A briefing Communiqué for

His Excellency, the President of the Federal Republic of Nigeria,

&

The Senate and the House of Representatives

of the Federal Republic of Nigeria

An analysis

Prepared by Nigerian civil society organizations, human rights organizations, feminist groups, social health workers, activists and NGOs

EXECUTIVE SUMMARY

This is the third time a Bill prohibiting same sex marriage is introduced by the Nigerian parliament. The proposed law is titled ”Same Sex Marriage Prohibition Bill, 2011”, but in fact beyond the title it seeks to criminalise every Nigerian person(s), individuals and groups who are suspected or percieved to have any trace, exhibition, association and or characteristics of same sex relationship, friendship, association or gestures. Nigeria is multi-ethnic, multi-cultural and multi-religious country, and therefore our lived everyday realities are very different from each communities, households and individuals.

With this bill Nigeria and Nigerians will be shown to be untrustworthy and incapable of upholding and domesticating international treaties and conventions to which they have signed.   From the perspective of foreign investors, the inability to uphold international agreements raises the question of whether their investment and personnel can be safe in the hands of such untrustworthy partner.  At a time when the country is clamouring for foreign direct investment, this bill also stands as a threat to the economy.

According to the 2010 UNGASS report on Nigeria, 3.6% of the population comprise of people living with HIV/AIDS. It is important to note that a bulk of the support to curb the spread of the virus and support those already infected or affected is coming from International donors. Many of the people living with HIV/AIDS are heterosexuals and if organizations geared to help them are barred, this will have catastrophic effect on stopping the rate of new infections and helping those already infected.

It is very important when such Bills are proposed by members of parliament that all nigerians look closely into such bills to see what implications they would have on every Nigerian, irrespective of gender, sex, religion, creed, culture, sexuality, tradition, origin, ethnic group and political opinion. Every time these laws are introduced most Nigerians do not understand what the provisions of such bills are and their implications on their daily lives as citizens of Nigeria.  As noted from lack of understanding of  such bills, most Nigerians make abrupt conclusions by concuring with the titles of the bills alone, due to already cultural, religious or political sentiments established subject matters around same sex issues. It is a duty upon civil society organizations in Nigeria to inform and educate the citizens and be the whistle blowers when needed especially when this kind of oppressive dangerous legislations are brought forward by our parliamentarians.

The proposed same sex marriage bill, 2011 was voted by the Senate on 3rd reading on 29th november, 2011, and also passed through first reading at the House on 7th December, 2011.  This analysis seeks to peruse and highlights its grave implications on the daily lives of every Nigerian citizen in communities, villages, towns and cities.

It is worth noting for all Nigerian citizens that the proposed bill aims at:

a)     prohibiting any form of de facto cohabitation between two individuals of the same sex or display and gestures that connotes same sex relation directly or indirectly (by this law, male-male or female-female holding of hands, touching each other, eye gestures, display of affections are evidence for conviction to 10 years imprisonment) ;

it also aims at;

b)    restricting the right to freedom of expression;

c)     restricting the right to freedom of association;

d)    restricting the right to freedom of thought, including the freedom of conscience and religion;

e)     targeting human rights defenders who claims for human rights of individuals and communities, as well as advocates for sexual reproductive rights and right to health;

f)     and, ultimately, targeting the visibility and safety of persons who either identify themselves as lesbians, gays, bisexuals, transgenders, or who do not fit with gender roles and stereotypes, and anybody who is related to them, as well as promoting social control, intrusive of individual privacy.

g)     And also targeting any legal defense and representation for persons or group involved in in any real or perceived same sex related case.

To this extent, if the proposed legislation is passed into law Nigeria would further violate its obligation under international human rights law.

The bill is unnecessary to prohibit same sex marriage in Nigeria: an amendment to the Marriage Act 1990 defining marriage as the union of a man and a woman would be sufficient for that scope.

Further violations of international human rights law are attached to the bill, in particular with reference to article 22 (freedom of association), article 19 (right to freedom of opinion and expression) of the ICCPR, as well as to the similar provisions enshrined in the African Charter on Human and Peoples Rights.

Of principal concern for all Nigerians is that Sections 5 and 7 of the revised and final copy of the bill which  has passed first reading at the House of Representative on Wednesday 7th December, 2011, reach far beyond its scope to attack freedom of assembly and speech, among other rights. The bill, as currently revised to include more clauses, might encourage discrimination against all individuals for their sexuality, and in fact constitute an incitement to violence, ill-treatment and torture.

