persons
may identify as LGBT but nonetheless does not indulge in non-heterosexual sexual acts or
conducts. In this Thesis, the research would be limited to only LGBT and would not include a
consideration of persons who identify as ‘Questioning’ or ‘queer’. This is because, the rights of
such persons are not much affected under the present laws in Nigeria as those questioning their
sexual orientations or identity still retain or identify with the sexual orientations or identities they
already have but are questioning same due to some reasons known to them. Queer or questioning
is not outlawed in Nigeria as freedom of thought is guaranteed to everyone under the Nigerian
1999 Constitution and other International Instruments which Nigeria is a signatory to and which
are binding on the country. Again, given the fact that it will be difficult to identify the sexual
orientation of those who identify as Questioning or Queer, even if it were to be outlawed, it may
be extremely impossible to identify anybody as questioning for purposes of prosecution or
conviction, unless such a person voluntarily comes forward stating his or her sexual orientation as
being Questioning or Queer.
1
1.2 Background to the Study
On 17th February, 2016 one Akinnifesi Olumide Olubunmi was beaten to death in Ondo State,
Nigeria following allegations that he was caught with another man engaging in a homosexual act.
While his alleged accomplice escaped, Akinnifesi was not as lucky as he was clubbed and beaten
severely which led to his death the following day due to complications arising from the beating.2
There is also another instance of jungle justice against gays recorded somewhere in Nigeria in
December 2013, although unverified, wherein 2 alleged gay men who were said to have been
caught in a homosexual act were beaten to death3 in the presence of some security officials,4 who
instead of stopping the dastardly act and arresting the culprits merely watched as if it was a soap
opera and walked away when one of their fellow spectators, in reference to one of the victims
declared in Yoruba language “o ti ku.”5 In the researcher’s hometown, Nteje,6 people perceived to
be gay or lesbians are rounded up by local vigilantes and humiliated in the public by clubbing and
flogging them and making them walk round the streets naked. These happenings could be termed
mob justice since the victims were not afforded a proper trial, neither were they given fair hearing
nor the opportunity to defend themselves.
Mob Justice means the unlawful conducts of a group of people who take the laws into their own
hands, thereby assuming the position of a judge, jury, and executioner, and meting out punishments
to persons accused of allegedly committing certain offences. In most mob justice scenarios, the
victims of the mob justice are usually stripped naked, clubbed, inflicted with severe bodily injury,
and in extreme cases beaten or burnt to death. All these happens without any proper trial or
conviction of the victim for the alleged offence. Section 36 (4)7 provides that “whenever any
person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to
a fair hearing in public within a reasonable time by a court or tribunal.” Even where a person stands
accused of a criminal offence, the constitution still affords him the right to respect for the dignity
2
https://www.naij.com/763127-shocking-gay-man-beaten-death-ondo-state-photo.html accessed on 15.03.2016 at
17:06
3
http://www.bellanaija.com/2014/02/horrific-2-gay-nigerian-men-beaten-to-death-as-policemen-passersby-watch/
accessed on 15.03.2016 at 17:33
4
Men of the Nigeria Police Force
5
Which means ‘he is dead’. Yoruba is a language spoken by the Yoruba race which is one of the 3 largest ethnic
groups in Nigeria.
6
A town in Anambra State, Nigeria.
7
Constitution of the Federal Republic of Nigeria 1999 as amended hereinafter referred to as ‘CFRN 1999 as amended’
2
of his person and prohibits subjecting such a person, or any other person for that matter, to inhuman
or degrading treatment.8 And finally, all accused persons, and all persons in general, is guaranteed
a right to life.9 Akinnifesi Olumide Olubunmi10 and others like him were denied this right to fair
hearing, right to the dignity of their persons, and in extreme cases their right to life. Life was
snuffed out of Akinnifesi in contravention of his right to life,11 which can only be curtailed save
in the execution of a court order. Mob justice is a crime under the Nigerian law. 12 But it’s
unfortunate that nobody till date has been arrested nor charged to court for the murder of Akinnifesi
despite the fact that the dastardly act was carried out in broad day light in the full glare of the
whole world. There is the need to afford persons accused of LGBT offences fair trial which is a
constitutional requirement and not allow or seem to condone the meting out of jungle justice on
LGBT persons without any opportunity to defend themselves. And where any instance of jungle
justice is established, the culprits should be apprehended and made to face the full wrath of the
law.
The 2014 Act13 seems to have ‘put an imprimatur of lawfulness on hate crimes targeting gays’14
in the Nigerian society. The late Akinnifesi may even be innocent of the ‘homosexual’ tag. He was
not afforded any opportunity of defending himself before a proper law court against the obnoxious
anti-gay legislations. The two men that were murdered, in the presence of some Nigerian
policemen who did nothing to come to their rescue nor arrest their assailants on account of their
supposedly gayness, met their untimely death because some sections of the society assume that
the law had empowered them as vigilantes of the society to hunt down homosexuals and clean up
the society. None of the assailants in both cases and numerous other instances had been brought to
book, and this sends a wrong signal to other persons who may want to turn to homosexual bounty
8
Sec 34 CFRN 1999, as in note 7 above
9
Sec 33 CFRN 1999, as in note 7 above. It provides that ‘every person has a right to life and no one shall be deprived
intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has
been found guilty in Nigeria.’
10
As in note 2 above
11
Section 33 CFRN 1999, as in note 7 above
12
Wounding, assault, inflicting grievous bodily injury, and murder are the usual constituting conducts in a mob justice,
all of which are criminal conducts in Nigeria. See the case of Ezekiel Adekunle v The State [1989] 5 NWLR (pt. 123)
p. 5052
13
Same-Sex Marriage (Prohibition) Act, 2013, hereinafter referred to as the SSMPA 2013
14
NOSSEL S., NOSSEL S., Can the Supreme Court’s Marriage Decision Help the World’s Most Homophobic
Country?, accessed from http://foreignpolicy.com/2015/06/29/supreme-court-gay-same-sex-marriage-decision-
worlds-most-homophobic-country-nigeria/, on 15.04.2016 at 20:00
3
hunters in future, that the law supports whatever mob action that is taken against such homosexual
persons.
1.3 Discrimination against the LGBT community
The enactment of the 2013 Same-sex Marriage (Prohibition) Act serves as a catalyst to so many
otherwise latent discriminatory practices against persons who identify as an LGBT in the Nigerian
society. The purport of section 5 (3) of the Act is to the effect that rendering assistance to any
person suspected of being an LGBT person could land one into trouble as the police seems to have
derived unlimited powers from the said provisions and could arrest, detain, and charge to court
any person suspected to have offered assistance to an LGBT person in any manner. As is usual
with the Nigerian law enforcements, suspicion of a crime leads to arrest before investigation, and
in other occasions, a person could be charged to court upon un-investigated allegations and
remanded in prison by the magistrate pending the completion of investigation by the police after
which the case file would be forwarded to the Director of Public Prosecutions. The import of this
is that one could be arrested on flimsy excuses and held on trumped up charges by overzealous
law enforcement agents. As a result, players in the service sector are wary in the nature of services
provided to customers, especially to persons who seem to be same-sex couples. A hotelier could
turn away two male friends who came into a city and needed a place to spend the night. The hotelier
may do this for fear that they might be homosexuals, as this may attract police raid on the hotel,
closure of the hotel, and the possible detention and prosecution of the hotelier for the offence of
supporting the operation of gay meetings by renting a hotel room to possible gays. In a piece by
Collin Stewart titled “Nigeria: No court challenge vs. alleged police misconduct,”15 as reported by
The Initiative for Equal Rights,16 21 young men were, in May 2015, arrested in Ibadan, Nigeria
for engaging in “secret gay cult” based on the fact that they were organising an all-male party, and
the fact that about 118 condoms were found in the room in which they were. The alleged gay party,
as reported in the piece happened to be a birthday party. All the suspects were remanded in
detention until some amounts of money were paid on each and every one of them to the police in
15
https://76crimes.com/2015/05/21/nigeria-no-court-challenge-vs-alleged-police-misconduct/, accessed on
15.04.2016 at 16:20
16
A Nigerian Non-Governmental Organisation (NGO)
4
order to secure their bail. This is usually the case in most Nigerian police stations although, almost
all Police Stations in Nigeria inscribe on their wall, ‘Bail is Free.’ Till date, there has been no
known conviction for sodomy or offences in the new 2014 Act, as in most cases the prosecution’s
cases lack merit and are either dismissed or struck out by the courts for want of diligent
prosecution. In other situations, the accused persons may prefer to settle the matter out of court by
paying some money to the police so that the police prosecutor will compound the offence, due to
the fear of the negative publicity and social disapproval such homosexual prosecution may bring
to the accused persons or to their families.
Section 17(3) (d) 1999 Constitution17 provides that the State, as part of its social objectives, shall
direct its policy towards ensuring that there are adequate medical and health facilities for all
persons. As already pointed out earlier, matters falling under Fundamental Objectives and
Directive Principles of State Policy have been declared not to be a justiciable right. 18 This
notwithstanding, the social right of LGBT persons to adequate medical and health facilities is being
limited by the effects of the new anti-gay law as the number of persons going for HIV treatment
has reduced drastically.19 Hospital patients may find it difficult disclosing their sexual orientation
to doctors for fear of putting the doctors in awkward positions of reporting the sexual orientations
that constituted prohibited acts to the police. This is due to the fact that rendering help or services
to LGBT persons has been made criminal under the new Act.20 As a result, LGBT sick persons do
not receive the best medical care they need for fear of the repercussions of the new law.
The above situations and many unreported others informed the decision of the researcher to embark
on this research and determine the state of laws with regards to the LGBT in Nigeria and make
recommendations, where necessary, so as to protect the fundamental rights of people resident in
Nigeria and who identify as an LGBT.
17
As in note 7 above
18
A.G. Ondo State v A.G. Federation, supra as in note 167 above
19
NOSSEL S., as in note 14 above
20
SSMPA 2013, as in note 13 above
5
1.4 History of LGBT legislations in Nigeria
Culturally, LGBT conducts are regarded as a taboo which ought not to be legalised.21 The issue
under consideration is the issue of fundamental rights and not whether certain conducts constitute
a taboo in the society. Human rights is universal; it is not circumscribed to any one particular
locality or continent. What amounts to human rights in London is same in Nigeria, and will remain
the same in the United States of America. There is no Africanness in human rights. For instance,
giving birth to twins used to be a taboo and Un-African in Igboland of Nigeria as twins were
considered to be evil and portend bad omen to the family where they were born into. All twins
born during that era were killed. This practice of ‘Un-African twins’ continued to hold sway until
Mary Slessor, a Scottish missionary brought her influence to bear on the locals and helped stop
the killing of twins.22 Africanness gives way for human rights, and the former cannot be used to
justify practices that infringe the latter. Decriminalising anti-sodomy conducts is different from
legalising same-sex marriages. Sexual orientation is regulated by private morality while marriage
comes within the purview of public morality. In matters of private morality, the State has ought
not to have a stake in looking beyond the home curtains to enquire what takes place between two
consenting adults in the privacy of their home.
Same sex relations have been illegal in Nigeria since the colonial era when the Criminal Code was
adapted from Tasmania’s Code. Traditionally, persons caught engaging in LGBT conducts risk
banishment from the community, payment of fines, performance of rituals of expiation in order to
appease the gods of the land, or being publicly shamed. The public shaming is done by making the
alleged offenders go round the community or the village or market square naked while renouncing
the offending acts allegedly committed by them. For those who go to church in Nigeria, they argue
that the Christian Bible forbids same-sex relations and the Bible stipulates that anybody caught in
such an act shall be put to death.23 Most Nigerian Christians abhor same-sex relations but they
don’t go to the extent of advocating death for the perpetrators like the Bible prescribed. For the
Moslems in Nigeria, the Quran too condemned sexual relations between persons of the same sex
21
SOLACE BROTHERS FOUNDATION et al, Human Rights Violations Against Lesbian, Gay, Bisexual and
Transgender People in Ghana: A Shadow Report (Submitted for consideration at the 115th Session of the Human
Rights Committee October 2015, Geneva)
22
NWANKWOALA C., A letter to my Countrymen (AuthorHouseUk, 2013), p. 38
23
See Leviticus 20:13
6
and demanded that they be put to death through stoning.24 Notwithstanding these religious and
cultural stipulations, Nigeria is a secular State.25 The Constitution provides that ‘the Government
of the Federation or of a State shall not adopt any religion as State Religion.’ It has no State
religion and the dictates of the Bible and Quran starts and ends in Churches and Mosques. Should
there be a conflict between moral codes as enunciated in the Bible, Quran, or cultural teachings
and the Nigerian Constitution, the Constitution prevails. This is because, the Nigerian Constitution
is the highest law of the land and any law which is inconsistent with it shall to the extent of its
inconsistency be void.26
Historically, Nigeria inherited most of its laws from Britain which ruled Nigeria until 1960 when
Nigeria gained its independence. The Criminal Code (CC)27 which governs the southern part of
Nigeria criminalised same sex relations and stipulated 14 years’ jail term as punishment for
offenders.28 The Penal Code (PC)29 governing the northern part of Nigeria provided for death
penalty for defaulters. In 2006, the Federal Executive Council proposed a bill titled ‘Same-Sex
Marriage (Prohibition) Bill’ to the National Assembly for passage into law. The 5th National
Assembly was unable to consider the Bill before its tenure elapsed due to the political permutations
at the time surrounding the alleged 3rd term bid of former President Olusegun Obasanjo for the
Presidency. The 6th Senate however passed the Bill in 2011 and the House of Representatives did
same in 2013 before the Clerk of the National Assembly forwarded the Bill to the then President
24
Quran 7:80-84
25
Sec. 10 CFRN 1999 as amended.
26
Sec. 1 (3) CFRN 1999 as amended
27
The Criminal Code Act, Cap C28 LFN 2011. The criminal code was modelled after the Tasmanian Criminal Code
of Australia, which itself was previously governed by the British. The Criminal Code Act, although a Federal
enactment for the States in southern Nigeria, have been re-enacted into Criminal Code Laws by almost all the States
Houses of Assembly in the South East, South South, and South West of Nigeria.
28
Section 214 CC The offence is tagged “unnatural offences” which means the offence of having carnal knowledge
of a person or permitting anyone to have carnal knowledge of oneself against the order of nature. The order of nature
referred to in the section means the penile penetration of the vagina as anything other than this brings such an act
within the purview of unnatural offences and thereby sodomy. Implicit in this is the fact that both oral and anal
penetration as well as penetration of the vagina using objects or other body parts other than penis is criminal and liable
on conviction to a maximum term of 14 years imprisonment. Section 217 CC specifically provided for homosexuality
and made it a felony with 3 years imprisonment. The difficulty here, however is as regards to what constitutes
unnatural offences. Homosexual acts were also covered under Section 214 CC and a prosecutor may decide to charge
an offender under the more severe section 214 as against section 217 CC which explicitly provided for it.
29
The Penal Code Law, Laws of Northern Region of Nigeria No. 18 of 1959. The penal code was modelled after
Sudan’s Penal Code
7
Goodluck Ebele Jonathan for his Assent. The Bill was signed into law by the President on the 7th
day of January, 2014.
1.5 Statement of Problem
Is the Nigerian State legally justified in criminalising non-heterosexual conducts on morality

grounds? Are LGBT conducts a choice process? The prohibition of LGBT conducts, same-sex
relations and marriages by penal sanctions seem to be inconsistent with the Constitution as they
are discriminatory against the fundamental rights of the affected LGBT individuals. The
Constitution provides that
a citizen of Nigeria of a particular community, ethnic group, place

of origin, sex, religion or political opinion shall not, by reason only
that he is such a person:- (a) be subjected either expressly by, or in
the practical application of, any law in force in Nigeria or any
executive or administrative action of the government, to disabilities
or restrictions to which citizens of Nigeria of other communities,
ethnic groups, places of origin, sex, religions or political opinions
are not made subject…’30
The above provision further stated that ‘no citizen of Nigeria shall be subjected to any disability
or deprivation merely by reason of the circumstances of his birth.’31 Juxtaposing the above
Constitutional right against discrimination with the anti-LGBT criminal legislations, it is apparent
that the said legislations seem discriminatory. It is the purpose of this research to show that indeed
such criminalisations are discriminatory against the LGBT persons by showing that biology plays
a vital role in the evolution and formation of LGBT conducts. The effects of biology on LGBT
conducts and trait formation makes them ‘a circumstance of birth’, which the Constitution
explicitly prohibited discriminations flowing from such circumstances.32
30
Sec. 42 (1) (a) CFRN 1999 as amended, as in note 7 above
31
Sec. 42 (2) CFRN 1999 as amended, as in note 7 above
32
Sec. 42 (2) CFRN 1999 as amended, as in note 7 above
8
Again, as will be shown in the course of this research, some African countries sharing the same
constitutional values on human rights with Nigeria33 have started moving away from the
discriminatory anti-gay stance towards an inclusive fundamental rights protection for all their
citizens. Cases from Botswana and Kenya point a glimmer of hope in this direction.
The Nigerian Criminal Code is an adaptation of the Tasmanian Criminal Code. Today LGBT
conducts are no longer criminalised under the Tasmanian Code because the criminalisation run
counter to Australia’s Constitution and the country’s international law commitments.34 Same
International Covenant is binding on Nigeria. If sodomy law had become bad law in Tasmania
from which Nigeria borrowed its criminal law, this presupposes that same sodomy law ought to
be bad law too in Nigeria, being the recipient country. The situation of things in the United States
of America35 and the United Kingdom36 would also be explored to show the changing times and
how LGBT rights protection have come to evolve in those countries. Nigeria shares a lot in
common with both the USA and the UK and these would be explored in chapter 4 of this work on
comparative analysis.
Finally, this research will seek to make a distinction between State sovereignty to make laws for
its citizens and the core of fundamental rights which is a global phenomenon and not restricted to
any particular country or region.
1.6 The Need for Comparative Law
Comparative law as a discipline is aimed at the study of different jurisdictions or institutions,

