1.1 Background:
2014 was an interesting
year for Africa’s Lesbian Gay Bisexual Transgender Intersex (LGBTI) community. As
usual Nigeria was in the international news: it had enacted the Same Sex
Marriage (Prohibition) Act 2013(the Act), criminalising the existence,
expression, support, direct or indirect sustenance or inclusion of same-sex
relationships, LGBTI groups or individuals with 10 and 14years imprisonment
depending on the particular offence committed. This is in addition to the
already existing Criminal Code[1]
and Penal Code[2]
stipulation which provide for imprisonment and death by stoning respectively.
The world protested
that the Act was unconstitutional and violation of Nigeria’s numerous constitutional,
regional and international human rights treaty commitments which demand the
right to personal dignity and equal enjoyment of rights without discrimination
or unjust restrictions but Nigeria remained unflinching. [3]
The effects of the Act are limitless and increase as time advances.
2.1.
The negative effects of the Same Sex Marriage Prohibition Act 2013
The Act legitimates homophobia
and the argument that being gay, lesbian, bisexual or transgender is against
our cultural heritage as Africans. Needless to say, The Act, in 2014, resulted
in countless reported and unreported human rights violations nationwide
especially targeted at the Nigerian Lesbian Gay Bisexual Transgender
Intersex(LGBTI) community and those suspected to be members or allies both by
state and non-state actors.[4]
Some of the relevant, but
not so popular cases that made it to court are :
The
applicant, (a health worker and LGBTI rights activist) brought action against
the government for violating his rights to privacy, dignity of human person,
peaceful assembly, amongst others, in response to a police raid at his Abuja
office on 22nd October 2014, and his subsequent unlawful arrest and
detention (for 4 hours at a location outside the police station, only to be
released after several calls and protests had been made by colleagues and
allies). This case is yet to the receive judgement at the trial court till
date.
The
applicant (an England based Nigerian accountant), brought an action demanding
that the court declare the Same Sex Marriage Prohibition Act illegal, unjust
and unconstitutional. However, the court struck out the case on the grounds
that the applicant was not part of the LGBTI community, is in no way affected
by THE ACT and as such has no locus standi or right to bring such application
before the court.
In 2014, 105 cases of LGBTI rights violation
were reported under the human rights infograph developed by the Initiative for
Equal Rights(TIERS) with the support of five other LGBTI focused organisations
in Nigeria- Advocate for Grassroots Empowerment(AGE); Access to Good Health
Initiative(AGHI); Access to Health and Rights Development Initiative (AHRDI);
International Centre for Advocacy on Rights to Health (ICARH); Improved Sexual
Health and Rights Advocacy Initiative.[7]
2.2.
2015 LGBTI rights violations
In the face of the
events of 2014, 2015 was worse. More violence and violation of human rights
were targeted at the Nigerian LGBTI community. The ‘2015 Report on Human Rights
Violations Based on Real or Perceived Sexual Orientation and Gender Identity in
Nigeria’, thereafter the Report(prepared by the Initiative for Equal Rights in
collaboration with the five other Nigerian LGBTI focused and inclusive
organisations mentioned above) records that such human rights violation were
occasioned through:[8]
2.2.1
Forms of violence
a.
Arbitrary arrests
b.
Unlawful detention
c.
Blackmail and Extortion
d.
Battery and Assault
e.
Mob violence
f.
Threat to life
g.
Kidnapping
h.
Curative rape
i.
Invasion of Privacy
j.
Forceful eviction
k.
Defamation
l.
Torture
m.
Stigma and Discrimination
n.
Attempted Murder
o.
Wrongful dismissal from employment
Not all cases of
violation were reported. For the reported cases, however, for security reasons the
actual names of the victims who reported were not included to forestall the
chances of further violation.
STATE NUMBER OF
CASES REPORTED
a.
Abia 3
b.
Abuja 23
c.
Adamawa 2
d.
Anambra 10
e.
Borno 3
f.
Delta 3
g.
