H.E. Mr. Umaru Musa Yar'Adua
President of the Federal Republic of Nigeria
Dear President Yar'Adua:
I am writing on behalf of Human Rights Watch to express our concern over the "Same Gender Marriage (Prohibition) Bill" which has passed the House of Representatives on a second reading. The bill punishes anyone who enters into a "same gender marriage" with three years' imprisonment. It also provides five years in prison for anyone who "witnesses, abet[s] and aids" someone else to enter into such a marriage.
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." Human rights organizations, both within and outside Nigeria, widely condemned this bill. It would have restricted basic freedoms of expression, association, and assembly, and would have criminalized any advocacy on behalf of lesbian, gay, bisexual, and transgender (LGBT) people by human rights organizations and defenders. That legislation never came to a vote in the National Assembly. The present bill, while wearing the mask of a more limited purpose, in fact perpetuates the same potential for serious human rights abuses.
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.
The bill goes beyond criminalization of hypothetical state-recognized marriage of same-gender partners by defining "same gender marriage" sweepingly 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." In effect this broadens the scope of the law beyond state-recognized marriage, to criminalize cohabitation or any intimate relationship between people of the same sex. We wish to draw two points to your attention:
- a) 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 commitments 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. 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.
- b) The criminalization of "living together as husband and wife" further expands the scope of these punishments. They are no longer restricted to sexual acts between people of the same sex but potentially extend to the mere fact of cohabitation or any postulated "intimate relationship." The evidence required for arrest and conviction would correspondingly become far more elastic. The likelihood of people being jailed on the basis of rumor, suspicion, or prejudice would vastly increase.
The bill further punishes "any persons or group of persons that witnesses, abet[s] and aids the solemnization of a same gender marriage contract," with up to five years' imprisonment. This 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. As with the failed 2006 bill, this provision would give authorities power to penalize advocates, civil society organizations, and human rights defenders who support the human rights of LGBT people.
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. Moreover, it would have a serious 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 the adverse effects of article 214 for 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. I urge you to act against the passage of this bill.
- - David Mark, President of the Senate
- - Bankole Dimeji, Speaker, House of Representatives
- - Dickson Henry, Chairperson, Committee on Justice
- - Beni Lar, Chairperson, Committee on Human Rights
- - Binta Masi Garba, Chairperson, Committee on Women Affairs
- - Anthony I. Iguh, Chairperson, National Human Rights Commission
- - U. Joy Ogwu, Permanent Representative of Nigeria to the United Nations
- - Martin Ihoeghian Uhomoibhi, Permanent Representative of Nigeria at the United Nations in Geneva
- - Oluwole Rotimi, Ambassador of Nigeria to the United States