finding the functional equivalence, similarities and differences between them as well as an
evaluation of the better jurisdiction or institution. The modern trend in comparative law is to study
foreign laws so as to improve national legislations.37 In terms of legal development, no country is
isolated as the borrowing of laws and ideas among countries and legal systems is ‘the most fertile
33
Nigeria, together with some other African countries are signatories to the African Charter on Human and People’s
Rights, which came into force on 21.10.1986
34
The criminalisation was held to be a breach by Australia of its commitments under the United Nations’ International
Covenant on Civil and Political Rights, 1966
35
The USA
36
The UK
37
SMITH J. M., Comparative Law and its Influence on National Legal Systems, in REIMANN M. and
ZIMMERMANN R. (Eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006), p.
515
9
source of development.’38 By development here, Watson refers to legal development and the
impact legal transplant has on the borrowing countries. For instance, the French Civil Code was
imported into many European and South American countries which served as a model for their
respective civil codes. The Swiss civil code was transplanted to Turkey, and the draft of the
German civil code served as the basis for the Japanese code.39 In Nigeria, the criminal code was
modelled after the Tasmanian Criminal Code while the Penal Code followed that of the Sudanese
Penal Code. Majority of Nigerian legislations were imported as a result of the beauty of
comparative law, an exception being the Same-Sex Marriage (Prohibition) Act 2014 which was
wholly an indigenous legislation traceable to no transplanting activity or any other country.
Comparative law in a legal system usually takes place at law making and adjudication stage. In
law making, law borrowing is common among legislatures. It could take place in the form of the
transplantation of a whole statute book or through the borrowing of just a rule from the statute
book. In the case of national courts deciding cases, a lot of reasons have been advanced on the
need why courts in certain situations ought to make a comparative analysis of the rule of law as
applied in other jurisdictions. For instance, where a given issue has international dimension,
restricting the interpretation and application of the rule alone to the national provision without
making a comparative analysis may seem to be awkward. This is usually the situation where the
national law is based on an international treaty.40 Again, where a national law is transplanted from
another jurisdiction, it is only reasonable that reference as to how certain provisions of the rules of
the transplanted law are interpreted, ought to be made to the original jurisdiction and see how such
issues were decided. Finally, on the democratic front and issues of human rights, it will be
anachronistic not to take into account how other jurisdictions interpret certain provisions of the
constitutionally guaranteed fundamental rights to individuals given the fact that issues of human
rights have a universal application.
In this work, a comparative study of the protection of fundamental rights of LGBT persons in
Nigeria and some select foreign jurisdictions would be carried out in order to determine whether
LGBT persons are adequately protected under the Nigerian laws. It should however be noted here
that whatever recourse that is made to a foreign jurisdiction is merely of persuasive nature rather
38
WATSON A., Legal Transplant (2nd Edition, 1993) p. 95
39
SMITH J. M., as in note 37 above, p. 516
40
SMITH J. M., as in note 37 above, p. 519
10
than a binding argument. Being a common law country that makes judicial precedent the bedrock
of its adjudication, Nigerian courts can only apply precedents from higher national courts,
whatever recourse to foreign logic is made on the basis of elucidation and persuasion only.
1.7 Research Methodology
This is a comparative research on the fundamental rights protection of LGBT persons within the
Nigerian jurisdiction and some select foreign jurisdictions. The basic method of all comparative
law is that of functionality,41 discovering the function a particular rule serves or the purpose for
such rule. Michaels argued that comparative law is not evaluative because it gives no guidelines
with which to gauge or discover which of the compared legal solutions is the better one.42
However, by adopting a functional method in a comparative research, the identified purpose in a
given particular rule is expected to serve as the standpoint or the standard by which to evaluate the
compared jurisdictions.43 Other methods of comparative studies, apart from functional method,
that one may adopt include comparative legal history, the study of legal transplants, and the
comparative study of legal cultures.44 According to him, there are some notable elements which
proponents of functionalist comparative law agree that could be found in functionalist approach to
comparative law. First, functionalism is factual as it focuses on effects of rules rather than on the
rules themselves. Again, it combines its factual approach with the theory that its objects must be
understood in the light of their functional relation to the society. Functionalism serves the third
function of tertium comparationis to the effect that institutions, both legal and non-legal, are
comparable if they are functionally equivalent. Finally, although not all are agreed on this,
functionalism serves an evaluative function in a comparative study as it is used to determine which
law serves its function or purpose better.45
41
Gordley J.,’ The Functional Method’, in Monateri P. G. (Ed), Methods of Comparative Law, (Cheltenham, UK:
Edward Elgar Publishing, 2012), p. 107
42
Michaels R., ‘The Functional Method of Comparative Law,’ in REIMANN M. and ZIMMERMANN R. (Eds), The
Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006), p. 347
43
Gordley J., as in note 41 above, p. 109
44
Michaels R., as in note 42 above, p. 341
45
Michaels R., as in note 42 above, p. 342
11
The above listed elements of functionalist approach to comparative law mirrors the objectives of
this research and the purpose it aims to achieve. This research will adopt the functional method of
comparative research as it suits better the purpose of this research which is to show that the
criminalisation of LGBT conducts was unconstitutional and against the tenets of the core of
fundamental rights freedoms. A functional comparison of Nigeria’s treatment of LGBT issues with
some select foreign jurisdictions will be carried out and some recommendations would be made at
the end on ways to end the discrimination suffered by LGBT persons in Nigeria.
1.8 Objectives of the study
This study is aimed at the critical evaluation of the Same-Sex Marriage (Prohibition) Act 2014,
the Criminal Code, Penal Code of Nigeria, and other relevant legislations with a view to
ascertaining whether they in fact did violate the fundamental rights of persons within the LGBT
community as enshrined under the 1999 constitution (as amended). Some recommendations would
be made, where necessary, after a comparative analysis of the laws as they are in some select
foreign jurisdictions.
1.9 Scope of the study
This work will examine the concept of LGBT conducts, sexual orientations and identities, and
same-sex relations with particular emphasis on the need for the protection of the fundamental
rights of persons within the LGBT community. The work will review the Same-Sex Marriage
(Prohibition) Act 2014, the marriage laws, and the penal laws of both the northern and southern
Nigeria and compare them with what is obtainable in some select jurisdictions. Some
recommendations would be made at the end of the research towards ensuring that the fundamental
rights of LGBT persons resident in Nigeria and which the 1999 Constitution (as amended) protects
are not trampled upon.
12
1.10 Definition of Terms
Words may mean so many things to different people and a word may have more than one
dictionary meaning, but for the purposes of this research, the under listed and defined words
assume the definition ascribed to them therein for a proper understanding of the research.
Bisexual: Bisexual means an individual who is sexually and romantically attracted to both men
and women. Such an individual is neither homosexual nor heterosexual but combines the attributes
of both extremes.
Gay: Gay means a homosexual, usually male.46 For the purposes of this research, the meaning of
gay is limited to, and taken to mean an individual who identifies as a man but who is predominantly
romantically and sexually attracted to other men.
Gender: Gender is defined as the state of being male or female. It is the behavioural, cultural, or
psychological traits typically associated with one sex47 and which distinguishes that particular sex
from the other.
Gender Fluid: This means noting or relating to a person whose gender identity or gender expression
is not fixed and shifts over time or depending on the situation.48 For instance, a person who was
born male but whose sense of gender alternates between the male and female gender like a mood
swing, and who in certain situations feels that he or she is a male, and at other times feels that he
or she if a female. The person’s gender or the sense of gender is not fixed but fluid and changes as
the mood of the person changes. Gender fluidity is different from Transgender given the fact that
a transgender prefers the other gender other than the one he or she had at birth while in gender
fluid, the individual prefers both male and female genders at different occasions and according to
his or her mood. In such a case, the individual could identify as a male today, tomorrow he or she
may identify as a female.
46
Cayne B. S. (Ed), The New Lexicon Webster’s Dictionary of the English Language, Encyclopedia Ed, (Lexicon
Publishers, 1988), p. 394
47
Merriam-Webster, The Merriam-Webster Dictionary, New Ed (Massachusetts: Merriam-Webster Inc. Publishers,
2016)
48
Dictionary Thesaurus, http://www.dictionary.com/browse/gender-fluid?s=t, accessed on 18.04.2016 at 20:30
13
Gender Identity: For the purposes of this research, gender identity is taking to mean a person's
internal sense of being male, female, some combination of male and female, or neither male or
female.49
Heterosexuality: Heterosexuality means the manifestation of sexual desire toward a member of the
opposite sex.50 This simply means sexual relations between persons of opposite sexes.
Heterosexuality is the opposite of homosexuality which refers to sexual relations between persons
of the same sex.
Homosexuality: Homosexuality means atypical sexuality characterized by manifestation of sexual