Ebonyi 2
h.
Enugu 47
i.
Gombe 1
j.
Imo 3
k.
Jigawa 4
l.
Kano 13
m.
Katsina 1
n.
Lagos 31
o.
Oyo 1
p.
Rivers 21
q.
Sokoto 3
r.
Zamfara 1
The Report sums up that
in 2015, from the 172 violations reported, recorded and verified, 282 persons
were violated across 18 states by 7 organisations in Nigeria. The perpetrators
recorded to be responsible includes state actors(38 violations); non-state actors
(124 violations); collaboratively between state and non-state actors(10
violations).[10]
2.4.Some cases of
LGBTI rights violations are equally recorded as follows:[11]
2.4.1. Violation of right to privacy,
right to dignity of person, freedom of expression
i.
Date: 22nd January, 2015
Location:
Lagos Nigeria
Tari,
male, was accosted, on his way to work, at a bus stop in Shomolu by police
officers who demanded a body search. He obliged. After the search, they
demanded to search his phone. In the course of the search, he was quizzed on
the persons he conversed with in his private chat as they hinted of homosexual
interactions. Subsequently, he was arrested and detained.[12]
ii.
Date: 5th June, 2015
Location:
Lagos, Nigeria
Caleb, male and effeminate, walking home
at night, was intercepted at Apapa Lagos by some boys who violently teased and
taunted him about his mannerisms. The boys brutally assaulted him, stripped him
of certain personal items and warned him to desist from being effeminate. They
threatened to repeat the episode if he did not comply.[13]
iii.
Date: 29th September, 2015
Location: Onitsha, Anambra State
Mr Emeka, a lawful occupant and tenant
at X address had his residence trespassed by the landlord’s daughter. She took
his mobile phone and, without his permission, searched its contents. On
discovering a private chat between Mr Emeka and his boyfriend, she told her
parents. They were alarmed and invited the police who arrested Mr Emeka
instantly. The landlord’s son intervened at the police station and Mr. Emeka
was released.[14]
2.4.2
Violation
of right to life, personal dignity[15]
i.
Date: 2nd January 2015
Location:
Abba, Ukpo and Akwa, all in Anambra State
Mr X,(gay) was invited to location Z
within the community, by Mr Y(pretending to be gay and attracted to Mr X) whom
he had been chatting with on an online social network. On Mr X’s arrival, Mr Y
and some other men brutally assaulted Mr X, took down his home address and
extorted N5,000(equivalent of $17) from him. Subsequently they demanded that Mr
X made a continuous monthly payment of the above stated amount, failure of
which will attract further brutality until death. After four months of diligent
payment, Mr X could no longer afford to continue paying. Mr Y and the other
men, in the company of the community youths(whom they had invited) broke into
Mr X’s residence to brutally assault him. In the course of this, the police
intercepted only to arrest Mr X. Subsequently, Mr X was detained, tortured and
compelled to mention the names of other gay men in the community. Arrests were
made. However, one of the named and arrested men contacted a lawyer who
intervened and the matter was resolved.[16]
ii.
Date: 2015
Location: Oshodi, Lagos
A 19 year old female student was raped by five men.
They told her it was her punishment for loving women instead of looking for
men. In the course of the violation they told her that her sexual orientation
will change if strong men have sex with her.[17]
The ‘2015 Report on
Human Rights and Violations Based On
Real or Perceived Sexual Orientation and Gender Identity in Nigeria’,
unfortunately is not exhaustive of the LGBTI rights violation that occurred in
2015 in Nigeria.[18]
This is because a larger fraction of the victim population are too terrified of
the stigma that may follow speaking up or going public with such violation
(this will be indirectly going public with their sexuality thus attracting
further violation and threat to their lives).
