Statements to the Nigerian National Assembly by:
1) Global Rights and Human Rights Watch
2) The Independent Project for Equal Rights (TIP) - Nigeria
Global Rights and Human Rights Watch Statement to the Nigerian National Assembly on the Same Gender Marriage (Prohibition) Bill
Members of the National Assembly:
Human Rights Watch and Global Rights urge you to reject the proposed legislation called the "Same Gender Marriage (Prohibition) Bill." This bill is the successor to failed legislation proposed by the then-minister of justice in 2006, which would have punished with imprisonment not only "the registration of gay clubs, societies and organizations, sustenance, procession or meetings," but any "public show of same sex amorous relationship directly or indirectly in public and in private." That bill was widely condemned by human rights organizations within and outside Nigeria, and never came to a final vote in the National Assembly.
The present bill appears to have a more limited purpose, but in fact perpetuates the same potential for serious human rights abuses. This accounts for the concern expressed over it by a wide range of human rights organizations in Nigeria, and by the international community.
A number of specific issues lead to this concern.
- Marriage between persons of the same gender is not now legal in Nigeria, and there is no possibility of its recognition without specific state affirmation. Hence the bill is neither necessary nor proportionate to its purpose. Imposing criminal penalties on this particular form of marital relationship is redundant. It can only be construed as an effort to further stigmatize relationships between persons of the same gender - and to provide additional grounds for official harassment, arrests, and prosecutions of anyone even suspected of such a relationship.
- "Same gender marriage" is defined for the purpose of this bill as the "coming together of persons of the same sex with the purpose of leaving [sic] together as husband and wife or for other purposes of same sexual relationship." This is significantly broader than the definition of marriage as a formalized, ceremonalized union under the Marriage Act, Islamic law and customary law. This bill does not focus on prohibiting the attempt to formalize a marriage before legal or religious authorities. Cohabitation does not require any formal act: it seems that the intent of the law-maker is in fact to criminalize cohabitation between individuals of the same sex for whatever purpose.
- This definition is itself dangerous because it leaves the door open to misinterpretation and human rights violations: who can prove whether two individuals of the same sex are living together as partners or for sharing the household costs? Who can prove that a "same sexual relationship" was in fact intended? Nigerian federal law already punishes consensual homosexual conduct, under article 214 of the criminal code, with up to 14 years' imprisonment. This law - a relic of British colonialism - already violates Nigeria's international human rights commitments. The evident intent of this definition of same gender marriage in the new bill is to extend the already existing penalties for homosexual conduct with additional punishment. It offers a way for police and criminal-justice officials to arrest and persecute individuals based on their real or perceived sexual orientation and gender identity, in cases where there is insufficient evidence to prosecute them under the existing law on homosexual conduct. The likelihood of people being jailed on the basis of rumor, suspicion, or prejudice would vastly increase.
- Section 4 of the bill establishes a criminal penalty of three years for individuals who contract a same sex marriage, and a greater one of five years for "any persons or group of persons that witnesses, abet[s] and aids the solemnization of a same gender marriage contract." The latter punishment is actually greater than the punishment for those who enter into such a "same gender marriage." Given that the bill actually defines "marriage" in terms of cohabitation or any "intimate relationship," this provision could punish anyone who gives any assistance whatsoever to a supposed "same gender" couple - anyone who rents them an apartment, advises them on their rights, or simply approves of their relationship. This suggests that the real intent of the bill is to criminalize the activities of anyone, including a human rights defender, who advocates for equal rights for all individuals or communities, including lesbian, gay, bisexual, and transgender people. As with the previous bill, these provisions are meant to stifle the work of rights activists and civil society.
- The bill specifically voids any "marriage contract entered between persons of same gender by virtue a certificate [sic] issued by a foreign country." Again, this provision is redundant, because no such certificate would be valid in Nigeria at present in any case. However, the bill's language could conceivably impose criminal penalties on anyone, whether Nigerian or a foreign national, who has entered such a "contract" in another country or simply cohabited with a person of the same sex there - an unprecedentedly sweeping restriction of rights.
This bill, like its predecessor, would gravely restrict the basic rights of Nigerians. It will place a significant segment of the Nigerian community at increased risk of coercion, blackmail, police investigation, arrest, and prosecution. It would violate Nigeria's human rights obligations under the International Covenant on Civil and Political Rights (ICCPR), to which Nigeria acceded without reservations in 1993. In the landmark 1994 case, Toonen v. Australia, the United Nations Human Rights Committee, which monitors states' compliance with the ICCPR, held that laws criminalizing consensual homosexual conduct violate the ICCPR's protections for privacy and against discrimination.
Moreover, the bill would have a serious, negative impact on public health. As you are no doubt aware, laws criminalizing adult, consensual sexual conduct - including the colonial-era "sodomy" law already in place in Nigeria - hinder HIV and AIDS prevention and treatment efforts. The Same Gender Marriage (Prohibition) Bill will compound these adverse effects HIV and AIDS prevention and treatment in Nigeria by further stigmatizing lesbians, gay men, bisexual and transgender people, and men who have sex with men. It will increase their vulnerability and reduce their access to effective HIV and AIDS education and treatment.