desire toward a member of one’s own sex or erotic activity with a member of one’s own sex.51
Lesbian: This means a woman who is predominantly sexually and romantically attracted to other
women. Lesbianism simply means female homosexuality.52
Non-cisgender: This is used to refer to people who do not have the same sex and gender but do not
identify as transgender.53
Pansexual: This means exhibiting or implying many forms of sexual expression. 54 It is used to
refer to a person who has many sexual orientations and cannot be properly identified as being only
homosexual, heterosexual, bisexual, or transsexual. This is different from being a bisexual as
bisexual is limited to only the combination of homosexual and heterosexual preferences. Pansexual
is multiple.
Sex: This is the sum of the peculiarities of structure and function that distinguish a male from a
female organism.55 It means a designation of male or female based on biological characteristics,
and could also mean the act of having sexual intercourse.
49
Merriam-Webster, as in note 47 above
50
Gove P. B. (ed), Webster’s Third New International Dictionary, (Massachusetts: Merriam-Webster Inc., Publishers,
1993), p. 1063
51
Gove P. B. (ed), as in note 50 above, p. 1085
52
Curzon L. B., Dictionary of Law, 5th Ed (Pitman Publishing, 1998), p. 220
53
Accessed from https://en.wiktionary.org/wiki/non-cisgender, on 23.03.2016 at 19:04
54
55
Garner B. A. (Ed), Black’s Law Dictionary, Deluxe 8th Ed, (USA: West, a Thomson business, 2004), p. 1406
14
Sexual Orientation: This is defined as a person’s predisposition or inclination toward a particular
type of sexual activity or behaviour.56 It is a person's sexual preference or identity as bisexual,
heterosexual, or homosexual.57 Differently put, it is a label used to designate an individual’s desire
for intimate, emotional and or sexual relationships with people of the same sex, another sex, or
multiple sexes.
Sexuality: Sexuality means the sexual habits and desires of a person.58In this research, sexuality is
taken to mean a person’s exploration of sexual acts, sexual orientation, sexual pleasure, sexual
preference, and sexual desire.
Transgender: This means a person who identifies with or expresses a gender identity that differs
from the one which corresponds to the person's sex at birth.59 Transgender and Transsexual are
usually used interchangeably, the only difference being that Transsexual most times is used to refer
to a Transgender who underwent a sex-reassignment surgery to the particular sex he or she wants
to be identified with.
Transsexual: Another name for transsexual is transgender. This is an individual who identifies as
the opposite sex from the sexual genitalia that he or she was born with. This, such a person does,
by dressing like the opposite sex and wanting to be addressed and referred to as belonging to that
opposite sex. In certain situations, such a person may undergo surgical operations in order to have
a sex-change or sex reassignment60 in order to bring her or him properly within the class of the sex
which he or she desires and identifies with.
56
Garner B. A. (Ed), as in note 55 above, p. 1407
57
58
59
60
Garner B. A. (Ed), as in note 55 above, p. 1537
15
CHAPTER TWO: UNDERSTANDING LGBT
2.1 Overview
The purpose of this chapter is to determine whether the development of LGBT traits and conducts
are a choice process or whether they are inborn traits that manifests over time in an individual. The
determination of this is crucial to the resolution of the main research question on whether the
Nigerian State is legally justified to criminalise LGBT conducts on morality grounds. This is so
because, for an act or omission to amount to an offence in Nigeria, it must be willed61 unless such
an act or omission falls within the class of negligent conducts expressly provided and exempted
from the provisions of section 24 of the Criminal Code. If LGBT conducts are found to be a choice
process, then they fall within the category of willed acts. Where however, they are found to be
inborn traits, serious doubt is raised as to whether such acts ought to be criminalised considering
the fact that LGBT persons did not choose to be born that way. Some LGBT theories and models
will be considered in order to find out the actual role biology plays in the formation of LGBT traits.
2.2 LGBT Theories
A theory is an idea or set of ideas that is intended to explain facts or events.62 So many theories
have been propounded in order to explain same-sex sexual attraction in people. A lot of people
believe that same-sex sexual attraction is a matter of choice made by the individual involved, some
view it as a learned behaviour weighed in the scale of nature-nurture dynamics, while others think
of it as something which can only be explained by making reference to biology and the chemical
components of a human body. These views have crystallized into so many theories put up by
different writers in order to explain same sex sexual attraction in people. In this work, the
61
Sec 24 CC. The section provides that ‘Subject to the express provisions of this code relating to negligent acts and
omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise
of his will, or for an event which occurs by accident….’
62
16
researcher will consider only about 4 of such theories which include Psychoanalytic Theory,
Learning Theory, Psychobiological Theory, and Transgender Theory.
2.2.1 Psychoanalytic Theory
This theory was propounded by Sigmund Freud63 who in his works; Three Essays on the Theories
of Sexuality (1905)64, The Psychogenesis of a Case of Homosexuality in a Woman (1920) 65, and
Certain Neurotic Mechanisms in Jealousy, Paranoia, and Homosexuality (1922) expressed the
view that all humans at birth were bisexual. By this he meant that at birth a child has the potential
of exhibiting erotic dispositions to both male and female and that heterosexuality or homosexuality
developed from this initial bisexual disposition. He believed homosexuality to be a variation of
the sexual function produced by arrest of sexual development, and attributed homoeroticism to
insufficient repression of the original bisexual disposition.66 According to his claim, a child’s
sexual instinct, which he called libido is already active at birth and goes through radical changes
during the course of the infant’s childhood. In proof of this assertion, he stated that an infant’s
libido at birth is on the mouth which is satisfied by suckling at the mother’s breast from which it
moves to the anus, and this too would be satisfied through defecation.
At the age of 2, the infant’s libido moves from the anus to the phallus67 and the libido could easily
be satisfied through masturbation. It is not uncommon seeing little male infants sometimes
fondling with their penis. The infant’s libido at the time it moves to the phallus at the age of 2 also
begins to be directed externally towards other people. In males, this is directed towards other males
because they too have penis, and according to Freud, this is the homosexual phase and it is likely
that all adult males, whether homosexual or heterosexual, experienced this and may have repressed
its memory.68 At the age of 3, the boy’s libido is transferred to his mother and for about 2 or 3
years he would have the sexual attraction to his mother. This, Freud referred to as the Oedipal
63
1856-1939
64
FREUD S., Three essays on the theory of sexuality, (New York: Basic Books, 1905/1975)
65
FREUD S., 'The psychogenesis of a case of homosexuality in a woman,’ In: J. Strachey (Ed.), The standard edition
of the complete works of Sigmund Freud, (London: Hogarth, vol. 18, 1920/1975), pp. 147– 172
66
KIRBY A., ‘Freud on Homosexuality,’ https://psychotherapypapers.wordpress.com/2008/11/12/kirby1/, accessed
on 20.03.2016 at 23:55
67
Phallus is a Latin word gotten from the Greek word “phallus” which refers to a penis.
68
FREUD S., as in note 64 above
17
phase, named after the Greek mythology Oedipus, who unknowingly killed his father and married
his mother. As this sexual fixation on his mother begins to wean out with the passage of time, the
boy’s libido enters into a latency phase in which it is generally inactive. The latency period, which
usually starts from the infant’s 5th or 6th year, lasts until puberty when the libido manifests itself
again in the form of adult heterosexuality, a situation which Freud considered to be the normal
developmental process of a human being.
The above described Freudian developmental process leads to adult heterosexuality. A disruption
of the process midway results in homosexuality. According to him, this is the case when during
the homosexual phase which is experienced at the age of 2, the libido gets stuck for a life time at
the homosexual phase and fails to enter the oedipal phase. Where however, the libido did enter the
oedipal phase, homosexuality also results from it where the libido gets stuck on the phase and the
infant continues to be sexually fixated on the mother.
To rationalise lesbianism in women, Freud stated that a girl at the oedipal phase also have erotic
fixations on the mother but which is redirected towards the father when she finds out that her
mother lacks a penis. This redirection of affection creates some sort of rivalry in the mind of the
little girl and she sees herself as being in competition with her mother for the love of her father. A
situation may however happen, like the birth of a child by the mother whom she sees as her rival,
which will make the girl resent the father and in turn, turn away from men altogether and would
rather seek love from fellow females.
2.2.2 Learning Theory
Learning theory suggests that all human behaviours, including sexual orientations are learned and
are not as a result of any inborn trait or any arrested development of the human brain. The
proponents believe that a person’s sexual orientation is determined by the innumerable “carrots”
and “sticks” that have shaped his or her sexual feelings during childhood and adolescence.69
Learning theory is subdivided into 2; behaviour-learning theory and gender-learning theory.
69
LEVAY S., Gay, Straight and the Reason Why (New York, Oxford University Press, 2011) p. 34
18
The Behaviour-Learning Theory states that the major “carrot” influencing sexual orientation is the
pleasure of sex itself. According to Churchill, if a person’s first sexual encounter was with a
female, he or she will desire further contacts with females, and vice versa.70 Like a clean slate,
starting off sexual relations with a particular sex will lead to a learning process whereby the
individual’s mind would be imprinted with the sexual experience of the initial encounters and will
fashion that individual’s mind towards accepting as normal sexual relations with persons of the
particular sex he or she had the first encounter with. For instance, where a boy’s first sexual
encounter was with a fellow boy, be it an older brother or a stranger during childhood or
adolescence, there is the tendency that such act will form the first sexual orientation the boy will
have and may influence his future dispositions towards sexual relations. Such a boy may relieve
the experience whenever his libido rises or during masturbation periods, and this concretises the
homosexual disposition in the boy. As reported by LeVay, a study found out that both homosexuals
and lesbians are more likely to have had sexual relations with persons of the same sex with them
during their childhood and adolescence years than heterosexual men and women.71 Another studies
found that abused males were significantly more likely to become homosexuals in their adult years
than abused females.72
Criticising this theory, LeVay opined that for the idea that one’s first sexual contact shapes the
person’s sexual orientation to be correct, it would then mean that the children or adolescents were
sexually passive targets for molestation by their elders.73 In reality however, it is likely that many
of the children, especially the adolescents may have already felt sexually attracted to persons of
the same sex, and may have initiated the contact leading to the abuse, dropped cues signifying
same-sex attraction which the abuser picked, or may have responded willingly to the abuser’s
advances. Again, in some cultures like the Sambia people of New Guinea, where it is the norm for
all male adolescents to be engaged in sexual relations with older male youths for some years before
they would be allowed access to females, the homosexual performing adolescents turn out most
70
LEVAY S., as in note 69 above, p. 34; CHURCHILL W., Homosexual Behaviour among Males: A cross-cultural
and Cross Species Investigation, (Westerleight, UK: Hawthorn Books, 1967)
71
LEVAY S., as in note 69 above, p. 34; TOMEO M. E., TEMPLER D. I., ANDERSON S., & KOTLER D.,
Comparative data of childhood and adolescence molestation in heterosexual and homosexual persons, 30 Arch Sex
Behav. (2001), pp. 535–541
72
LEVAY S., as in note 69 above, p. 34; WILSON H. W., & WIDOM, C. S. Does physical abuse, sexual abuse, or
neglect in childhood Increase the likelihood of same-sex sexual relationships and cohabitation? A prospective 30–year
follow-up, 39 Arch Sex Behav. (2009), pp. 63–74
73
LEVAY S., as in note 69 above, p. 35
19
times to be adult heterosexuals74 when they gain access to the females and the theory of learned
sexual acts seems unable to explain this variation. Finally, most children and adolescents are
already aware of their sexuality even while they are still virgins and before any sexual contact that
ought to, according to the learning theory, determine or influence their sexual orientation.
However, given the fact that many people were already aware of their sexuality while they were
still virgins, before they were molested, or before they have had sexual contacts with their chosen
partners, which does not rhyme with the postulations of the learning theory school of thought, the
Gender-Learning school of thought developed to fill this gap. Because gender refers to the
behavioural or psychological traits that are associated with one sex, it is typically learned just like
every other human activity. A child is born with the capacity to speak but has to learn the art of
speaking, and of languages. Likewise, a child is born with a libidinal instinct but has to learn also
how to satisfy it through suckling, defecation, and sexual relations. In gender learning, some
characteristics distinguish a boy from a girl. Young boys love to engage in difficult and demanding
tasks while the girls engage in softer ones. Therefore, a child growing up starts displaying
characteristics that is typical of the particular sex role he or she wants to adopt, and through social
interactions with peers, he or she adds to and hones the acquired and learned characteristics. A
chief proponent of this school of thought is John Money, who carried out, together with other
researchers, several sex related researches at John Hopkins Medical School, Baltimore, United
States of America75 and made the case that a person’s sexual orientation develops as part of this
gender learning process.76 The case example Money cited in proof of the success of his gender-
learning theory was later found to be unreliable, although Money himself did not disclose this fact.
The boy, Bruce Reimer, whose sex was reassigned after 7 months of his birth due to the damage
of his penis during circumcision and was raised a female, later in his adult age underwent medical
74
LEVAY S., as in note 69 above, p. 35; HERDT G. H., Guardians of the flutes: Idioms of Masculinity, (New York:
McGraw-Hill, 1981)
75
MONEY J., HAMPSON J. G., & HAMPSON J. L., Imprinting and the Establishment of Gender Role, 77 Arch
Neurol Psychiatry (1957), p. 333–336; MONEY J., & EHRHARDT A. E., Man and Woman, Boy and Girl: The
Differentiation and Dimorphism of Gender Identity from Conception to Maturity, (Baltimore: Johns Hopkins
University Press, 1971); MONEY J., & RUSSO A. J., Homosexual Outcome of Discordant Gender Identity/Role:
Longitudinal Follow-up, 4 J Pediatr Psychol. (1979), p. 29–41
76
20
procedures to reassign his sex back to male. This was contrary to Money’s assertions that the sex
reassignment and gender-learning was successful.77
To buttress the fallibility of the gender-learning theory, studies carried out at John Hopkins using
14 genetically born males that their sexes were reassigned to that of females as a result of severe
malformation of the pelvic area that left them without a functional penis after birth and were raised
as females, indicated that majority of them reverted back to the male role and expressed the view
that they were sexually attracted to females contrary to the gender-learning theorists’
postulations.78 These studies evidently show that sexual orientation goes beyond the postulations
of the proponents of the behaviour-learning and gender-learning theory. If sexual orientations are
not learned, then it presupposes that it is in-born in all persons and that a child is born with it.
2.2.3 Psychobiological Theory
Having exposed the apparent lapses and weaknesses inherent in the first 2 theories of sexual
orientation,79 the need to find some other justification or explanation as to what informs people’s
sexual orientation led to the emergence the psychobiological school of thought by marrying some
psychological principles with results from biological researches.
In biology, the sex of a mammal80 is determined by 2 pairs of sex chromosomes called X and Y
chromosomes. X chromosome represents the feminine gender while Y chromosome is responsible
for the production of testosterone which is the principal sex hormone in males. The secretion of
the testosterone by the testes drives the development of the rest of the body and the brain in a
masculine direction.81 This secretion usually starts whilst the foetus is still in the womb. Females,
on the other hand, develop ovaries which is responsible for the production of ova and the secretion
of oestrogen and progesterone. The secretion of oestrogen and progesterone becomes pronounced
77
LEVAY S., as in note 69 above, p. 38; COLAPINTO J., As Nature Made Him: The Boy who was Raised as a Girl
(New York: HarperCollins, 2000); DIAMOND M., & SIGMUNDSON, H. K. Sex Reassignment at Birth. Long-term
Review and Clinical Implications, 151 Arch Pediatr Adolesc Med. (1997), pp. 298–304
78
LEVAY S., as in note 69 above, p. 38; REINER W. G., & GEARHART J. P., Discordant Sexual Identity in some
Genetic Males with Cloacal Exstrophy Assigned to Female Sex at Birth, 350 N Engl J Med. (2004), pp. 333–341
79
Psychoanalytic theory and Learning theory (together with its off shoot in the context of Gender-Learning Theory)
80
Including human beings
81
21
when the female has attained the age of puberty and the attendant anatomical and physiological
developments that take place in the body of the female is as a result of the increasing secretions.
The testosterone and other male enhancing hormones, collectively called ‘androgens’ are also
secreted in low quantities by the adrenal glands in the female foetuses but this is in a minute
quantity which cannot be compared with the quantity secreted in male bodies.82
Studies have shown that any alteration or modification of the level of testosterone circulating in
the body of a foetus within the early stages of brain development, whether natural or artificial, will
significantly affect the sexual disposition of an individual at adult age. In a studies by William
Young and his colleagues,83 it was observed that female guinea pigs that were exposed to
testosterone prenatally were much more likely to mount other animals in adulthood and are less
likely to display lordosis84 when mounted, than female pigs that were not exposed to testosterone
prenatally.85 The art of mounting is one of the characteristics of a sexual orientation that is found
mostly in males and which is as a result of high exposure to testosterone prenatally In situations
where a male was deprived of this testosterone at the material time that it was needed for the
development of the brain, such a male would be less likely to mount other animals and more likely
to display lordosis than normal untreated males. The result of the study shows that the disposition
to perform male or female sexual role during the adult age depends on the organising effects of
the high or low testosterone level available to a foetus during the brain development.
2.2.4 Fraternal Birth-Order Effect Theory
Another theory on homosexuality which focused on birth-order effects on younger siblings has it
that the more male children a woman has, the greater the possibility that the next male child would
turn out to be homosexual.86 This birth-order effect of homosexuality has been shown by studies
not to be due to nature-nurture dichotomy of the younger male child growing up in the midst of
82
ASBY D. J., ARLT W., & HANLEY N. A., The Adrenal Cortex and Sexual Differentiation during Early Human
Development, 10 Rev Endocr Metab Disord (2009), pp. 43–49
83
PHOENIX C. GOY H., R. W., GERALL A. A., & YOUNG W. C., Organizing action of prenatally administered
testosterone propionate on the tissues mediating mating behaviour in the female guinea pig, 65 Endocrinology (1959),
pp. 369–382
84
This is a reflex shown mostly by females during mating.
85
86
HOLBROOK T. R., The Expressive Impact of Patents, 84 Wash. U. L. Rev. 573 (2006).
22
elder brothers, thereby suggesting a pre-natal origin to the fraternal birth-order effects.87 According
to Borgaet, the important decisive factor in the homosexual fraternal birth-order effect is the fact
of being born or gestated by the same mother,88 and the male children or siblings need not be sired
by the same father. Although there is no conclusive evidence on the main cause of this fraternal
birth-order effect, Borgaet suggests that it may be due to the production of anti-male anti-bodies
by the mother’s body which may occur given the fact that the woman’s body has a memory of the
number of male foetuses it has carried and so tries to limit same by secreting anti-male anti-
bodies.89 These anti-male anti-bodies secreted by the mother’s body may interfere with the normal
development of the male foetus in the woman’s womb and which in turn may account for structural
differences in the brain development that may otherwise result in a heterosexual child. 90 The
secretion of the anti-male anti-bodies is seen as a resistance by the woman’s body of the presence
of the supposedly foreign body91 which the woman’s body remembers from the previous
pregnancies resulting in male children, and would rather secret more of female hormones in place
of the male hormones that the male foetus needed for proper development.
Fraternal Birth-Order Effect Theory is similar to psychobiological theory and could be seen as an
extension of the theories of the psycho-biologists who view homosexual development as having
its origin in the prenatal secretion of testosterone which is the hormone responsible for the proper
development of males. Both are agreed that homosexuality has to do with prenatal hormone
secretions, the only difference being that fraternal birth-order went farther to state that the chances
of homosexuality occurring in a given male individual is higher in situations where a woman has
given birth to more male individuals. Another difference is that fraternal birth-order effect is
limited to only male homosexuals and did not take into consideration homosexuality in women. In
fact, the chances of homosexuality in a male occurring in a fraternal birth-order effect are
diminished if the woman’s births are mixed or the woman had given birth to more females than
males. Finally, there is little chance, under the theory, that a first born or a first son will turn out
87
BOGAERT A. F., Biological Versus Nonbiological Older Brothers and Men’s Sexual Orientation, 28 (103) PNAS
(2006), p. 10771; HOLBROOK T. R., as in note 60 above, p. 589
88
BOGAERT A. F., as in note 87 above, p. 10771
89
BOGAERT A. F., as in note 87 above, p. 10772. His hypothesis rules out the possibility of the woman’s body
remembering the number of female foetuses it has carried given the fact that she herself is a female but remembers
the male foetus which it interprets as foreign.
90
HOLBROOK T. R., as in note 86 above, p. 589
91
The male foetus
23
to be homosexual as the woman’s body has no memory of any supposedly foreign body to recollect
which will induce it to secret anti-male anti-bodies to resist the formation of a new foreign male
foetus.
2.2.5 Transgender Theory
Gender Dysphoria Syndrome, also known as and popularly called transsexualism92 refers to a
situation in which an individual identifies his or her gender identity with that of the opposite sex
to which he or she, anatomically was not born into. This is an emerging theoretical orientation that
encompasses the unique experience of transgenders.93 Traditionally, gender is assumed to be based
on a binary system that attributes social characteristics to sexed anatomy. 94 From birth, an
individual is characterised male or female based on the physical genitalia that the individual
possesses and are therefore expected to conform to the characteristics associated with those
genders. The idea of Transgender is a deviation from the traditional grouping and birth gender
assignment wherein an individual behaves or takes up roles meant for the other gender to which
the individual does not belong. It is a lived experience in which the individuals feel they are in the
wrong body and so desires a change or identity which ought to be their supposed real anatomical
body. This feeling of being in the wrong body and identifying as a person of the opposite sex is
known as being a transgender. Where, however, the transgender progresses to the stage of sex
reassignment, the person becomes a transsexual. Post-operative transsexuals, most times are quick
to “pass” and assimilate into their found identity while completely forgetting or erasing their
previous identity and lived experience, so as to gain social acceptance from the society.95
92
STONE S., ‘The Empire Strikes Back: a Posttranssexual Manifesto,’ in: EPSTEIN J. & STRAUB K. (Eds), Body
Guards: The Cultural Politics of Gender Ambiguity, (New York: Routledge, 1991).
93
NAGOSHI J. L. and BRZUZY S., Transgender Theory: Embodying Research and Practice, 4 (25) Affilia: Journal
of Women and Social Work ( DOI: 10.1177/0886109910384068, 2010 ), p. 431,
94
HAUSMAN B. L., Recent Transgender Theory, 27 Feminist Studies (2001), pp.465-490; NAGOSHI J. L. and
BRZUZY S., as in note 93 above, p. 43
95
STONE S., as in note 92 above, p. 12
24
2.3 LGBT Identity Models
Identity is an aggregate of those qualities inherent in a person that distinguishes that person from
others. By identity model the researcher refers to those processes or stages it takes a person to
recognise, appreciate, and accept her or his sexual orientation as LGBT person. It refers to the
identity crises people of LGBT go through in trying to resolve their sexual preferences and the
coming out of the closet that usually follows such resolution. The identity models include
2.3.1 Vivienne Cass’ Homosexuality Identity Model
Dr. Vivienne Cass, a clinical psychologist, from Australia published her work on Gay and Lesbian
identity formation in 197996 wherein she developed 6 stages which, according to her, homosexuals
pass through in trying to resolve their sexual identity crises. She based her model on the
assumptions that identity is acquired through a developmental process, and that locus for stability
and change in behaviour lies in the interaction between individuals and their environments.97 The
individual acts in accordance with the way he or she perceives the surrounding environment, and
may develop double identities as a result; personal identity and social identity.
According to Cass, the first stage of homosexuality identity model is the identity confusion stage
which starts with an individual, who once considered himself or herself as heterosexual, comes
into contact with information regarding homosexuals, and in a bid to analyse it, starts gauging the
information with his or her own behaviours. This will lead to identity crises where some of the
individual’s behaviours correspond with homosexual acts. Identity foreclosure, according to Cass,
must occur, either the individual accepting the thought of homosexuality or rejecting it, before the
individual can move to the next stage. Where the individual rejects the notion of homosexuality,
her or his identity model ends there and such an individual does not enter the next stage.
Where an individual accepts the notion that he or she may be homosexual, the individual moves
to the identity comparison stage.98 Having resolved the question of “who am i?” in stage 1, the
96
CASS V. C., Homosexual Identity Formation: A Theoretical Model, 4 Journal of Homosexuality, (1979), pp. 219 –
235,
97
CASS V. C., as in note 96 above, p. 220
98
25
individual would be faced in stage 2 with the task of handling the social alienation that arises as a
result of his or her homosexuality. How the individual deals with the alienation will determine
whether he or she moves to the next stage or stops at the current stage. This is a delicate stage, as
the individual may indulge in so much self-hate that he or she may end up committing suicide.99
Identity tolerance is the third stage wherein the individual seeks out other homosexuals in order to
fill the void and counter the social alienation he or she feels from the largely heterosexual society.
Here the individual tolerates the homosexual identity rather than a total acceptance of same and
increases her or his commitment to being lesbian or gay. Identity tolerance is followed by identity
acceptance which is the fourth stage, wherein one accepts, rather than tolerates the fact of being
homosexual and tries to find a positive connotation to the newly accepted homosexual identity.
In the fifth stage which is the identity pride, the individual, aware that there’s a great difference
between how he or she as an individual views the newly accepted identity and how the rest of the
society sees it, compartmentalises the society into homosexuals and heterosexuals. The
homosexuals, he or she views as good and worthy of being associated with, while the heterosexuals
he or she views as bad and different, and therefore limits association with. An activist is born at
this stage as the combination of anger against the established heterosexual society and pride in
one’s homosexual identity energizes the individual into action against the heterosexual society.
The identity synthesis that follows in the sixth stage comes with the realisation that the previously
held belief in positive homosexuals and negative heterosexuals were erroneous. The individual
begins to view his homosexual identity as an aspect of self which is combined with other aspects
of self to make one’s identity, and not the identity itself. The individual realises that there may be
heterosexuals who view homosexuals positively and so increases contacts with such heterosexuals.
This completes the homosexual model identity as developed by Dr. Cass.
99
26
2.3.2 Anthony D’Augelli’s Homosexuality Lifespan Development Model
Professor D’Augelli in his Identity development and sexual orientation: Toward a model of
lesbian, gay, and bisexual development100 identified 6 stages through which gays, lesbians, and
bisexuals pass in fashioning out their identity and sexual orientation. The journey into identity
development starts with exiting heterosexual identity by the individual recognising that his or her
sexual orientation is not heterosexuality and “coming out”101 by telling others that one is
homosexual or bisexual. This coming-out is followed by the individual developing a personal
Lesbian-Gay-Bisexual Identity status by learning how to be homosexual or bisexual through
contacts with persons who share the same sexual orientation. From there, the individual will create
a homosexual or bisexual social identity among the people surrounding him. The next stage is
becoming a homosexual or bisexual offspring which is achieved by the parents and family of the
individual coming round, with time, to accepting the individual’s new homosexual or bisexual
identity. Initially, the acceptance may be one of containment or tolerance, but with time it may
move to affirmation. From the offspring status, the individual moves into the intimacy status by
seeking and maintaining a homosexual or bisexual relationship. For those who believe their sexual
orientation is a private matter, this becomes their last stage of identity development. For others
who do not view it this way, they move to the last and final stage which is entering a homosexual
or bisexual community. This last stage involves making political and social commitments102 and
challenging the already established existing heterosexual institutions.
2.3.3 McCarn-Fassinger’s Lesbian Identity Development Model
Susan McCarn and Ruth Fassinger developed a 4-phase identity model specifically for lesbians
and divided the processes into 2 broad categories; individual sexual identity development which
deals with internal processes, and group membership identity development dealing with socio-
100
D’AUGELLI A. R, ‘Identity development and sexual orientation: Toward a model of lesbian, gay, and bisexual
development,’ in TRICKETT E. J. et al (Eds), Human diversity: Perspectives on people in context, xxii (486) The
Jossey-Bass social and behavioral science series, (1994), pp. 312-333
101
D’AUGELLI A. R, as in note 100 above, p. 325
102
D’AUGELLI A. R, as in note 100 above, p. 327
27
political processes.103 The first category which is individual sexual identity development begins
with the awareness phase wherein the individual comes to the realisation that she seems to have
feelings for females and that her sexuality may not be heterosexual after all. The awareness phase
is followed by the exploration phase where the individual addresses some of the issues that cropped
up in the awareness phase. The exploration process leads the individual to the deepening/
Commitment phase where the individual’s thoughts on lesbianism will crystallise. Where the
individual deepens her lesbian commitment rather than opting for bisexual or heterosexual identity,
she will move to the last phase which is internalisation/ synthesis phase. Here, the individual
experiences full acceptance of sexual relationship or love for women as part of who she is and the
resolution of the issues that cropped up at the exploration phase in favour of lesbian identity.
The second category which is group membership identity development also has the same 4 phases,
just like the first category. It begins with the awareness phase; an awareness of the fact that other
sexual orientations exist other than heterosexualism and that heterosexualism may not be a
universal norm.104 This is followed by the exploration phase where the individual actively pursues
knowledge about lesbian people and groups and seeks either to join or stay away from them. From
here, the individual moves to the deepening/ commitment phase wherein she identifies more with
the lesbian group while bearing in mind the oppression and consequences the larger society visits
on those with homosexual identity. The group membership identity development is completed by
the internalisation/ synthesis phase wherein the individual has resolved the numerous conflicts
bothering her with regards to her new sexual identity in the social context and has come to integrate
her sexual orientation into her over all self-identity.
2.3.4 Arlene Istar Lev’s Transgender Emergence Model
Arlene Istar Lev identified 4 stages transsexuals pass through in their quest to evolve a new identity
and how their families handle such. It begins with the discovery and disclosure stage where either
the family discovers ‘anomalous’ behaviours or the individual opens up or confides in a member
103
MCCARN S. R., and FASSINGER R. E., Revisioning Sexual Minority Identity Formation: A New Model of
Lesbian Identity and its Implications for Counseling and Research, 508 (24) The Counseling Psychologist (1996),
DOI: 10.1177/0011000096243011) p. 522,
104
MCCARN S. R., and FASSINGER R. E., as in note 103 above, p. 524
28
of the family on her or his feelings and the things he or she wants to do. The discovery or disclosure
is usually met with feelings of shock and betrayal.105 This is followed by the turmoil stage
occasioned by the emotional trauma the family, parents, spouse, or children of the individual go
through as a result of the discovery or disclosure of the gender-variant feelings or attributes. As
the turmoil generated by the discovery begins to settle, the family enters into the next stage which
is Negotiation stage. Here, the impact it will have on the family, relationships and acceptable
boundaries of conducts are assessed and drawn, and the timing, in case the individual wants to
make a proper transition and sex reassignment to the opposite gender. The whole process is
completed by the Finding Balance stage, wherein the family accepts the transgender for whom he
or she is, and integrate her or him back into the normal family life as a member of the family.
From the above analysis of LGBT theories and identity models, there is strong evidence to suggest
that LGBT conducts and traits could be a product of biology rather than being a choice process
consciously made by an individual. Were that to be the case, they qualify as unwilled acts which
lacks the prerequisite mental element for criminalisation.106 On the other hand, they could also be
learned behaviours. In that case, they could be considered products of a choice process which
involves the exercise of one’s freewill, which said freewill could be subject to criminalisation. The
next chapter will consider whether the Nigerian State is legally justified in criminalising such
LGBT conducts, whether willed or unwilled, on the grounds of morality.
105
LEV A. I., Transgender Emergence: Therapeutic guidelines for working with gender-variant people and their
families (New York: Haworth Press, 2004)
106
Sec 24 CC
29
CHAPTER THREE: LGBT IN NIGERIA
3.1 Fundamental Rights of LGBT Persons
The 1999 Constitution of the Federal Republic of Nigeria107 is regarded as and has been held in a
plethora of authorities as the grundnorm108 upon which every other legislative Acts or laws stood
on and which gives them the necessary legality to be applicable and enforceable in Nigeria.109 The
constitution in its chapter IV provided a set of guaranteed fundamental rights to all persons
irrespective of gender, race, religion, or sexual orientation. All persons have the right to life,110
right to respect for the dignity of his person,111 right to personal liberty,112 and right to fair hearing
where the determination of his civil rights and obligations are in issue.113 All persons and
individuals are also guaranteed right to privacy,114 right to freedom of thought, conscience and
religion,115 right to freedom of expression,116 freedom of association and assembly,117 right to
freedom of movement,118 right to freedom from discrimination,119 and right to own property.120
The constitution tagged the chapter granting the above rights, ‘Fundamental Human Rights’ to
underscore the importance of those rights. It stipulated that the said rights cannot be limited or
restricted except in accordance with the constitution, in the interest of defence, public safety, public
order, public morality, or public health, or for the purposes of protecting the rights and freedom of
other persons.121 Individuals within the LGBT community are first and foremost persons to whom
the constitutional fundamental human rights are addressed to and in whose favour the safeguards
were made. They are human beings first before being LGBT persons. The concept of LGBT is a
107
FRN v Tomoluju Okunomo (2010) LPELR -4154 (CA); Okey Jibulu & Anor v FRN, LER [2015] CA/L/635/2013
108
The concept of ‘grundnorm’ was developed by Hans Kelson in his book, The General Theory of Law and State
(Cambridge: Havard University Press, 1945) wherein he described it as the basic norm that exists and upon which
other norms derive their legitimacy.
109
Abacha v Fawehinmi [2000] 6 NWLR (pt. 660) p. 258; Okey Jibulu v FRN, LER [2015] CA/L/635/2013
110
111
112
113
114
115
116
117
118
119
120
121
30
label of sexual orientation, an aspect of self which cannot be taken to represent the whole self or
personality of the individuals. Being persons under the constitution, they are protected by the
fundamental rights provisions of the constitution just the same way as heterosexual individuals are
protected by the same constitutional provisions.
3.2 Criminalising LGBT acts
The preceding chapter showed that sexual orientation could be an inborn characteristic, instilled
in individuals at birth through biological mechanisms, and which manifests over time as the
individual develops. It could also be a set of learned behaviours acquired over time during the
development of an individual. According to Psychobiological and Fraternal Birth-Order Effect
Theorists, Heterosexuals did not become Heterosexuals as a result of any conscious choice made
by the Heterosexual individuals between two alternatives, likewise Homosexuals and Bisexuals.
The different labels behave the way they do due to environmental conditioning and the degree of
chemical imbalance that took place while the individuals were foetuses in their mothers’ wombs.
This chemical imbalance, according to them, cannot be attributed to a conscious choice of the
LGBT individual, thereby denying any criminalisation of any particular sexual orientation or
sexual identity the mental element of mens rea122 which is necessary for any particular conduct to
amount to an offence or a crime in Nigeria.
The Psychoanalytic and Learning Theorists on the other hand posit that sexual orientation are
learned as an individual grows. This makes it a matter of choice between two alternatives. This
choice between two alternatives, however, may not be a conscious choosing of one against the
other by the individual as a lot of factors come into play towards shaping an individual’s sexual
orientation. The fact that it may be a learned activity and therefore the exercise of choice or freewill
of individuals, brings to the fore the question of whether it is justified for the State to proscribe by
penal sanctions the exercise of that freewill to make a choice with regards to sexual orientation
and identity in a particular way.
122
Mens Rea is a common law principle which is synonymous with a person having a ‘guilty mind’ at the time a
prohibited act or conduct is executed and which renders the person liable for any offence flowing therefrom.
31
Having determined the helplessness which individuals experience in the course of realising their
sexual orientation and identity, this chapter will now address the issue of criminalising sexual
orientations which the society regard as un-heterosexual and which it considers as being perverse.
The following LGBT conducts and activities are prohibited under the Nigerian law;
Sodomy
Operation of Gay clubs and Organisations, and
Same-sex Marriages
These conducts that were criminalised under penal sanctions in Nigeria will be discussed
individually below.
3.3 Sodomy
Sodomy is the act of having an anal or oral copulation with a member of the same or opposite
sex.123 It could also mean copulation with an animal, and which is more particularly referred to as
‘bestiality’ in Nigeria. Sodomy as an act is an LGBT conduct and it is an offence in Nigeria. The
offence was provided for in both the Criminal Code124 and the Penal Code125 of Nigeria. The
Criminal Code provides
Any person who-