2.4.3. Violation of right to life, freedom
of association, freedom of expression
The
Acr and the increasing rate of LGBTI rights violation has threatened the
security and freedom of the LGBTI community such that they are discouraged from
seeking medical attention specific for MSM(Men who have sex with men) at the
LGBTI focused or inclusive organisations health centres such as the
International Centre Advocacy on the Rights to Health.[19] This
is the achieved through the criminalisation of the existence, registration or
participation in such organisations. This deters the LGBTI community from
seeking adequate medical attention. This greatly affects the HIV positive
fraction of the LGBTI community and is a threat to the life expectancy of both
the members of the community and those who though not members are connected
with the HIV positive members such as their spouses or heterosexual partners.
In other words, The Act aids the spread of the HIV virus as it attacks the
accessibility and continuity of adequate treatment.[20]
The
Act unjustly restricts and denies members of the LGBTI community their freedom
of expression of same-sex loving relationships ‘directly and indirectly’
publicly.[21]
It also unjustly restricts and denies them freedom of expression and
association even when done in private and affects or challenges the public
safety, order and morality in no way. This it does by criminalising the existence
and registration of LGBTI focused or inclusive organisations, clubs and
societies.[22]
The Act further criminalises same-sex relationships, marriages and
co-habitation arrangements between same-sex loving couples.[23]
This
is more so as The Act criminalises the staff, sponsors and volunteers of LGBTI
focused or inclusive organisation. The Act is a limitation on the career
choices and employment opportunities of medical and Para-medical experts who
are interested in delivering efficient and effective MSM health services.[24]
3.1The
positive effects of the Same Sex Marriage (Prohibition) Act 2013
3.1.1.Provoked visibility of the
LGBTI community
In response to the increasing rate of violence
and human rights violation targeted towards the LGBTI community, most of the
LGBTI community have gone underground in fear and extreme caution. However, a
few members of the Nigerian LGBTI community have been provoked to openly and
voluntarily acknowledge their sexual orientations or gender identity. Prominent
instances include but are not limited to:
i.
Kenny Bademosi: through his
autobiography Exodus
ii.
Seun Idris: on Facebook and the ‘Letters
to My Africa’ blog[25]
iii.
Seyi Adebanjo
1.1.
Increased
audibility of the LGBTI rights activists and groups.
The emergence and implementation of the
Same Sex Marriage Prohibition Act has gingered the increased participation of
local and international non-governmental organisations, groups and individuals in the fight against LGBTI
rights violations. Some of them include, but are not limited to:
a. Changing
Attitudes Nigeria
b. Queer
Alliance Nigeria
c. The
Initiative for Equal Rights
d. International
Centre for the Advocacy on Rights to Health
e. Advocate
for Grass root Empowerment
f. Access
to Good Health Initiative
g. Improved
Sexual Health and Rights Advocacy Initiative
h. International
Centre for Reproductive Health and Sexual Rights
i.
The Bisi Alimi Foundation
j.
Michael Daemon (a pseudonym)
hosting the first Nigerian LGBTI weekly podcast on www.nostringspodcast.com .
k. Ngozi Chimamanda Adichie through her short stories.
1.2.
Increased
attention focused on the LGBTI rights conversation.
Owing to the enactment of the Act,
increased violations and the increased activities of LGBTI rights activists and
allies, LGBTI issues and concerns are constantly in the Nigerian news, online
social media, sermons and discussions in places of worship, schools and public
places.
In as much there has been more
opportunity to air homophobic arguments and prejudice, there has also been
greater opportunity to challenge homophobia, prejudice and preach the gospel of
inclusion and accommodation. In this light, there has been increased social media
activism and a gradual- though still not substantial- paradigm shift amongst
the non-members of the LGBTI community towards inclusion.
2.0.
The
Human Rights structure available
The
Constitution of the Federal Republic of Nigeria 1999(As amended) provides in
its Chapter IV for the regard of the preservation and protection of fundamental
rights. The African Charter on Human and Peoples Rights has been ratified and
enacted into a local legislation as the African Charter on Human and Peoples
Rights Ratification and Enforcement Act. Fundamental Rights claims are
theoretically given special preference by virtue of the Fundamental Rights
Enforcement Procedure 1999 and certain celebrated local cases such as Garba v.