Specific sections for concern to all Nigerians

SECTION 4 (2) of the proposed Bill

In a very tactile society as ours, where people of same sex frequently hold each other’s hands, wrap their arms around each other’s waist, move close to each other to blow particles away from the eyes, can be seen in warm embrace, it will be difficult, if not possible to know when such actions are display of amorous relationships or expressions of human intimacy and affection that is devoid of any sexual meaning or connotation. This provision of the bill opens up the possiblitiy for witch-hunt and vindictive accusations which will impact on every Nigerian.

SECTION 5 of the proposed Bill

The prohibition of “ gay clubs, societies and organizations ”, and of any person involved not only in registration, but even in sustenance and meetings, registration, participation even in private, directly and indirectly, and the further prohibition of publicity, procession, and “public show of same sex amorous relationship.” may potentially affect anybody and any group.

a)     Any Muslim women’s rights group or Christian women’s group teaching the Quran or the Bible could be targeted as a “lesbian group” and persecuted by some who do not appreciate the use of religious teaching to empower women.  In general, any women’s rights group could be easily targeted by those who do not support women’s empowerment.

b)    Any member of same gender organizations, even students in same gender schools and clubs, could be targeted by anyone holding a grudge against members of the group or opposing the aims of the group.

c)     Any person who does not fit the traditional or social standard of her or his community, such as an unmarried person in her or his 30s or 40s, or even a woman wearing trousers could be easily and falsely accused of being gay or lesbian.

d)    Section 5 could also be a powerful tool in the hands of unscrupulous politicians and aspirants against their political opponents and thus undermine the electoral process and the democratic development of the country.  For example, any politician or candidate could be maliciously accused of privately supporting either same sex amorous relationships or gay societies or even of being gay, and whether proved or not in court, even being accused under the law would likely ruin that person’s political career.  Further, under Section 5, it would be easy to incriminate a politician or candidate simply by sending materials about gay related issues, and it might be difficult for the person to prove that the materials were unsolicited.  Not only would such use of Section 5 potentially destroy a candidate’s reputation, given the penalty of 10 years’ imprisonment, waiting for trial in jail and or conviction could neatly sideline the candidate from continuing to participate in elections at all.

e)     Any journalist, newspaper, radio, or television station reporting neutral information related to gay issues could easily be accused of promoting publicity of same sex amorous relationships.  Without amendment, the bill could be easily used as a tool of censorship for political purposes.

f)     Any human rights, civil rights, or health advocacy groups, including those working on HIV/AIDS prevention, could be accused of indirectly supporting same sex amorous relationships just by applying international human rights and health standards.  Groups doing controversial work on any topic could be attacked with the excuse that they also support gay rights or promote same sex sexual relations.  This law could potentially affect a wide variety of civil society activist or organization in the country.

g)     Under the law, nobody could advocate against the human rights implication of the law itself without being found guilty of indirectly supporting same sex amorous relationships.  This would be an inherent contradiction for a democratic system.

h)    Under the proposed law no lawyer or paralegal will be able to offer legal representation or support and infact such lawyer  or paralegal personnel could be criminalized for representation, defense or support of any case perceived to be same sex related.

SECTION 7 of the proposed Bill

Rather than simply defining marriage as an act between one man and one woman, Section 7’s sweeping inclusion of any two people of the same sex living together allows anybody to be targeted, even when they do not have any sexual relation at all.

a)     Many people in Nigeria share their housing for economic reasons.  If two roommates are of the same sex they could be accused by anybody with whom they have a personal or public dispute of “living together as husband and wife” and be prosecuted under the law.

b)    Their relatives, friends or visitors could be accused of indirectly supporting in private a same sex amorous relationship just by visiting them.

In summary, the implication and the aims of the bill, despite the best intention of the legislators, will go far beyond the prohibition of same sex marriage, and be used either as a censorship as well as punitive tool or against the democratic process of the country.

CONTENTS AND CRITIQUE OF THE PROPOSED BILL

Clearly the new bill is totally unnecessary because if same-sex sexual conducts between consenting adults are prohibited and criminalized under Shari’a and criminal laws, then, as a consequence, same-sex marriages are already unlawful under Nigerian law.

In fact the bill aims at prohibiting by law any form of de facto cohabitation between two individuals of the same sex, which should be a key issue of concern for all Nigerians because in Nigeria  two people or more of same sex share rooms, apartments and flats for economic reasons and not necessarily because they are homosexuals,lesbians or bisexuals or engaged in same sex relationships.

To this extent proposed law will violate fundamental human rights enshrined in the 1999 constitution that stresses thus;

35 -(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty…

Although many countries have chosen not to allow same sex marriage by defining marriage as the union between a man and a woman, Nigeria would be the first country in the world to prohibit with criminal provisions same sex marriages. The reason is, as explained below, that the real scope goes far beyond from banning same sex marriages. This is also unnecessary, because there has not been any record of same sex marriage in Nigeria.