(1) has carnal knowledge of any person against the order of nature;
or
(2) has carnal knowledge of an animal; or
(3) permits a male person to have carnal knowledge of him or her
against the order of nature;
is guilty of a felony, and is liable to imprisonment for fourteen
years.126
The offence of sodomy was subsumed under chapter 21 of the code which deals with ‘offences
against morality’. This heading is an attestation of the fact that sodomy was criminalised due to its
123
124
The Criminal Code Act, as in note 27 above
125
The Penal Code Law, as in note 29 above
126
Sec 214 The Criminal Code Act, as in note 27 above
32
apparent conflict with morality. Morality is of two types for the purposes of criminal law; private
morality and public morality. Unfortunately, there was no indication by the Code or any other law
on how to measure what constitutes the morality upon which sodomy was proscribed. Nigeria
itself is a secular country127 as it has no State religion. Even the Constitution itself guaranteed
individuals the right to freedom of thought, conscience and religion, including the right to change
one’s religion or belief.128 Christianity and Islam are the two dominant religions in Nigeria.
However, none of the morality of both religions could be imposed on the country as constituting
public morality.
3.3.1 Legality and Constitutionality
A lot of theories have been propounded on the relationship between law and morality, among
which includes the natural school of thought, the Utilitarian school of thought promoted by Jeremy
Bentham, and the legal positivists which John Austin and Professor L.H.A Hart are the leading
figures. Proponents of the natural law school of thought recognised the existence of a common or
higher law, the distinction between law and nature, and maintained that law should be based on
nature or morality.129 Those innate feelings in us of what is good and bad constitutes the natural
law, and the proponents insist that at all times the human-made law should derive from and not be
inconsistent with the natural law. In the description of the offence of sodomy, the Code referred to
it as having ‘carnal knowledge against the order of nature.’130 The ‘order of nature here’ is in
consonance with the dictates, and an appeal on the natural school of thought. Influential proponents
of this natural law school of thought include St. Thomas of Aquinas and St. Augustine.
Jeremy Bentham of the Utilitarian school of thought, on the other hand, argues for a separation
between morality and legality. Law, according to him serves a functionalist purpose and should be
about maximising utility. He posits that nature placed man under the governance of two sovereign
127
128
129
SIMPSON P., Aristotle on Natural Justice, 3 Studia Gilsoniana (2014), pp. 367–376; ARISTOTLE, Rhetoric
1373b2–8
130
Sec 214 The Criminal Code Act, as in note 27 above
33
masters; pleasure and pain.131 For a man seeks those things which will give him pleasure and avoid
those that will cause him pain. This pleasure or pain could result from physical, political, moral
and religious causes or sanctions.132
John Austin, who was regarded as the father of legal positivism, in his “command theory of law”
focused on what law is as against what law ought to be. According to him, law is a command
issued by the sovereign and backed by a threat of sanction in the event of non-compliance.133 He
stated that the dogma of legal positivism is the fact that
The existence of law is one thing; its merit or demerit is another.