University of Maiduguri to the effect that:
a.
The fundamental rights enforcement cases
can be brought before both the Federal High Court and State High Courts(both of
which ordinarily have original and appellate jurisdiction for specific cases,
parties and subject matter);
b.
Fundamental Rights enforcement cases are
granted speedy hearing;
c.
Fundamental Rights enforcement cases
cannot be struck out for want of locus standi of party bringing the suit;[26]
d.
Public interest litigation in encouraged;
e.
The provisions and rights conferred
under the African Charter on Human and Peoples Rights have the force of law as
though constitutionally provided for.
f.
Recently, the Violence Against Persons
(Prohibition) Act, 2015 was enacted, and thus criminalising all forms of unjust
violence and violation of human rights.
Given
that Nigeria has domesticated the African Charter on Human and Peoples Rights,
it is expected that the standards of the Africa human rights system are equally
integrated into the formulations and implementations of Nigerian laws and
policies.
3.0.
Challenges
to the human rights structure available
In
spite of all the above established structures and theories of the Nigerian
legal and human rights system, certain factors challenge the system’s ability
to combat homophobia. These are:
1. Lack
of implementation and flagrant disregard of constitutional human rights
standards and domesticated international human rights treaties, by the local
judicial systems.
2. The
dependence of the judiciary on the executive for remuneration thus reducing the
chances of any revolutionary judicial precedent challenging homophobia anytime
soon.
3. Homophobic
attitudes and prejudice promoted, sustained and protected amongst the different
arms of government.
4. Undue
delay in delivery of human rights judgments.
5. Unchallenged
negative attitudes, prejudice and violence directed at the LGBTI in
communities, work places, worship place and other public places.
6. Homophobic
statements and hate speech made by public officers and leaders in all spheres
of the society.
4.0.
Recommendations
1. Repeal
of the Same Sex Marriage (Prohibition)
Act 2013 to withdraw the legitimacy status from homophobia;
2. Amendment
of the Penal Code and Criminal Code decriminalising voluntary homosexual acts
and consensual same-sex relationships;
3. Further
collaboration amongst LGBTI inclusive and focused organisations.
4. Individual
freewill donations and sponsorships of LGBTI inclusive and focused
organisations.
5. Intensive
social media LGBTI rights activism.
6. Open
and diplomatic confrontation of prejudice and homophobia.
5.0.
Conclusion
It
is 2016, there are still the likelihood of further violation. However, there
are more hands on deck ameliorating the situation and building capacity to do
so effectively than there were in 2014 when the Act was freshly enacted. Watching these play out: the struggle, and the
gradual victory, there is hope, real hope. I see light ahead. It is like
watching soft flesh harden.
[1]
Criminal Code secs 214 & 217.
[2]
Penal Code. sec 130 .
[3] Human
Rights Watch, World Report 2015: Nigeria
https://www.hrw.org/world-report/2015/country-chapters/nigeria
(accessed 3 February 2016); Section
42(2) of the Constitution of the Federal Republic of Nigeria 1999(As Amended); Article
2 of the African Charter on Human and Peoples Rights; Violence based on
perceived or real sexual orientation and gender identity in Africa, 2013
Report; African Commission Resolution on the Protection against violence and
other human rights violations against persons on the basis of their real or
imputed sexual orientation or gender identity.