Nigerians should be quickly aware that if this law passes, every one could be liable under the law if they are in real or perceived same sex relationship in whatsover form.

The scope of these provisions is unclear. If same sex marriage is not allowed by the legal definition of marriage, clearly any same sex marriage theoretically celebrated is void and there are no legal consequences and effects. As a consequence, no court may dissolve a null and void matrimonial contract. Therefore, once again, these provisions are redundant and unnecessary.

The provisions concerning the prohibition to recognize same sex marriage validly contracted abroad are unnecessary too. Under international private law, the obligation for state parties to the Hague Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages to recognize same sex marriage validly celebrated abroad is highly disputed and rejected so far. In any case, Nigeria is not state party: this means that Nigerian authorities have full jurisdiction with regard to the definition of marriage under domestic law. Nothing of sections 49 and following of the Marriage Act 1990 makes it possible the recognition of a marriage celebrated abroad which is contrary to domestic law.

This provision violates article 18 of the ICCPR, as it would restrict the right to freedom of religion of those groups that might choose to bless same sex union, even if no legal consequences are attached to such unions. This has been the case of several Christian and Jews churches in several countries, and the state prohibition clearly interferes with such a freedom.

The exception of article 18(3), with reference to the protection of morals, does not apply in this case: besides the interpretation given by the Human Rights Committee to the notion of morals, General Comment no. 22 (1993) on article 18 clearly states that the notion of morals “derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition” (8).

Finally General Comment no. 22 explains that the right to freedom of religion must be interpreted broadly, precisely because article 18 recognizes the exercise of such right “either individually or in community with others and in public or private” (4).

This provision is thereofore unconstitutional under the Nigerian Constitution as it violates article 38 that recognizes the freedom of religion, and constitutes the basis for separation between state and churches.

Dum excusare credis, accusas, “as you believe to excuse, in fact you accuse”, Saint Jerome wrote in his Letters (Epist. 4). The replication of what is already indicated is redundant and unnecessary.

This provision certainly raises the most serious concerns in terms of violations of human rights obligations by Nigerian authorities under the ICCPR, the African Charter and the Nigerian Constitution.

The prohibition for LGBTI organization to be registered under Nigerian law, especially in the light of the criminal offense introduced by paragraph 1 of section 4, is contrary to article 22 of the ICCPR which reads:

1. Everyone shall have the right to freedom of association with others (…).

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. (…)

As explained above, the exception of the protection of morals is not acceptable according to the reasoning of the Human Rights Committee in Toonen, where the Committee also excluded that the derogation to the right to privacy could be justified in the name of the protection of public health, in particular to prevent HIV/AIDS spread; the Committee argued that the ban to same-sex sexual conduct might have an impact on HIV/AIDS education and prevention, causing in fact the spread of the disease among certain stigmatized groups.

Similarly, the provision would violate article 10(1) of the African Charter establishing that “[e]very individual shall have the right to free association provided that he abides by the law”, as well as the Resolution on the Right to Freedom of Association (1992) that was later drafted by the African Commission on Human and Peoples’ Rights stating that:

[t]he competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution and international standards;

2. In regulating the use of this right, the competent authorities should not enact provisions which would limit the exercise of this freedom;

3. The regulation of the exercise of the right to freedom of association should be consistent with State’s obligations under the African Charter on Human and Peoples’ Rights.

For the same reasons, this provision would be unconstitutional constituting a violation of article 40 of the Nigerian Constitution.

One comment, which proves what indicated at the beginning, has to be highlighted: although the bill is known as Same Sex Marriage Prohibition 2011, section 4 bans the registration of gay organizations and restricts freedom of expression and opinion with reference to same sex amorous relationship, a notion clearly different and broader than the one of same sex marriage, even broader than the forms of same sex de facto cohabitation banned by the present law, that precisely seems to indicate a wide restriction toward any expression or opinion related to same sex affection.

Section 4 is therefore particularly problematic for several reasons. As already indicated, it breaches article 19 and 22 of the ICCPR in a widely manner, criminalizing any activity directly or indirectly related to gay issues or same sex amorous relationship, in other words related to LGBT rights in general. The restriction is so severe that it reaches activities carried out and thoughts as well as opinion expressed in private.

The gravity of this violation is certainly confirmed by several reports issued in the past 10 years, starting from 2001, by the U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, that highlighted both cases of censorship and restriction to the freedom of speech punished as criminal offences precisely because of the subject related to LGBT rights or same sex affection, as well as abuses, attacks and restrictions by state authorities against LGBT advocates or individuals for their behaviors that did not fit with gender or sexuality social norms.