Whether it be or be not is one enquiry; whether it be or be not
conformable to an assumed standard, is a different enquiry. A law,
which actually exists, is a law, though we happen to dislike it, or
though it vary from the text, by which we regulate our approbation
and disapprobation.134
To him, legality is different from morality. This does not mean that moral values do not influence
what law is sometimes, but that whatever the sovereign posits as law, whether pernicious or not,
and whether morally sound or immoral, is law in so far as it is coming from the sovereign. An act
may be immoral, yet legal, while another may be illegal while being morally right. This is because
legality is determined by the source of norm, which is the sovereign, and not by the merits of its
substance. In Nigeria, laws are made by the sovereign, and the subjects have an obligation to obey
them, the failure of which attracts penal sanctions. John Austin’s Command Theory of law is in
tandem with Nigeria’s legal structure. In present day Nigeria, it is the duty of the legislatures to
make laws. This they do by sitting in their respective legislatives houses and passing bills into
laws. The bills would afterwards be sent to the executive for assent before they become laws. Once
they become laws, the citizens have an obligation to obey them or risk penal sanctions. The fact
that a particular law did not take into consideration the dictates of natural law does not make the
said law not to be binding, as its bindingness comes from the fact that such law proceeded from
131
BENTHAM J., An Introduction to the Principles of Morals and Legislation (Oxford: Clarendon Press, 1907) p. 4,
available online at http://www.econlib.org/library/Bentham/bnthPML1.html
132
BENTHAM J., as in note 131 above, p. 6
133
AUSTIN J. (1832), The Province of Jurisprudence Determined, in RUMBLE W. (ed.), (Cambridge: Cambridge
University Press, 1995) p. 157; BIX B., "John Austin", The Stanford Encyclopedia of Philosophy (Spring 2015
Edition), in ZALTA E. N. (ed.), URL = <http://plato.stanford.edu/archives/spr2015/entries/austin-john/>. Accessed
on 05.04.2016 at 21:20
134
AUSTIN J., as in note 133 above
34
the sovereign. All the Nigerian anti-LGBT laws proceeded from the sovereign. This makes them
legal given that they followed due process and were made by the institution empowered under the
Constitution to make laws.135 However, the fact that they are legally made does not mean that such
laws are not unconstitutional. Legality and constitutionality are two different concepts that any
given legislation must satisfy before the said legislation would be binding. Legality has to do with
following due process in the making of laws while constitutionality means the law not being
inconsistent with the provisions of the constitution. The Nigerian anti-LGBT laws target only a
section of the society thereby serving as a ground for discrimination which is against the provisions
of the Constitution. The Constitution prohibited discrimination of any sort against any person or
people on the basis of sex, circumstances of birth, etc.136 As already shown, LGBT conducts could
be as a result of a circumstance of birth. By targeting LGBT conducts and persons, the said laws
clearly discriminated against the LGBT community and portrays them as inferior citizens when
compared to their heterosexual counterparts. This apparent discrimination is inconsistent with the
provisions of the Constitution, and the said laws could be said to be unconstitutional.137
Now back to the discussion on law and morality, Professor Hart in his criticism of the stance of
both Jeremy Bentham and John Austin, identified a convergence between the two concepts which
he called “the intersection of law and morality”.138 This intersection could be likened to two
partially-overlapping circles representing the twin concepts of law and morality. Areas outside the
overlap, but within each of the circles, represent the spheres ruled solely by law and morality
separately. While the area of intersection between both circles represent the point of convergence
between the two concepts.
The analysis of the relationship between law and morality above goes to show the importance and
influence morality has in the making of laws. No matter how much we try to, law cannot totally
be divorced from morality. Law as it is and law as it ought to be has a converging point and the
dictates of morality, in certain situations informs what should be posited as law. In the Nigerian
135
The Constitution grants the National Assembly the power to make laws for the federation or any part thereof. Sec.
10 CFRN 1999 as amended
136
Sec. 42 CFRN 1999 as amended
137
138
HART H. L. A., Positivism and the Separation of Law and Morals, 4 (71) Harvard Law Review (1958), p. 608,
available online at http://www.jstor.org/stable/1338225?seq=1#page_scan_tab_contents, and
http://www.umiacs.umd.edu/~horty/courses/readings/hart-1958-positivism-separation.pdf,
35
Criminal Code under discussion, it was given an express mention that offences under listed therein
are offences against morality.139
3.3.2 Bentham’s Division of Offences
Jeremy Bentham in his division of offences posited that
The good of the community cannot require, that any act should be
made an offence, which is not liable in some way or other, to be
detrimental to the community. For in the case of such an act, all
punishment is groundless.140
The reasoning behind this assertion is that for an act to be criminalised, it must affect the common
good of the community, and that any act which is not detrimental to the society ought not to be
punished by way of criminal sanctions. To be detrimental to the community, an act must negatively
affect one or more persons that make up the community, and in such a case the act would be
deemed to be detrimental to the State.141 Individuals constitute the community, the communities
make up the State. Where an act affects an individual, such an act invariably affects the community
which in turn affects the State. This is the reason why an offence is an unlawful conduct committed
against the State, not necessarily against the particular victim. The victim of a crime is not the
State per se but the individual(s) that make up the State, so the law of criminal punishment will
substitute the victim with the State and punish the offender as if the State was the immediate victim.
Bentham identified 5 categories of offences; private offences, semi-public offences, public

offences, heterogeneous offences, and self-regarding offences. Private offences are offences that
have an identifiable individual as the victim; semi-public offences are offences that may be
detrimental to persons that cannot be individually assigned but it’s probable that it affects persons
within a particular group. Public offences refer to offences that appear to affect an un-assignable
indefinite number of persons that make up the community and which threatens the rubrics on which
the community is founded. Heterogeneous offences refer to falsehood offences and offences
against trust. The last type of offence is what he termed the self-regarding offences and which he
139
Chapter 21 of the Criminal Code, as in note 27 above
140
BENTHAM J., as in note 131 above, p. 19, par. XVI.3
141
BENTHAM J., as in note 131 above, p. 19, par. XVI.4
36
took to mean offences committed against oneself and which could conveniently be referred to as
victimless offences.
Flowing from the earlier premise of punishment only for an act which is detrimental to the society,
it is instructive to note that Bentham did not provide any justification for including self-regarding
offences as offences worthy of punishment in his classification. An analysis of self-regarding
offence will show that it is an offence committed against oneself, a victimless crime in which both
the perpetrator and the victim are one and the same person. The perpetrator is an individual for
purposes of determining what constitutes the community, but any consideration of the effects of a
criminal conduct ought to remove the perpetrator from such consideration even though he or she
is a part of the community. For instance, it is justifiable to criminalise the starvation of legal
dependents by a person having charge over them, but starvation of oneself by the same person
cannot justifiably be criminalised. The difference between the two instances of starvation is that
in the first one, it is detrimental to the society being that it affected persons which make up the
community, while in the second instance; it could not be justified as there is no basis to posit that
the starvation of oneself affected the community in such a great way that will justify
criminalisation.
The starvation of one’s self could lead to considerable health care cost which in turn affects the
society, and if death results through the starvation, the death will affect other persons who are
bereaved and who make up the society. But the interests of the society must at all times be balanced
with the rights of the individual to engage in any particular conduct that does not harm any person
else except the perpetrator. Rights of an individual could coexist side by side with the interests of
the society, but where they both conflict, the rights of the individual to do an act which harms no
other person than the perpetrator should trump the interests of the society in preventing such
conducts. The inherent freewill endowed in all individuals by nature and which is protected by
most legal jurisdictions enables all persons to have the freedom to choose between any courses of
action to take in so far as it does not negatively affect other persons within the community as to
constitute unlawful conduct. If one, in exercise of the freewill chooses to starve himself, the
community is minimally affected, and in extreme cases, if the individual chooses to end his life by
committing suicide, there would be no perpetrator to punish. This is the reason why suicide is not
37
an offence in most jurisdictions because the offender and the victim are one and the same person,
and so there will be no offender to punish.142
3.3.3 From Theory to Law
The above theories on law and morality showed the relationship and intersection between both
concepts. The chapter in the Criminal Code143 criminalising the offence of sodomy failed to
distinguish between private and public morality. Admittedly, and as was espoused by Professor
Hart,144 it is difficult to divorce law from morality. Moral nuances would always be present in the
motive behind some laws. However, what constitutes the morals that would influence what law
ought to be need to be properly delineated and differentiated. Morality refers to those ideal
principles which distinguishes between what is good and bad conduct, and between right and
wrong. This morality is divided into public and private morality. Public morals are those ideals
shared by a large section of the community and which could be taken to represent the community’s
feelings on those issues. This is different from private morals which represent the ideals of each
individual within the community. It is these individual ideals when held commonly that make up
the community’s morals, but given the fact that individual feelings and idiosyncrasies differ, it is
not all individuals’ ideals that qualify as a public moral.
Finding justification for criminalising conducts that tends to corrupt public morals will not be
difficult given that the community or society has an interest in maintaining a particular ideal among
its inhabitants for conducts or expressions that affect or has the potential to affect not just the
individuals concerned but the whole community. Where the morally decadent conduct complained
of is not detrimental to the community, punishing it will be unjustifiable and groundless.145
According to John Stuart Mill, subject to background duties of justice and fair contribution, the
coercive power of the State can only be imposed for acts causing harm to other persons.146 Harms
142
Although attempted suicide is an offence in Nigeria. Sec. 327 of the Criminal Code, as in note 10 above. It provides
thus, ‘Any person who attempts to kill himself is guilty of a misdemeanour, and is liable to imprisonment for one
year.’
143
Chapter 21 of the Criminal Code, as in note 27 above
144
HART H. L. A., as in note 138 above
145 BENTHAM J., as in note 131 above, p. 19, par. XVI.3
146
Mill J., ‘On Liberty’, in The Philosophy of John Stuart Mill 185, 187-203, 271-319 (M. Cohen ed. 1961).
38
to self, do not suffice.147 For a particular conduct to be held immoral and worthy of being
sanctioned, the conduct must be directed against another individual or the community at large and
who believe in the immorality of the conduct. Where the conduct is directed against one’s self, it
is not the community that suffers but the individual perpetrator, so there is no justification for
punishing the perpetrator who also doubles as the victim. For instance, in a community where gun-
carrying is licensed and legal, a licensed gun-carrier who shot himself on the leg intentionally
cannot justifiably be prosecuted for unlawful wounding or any other conceivable offence. Where
the shooting was directed against another, the perpetrator would be prosecuted, for by his conduct
the community, through the individual has suffered some detriment. Even if no actual injury was
caused, the individual could still be prosecuted for the psychological injury he has caused the
community, because through his actions, individuals within the community no longer feel safe as
such has instilled fear in them.
Now coming back to sodomy, does the ‘immoral’ conduct of sexual exploration against the order
of nature really affect the community detrimentally? Most societies are ordered along heterosexual
lines. Sexual relations between a man and a woman is accepted to be the natural way in which
sexual expressions and explorations ought to be conducted. It should be pointed out at this stage
that sexual relation is a private affair which is done and ought to be done in a secluded place. Any
couple, whether heterosexuals or homosexuals who engage in public sexual relations offends the
sensibilities of the public and constitutes public nuisance and penal sanctions would be justifiable
in dealing with such breaches. Again, sexual relations between an adult and a minor is detrimental
to the community and should be punished as such given the fact that the minor has not yet attained
the legal age of majority or of making certain decisions for him or herself. As such, the State
regards such sexual relations with a minor as non-consensual, even if the minor actually consented,
as the minor has not yet attained the age of decision-making or giving consents. Non-consensual
sexual relations of any type are a violation of the body of the victim which is injurious to the
society, and this attracts stiff reprimand from the society in terms of punishment. In the case of
sexual relations with a minor, the community or the State has an interest in protecting the minor
and making sure the minor transits into adulthood successfully when he or she can then make
147
Richards D., Liberalism, Public Morality, And Constitutional Law: Prolegomenon to a Theory of the Constitutional
Right to Privacy,’ in Law and Contemporary Problems (1988)
39
decisions and determine what is good for him or her. Where however, two consenting adults of the
same sex engage in sexual relations in the confines of their homes, without constituting nuisance
to the public, the law seems to lack the justification in criminalising their conduct. In the first place,
there was no injury done to anybody which will result in a detriment to the community. Secondly,
both perpetrators in the act are adults and both consented to it; there is no element of force, coercion
or fraud that would make it criminal. Thirdly, it was done in the privacy of their homes so as not
to constitute obscene, unpleasant and corrupting sight for the public. Finally, both individual
perpetrators did not consider the act to be morally wrong. And since they are entitled to their own
perceptions of moral rights and wrongs, it would be an injustice for the society to foist on them
what the society feels should be the acceptable standard for their own private morality. Where the
society does this, it would be tantamount to denying such individuals their constitutionally
guaranteed right to freedom of thought.148
Notwithstanding the above analysis flowing from Bentham’s division of offences, Austin’s
‘Command Theory of Law’ perfectly supports the Nigerian legal system. Laws are made by the
sovereign while the subjects have a duty to obey such laws. The sovereign has the authority to
determine what constitutes public morality for purposes of criminalisation and sanctions. In
Nigeria, the sovereign, in the exercise of its authority, can legally proscribe LGBT conducts.
However, in doing so, the proscription should not run counter to the provisions of the Nigerian
Constitution, as any law which is inconsistent with the Constitution is void. 149 Now, is the
provisions of section 214 of the Criminal Code prohibiting sodomy that is under discussion
inconsistent with the provisions of the 1999 Constitution?
Most legal systems guarantee individuals the fundamental right to freedom from discrimination.
As already seen above, section 42 of the 1999 Constitution150 provides for the right to freedom
from discrimination. In the case of the LGBT community, the discrimination concerns treating
them differently from the heterosexuals by making laws proscribing their sexual orientation. This
sort of discrimination on the basis of sex and what could be as a result of circumstance of birth is
prohibited under the Constitution. This makes the said anti-sodomy provision under both the
Criminal and Penal Codes unconstitutional. Unless the Nigerian Constitution is amended and the
148
149
150
CFRN 1999, as in note 7 above
40
anti-discrimination right removed, any law made that tends to discriminate between or among
persons protected under the Constitution shall be void.151
Again, section 37 of the Constitution provides that ‘the privacy of citizens, their homes,
correspondence, telephone conversations and telegraphic communications is hereby guaranteed
and protected.’ Sexual conducts of citizens are a private affair which ought not to be pried into by
the State unless they run counter to the law. Sexual conducts that does not infringe on the rights of
another person or offend the law are protected under the Constitutional right to privacy. It is
unfortunate that this right to privacy has not received much judicial pronouncements in Nigeria on
the scope and extent of the right.152 The few reported cases on it has to do with the execution of
search warrants153 in residential premises against the right to privacy guaranteed by the
Constitution.154
3.4 Prohibition of Gay clubs and organisations
As was seen in chapter one of this work, an individual’s sexual orientation is the person’s
inclination or predisposition towards a particular type of sexual behaviour. It is a label used to
identify a person’s sexual preferences or desires. It is nothing more than an opinion or feelings
towards a particular topic; sexual activity, same not necessarily being accompanied by the actual
doing of the act which the person desires. In the Catholic Church, priests take the vow of chastity,
making a solemn vow to God and to their local Bishop not to engage in any sexual activity from
the point of their ordination until their death. This vow of chastity and abstinence does not take
away the sexual orientation of those priests; it only took away or suspended their otherwise natural
right to engage in sexual relations. Priests who are heterosexuals will continue to identify as
heterosexuals while those who have homosexual tendencies may be closeted due to the stand of
151
152
NWAUCHE S. E., The Right to Privacy in Nigeria, 1 (1) CALS Review of p. 64, Nigerian Law and Practice (2007),
available online from http://www.afrilegstud.com/calsreview/PDF/privacyinnigeria.pdf, accessed on 06.04.2016 at
22:20
153
For instance, an ex parte order developed in the English case of Anton Piller KG v Manufacturing Process Ltd
[1976] Ch 55 wherein an applicant or law enforcement agents are mandated to enter the premises of the defendant
without notice and obtain evidence.
154
Ferodo Bros v Unibros [1980] FSR 489; Sony Kahushiki Kaisha v Hahani & Co Ltd (FHC/L/31/81)
41
the Church on the issue, although deep within them they cannot deny their homosexual feelings or
libido.
Sexual orientation is a thought process; it is how one perceives oneself with regards to sex issues.
Freedom of thought is a fundamental right guaranteed by the Nigerian Constitution which states
that
Every person shall be entitled to freedom of thought, conscience and

religion, including freedom to change his religion or belief, and
freedom (either alone or in community with others, and in public or
in private) to manifest and propagate his religion or belief in
worship, teaching, practice and observance.155
The constitution guarantees everyone the right to hold any particular belief and to manifest or
propagate such belief as the person deems fit, including forming and being part of an association
holding a particular belief or orientation. This however does not include the right to form or belong
to any secret society as the constitution itself declared this to be unlawful.156 When States begin to
regulate the freedom of thought and conscience of its people despite the clear constitutional
safeguard against such, then there is every reason to fear that the State is degenerating into a Police
State where fundamental rights of individuals are suspended and subjected to the whims and
caprices of those in power.
The law of criminal law is founded on the principle that for an act to amount to an offence there
must be present an actus reus157 and the mens rea158 which usually must co-exist together at the
same time in order for an offence to be deemed to have been committed. Except for offences of
strict liability159 under the common law which does not require the presence of a mens rea, in other
cases, both must be present otherwise the offence would be inchoate. There is no known principle
of criminal law that seeks to punish intent alone, no matter how vile or repulsive it may be, which
was not manifested or attempted to be manifested through the actual doing of a forbidden act. As
was captured by the Latin maxim, cogitationis poenam nemo patitutr,160 no one gets punished for
155
Section 38 (1) CFRN 1999, as in note 7 above
156
157
This is the actual doing of a thing, an act or omission, which is illegal or unlawful
158
This simply refers to the ‘guilty mind’ an offender had at the time of the commission of an offence.
159
Strict liability offences ae those offences that does not require the presence of a guilty mind in order to amount to
an offence. The mere commission of a prohibited act, without more, makes one liable
160
Which means ‘no one is to be punished for their thoughts.’
42
an intent which was not manifested in any way. The Nigerian Same-Sex Marriage (Prohibition)
Act, 2013 in section 4 (1) prohibited the registration of gay clubs, societies, and organisations,
their sustenance, processions and meetings. It stipulated in section 5 (2) that ‘a person who
registers, operates or participates in gay clubs, societies, and organization, or directly or
indirectly makes public show of same sex amorous relationship in Nigeria commits an offence and
is liable on conviction to a term of 10 years imprisonment.’161
To register, form or participate in a gay club is to identify as a gay. Mere identification as a gay or
homosexual is a sexual orientation not coupled with the actual act of performing a gay act. Sexual
orientation, as already identified above is a thought, and freedom of thought is a fundamental right
which is protected by the Constitution as the said gay club is not a secret society.162 Displaying
same-sex amorous relationship in public may however be unlawful and not covered by the
constitutional fundamental rights as that seems to corrupt public morals. If done in private or in
the privacy of their homes, criminalising same would be stretching public morality too far.
The Constitution also guaranteed persons the fundamental right to freedom of association and to
associate with any person or particular person or persons and with any group that he or she feels
may protect his or her interests.163 It provides that
Every person shall be entitled to assemble freely and associate with