[4]
Amnesty Report, https://www.amnesty.org/en/countries/africa/nigeria/report-nigeria/
(accessed 3 February 2016); A Luckingson,
Same-Sex Law: Dozens arrested for being gay in north Nigeria http://www.brimetime.com/2014/01/same-sex-law-dozens-arrested-for-being.html (accessed 3 February 2016); J Thomas, Gay man whipped
20 times for single homosexual act- but is spared stoning to death http://www.independent.co.uk/news/world/africa/gay-nigerian-man-whipped-20-times-for-single-homosexual-act--but-is-spared-stoning-to-death-9067480.html (accessed 3 February 2016); Associated Press, Arrests
of suspected gays spread across Nigeria, dozens more detained under under
anti-gay law http://www.foxnews.com/world/2014/01/17/arrests-suspected-gays-spreads-across-nigeria-dozens-more-detained-under-anti/ (accessed on 4/02/2014); S Shehu, Protesters throw
stones, disrupt gay trial http://news.yahoo.com/protesters-throw-stones-disrupt-nigeria-gay-trial-160617779.html (accessed 4 February 2014); N Ikpo, Thoughts on what
equality could possibly mean in my country http://nnannaikpo.blogspot.co.za/2014/02/i-am-wonderful.html (accessed on 4 February 2014).
[5]
Motion
Number: FHC/ABJ/CS/799/2014; M Nathan, Nigerian human rights activists brings
suit after unlawful detention http://oblogdeeoblogda.me/2014/11/03/nigerian-human-rights-activist-brings-lawsuit-after-unlawful-detention/
(accessed 24 January 2016).
[6] Suit Number:
FHC/ABJ/CS/197/2014; I Nnochiri, Nigeria: UK based Nigerian asks court to declare same sex marriage law
unconstitutional , null and void http://allafrica.com/stories/201403211180.html (accessed 24
January 2016).
[7] 2015 Report on
Human Rights Violations Based on Real or Perceived Sexual Orientation and
Gender Identity in Nigeria, 12; http://www.whereloveisacrime.org/?project=infographs (accessed 3 February
2016).
[8] n
7 above 12,18.
[9] n
7 above 22.
[10] n
7 above 11.
[11]
n 7 above 20.
[12] n
7 above 20.
[13] n
7 above 22.
[14] n
7 above 23.
[15] n
7 above 23.
[16] n
7 above 23
[17] n 7 above.
[18]
Nostrings Podcast, My father is torturing me because I am gay – joseph a
Nigerian gay teenager cries out! http://nostringspodcast.com/my-father-is-torturing-me-because-i-am-gay-joseph-a-nigerian-gay-teenager-cries-out/
(accessed 3 February 2016); S Idris, You
saw my sexuality http://nnannaikpo.blogspot.com.ng/2015/11/you-saw-my-sexuality-by-seun-idris.html
(accessed 3 February 2016); Nostrings Podcast, Nigerian gay man, trapped and
beaten by gang in port harcourt for homosexuality http://nostringspodcast.com/nigerian-gay-man-trapped-beaten-by-gang-in-port-harcourt-nigeria-for-homosexuality/
(accessed 3 February 2016 ;) Nostrings Podcast, ‘Why I hate homosexuals’ Nigerian
man says http://nostringspodcast.com/why-i-hate-homosexuals-nigerian-man-says/
(accessed 3 February 2016); Nostrings Podcast, How we were attacked and almost
killed in port harcourt http://nostringspodcast.com/how-we-were-attacked-and-almost-killed-in-port-harcourt-nigeria/
(accessed 3 February 2016); Nostrings Podcast, I will not be gendered up! Seyi
Adebanjo http://nostringspodcast.com/i-will-not-be-gendered-up-seyi-adebanjo-2/
(accessed 3 February 2016).
[19] n
7 above 26.
[20] n
7 above.
[21]
Same Sex Marriage (Prohibition) Act 2013 sec 4(2).
[22]
Same Sex Marriage(Prohibition) Act 2013 secs 4(1) & 5(2).
[23] Same
Sex Marriage (Prohibition) Act 2013 secs 2(1) & Section 7.
[24] n
21 above; Same Sex Marriage (Prohibition) Act 2013 sec 5(3).
[25] S
Idris, You saw my sexuality http://nnannaikpo.blogspot.com.ng/2015/11/you-saw-my-sexuality-by-seun-idris.html
(accessed 3 February 2016).
[26]
Fundamental Rights Enforcement Procedure Rules 2009.
