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