other persons, and in particular he may form or belong to any
political party, trade union or any other association for the protection
of his interests:
Provided that the provisions of this section shall not derogate from
the powers conferred by this Constitution on the Independent
National Electoral Commission with respect to political parties to
which that Commission does not accord recognition.164
This freedom of association is breached by the prohibition of forming or belonging to gay clubs
which is not a secret society, by the new Act.165 Gay clubs are also not political parties which the
Independent National Electoral Commission could regulate pursuant to the powers granted it by
the Constitution. This prohibition of forming or joining gay clubs also breached the fundamental
161
Section 5 (2) SSMPA 2013 as in note 7 above
162
163
164
165
Section 5 (2) SSMPA 2013, as in note 13 above
43
right to freedom of expression of persons who desire to form or participate in gay clubs in order
to express their sexual orientation.166 The right to freedom of expression states that “Every person
shall be entitled to freedom of expression, including freedom to hold opinions and to receive and
impart ideas and information without interference.”167
The Nigerian legislature derives its powers from the 1999 Constitution168 and cannot legislate
outside the arm bit of the Constitution as any such attempt which produces an inconsistent law
with the Constitution will, to the extent of such inconsistency, be void. 169 The only way the
National Assembly can legislate outside the arm bits of the 1999 Constitution will be to amend the
Constitution itself and the strict procedures of Constitutional amendment must be adhered to in
order to be valid.
3.5 Prohibition of Same-Sex Marriage
According to Lord Penzance in the celebrated English case of Hyde v Hyde and Woodmansee,170
marriage was defined as the “voluntary union for life of one man and one woman, to the exclusion
of all others.” This was a case for divorce brought by the petitioner171 whose wife172 stayed back
in Utah, United States where they got married in accordance with the Mormon faith. Polygamy
was legal among Mormons in Utah during the time the marriage was contracted. The petitioner
alleged that the respondent had married the co-respondent in Utah as a result of the petitioner’s
excommunication from the Mormon faith thereby committing adultery; a matrimonial offence. In
dismissing the petition, Lord Penzance held that
A marriage contracted in a country where polygamy is lawful,

between a man and a woman who profess a faith which allows
polygamy, is not a marriage as understood in Christendom; and
although it is a valid marriage by the lex loci, and at the time when
166
167
Sec 37 (1) CFRN 1999, as in note 7 above
168
As amended
169
Unless there is a clear intention on the part of the legislature to amend the constitution, and the procedures laid
down in the constitution for amendment must be followed strictly otherwise the whole attempt would be a nullity.
170
[1866] LR 1 P&D 130
171
The husband
172
The Respondent
44
it was contracted both the man and the woman were single and
competent to contract marriage, the English Matrimonial Court will
not recognise it as a valid marriage in a suit instituted by one of the
parties against the other for the purpose of enforcing matrimonial
duties, or obtaining relief for a breach of matrimonial obligations.
The above position of the court portrays the deep influence religion played and continues to play
in the organisation of communities and the rules that guide them. Religion, to a certain degree
reinforces public morals and dictates the tune on what should be lawful or unlawful within a
particular society. Thanks to colonialism, the British Christian common law concept of marriage
was imported into Nigeria through section 45 (1) of the Interpretation Act which received “the
common law of England and the doctrines of equity, together with the statutes of general
application that were in force in England on the 1st of January, 1900.”173 The Interpretation Act
made the received English laws to be applicable in Nigeria subject to local circumstances or laws
made by the Nigerian legislature. It is however unfortunate that neither the Marriage Act174 nor
the Matrimonial Causes Act175 made any attempt to define marriage as both assumed the common
law definition as posited by Lord Penzance since 1866. The Common Law definition of marriage
has been reinforced through several judicial pronouncements in Nigeria.176 Most jurisdictions,
including the United Kingdom, have moved beyond Lord Penzance’s postulations to a more
inclusive definition of marriage as a union between two persons to the exclusion of others.177
Before the coming of the colonialists, the different nationalities that make up Nigeria engaged in
polygamous marriages.178 When statutory marriage was introduced, it co-existed alongside the
other forms of marriage without abolishing them. It is common to see couples go through
traditional as well as statutory marriages so as to receive greater social approval in the society.
Recognising that marriage is an institution which is the nucleus of the society, it is never the
intendment of this research work to argue for a redefinition of marriage to include same-sex
relationships if the public opinion still prefers to retain the one-man one-woman definition by Lord
Penzance. Marriage as an institution is the fulcrum upon which the society stands. If the public
173
Section 45 (1) Interpretation Act, Cap I 23, Laws of the Federation of Nigeria, 2004
174
Cap M 6 Laws of the Federation of Nigeria (L.F.N) 2004
175
Cap M 7 Laws of the Federation of Nigeria (L.F.N) 2004
176
Moses Oghenerume Taiga v Nneka Mercy Moses-Taiga [2012] 10 NWLR (Pt 1308)
177
The Marriage (Same Sex Couples) Act 2013 for England and Wales
178
Customary law marriages and Islamic law marriages
45
moral demands that there be no change in the definition, without attaching criminal sanctions, then
so be it. There was really no justification for the passage of the Same-Sex Marriage (Prohibition)
Act 2013 given the fact that Lord Penzance’s definition of marriage is still applicable in Nigeria
and the conditions laid down for a valid statutory marriage in both the Marriage Act and the
Matrimonial Causes Act are in line with the said definition. If the purpose of the new legislation
was just to clarify the legal definition of marriage without criminalising any conduct, there may
not be much uproar against it as it will only seek to reinforce the already known and accepted Lord
Penzance’s definition.
The Same-Sex Marriage (Prohibition) Act 2013 provided for a 14-year jail term for anybody found
guilty of entering into a same-sex marriage in Nigeria. For marriages in Nigeria to be valid, it must
be between a man and a woman. Any form of contract or celebration in anywhere in Nigeria
between a man and another man or between a woman and a fellow woman is invalid and not a
marriage.179 If such contract or celebration is invalid, it means that there was no marriage at all. If
the above position is true, then there was no justification for imposing a 14-year jail term180 for a
non-existent marriage. Since there was no marriage, it follows then that there was no conduct to
punish because, as Lord Denning stated, “you can’t place something on nothing and expect it to
stand.”181
The society has no stake in what an individual makes of his life with regards to his or her sexuality
which is a private affair, but could be said to have so much at stake in what becomes of a family
comprising of the individual and another individual. This is where same-sex relations differ from
same-sex marriages. Same-sex relation is an affair between two consenting adult individuals of
the same sex only without attaching their respective families, but (same-sex) marriage is a social
institution, which in the traditional African setting is a union between two families, and not just
the contracting individuals who are merely instruments through which both families unite.
Culture and tradition are so important in the life of an average Nigerian, be it Christian or Moslem,
that every decision is viewed through the prism of cultural acceptance and relativity. Most Nigerian
cultures regard homosexual acts as taboos, and there is little chance that homosexual couples
179
Hyde v Hyde, supra; Sec 1 SSMPA 2013, as in note 13 above
180
Sec 5 SSMPA 2013, as in note 13 above
181
UAC v McFoy [1962) AC 152
46
would attempt open display of homosexual affections without risking possible banishment from
the community. Traditionally, marriages have always been between a man and one or more
women, same with Islamic law marriages. The idea of a traditional marriage between a man and a
man or between a woman and another woman has not been tried anywhere in Nigeria. The
proponents of same-sex marriage in Nigeria would have an uphill task in trying to effect a change
of attitude or public opinion towards the issue of same-sex marriage given the seeming abhorrence
of same by most cultures and the strong opposition from religious leaders. According to a 2013
Pew Research Centre Poll on the Global Divide on Homosexuality tagged “Greater Acceptance in
more Secular and Affluent Countries”, the survey of 39 countries drawn across the globe found
Nigeria to be the most hostile country towards homosexuals. Only 2% of the surveyed population
accepted that homosexuality should not be banned while the rest 98% believes that it should not
be accepted by the society. 182 The research also found a strong relationship between a country’s
religiosity and opinions about homosexuality183 as there is low acceptance of homosexuality in
countries where religion plays a vital role in the life of the ordinary citizens. However, there are
some notable exceptions on the religiosity scale like Russia where religion does not play a big role
in the peoples’ life, yet a large percentage of the populace think that homosexuality should not be
allowed. Conversely, Brazilians and Filipinos are more receptive to homosexuals when same is
compared with their high religiosity.184 It is not in doubt that Nigeria is a deeply religious country
with thousands of church houses and mosques littered all over the country. Nigeria even boasts of
having the biggest church building in the whole world. As was reported by BBC’s Barnaby Phillips
on 30 November, 1999, “the Guinness Book of Records will have to be re-written, following the
recent opening of what is being described as the largest church in the world”185 while referring to
a Nigerian church with 50,000 sitting capacity. Until such a time when public opinions would
change, and may be religiosity lowered to a certain degree, the idea of same-sex marriage may
remain a dead end in Nigeria. This does not however justify imposing criminal sanctions on
182
Global Divide on Homosexuality, accessed from http://www.pewglobal.org/2013/06/04/the-global-divide-on-
homosexuality/, on 15.04.2016 at 14:50
183
Global Divide on Homosexuality, as in note 182 above
184
Global Divide on Homosexuality, as in note 182 above
185
http://news.bbc.co.uk/2/hi/africa/542154.stm accessed on 15.04.2016 at 15:30
47
persons who seek to enjoy their fundamental rights as guaranteed them under the 1999
constitution.186
3.6 The need for Nigeria to protect the Human Rights of LGBT persons
LGBT identity is an aspect of self, and not the total self of an individual. LGBT individuals are
persons first before being LGBTs. The constitution in chapter IV187 guaranteed all persons certain
fundamental human rights, and which unlike the chapter II provisions, are justiciable. An
individual whose fundamental right has been trampled upon has the right to approach the courts
and get a relief. A country that abuses the fundamental rights of its citizens, guaranteed them by
the Constitution is heading into a dictatorship. In this time and era when authoritarian and
dictatorial empires are crumbling, Nigeria should not be seen to be heading down that part. Nigeria
should instead aspire to be counted among the civilised nations where respect for individual and
human rights is paramount.
186
As in note 7 above
187
48
CHAPTER FOUR: NIGERIA’S INTERNATIONAL OBLIGATIONS
4.1 The African Charter on Human and Peoples’ Rights
Nigeria is a signatory to the African Charter on Human and Peoples Rights which came into force
on 21st October, 1986. Nigeria is a dualist country. For any international instrument to be
applicable in Nigeria, same must be domesticated by the National Assembly in accordance with
the constitution.188 And where domesticated, same will have the force of law, subject to the
Constitution, and will rank at par with other laws made by the National Assembly. Where there is
however a conflict between a domesticated international treaty and any other law made by the
National Assembly, the domesticated treaty will take precedence.189 In this wise, the African
Charter has been domesticated by the National Assembly as “The African Charter on Human and
Peoples’ Rights (Ratification and Enforcement) Act.”190 The Supreme Court held in Abacha v
Fawehinmi that ‘…the African Charter which is incorporated into our municipal law becomes
binding and our courts must give effect to it like all other laws falling within the judicial powers
of the courts’.191 The Charter is extensive in its provision of rights, but suffice it to state here that
all the fundamental rights guaranteed by the Nigerian Constitution are also protected under the
Charter. Of particular note is the presumption of innocence until proven guilty by a competent
court or tribunal, under the right to have one’s cause heard192 which is also guaranteed by the
Nigerian Constitution.193 The Constitution provides that “every person who is charged with a
criminal offence shall be presumed to be innocent until he is proven guilty.”194 This means that in
so far as the courts have not pronounced such a person guilty, the presumption of innocence avails
188
189
[T[he African Charter on Human and Peoples’ Rights (Notification and Enforcement Act, Cap 10 Laws of the
Federation of Nigeria, 1990) is a statute with international flavor. Therefore, if there is a conflict between it and
another statute, its provisions will prevail over those of that other status for the reason that it is presumed that the
legislature does not intend to breach an international obligation. Thus it possesses a greater vigor and strength than
any other domestic statute… per Mohammed, JSC, in Fawehinmi v Abacha, supra, p. 251
190
Cap A9 LFN 2004
191
Abacha v Fawehinmi, supra
192
Article 7 (1) (b) Charter on Human and Peoples Rights
193
194
49
him all through the trial. And the burden of proving that the said person committed the alleged
offence rests with the prosecutor.
The right to have one’s cause heard includes taking a suspect to appear before a competent court
and not a mob court. The Constitution provides that “whenever any person is charged with a
criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public
within a reasonable time by a court or tribunal.”195 Attributes of the right to fair hearing was listed
by the Constitution in Section 36 (6). It states that
Every person who is charged with a criminal offence shall be

entitled to -
(a) be informed promptly in the language that he understands and in

