Anti-Gay Marriage Act: Before the Ovation Dies Down

anti gay marriageThis article was written by the author and published on Thisday Lawyer of 21 January 2014, Page 7.

The coming into force of the ‘Anti-Gay Marriage’ Act (which I shall refer to as “AGMA”) spurred a lot of media attention and buzz. As usual, social media users aired their interesting views on the matter. As with almost any legislation, the AGMA received both support and criticism from members of the public. In all honesty, it is actually difficult to decipher whether most Nigerians support the Act as claimed, or whether the reverse is indeed the case, or what proportion is in-between. According to reports, 90% of the Nigerian pubic apparently support the new law but that does not seem to be the case, considering the high number of criticisms expressed by social media users.

This article discusses a fundamental issue that appears to have sneaked under the carpet, making it almost invisible- it is the issue of the impact of the prohibition of groups/associations that may be seen to be pro-homosexualism and the role played by public opinion.

First, the Nigerian Constitution (CFRN) does not guarantee the right to sexual preferences, but guarantees freedom of expression (section 39) and association (section 40). However, these rights are not absolute. By section 45 CFRN, any law that violates these rights is not necessarily invalid if it is “reasonably justifiable in a democratic society.” The provision in the AGMA prohibiting homosexual groups/organisations clearly infringes these rights. Thus, it can be argued that the AGMA contravenes the CFRN, but if the subject comes up for judicial determination, based on the arguments levied by the government for the introduction of the law, it would be no surprise if the law is found to be reasonably justifiable in a democratic society.

Second, how democratic is Nigeria? It is generally accepted that in a democracy, “majority has their way…” However, it appears that in Nigeria, the last part of that phrase is often ignored i.e. “… but the minority should have their say.” The entire CFRN has no regard for the “minority” in our democracy; not even once is the word- minority- mentioned in the entire CFRN. Even if the homosexual community in Nigeria is 1%, they should still have the opportunity and ability to have their say; whether or not their say/opinions are convincing or adopted or considered by the apparent majority is a completely different ball game- this is democracy.

Third, it is only by a fluke that the AGMA was passed and received public support by the “majority”. Public opinion was neither sought nor obtained before the AGMA was passed into law, so there was no opportunity for the minority (with regard to this issue) to air their views, which would obviously have been ignored to a large extent. As A.V. Dicey eloquently stated in his lecture on The Relationship between Law and Public Opinion, “… there exist many communities in which public opinion—if by that term be meant speculative views held by the mass of the people as to the alteration or improvement of their institutions—can hardly be said to have any existence. The members of such societies are influenced by habits rather than by thoughts. Their mode of life is determined by customary rules, which may indeed have originated in the necessities of a given social condition, or even in speculative doctrines entertained by ancient law-givers.” Nigeria is one of such communities.

Dicey continued by saying, It is, in truth, only under the peculiar conditions of an advanced civilisation that opinion dictates legislative change.” Although Dicey was speaking in the context of 19th Century England, his teaching still holds water and is very much applicable to today’s Nigeria. It is shameful that public opinion could not sway the Legislature to amend the exclusive and concurrent legislative lists to permit the National Assembly (NASS) to legislate on issues concerning religious and customary marriages (especially with regard to children), whereas they are quick to celebrate public opinion approval of AGMA. Same-sex marriage is not yet a problem in Nigeria, yet the Legislature made it a priority, while ignoring a cankerworm that already exists in Nigeria- child marriage. Does this mean we have not reached an advanced civilisation?

Fourth and most importantly, the fact that homosexual groups/organisations are prohibited means that there is no effective and organised means (e.g. protests, rallies, lobbying, etc) for those affected by the legislation to challenge same. As Dicey also explained in the same lecture, Men legislate… not in accordance with their opinion as to what is a good law, but in accordance with their interest.” Generally, persons who support a legislation have no interest in its repeal or amendment; only those who feel affected by it or realise the potential hardship(s) it might cause, actually challenge the legislation.

With the prohibition of homosexual groups/organisations, it has become risky for any person- homosexual or human rights activist- to come out in an organised manner to protest against or challenge the AGMA. It is risky because where two or more people organise to “fight the cause”, they would be violating the law and are liable to criminal prosecution.

In Nigeria, there is a backward mentality that anyone who opposes the legislation might be gay or is condoning homosexualism; this is WRONG! It takes exposure for a person to be of the opinion that being homosexual is a thing of choice and nobody has the right to punish another for deciding to act in an “immoral” way after all, adultery, infidelity, fornication, alcohol consumption and paedophilia (on religious grounds) are not crimes. This backward mentality thus prevents human rights groups or even homosexuals from challenging the law, for fear of criminal prosecution.

If this law is to be said to be reasonably justifiable in a democratic society, by what means can it therefore be challenged or criticised without fear or favour? What kind of democracy do we practice in Nigeria? How would persons affected by this legislation air their views? The impact of the prohibition on homosexual associations/organisations robs these individuals of a channel to organise and have their say, even if the majority would have their way. Thus, it appears that the AGMA is here to stay until a person or group with the bravery of Mandela decides to damn the consequences and take up the cause.

 

CONCLUSION

To the general Nigerian public, the AGMA is commendable and reflects the views of the Nigerian majority on the subject. However, although this is a democracy and the majority must have their way, this should not rob the minority of even the opportunity to air their opinions.

