Honorable Ken Nnamani
President of the Senate
Enugu State, Nigeria

Honorable Senator Nnamani:

We write to you as a matter of urgency to voice deep concern over a bill now imminently pending before the National Assembly, which would criminalize advocacy or associations supporting the rights of lesbian and gay people; prohibit public expression concerning gay and lesbian lives; and introduce criminal penalties for relationships and marriage ceremonies between persons of the same sex. The proposed legislation contravenes the basic rights to freedom of expression, conscience, association, and assembly, as well as internationally recognized protections against discrimination.

We write to you as a matter of urgency to voice deep concern over a bill now imminently pending before the National Assembly, which would criminalize advocacy or associations supporting the rights of lesbian and gay people; prohibit public expression concerning gay and lesbian lives; and introduce criminal penalties for relationships and marriage ceremonies between persons of the same sex. The proposed legislation contravenes the basic rights to freedom of expression, conscience, association, and assembly, as well as internationally recognized protections against discrimination. We urge you to disavow this bill, which contradicts fundamental freedoms under the Nigerian Constitution and international human rights law and standards, including the African Charter on Human and Peoples’ Rights. Its passage would be a blow to Nigeria’s international image as a vibrant democracy.

In a move further damaging to democratic process, the bill is being pushed forward with a secretive and undue haste apparently designed both to secure its passage before upcoming elections, and to foreclose full debate on its provisions. A public hearing in the House of Representatives, sponsored by the Women’s Affairs Committee, was held on February 14 with only two days’ public notice. Representatives of Nigerian human rights organizations opposed to the bill were initially informed that the hearing was invitation-only and closed to them. Although they were finally allowed to speak, it appears that the bill has since been introduced in the Senate and passed through first and second readings without public notification or public debate. We are concerned by this lack of transparency, and alarmed that a measure deeply damaging to basic human rights protections is advancing without open discussion of its repressive implications.

According to the last draft of the bill made public, the law would prohibit the registration of gay organizations, any “publicity, procession and public show of same sex amorous relationship through the electronic or print media physically, directly, indirectly or otherwise,” and adoption of children by lesbian or gay couples or individuals. It would permit five years’ imprisonment for any person “who is involved in the registration of gay clubs, societies and organizations, sustenance, procession or meetings, publicity and public show of same sex amorous relationship directly or indirectly in public and in private.” It would also provide a five-year prison sentence for anyone who “goes through the ceremony of marriage with a person of the same sex,” “performs, witnesses, aids or abets the ceremony of same sex marriage,” or “is involved in the registration of gay clubs, societies and organizations, sustenance, procession or meetings, publicity and public show of same sex amorous relationship directly or indirectly in public and in private.” Anyone, including a priest or cleric, aiding or abetting such a union would be subject to the same prison term.

The bill would thus sweepingly criminalize intimate acts between adults, as well as acts of peaceful expression or association in defense of people’s human rights. It would set a dangerous precedent on both counts. It would infringe against the right to privacy, and would strike at the fundamental freedoms enjoyed by all individuals in Nigeria’s long-vigorous civil society.

This law would seriously restrict the vital activities of human rights defenders and members of civil society. The United Nations Declaration on Human Rights Defenders holds, in article 5, that “everyone has the right, individually and in association with others, at the national and international levels: a) to meet or assemble peacefully; b) to form, join and participate in non-governmental organizations, associations or groups.” Article 7 of the declaration affirms that “Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance.” Indeed, the Special Representative of the UN Secretary General on Human Rights Defenders has specifically called attention to the "greater risks... faced by defenders of the rights of certain groups as their work challenges social structures, traditional practices and interpretations of religious precepts that may have been used over long periods of time to condone and justify violation of the human rights of members of such groups. Of special importance will be... human rights groups and those who are active on issues of sexuality, especially sexual orientation." ("Report of the Special Representative to the Secretary General on human rights defenders," UN Doc. E/CN.4/2001/94 (2001), at 89g).

The proposed law undermines other fundamental freedoms protected under international law. The African Charter on Human and Peoples’ Rights affirms the equality of all people. Its article 2 states: “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.” Article 3 promises every individual equality before the law. And its article 26 prescribes that “Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.”

The International Covenant on Civil and Political Rights (ICCPR), to which Nigeria acceded without reservations in 1993, protects the rights to freedom of expression (article 19), freedom of conscience (article 18), freedom of assembly (article 21) and freedom of association (article 22). It affirms the equality of all people before the law and the right to freedom from discrimination in articles 2 and 26. In the landmark 1994 case of Toonen v Australia, the United Nations Human Rights Committee, which monitors states’ compliance with the ICCPR, held that sexual orientation should be understood to be a status protected from discrimination under these articles. States cannot abridge the enjoyment of human rights on the basis of sexual orientation. The UN Human Rights Committee has since urged states not only to repeal laws criminalizing homosexuality but also to enshrine the prohibition of discrimination based on sexual orientation into their constitutions or other fundamental laws.

Moreover - while prevailing patterns of HIV transmission in Nigeria, as elsewhere in the continent, is overwhelmingly heterosexual - the government will only damage its own prevention efforts by driving populations already suffering stigma for their sexual conduct still further underground. The bill would make more difficult outreach and education efforts to reach those groups—and it would criminalize many civil society groups engaged in that vital work. Nigeria’s AIDS prevention programs have already shown conspicuous neglect of the particular risks facing men who have sex with men (MSM). This law would present further obstacles to effective prevention efforts.

Laws criminalizing homosexuality can also act as a license to torture and ill treatment. By institutionalizing discrimination, they can act as an official incitement to violence against lesbians and gay men in the community as a whole, whether in custody, in prison, on the street, or in the home. By stripping a sector of the population of their full rights, they also prevent lesbian and gay people who undergo abuse from accessing redress, while the abusers are allowed to continue abusing others with impunity.

This proposed legislation flies in the face of Nigeria’s obligations to the rights and well-being of its people. Under international human rights law, Nigeria has the obligation to promote and protect the human rights of its population, without distinction of any kind. We urge you to act in accordance with Nigeria’s legal obligations under international human rights law, and in defense of the principles of Nigerian democracy, and to oppose this bill.

Sincerely,

Scott Long
Director, Lesbian, Gay, Bisexual, and Transgender Rights Program
Human Rights Watch

Cc:

  • His Excellency President Olusegun Obasanjo
  • Honorable Senator Ibrahim Mantu, Deputy President of Senate
  • Honorable Peter Igbodo, Chair, House Committee on Human Rights
  • Senator Oserheimen Osunbor, Chairman, Senate Committee on Judiciary
  • Aminu Bello Masari, Speaker of the House of Representatives
  • Senator Daisy Ehanire-Danjuma, Chairman, Senate Committee on Women Affairs and Youth