detail of the nature of the offence;
(b) be given adequate time and facilities for the preparation of his
defence;
(c) defend himself in person or by legal practitioners of his own
choice;
(d) examine, in person or by his legal practitioners, the witnesses
called by the prosecution before any court or tribunal and obtain
the attendance and carry out the examination of witnesses to
testify on his behalf before the court or tribunal on the same
conditions as those applying to the witnesses called by the
prosecution; and
(e) have, without payment, the assistance of an interpreter if he
cannot understand the language used at the trial of the offence.196
The mob in Akinnifesi Olumide Olubunmi’s didn’t afford him fair hearing. He was not taken
before any proper court of law; he was adjudged by the mob. The mob that tried him didn’t afford
him the Constitutional presumption of innocence, no legal practitioner represented him and he
wasn’t allowed the opportunity to cross-examine his traducers. He was simply presumed guilty,
denied fair hearing, and murdered him without anybody being held responsible for it.
The African Court of Human and Peoples’ Rights was established in 2004, located in Tanzania
with jurisdiction to hear and determine cases arising under the African Charter. Not much has been
195
Sec. 36 (4) CFRN 1999, as in note 7 above
196
50
going on there since its establishment as there is lack of reported cases on human rights breaches
from the court. That notwithstanding, a little voyage into the European Court of Human Rights
would shed light on how articles from the African Charter, in similar circumstances were decided.
The reason for this is because the African Charter was modelled after the European Convention
on Human Rights.197 The Convention in Article 8 protects the rights of individuals to respect for
their private and family life, stipulating that the exercise of such right shall not be interfered with
by a public authority except in accordance with the law. And such interference where it is allowed
must be necessary in a democratic society for national security, public safety or the economic
wellbeing of the country, for the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.198 This right to privacy has been
interpreted by the European Court of Human Rights in several cases to include the right against
the intrusion of criminal laws into the realms of private morality as exemplified in sodomy
offences.199 In Norris v Ireland,200 the applicant complained that the criminalisation of
homosexuality in Ireland was an interference with his right to respect for private and family life
guaranteed him under Article 8 of the Convention. He had previously challenged the
criminalisation up to the Supreme Court of Ireland and lost. The European Court of Human Rights
held that the said criminalisation breached Article 8 of the Convention. According to the court,
there was no pressing social need to criminalise homosexual acts, stressing that although it might
be offensive to the members of the public who regard homosexuality as immoral, but that this
could not on its own warrant the application of penal sanctions when consenting adults alone were
involved.201 Same decision was reached by the court in Modinos v Cyprus202 wherein the court
held that the Cyprus legislation criminalising homosexual acts violated Article 8 of the
Convention. In A.D.T v The United Kingdom,203 the applicant argued that his prosecution and
conviction for participating in homosexual acts in the privacy of his home with more than one
consenting adult constituted an interference with his right to respect for his private life. The court
197
Hereinafter referred to as “the Convention”
198
Article 8, European Convention on Human Rights
199
Dudgeon v United Kingdom, supra
200
Norris v Ireland [1988] 10581/83, available online from http://hudoc.echr.coe.int/eng?i=001-57547, accessed on
24.04.2016 at 16:12
201
Norris v Ireland, supra
202
[1993] Application No. 15070/89, available online from http://hudoc.echr.coe.int/eng?i=001-57834, accessed on
24.04.2016 at 16:18
203
[2000] Application No. 35765/97, available online from http://hudoc.echr.coe.int/eng-press?i=003-68197-68665,
accessed on 24.04.2016 at 16:25
51
held that the United Kingdom had breached Article 8 of the Convention and that the criminalisation
and conviction constituted an interference with the right of the applicant to private life, stressing
that there was no social need justifying the legislation in question or its application against the
applicant in the proceedings.204
Even where homosexuality is not outlawed or where they have been decriminalised, situations
may arise where certain laws may be framed in such a way that they would be discriminatory
against homosexual persons or conducts. In such a case, the right to non-discrimination guaranteed
by Article 14 of the convention is deemed to be violated by such provisions. Article 14 of the
convention provides that
The enjoyment of the rights and freedoms set forth in this European
Convention on Human Rights shall be secured without
discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other
status.205
In L. and V. v Austria and S. L v Austria,206 the applicants were convicted of having homosexual
intercourse with young males of between 14 to 18 years contrary to Austrian law which
criminalised homosexual acts with young males of 14 to 18 years. Consensual sexual relations
with a person of the opposite sex who is within the above age bracket is not an offence. The court
held that the said legislation breached Article 14 of the Convention on right to non-discrimination
as well as Article 8 on right to private life stating that there was no sufficient justification for the
difference in treatment in relation to heterosexual and homosexual intercourse with persons within
the stated age bracket. In B. B v United Kingdom,207 the applicant was prosecuted for having
homosexual intercourse with a young male of 16 years. At the material time when the alleged
conduct took place, it was criminal for anyone to engage in a homosexual intercourse with a male
who is below 18 years regardless of consent. This was applicable while the age of consent for
204
A.D.T v The United Kingdom, supra
205
Article 14 European Convention on Human Rights
206
[2003] Application Nos. 39392/98, 39829/98, and 45330/99, available online from http://hudoc.echr.coe.int/eng-
press?i=003-673810-681021#{%22itemid%22:[%22003-673810-681021%22]}, accessed on 24.04.2016 at 20:53
207
[2004] Application No. 53760/00, available online from http://hudoc.echr.coe.int/eng?i=001-61627, accessed on
24.04.2016 at 21:15
52
heterosexual intercourse was pegged at 16 years, thereby seeming discriminatory against
homosexual relations. The court held that the said legislation violated both article 14 on right to
non-discrimination and article 8 on right to private life guaranteed to all persons by the European
Convention.
Going by the above rulings of the European Court of Human Rights, one could presume that when
faced with similar cases that the African Court of Human and Peoples’ Rights may toe the same
part. The reason for this is not far-fetched as the African Charter was modelled after the European
Convention, and both have almost similar provisions and fundamental rights guarantees. The
rulings by the European Court of Human Rights prompted the respective Member States to amend
their laws so as to bring them in conformity with the Convention and safeguard the fundamental
rights of their citizens. The rulings of the court are not binding on Nigeria as Nigeria is not a
signatory to the Convention. However, Nigeria could learn a few things from the European nations
and actually borrow a leaf from her former colonial master, the United Kingdom, who exported
the anti-sodomy laws to Nigeria and other commonwealth nations. The United Kingdom that was
the originator and chief proponent of the anti-sodomy laws no longer have such legislations in her
books as such laws were anachronistic and a relic of the dark ages. The United Kingdom have
even gone ahead to legalise same-sex marriages.
4.2 The United Nations International Covenant on Civil and Political Rights
Nigeria, in 1993 ratified the United Nations’ 1966 International Covenant on Civil and Political
Rights,208 which came into force on 23rd March 1976. The Covenant in Article 17 (1) guaranteed
all persons the right not to be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, just like the Nigerian Constitution in Section 37 on right to
privacy and family life. Suffice it to mention here that chapter IV of the Nigerian Constitution on
fundamental human rights was modelled after the basic guarantees contained in the International
Covenant on Civil and Political Rights. The Human Rights Committee of the United Nations in
1993 found Australia to be in breach of Article 17 of the Covenant which guarantees individuals
208
Hereinafter referred to as “the Covenant”
53
the right to privacy. This was as a result of the continued criminalisation of consensual homosexual
acts in Tasmania, Australia.209 In response, and consequent upon the refusal of the Tasmanian
Parliament to decriminalise sodomy, the Australian Federal Parliament, purporting to act under
the foreign affairs powers granted it under the Australian Constitution,210 enacted a law overriding
the Tasmanian criminalisation of sodomy.211 Tasmanian Parliament subsequently amended its
laws to reflect the changing times.212
Nigeria’s Criminal Code was modelled after that of Tasmania which the Human Rights Committee
had held to be in breach of the Covenant. The ruling in Toonen v Australia213 by the Human Rights
Committee is a clear indication that Nigeria also is in breach of Article 7 of the Covenant for its
continued criminalisation of consensual sodomy. In failing to protect the rights of the LGBT
persons, decriminalising LGBT conducts, and ending discrimination against them, Nigeria is not
only failing to uphold its constitution but is also breaching the optional protocol to the Covenant
on Civil and Political Rights to which it willingly acceded to and ratified without any form of
coercion or compulsion.
209
Toonen v Australia [1994] 1 International Human Rights Reports 97 (No.3)
210
Section 51 Australian Constitution
211
Australian Human Rights (Sexual Conduct) Act (Cwth) No. 174 of 1994. Section 4 of the Act, in amending the
Tasmanian Law, relied on and recited Art.17 of the ICCPR
212
Criminal Code Amendment Act 1997 (Tas), (No. 12 of 1997)
213
supra
54
CHAPTER FIVE: COMPARATIVE REVIEW
5.1 Call for decriminalisation and Western Cultures
The call for the decriminalisation of sodomy laws may be viewed as advocating for the legal
transplant of Western cultures into the Nigerian culture. Legal Transplant as a concept was coined
by Alan Watson in 1974 to mean “the moving of a rule or a system of law from one country to
another, or from one people to another.”214 It is the borrowing of rules as a result of comparative
review of the functionality of those rules and findings that made it imperative for one legal tradition
to borrow from another. The culture of the receiving State as well as the receptiveness of its people
and institutions towards the transplanted legal rules, practices or institutions to a large extent
determines the success or failure of the legal transplant. For instance, the traditional African
societies were organised along monarchical lines. The Kings, in their domains, most times perform
executive as well as judicial and legislative functions, all being fused together and under the throne.
However, the coming of the British and French colonialists introduced a new era of “State” and
State-like features that were hitherto alien to the African culture. The concept of State today is a
common feature across Africa, long after the colonialists had pulled out from the continent. A
nearer-to-home example of legal transplant is the adoption of federal system of government in
1967 by Nigeria and jettisoning of the hitherto parliamentary system of government in favour of
the Presidential system of government in 1979. The creation of States and the adoption of the
Presidential system of government were both modelled after the United States’ Federal
Presidential State. Prior to these, Nigeria operated the British Westminster Parliamentary system
of government215 which was part of the colonial legacies of the Britain empire.
It is not the purpose of this research to advocate for any legal transplant of Western cultures into
the Nigerian culture. The legal transplant had taken place already as the Nigerian criminal and
penal code laws were not indigenous to Nigeria but were borrowed from Tasmania in Australia,
214
WATSON A., Legal Concepts: an Approach to Comparative Law (University of Georgia Press, 1974) p. 1
215
KAISEER P. J., ‘Nigeria Briefing Paper, in AP Comparative Government and Politics’ (College Board, 2005) p.
13, downloaded from http://apcentral.collegeboard.com/apc/public/repository/ap05_comp_govpol_nige_42255.pdf
on 13.04.2016 at 22:03
55
and Sudan.216 The purpose of this research is to highlight the affront posed by these penal laws on
the constitutionally-guaranteed fundamental rights safeguard of privacy and freedom from
discrimination. The Constitution being the grundnorm of Nigeria’s jurisprudence and corporate
existence supersedes every other law and whichever law that is inconsistent with it will to the
extent of its inconsistency be void.217 The idea of Constitution is alien to the British monarchy that
colonised Nigeria. Britain, instead of having a supreme Constitution boasts of parliamentary
supremacy. Nigeria, on the other hand, opted to go in the way of the Americans wherein the
Constitution is supreme and other legislative enactments subordinated to it. Both the Nigerian
criminal code and penal code are subject to the Constitution. This research is not advocating for
any legal transplant of an already existing Constitutional safeguard, it merely reiterates the view
that the code offence of sodomy may be inconsistent with the Constitution.
5.2 LGBT and Africa
A cursory look at some fellow African countries who are in the same boat with Nigeria, and where
sexual acts against the order of nature is outlawed, may show some glimmer of hope for the African
continent. In Kenya, a Kenyan court in a case218 overturned the decision of the N.G.O Coordination
Board not to register a proposed NGO for the LGBT community and issued an order of mandamus
directing the respondent to register the said N.G.O. holding “…that the Board also violated the
petitioner’s right to non-discrimination by refusing to accept the names proposed on the basis that
the proposed NGO sought to advocate for the rights of persons who are not socially accepted.”219
The court made a distinction between sexual orientation,220 and engaging in homosexual act.221
The court insisted that both must be treated differently. According to it, ‘an interpretation of non-
discrimination which excludes people based on their sexual orientation would be in conflict with
the principles of human dignity, inclusiveness, equality, human rights and non-discrimination.’222
216
As in note 27 and 29 above
217
Section 1(3) CFRN 1999, as in note 7 above
218
Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others [2015] eKLR, available online
at http://kenyalaw.org/caselaw/cases/view/108412/, accessed on 16.04.2016 at 10:00
219
Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others, supra as in note 189 above
220
which is not criminal and which is in fact protected by Kenya’s Constitution which guaranteed everyone the right
to freedom of conscience, opinion and belief, freedom of expression, non-discrimination and association.
221
which the penal code criminalised as an offence against the order of nature.
222
56
In reaction to the refusal to register the association based on moral grounds and the fact that the
proposed association aimed to promote prohibited acts, the court maintained that ‘no matter how
strongly held moral and religious beliefs may be, they cannot be a basis for limiting rights.’223
Finally, the court concluded that the respondents breached the provisions of Article 36 of the
Kenyan constitution on the fundamental right of freedom of association by ‘failing to accord just
and fair treatment to gay and lesbian persons living in Kenya seeking registration of an association
of their choice.’224
Right to freedom of association protected under the Kenyan Constitution flows from the provisions
of Article 11 of the African Charter on Human and Peoples’ Rights. Article 11 provides that
Every individual shall have the right to assemble freely with others.
The exercise of this right shall be subject only to necessary
restrictions provided for by law in particular those enacted in the
interest of national security, the Safety, heath, ethics and rights and
freedom of others.225
Both Kenya and Nigeria are signatories to the Charter and are bound by its provisions. The refusal
of the administrative authority in Kenya to register the proposed N.G.O mirrors the provisions of
section 5 (2) of Nigeria’s Same-Sex (Marriage Prohibitions) Act 2013 which criminalised the
formation, registration, or operation of gay clubs. This criminalisation is inconsistent with the
Constitutionally guaranteed right to freedom of association.226
In another case,227 the Zambian courts acquitted a man who was charged for ‘soliciting for immoral
purposes’ in a public place which the authorities alleged contravened the penal code of Zambia.
The man’s offence was that he expressed an opinion on a privately owned television station to the
effects that the rights of sexual minorities, including LGBT people and sex workers, should be
recognised.228 The courts held that the man was merely exercising his right to freedom of
223
224
225
Article 11 of the Charter
226
Sec. 40 CFRN 1999
227
The People v Paul Kasonkomona, CR No. 9/04/13, pdf available at
http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2014/03/Kasonkomona-Ruling.pdf, accessed on
16.04.2016 at 10:30
228
‘Africa Rulings Move LGBT Rights Forward,’ https://www.hrw.org/news/2015/08/05/africa-rulings-move-lgbt-
rights-forward, accessed on 16.04.2016 at 10:12. Also available at http://www.jurist.org/hotline/2015/08/meerkotter-
reid-no-fault.php
57
expression which was guaranteed him by the constitution, and ‘distinguished between soliciting
someone to engage in same-sex sexual acts, a criminal offense in Zambia, and advocating for
people's rights’.229
In Botswana, some activists sought to register their organisation, LEGABIBO,230 with the
government. Their application was turned down on the ground that it would contravene
Botswana’s Societies Act by operating for ‘unlawful purpose or other purpose prejudicial to, or
incompatible with, peace, welfare or good order in Botswana’ as the Botswana’s constitution does
not recognise homosexuals.231 In their application to have the refusal upturned, the court held that
the refusal violated the applicants’ rights to equal protection of the law, right to freedoms of
expression, association, and assembly. The court subsequently made an order for the registration
of the said organisation.232 The court contended that laws prohibiting homosexual acts did not
criminalise homosexuality per se nor advocacy for the reform of those laws, but only the
commission of the homosexual acts or conducts that are unlawful. Homosexuality is an orientation
about one’s sexual preferences while a homosexual act is the manifestation of those sexual
preferences through acts that were prohibited by the law. The judgment made a distinction between
who a person is, which is the person’s (sexual) identity, and what a person does, in this case the
practice or the manifestation of those sexual identities through acts that were criminalised under
the Botswana law. For a person could be a homosexual, which refers to the person’s sexual
identity, but at the same time could be celibate by deciding not to have active sexual life or refusing
to put the homosexual identity into practice by engaging in homosexual conducts which the current
laws in Botswana forbid. Finally, the court concluded that gay, lesbian and bisexual people have
the same rights as anyone else, regardless of laws that criminalise consensual same-sex conduct.233
In South Africa, the South African 1996 Constitution in section 9 provides thus
Everyone is equal before the law and has the right to equal
protection and benefit of the law… The State may not unfairly
229
Ibid
230
An acronym for Lesbians, Gays, and Bisexuals of Botswana
231
Africa Rulings Move LGBT Rights Forward, as in note 195 above
232
Thuto Rammoge & 19 ors v A. G Botswana, in Suit No. MAHGB 000175-13 and delivered on 14th November 2014.
The pdf is available at http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2014/11/LEGABIBO-
judgment-low-resolution.pdf, accessed on 16.04.2016 at 11:24
233
Thuto Rammoge & 19 ors v A. G Botswana, supra as in note 232 above
58
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.234
The South African Constitution for the first time recognised and prohibited discriminations based
on social orientations. In National Coalition for Gay and Lesbian Equality and Others v Minister
of Home Affairs and Others,235 and National Coalition for Gay and Lesbian Equality and Another
v Minister of Justice and Others,236 the constitutional court of South Africa struck down
legislations that discriminated against homosexual orientations and conducts. The second case
concerned a referral from the Witwatersrand High Court to the Constitutional Court for
confirmation that the following laws were unconstitutional, and therefore invalid in view of the
right to equality under the Constitution.237
(a) the common law offence of sodomy; and

(b) the inclusion of sodomy in schedules to the Criminal Procedure Act 51 of 1977 and the
Security Officers Act 92 of 1987, and s 20A of the Sexual Offences Act 23 of 1957 which
prohibits sexual conduct between men in certain circumstances.238
The court found that the offences violated the right to equality as they unfairly discriminated
against gay men on the basis of sexual orientation which was expressly prohibited under the
Constitution.239 The Court opined that
The discriminatory prohibitions on sex between men
reinforces already existing societal prejudices and severely
increases the negative effects of such prejudices on their lives…
Even when these provisions are not enforced, they reduce gay men
. . . to what one author has referred to as ‘unapprehended felons’,
thus entrenching stigma and encouraging discrimination in
234
Section 9 (1) (3) The Constitution of the Republic of South Africa Act 108 of 1996
235
(CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999)
236
(CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998)
237
Sec. 9 South African Constitution, 1996
238
http://www.equalrightstrust.org/ertdocumentbank/National%20Coalition%20for%20Gay%20and%20Lesbian%20
Equality%20and%20another%20v%20Minister%20of%20Justice%20and%20others.pdf
239
As in note 232 above
59
employment and insurance and in judicial decisions about custody
and other matters bearing on orientation.240
On the right to the dignity of the human person and right to privacy, the court further held that
“[G]ay people are a vulnerable minority group in our society.