This bill not only undermines Nigeria's commitment to regional and international treaties but also threatens to exacerbate the rapid spread of HIV and AIDS in Nigeria. Human Rights Watch and Global Rights therefore urge you to oppose this bill.
Global Rights
Washington, DC
Human Rights Watch
New York, NY
Statement of the Independent Project for Equal Rights (TIP) Nigeria at the Public Hearing on the Proposed Same Gender Marriage Prohibition Bill - 2008
Honorable member of the House committee on Human Rights;
The Independent Project for Equal rights (TIP) - Nigeria wishes to appreciate the democratic attitude of the house committee on human rights to call for a public hearing of the Same-gender marriage prohibition bill. However, we wish to express our concern of this bill and effect on our citizenry as young people of this blessed nation.
TIP is an organization that advocate for human rights with special focus on sexual minority which include Lesbian, Gay, Bisexuals and Transgender in Nigeria. It is a youth organization and youth governed.
TIP's analysis of the bill goes thus;
Section 2(1) prohibits the solemnization of same gender marriages in places of worship in Nigeria and specifically mentions mosques and churches. The specific mention of churches and mosques appears to restrict the meaning of "place of worship" to churches and mosques as the specific mention of one excludes the other in legislative interpretation.
Section 4 of the bill establishes a criminal conviction of 3 years for individuals who contract a same sex marriage and a conviction of 5 years for individuals who abet the solemnization of same sex marriage. This clearly shows the real intent of the bill, that is to say convicting anyone, especially human rights defenders, who advocate for equal rights for LGBT individuals or communities.
The punishments provided in this bill appears both illogical and against the grains of jurisprudence of punishment. The punishments for the offences of aiding and abetting are normally less than the principal offence or at worst same as the principal offence. Never is the punishment for aiding and abetting more draconian than the principal offence. For instance, section 85 of Penal Code Law provides-
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Penal Code or any other law for the time being in force for the punishment of such abetment, be punished with the punishment provided for the offence.
The punishment in this bill for aiding and abetting is therefore strange and unconstitutional. Moreover, without defining a "witness" in this bill, the interpretation must include any bystander and passer-by who saw the solemnization or heard the words at solemnization as the witness contemplated herein is not a witness who signs the marriage certificate. The punishment relating to group of persons who witness a marriage makes this interpretation sensible.
Section 6 of the bill defines marriage as the legal union between persons of the opposite sex according to Marriage Act, Islamic and Customary Law; however, same gender marriage is defined as the coming together of persons of the same sex with the purpose of living together as husband and wife or for other purpose of same sexual relationship. There is no reason why same-sex marriage should be defined differently from marriage. If this bill aims at prohibiting same-sex marriage, it should just say so. Marriage is only one thing, that is to say a legal union recognized by the state or religious law. What the bill criminalizes is not same-sex marriage but cohabitation between people of the same sex or other undefined same sexual relationship.
The definition of same sex marriage as defined by section 6 also contradicts the whole structure of the bill, which makes reference to the formal requirements of marriage (marriage contract, solemnization, marriage certificates); cohabitation does not require any formal act: it seems that the intent of the law-maker is in fact prohibiting same-sex marriages and criminalizing cohabitation between individuals of the same sex for whatever purpose or undefined form of advocacy on LGBT rights.
This definition is very dangerous because it leaves the door open to misinterpretation and human rights violations: who can prove whether two individuals of the same sex are living together as partners or for sharing the household costs? Who can prove the intent of having a same sexual relationship? It seems to us that the bill wants to offer a way for law enforcement agencies to arrest and persecute individuals based on their real or perceived sexual orientation and gender identity, when there is no enough evidence to prosecute them for sodomy;
Interestingly enough, it seems that under the bill individuals (either Nigerian citizens or foreigners) who entered into a same sex marriage abroad could still be prosecuted under section 4, which does not indicate whether the same sex marriage should have been contracted in Nigeria. This could create significant problems in the relationships between Nigeria and foreign countries. Same sex married couples who are in Nigeria from other countries are likely to face discriminatory treatment from the general public including loss of social integrity and confidence in security of life. It is also feared that same sex married couples seeking for visas to Nigeria may be denied entry into the country as a result of the bill.
We recommend that;
- a) the definition of marriage and same gender marriage of section 6 should be the same, that is to say the legal union entered between two persons according to Marriage Act, Islamic and Customary Law;
- b) the bill should simply establish that same gender marriages are invalid and not enforceable in Nigeria, without establishing any criminal penalty: section 4 should thus be dropped; or
- c) in the worst case scenario, section 4(2) should be eliminated, as it opens the door to prosecution of human rights defenders, and section 4(1) should at most establish a fine of 2,000 Naira for individuals who violate section 1 of the bill.
Sincerely,
Executive Director
The Independent Project for Equal Rights (TIP) - Nigeria