In reality, NASS rarely takes public opinion into consideration but when they decide to, it is important for the different views on the discourse to be aired, so the Legislature would have a proper appreciation of the subject- especially when it involves personal matters. For instance, I do not condone homosexuality, but in my opinion (as a Christian), God has given every person freewill; if a person decides to live in sin, that should be the person’s cross to bear. There is no need to criminalise homosexual marriages; if at all the “problem” appears to exist in Nigeria, it would be effectively surplus to simply prohibit homosexual unions (which is not even necessary, since the law already defines marriage as union between a man and woman).

Those who might be interested in the issue or who are directly affected by the law cannot even oppose the law in an organised manner for fear of being taken (rightly or wrongly) to be homosexually inclined or being accused of promoting homosexual unions. The AGMA’s prohibition has thus indirectly shut their mouths up- how is this prohibition (on homosexual associations/organisations) reasonable? Or do their activities threaten national security?

I will conclude with the words of Dicey:

Individuals… do constantly support laws or institutions which they deem beneficial to themselves, but which certainly are in fact injurious to the rest of the world. But the explanation of this conduct will be found, in nine cases out of ten, to be that men come easily to believe that arrangements agreeable to themselves are beneficial to others. A man’s interest gives a bias to his judgment far oftener than it corrupts his heart.

While France is the land of revolution, England is renowned for conservatism, Nigeria wallows in hypocrisy.

A thought-provoking piece from several perspectives was written by Fife Ogunde (Esq.); it’s a highly recommended read which can be found at http://fifidinho.wordpress.com/2014/01/14/anti-homosexuality-law-political-bravery-or-ruse/

Related Article:

Same Sex (Prohibition) Act: A Critical Analysis By Femi Aborisade, Esq

4 comments

  1. Olugbemi

    Brilliant exposé.
    However, without detracting from the above, I’ll like to make some observations.

    Theoretically speaking, the problem in this instance is not the practice of democracy in Nigeria. By their very nature, democracies are designed to pander to the whims of the majority, whether right or wrong. Minorities having their say is cold comfort that achieves nothing if not supported by the majority. In other words, the beauty and burden of democracy is that no idea prevails without the support of the majority.

    By the same token, the sheer size of modern societies dictates representative legislature. In principle, once lawfully constituted, the legislature is deemed a microcosm of the society and its majority is considered to be society’s majority. Hence, while a good practice, it is not mandatory that public opinion must be sampled on every subject of legislation. Otherwise, it will defeat the very purpose of electing representatives. And, in the instant case, majority public opinion would almost invariably favour the law, albeit out of ignorance.

    However, while it is true that derogation from right to expression and assembly should be justifiable in a “democratic society”, to be valid under the Nigerian Constitution, such derogation must ALSO be in the interest of defence, public health, morality, etc or to protect others’ rights. The law’s proponent would certainly hinge their defence on the public morality element. One wonders why a derogation of fundamental rights would be subjected to an amorphous idea like “public morality”, without any statutory definition.

    Furthermore, in their excitement the lawmakers went above their mandate. The same clause used by Yerima and his cohorts to sustain the ChildBride provision was ignored in this case. The law prohibits the solemnization of gay marriage in any place of worship in flagrant abuse of Item 61 of the Exclusive list which excludes Islamic and Customary marriages from the purview of NASS legislative competence.

    I do believe the law can be challenged before a competent court on the basis of issues like the above. I’m sure if one digs deep enough there are other bases to contest its validity. There should be no fear of prosecution under the law since the constitutionality of the law is being contested. The only challenge would locus standi which shouldn’t be much of a problem if the claim is hinged on constitutional validity since every citizen has the standing to sue to ensure compliance with the Constitution.

    One thing is clear from all these, as noted on a previous post, our lawmakers do not know our laws at all. It is shameful and catastrophic that they have criminalized conducts that were never lawful in the first place. For instance, Chapter 27 of the Criminal Code, applicable to a varying degree in southern states, prohibits a series of immoral acts including homosexuality, paedophilia and bestiality. The new law therefore serves no valuable purpose except to promote our hypocritical piety.

    PS: I’m sorry for the lengthy comment, I only meant to elevate the discourse.

    Like

  2. Fifidinho

    Let me sharply express my thoughts before it is overwhelmed with other things like food and plans to be a footballer….
    1)Another well-written article and a refreshing perspective.You highlighted the issue of securing majority approval and ignoring the minority.I even strongly doubt if majority approval was sought in any way,not to talk of the minority.How many people even know the contents of the legislation?Is the majority of the Nigerian adult populace even so well-educated and enlightened as to understand the true purport of the legislation?You can only talk of the approval of the majority if the majority even know what you are saying.

    2)Assuming majority opinion was even sought and obtained, it was even obtained through deception and not even merely a fluke.The reason why people approved is because of the headline ‘no to gays,it is against our culture and morality’ that must have been a form of slogan championed by lawmakers.They however failed to tell the public just as you have pointed out that there is actually a minority, no matter how small, whose interests are to be hampered on a matter in which it is still a source of global controversy as to whether it can be the subject of positive law.They have also played the ‘religion’ card to make us think they are fighting a ‘righteous,us against the world’ cause.They know the hypocrisy and self-righteousness of the average Nigerian and they have played to it.

    You have basically covered the right angles: false democracy, how the intentions of well-meaning advocates of true democracy may be misconstrued and the systemic hypocrisy which has merely been brought to the fore.

    Go Mavi,it’s your birthday,Go Mavi it’s your birthday

    Like

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