Sodomy laws criminalise their most intimate relationships. This
devalues and degrades gay men and therefore constitutes a violation
of their fundamental right to dignity. Furthermore, the offences
criminalise private conduct between consenting adults which causes
no harm to anyone else. This intrusion on the innermost sphere of
human life violates the constitutional right to privacy. The fact that
the offences, which lie at the heart of the discrimination, also violate
the rights to privacy and dignity strengthens the conclusion that the
discrimination against gay men is unfair”.241
Nigeria’s Constitution did not expressly forbid discrimination on the basis of sexual orientation
like the South African Constitution did. However, this could be inferred from the wordings of the
Constitution which prohibited discrimination on the basis of sex or circumstances of birth. The
right to privacy and the dignity of the human person under the South African Constitution is on all
fours with the right to privacy and the dignity of the human person in the Nigerian Constitution.
Both countries have the same Constitutional values. The Nigerian and South African fundamental
rights protection under their respective Constitutions is in line with the provisions of the African
Charter on Human and Peoples’ Rights. Nigeria’s criminalisation of sodomy without an
amendment to the Constitution is an infringement on the right to discrimination and privacy of the
affected LGBT persons.
Although the above cases have no probative judicial value in the Nigerian jurisprudence, given the
fact that Nigeria is an independent sovereign State, but they are a good pointer to the fact that law
is organic rather than static, and which evolves as the society evolves. There is evidence of change
that is brewing across Africa; from Kenya to Botswana and to South Africa. Now is good time for
Nigeria to do away with the old relics of its colonial history by reforming its laws to be in line with
the modern view on fundamental rights principles. Nigeria should afford adequate fundamental
240
241
60
rights protection to its minority groups who were first human beings before being minorities of the
society. The constitutional protection in chapter IV242 protects all individuals regardless of race,
colour, religion, opinion, belief or sex. The right to non-discrimination based on sex243 includes
sexual orientation. The constitution even recognised that there could be differences in
circumstances of birth and stipulated that ‘no citizen of Nigeria shall be subjected to any disability
or deprivation merely by reason of the circumstances of his birth’.244 These circumstances of birth,
in the case of some LGBT individuals relate to their inborn LGBT traits. These inborn traits in
some LGBT persons was not as a result of any wrong doing on their part that ought to demand
societal regulation or penalisation. They should not be discriminated, isolated, or criminalised for
something which was inborn in them. To do or continue to do otherwise would be an unjust
interference with the constitutional rights and liberties of the affected individuals.
5.3 LGBT in the United Kingdom
As already stated, the United Kingdom colonised Nigeria and imported anti-sodomy laws into the
Nigerian legal system. Again, Nigeria inherited the bulk of its laws from her colonial master
through incorporation by section 45 (1) of the Interpretation Act which received “the common law
of England and the doctrines of equity, together with the statutes of general application that were
in force in England on the 1st of January, 1900.”245 In this wise, it is desirable to do a comparative
review of both jurisdictions on the issue of anti-sodomy laws and see if Nigeria could learn a few
things from her former colonial master.
The medieval history of England incorporated into its common law the offence of sodomy
seemingly to protect against those who endangered the Christian principles on which the kingdom
was founded.246 The criminalisation of sodomy was attributed to the reign of Edward I247 wherein
sodomy was perceived as an offence against God’s will thereby attracting society’s sternest
242
243
Sec 42 CFRN, 1999 as in note 7 above
244
Sec 42(2) CFRN 1999, as in note 7 above
245
Section 45 (1) Interpretation Act, Cap I 23, Laws of the Federation of Nigeria, 2004
246
KIRBY M., ‘The sodomy offence: England’s Least Lovely Criminal Law Export?,’ In LENNOX C. & WAITES
M. (eds.) Human Rights, Sexual Orientation and Gender Identity in The Commonwealth: Struggles for
Decriminalisation and Change (London: School of Advanced Study, University of London, 2013), p. 62, available
online at http://sas-space.sas.ac.uk/4824/20/02Kirby_TheSodomyOffence.pdf, accessed on 18.04.2016 at 10:06
247
He reigned from 1272 to 1307
61
punishments.248 Sodomy is attributed to the Biblical men of Sodom249 who attempted to have
carnal knowledge of strange men250 thereby attracting the wrath of God and the destruction of their
city. During the reign of King Henry VIII, he severed the link between the Church of Rome and
that of England and transferred offences previously within the ecclesiastical province to the secular
courts, some of which included the sodomy offence. Sodomy251 was provided for in a 1533
Statute252 which described it as the “detestable and abominable Vice of Buggery committed with
mankind or beast” and which was punishable with death.253 Consensual sodomy remained a crime
in the United Kingdom until the Sexual Offences Act of 1967 was enacted for England and
Wales.254 The age of consent for sodomy was pegged at 21 years, far above the normal age for
consent in other sexual relations or conduct.255 This decriminalisation followed the
recommendations of the Wolfenden Report256 which recommended that certain aspects of the
sodomy offence be decriminalised. The non-inclusion of Scotland and Northern Ireland in the
jurisdictional reach and operation of the Sexual Offences Act, 1967257 was held by the European
Court of Human Rights to be discriminatory and a breach of Article 8258 of the European
Convention on Human Rights.259 In that case, Dudgeon, a homosexual resident in Northern
Ireland, complained that the continued criminalisation of homosexual acts in Northern Ireland
made him experience feelings of fear, suffering and psychological distress, including fear of
harassment and blackmail.260 The court’s decision forced the United Kingdom to extend the
decriminalisation of homosexuality to Northern Ireland261 and Scotland.262
The United Kingdom progressed from the decriminalisation of homosexuality acts to allowing
same-sex couples register as civil partners. This will grant them the same rights and obligations as
248
KIRBY M., as in note 246 above,
249
Genesis, 13:11–12, 19:5
250
Angels who lodged in Lot’s house
251
Also known as Buggery
252
The Buggery Act 1533, after its original repeal, was re-enacted as the Buggery Act 1563 during the reign of
Elizabeth I.
253
KIRBY M., as in note 246 above, p. 65
254
Excluding Scotland and Northern Ireland.
255
The age of consent was later reviewed to be same with the age of consent for sexual relations between people of
the opposite sex.
256
Report of the Departmental Committee on Homosexual Offences and Prostitution, 1957
257
which therefore meant that homosexuality, even where it was consensual remained a crime in both jurisdictions
258
Right to respect for private life
259
Dudgeon v United Kingdom [1981] ECtHR 2
260
Dudgeon v United Kingdom, supra
261
Homosexual Offences (Northern Ireland) Order 1982
262
Criminal Justice (Scotland) Act 1980
62
couples in a civil marriage.263 Consequent upon this, civil partners enjoy the right to own property,
inheritance, tax, social security benefits, maintenance, parental obligations, insurance, and a host
of other rights including the right to dissolve the partnership, just like divorce in the case of
marriages. This was followed by the legalisation of same-sex marriages in 2013 for England and
Wales,264 and in 2014 for Scotland.265
Today, there are no more anti-homosexual laws in the United Kingdom. This is as a result of the
findings by the Wolfenden Committee that anti-sodomy laws breach the rights of LGBT persons,
and the decision by the European Court of Human Rights in Dudgeon’s case. Nigeria could learn
from the United Kingdom by decriminalising sodomy and ending discriminations against the
LGBT community in Nigeria. This may not happen overnight, but a progressive effort on the part
of the authorities, however little, in protecting the fundamental rights of LGBT persons would be
a welcome development.
5.4 LGBT in the United States
Just like Nigeria, sodomy used to be outlawed and therefore criminal in the United States of
America.266 It is noteworthy to state here that the United States and Nigeria share a lot in common.
The essence of comparative law is in the functional equivalence267 between the different systems
being compared and taking the positives from one for a functional review or application in the
other. Both systems were former colonies of the United Kingdom. They share same common law
history, both are heterogeneous societies and the most populated countries in their respective
continents. The Nigerian Federal system of government was modelled after that of the United
States. The present 1999 Nigerian Constitution, to a certain degree also took after the United States
Constitution. And lastly, both countries inherited the sodomy laws from the United Kingdom. The
only noticeable major differences between both jurisdictions are the influence of customary and
Islamic laws and the level of division of powers between the centre and the federating units in
263
Civil Partnership Act, 2004
264
The Marriage (Same Sex Couples) Act 2013
265
Marriage and Civil Partnership (Scotland) Act 2014
266
Bowers v Harwick [1986] 106 S. C. 2841 at p. 2844
267
Michaels R., The Functional Method of Comparative Law, in REIMANN M. and ZIMMERMANN R., The Oxford
Handbook of Comparative Law (Oxford: Oxford University Press, 2006), p. 340
63
Nigeria. On the legality of anti-sodomy laws, the United States Supreme Court in 2003, reversed
itself in Lawrence v Texas268 by declaring that criminalising homosexual acts was an intrusion on
the right to privacy of citizens as guaranteed under the US Constitution. In that case, John
Lawrence and Tyron Garner were accused of engaging in consensual sodomy which was a criminal
offence in Texas. They were convicted by the county court and the conviction upheld by the Court
of Appeal. On further appeal to the Supreme Court, the Supreme Court, in setting aside the
conviction held that the Texas Statute making it a crime for two persons of the same sex to engage
in certain intimate sexual conduct was unconstitutional when applied to adult males engaging in
consensual sodomy in the privacy of their homes. The court stated that
Adults may choose to enter upon this relationship in the confines of

their homes and their own private lives and still retain their dignity
as free persons. When sexuality finds overt expression in intimate
conduct with another person, the conduct can be but one element in
a personal bond that is more enduring. The liberty protected by the
Constitution allows homosexual persons the right to make this
choice.... When homosexual conduct is made criminal by the law of
the state, that declaration in and of itself is an invitation to subject
homosexual persons to discrimination both in the public and the
private spheres.”269
In another case,270 the U.S Supreme Court held that laws prohibiting same-sex marriages breached
Amendment XIV to the United States Constitution. In arriving at these decisions, the court had to
determine the full purport of the 14th Amendment to the United States’ Constitution which
guarantees the privacy of the people. It provides thus
Amendment XIV, Section 1
All persons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and of the
state wherein they reside. No state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of life, liberty,
268
Lawrence v Texas [2003] 539 US 559, 123 S. Ct. 2472
269
Per Justice Kennedy, in Lawrence v Texas, supra, as in note 268 above
270
Obergefell v Hodges 576 U. S [2015]
64
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.271
Nowhere was it expressly stated in the 14th Amendment272 that the Due Process clause also protects
private morality. However, a purposive and inclusive interpretation of the above provision led the
court to the conclusion that it is unconstitutional to criminalise homosexual acts between
consenting adults who engaged in the said act in the privacy of their homes or to deny them the
right to marry. This the court did while bearing in mind that there should be a proper demarcation
between public and private morality. The judgments reaffirmed the right to freedom from
discrimination and of privacy of citizens to engage in matters bordering on private morality
without any intrusion from the State. The Constitution in its 4th Amendment provided for the right
to privacy of its citizens, which is also found in the Nigerian Constitution. Section 37 of Nigeria’s
1999 Constitution provides that “the privacy of citizens, their homes, correspondence, telephone
conversations and telegraphic communications is hereby guaranteed and protected.”273 It is hoped
that someday, the Nigerian legislature would deem it fit to repeal all the anti-sodomy laws in the
country for being inconsistent with the provisions of the 1999 Constitution.274
271
Section 1, Amendment XIV, Constitution of United States of America 1789 (rev. 1992)
272
273
274
As amended
65
CHAPTER SIX: CONCLUSION AND RECOMMENDATIONS
6.1 Conclusion
From the research above, it is evident that sexual orientation could be a product of pre-natal
biological configuration of the human brain given the amount of particular chemicals a pregnant
woman’s body is able to secrete for the benefit of the foetus. It could also be a product of choice
between a set of options made by the individual after birth or during the formative or adult years.
Whether it is an inborn trait or a learned behaviour, it is discriminatory to treat people who hold,
in the minority, sexual orientation and sexual identity that is different from that of the majority as
second class citizens who are not worthy of equal treatment before the law. The new Nigerian
Same-Sex Marriage (Prohibition) Act 2013 is discriminatory against the LGBT community. Its
provisions breach their constitutionally guaranteed fundamental rights to privacy,275 freedom of
expression,276 freedom of thought belief and opinion,277 freedom of association and of assembly,278
and freedom from discrimination based on the circumstances of birth.279 as it criminalised having
a sexual orientation or developing a sexual identity that is different from that of heterosexual
orientation or identity.
Again, Nigeria is a secular State with no State religion. 280 Freedom of religion is guaranteed all
persons under the Constitution.281 It is civil laws as against religious codes that guide human
conducts in the Nigerian society. Criminalising consensual sodomy between two adults, who in
the privacy of their homes engaged in homosexual conducts, on the precipice of maintaining public
morals is an unjustifiable intrusion into the spheres of private morality of the individuals of the
community. It is a violation of the fundamental right to privacy and freedom from discrimination
275
276
277
278
279
280
281
66
guaranteed all persons both by the Nigerian Constitution282 and a host of other international
obligations283 binding on Nigeria.
Legally, marriage in Nigeria is the union, for life, of one man and one woman, to the exclusion of
others.284 Socially, it is a union between two families, not just the intending couples. It is a social
heritage jealously guarded by public morals as the cohesive force holding the fabrics of the society
together. Same-Sex marriage has always been unlawful in Nigeria, but with the coming into force
of the Same-Sex Marriage (Prohibition) Act 2013, same-sex marriages conducted or witnessed
anywhere in Nigeria confers no legal rights or obligations on the parties, and instead attracts penal
sanctions in terms of imprisonment. It is difficult to determine whether the introduction of penal
sanctions is justified given the fact that such marriages does not attract any legal or social
significance in the society. One thing however, is clear, marriage falls under the regulation of
public morals and it is left for the society to determine how best it should be contracted or
organised.
6.2 Recommendations
Having found that LGBT traits could be an inborn trait or a choice process, and that the Nigerian
State is not legally justified in criminalising LGBT conducts without amending the 1999
Constitution, the Nigerian State may do the following so as to remedy the situation and ensure the
protection of the fundamental rights of all its citizens regardless of sexual orientation or identity.
a. The decriminalisation of consensual sodomy between adults or the amendment of the 1999
Constitution so as to make the criminalisation constitutional,
b. When decriminalised, the age of consent for homosexual sexual relations should be the
same with that of heterosexual sexual relations,
c. The repeal of the Same-Sex Marriage (Prohibition) Act 2013 and removing the penal
sanctions contained therein,
282
283
Article 17 (1) United Nations International Covenant on Civil and Political Rights 1966; African Charter on Human
and Peoples Rights
284
Hyde v Hyde and Woodmansee, supra
67
d. The restructuring and reorientation of the law enforcement agents on the need to protect
human rights while discharging their official duties.
68

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LGBT AND THE LAW:

PROTECTING THE RIGHTS OF MINORITIES IN NIGERIA

Okuefuna, Silas Obinna

Criminal Code Amendment Act 1997 (Tas), (No. 12 of 1997)

Interpretation Act, Cap I 23 LFN 2004

The Constitution of the Federal Republic of Nigeria, 1999 (as amended)

The Criminal Code

The Criminal Code Act, Cap C28 LFN 2004

The Marriage Act, Cap M 6 LFN 2004

The Matrimonial Causes Act, Cap M 7 LFN 2004

The Penal Code

The Same-Sex Marriage (Prohibition) Act 2014

South African Statute

The Constitution of United States of America 1789 (rev. 1992)

United Kingdom Statutes

The Buggery Act, 1563

The Civil Partnership Act, 2004

The Criminal Justice (Scotland) Act 1980

The Homosexual Offences (Northern Ireland) Order 1982

The Sexual Offences Act, 1967

AUSTIN J. (1832), The Province of Jurisprudence Determined, in RUMBLE W. (ed.),

CURZON L. B., Dictionary of Law, 5th Ed (Pitman Publishing, 1998)

GOVE P. B. (ed), Webster’s Third New International Dictionary, (Massachusetts: Merriam-

MERRIAM-WEBSTER, The Merriam-Webster Dictionary, New Ed (Massachusetts: Merriam-

MONATERI P. G. (Ed), Methods of Comparative Law, (Cheltenham, UK: Edward Elgar

WATSON A., Legal Transplant (2nd Edition, 1993)

GORDLEY J.,’ The Functional Method’, in MONATERI P. G. (Ed), Methods of Comparative

NWAUCHE S. E., The Right to Privacy in Nigeria, 1 (1) CALS Review of p. 64

Report of the Departmental Committee on Homosexual Offences and Prostitution, 1957

A.D.T v The United Kingdom [2000] Application No. 35765/97

A.G. Ondo State v A.G. Federation [2002] 9 NWLR (pt 772);

Abacha v Fawehinmi [2000] 6 NWLR (Pt. 600) 228

Anton Piller KG v Manufacturing Process Ltd [1976] Ch 55

B. B v United Kingdom [2004] Application No. 53760/00

Bowers v Harwick [1986] 106 S. C. 2841 at p. 2844

Ezekiel Adekunle v The State [1989] 5 NWLR (pt. 123) p. 5052

FRN v Tomoluju Okunomo (2010) LPELR -4154 (CA)

Hyde v Hyde and Woodmansee, [1866] LR 1 P&D 130

Lawrence v Texas [2003] 539 US 559, 123 S. Ct. 2472

Modinos v Cyprus [1993] Application No. 15070/89

Norris v Ireland [1988] 10581/83

Obergefell v Hodges, 576 U. S [2015]

Okey Jibulu & Anor v FRN, LER [2015] CA/L/635/2013

Okogie v A.G. Lagos State [1981] NCLR 2187

The People v Paul Kasonkomona, CR No. 9/04/13

Thuto Rammoge & 19 ors v A. G Botswana, in Suit No. MAHGB 000175-13

UAC v McFoy [1962) AC 152

NWANKWOALA C., A letter to my Countrymen (AuthorHouseUk, 2013)

CASS V. C., Homosexual Identity Formation: A Theoretical Model, 4 Journal of Homosexuality,

HAUSMAN B. L., Recent Transgender Theory, 27 Feminist Studies (2001), pp.465-490

AC: APPEAL CASES

Arch Neurol Psychiatry: Archives of Neurology and Psychiatry

Arch Pediatr Adolesc Med: Archives of Paediatrics and Adolescent Medicine

Arch Sex Behav: Archives of Sexual Behaviour

BCLR: Butterworths Constitutional Law Report

CA: Court of Appeal

CALS: Centre for African Legal Studies

CC: Criminal Code

CCT: Constitutional Court

CFRN: Constitution of the Federal Republic of Nigeria

Cwth: Common Wealth

ECHR: European Convention on Human rights