Clearly, the consequences of this bill, and particularly of this section, are extremely serious.

Firstly, as it is possible to infer from what indicated above, the criminalization of any form of expression and association related to LGBT rights exposes human rights defenders that operate in the field of sexual rights, health rights and LGBT rights. Such forms of abuses have been already consistently and extensively reported by the Special Representative of the Secretary-General on the situation of human rights defenders in the past 10 years. This situation would be contrary to the contents of the Resolution on the Protection of Human Rights defenders in Africa and would expose the Nigerian authority to the scrutiny of the Special Rapporteur on the situation of human rights defenders established by the African Commission.

Section 4 would have a significant impact on social rights, especially with reference to the right to health, in particular with reference to sexual health and HIV/AIDS prevention. General Comment no. 14 on the Right to the Highest Attainable Standard of Health recognizes that, with reference to article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the principle of non discrimination of article 2(2) “proscribes any discrimination in access to health care” on grounds of, inter alia, health status (including HIV/AIDS) and sexual orientation. The right to the best attainable state of physical and mental health is also protected by article 16 of the African Charter.

As repeatedly underlined by the U.N. Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, discrimination and stigma would certainly restrain the access to health and STDs prevention of individuals not fitting sexual and gender social norms.

Finally, these provisions in particular might seriously endanger any LGBT individual as well as, more in general, those individuals whose behaviors or lifestyle does not fit with sexuality and gender social norms, exposing them to increased risk of degrading, inhuman and cruel treatments and punishments, torture, extrajudicial executions, arbitrary deprivation of their liberty, in other words of serious human rights violations. This is precisely what brought the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatments or punishment to argue in its report that “discrimination on grounds of sexual orientation and gender identity may contribute to the process of dehumanization of the victim”, which is often the cause of heinous violation of human rights. The fact that even private forms of expression, speech and association would be subject to the scrutiny of the criminal law, facilitates, if not promotes, a rigid social control, even by non state actors, as well as the concrete risk of a political use of this legislation

The fact that the bill explicitly confines the jurisdiction with regard to the application of the law does not mitigate the seriousness of the human rights violation and the concerns about a wider social control that might constitute the reasonable consequence of the enactment of this law.

The bill is unnecessary to prohibit same sex marriage in Nigeria: an amendment to the Marriage Act 1990 defining marriage as the union of a an and a woman would be sufficient for that scope.

Also, section 27 of the Marriage Act 1990 already implicitly defines marriage as the union of a man and wife.

The proposed definition of same sex marriage goes far beyond the notion of same sex marriage as accepted in those countries that have legally recognized the marriages between persons of the same sex. This definition actually refers to any form of legal recognition of same sex union, including de facto cohabitation of same sex couple. This is inconsistent with international and foreign legislation, case law and legal literature.

This provision clearly violates the ICCPR. Although the Human Rights Committee has established in Joslin v. New Zealand[1] that the ICCPR does not recognize a fundamental right to marry for same-sex couples under article 23(2), in Young v. Australia[2] the Committee itself recognized that a different treatment between unmarried same-sex and different-sex couples may constitute a breach of state parties obligations under the prohibition of discrimination of article 26, which includes discrimination on the basis of sexual orientation. As a consequence, the ban introduced by the bill, by reaching out any form of cohabitation between individuals of the same-sex, is contrary to article 26 ICCPR.

Also, precisely because the bill bans intimate and emotional choices of consenting adults, if not, more in general, the likelihood or simple resemblance of such choices (by defining same sex marriage as “other form of same sex relationship for the purposes of cohabitation as husband and wife”) it is extremely intrusive of the privacy of those persons whose behaviors do not conform with gender and social roles. Such a definition of same sex marriage and the provisions that follow go far beyond the boundary established in Toonen and violate therefore article 17 of the ICCPR and, consequently, the constitutional provision of article 37.

By criminalizing any form of same sex relationship the bill certainly does not protect family and traditions as required by article 18 of the African Charter, but rather jeopardizes individual dignity and security, respectively protected by articles 5 and 6 of the Charter.

This intrusiveness into the private sphere in fact promotes stigmatization against individuals and groups already at risk of marginality, exposing them to violence and abuses both by local authorities and non state actors. Both the U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment have, over the past years, extensively reported on how discrimination, marginalization and the failure of states to protect gays, lesbians, transgenders and other groups that do not fit with “sexual norms” have been the cause of killings by non state actors and state authorities, as well as tortures and other abuses by state authorities, holding governments responsible for the violation of article 6 and 7 of the ICCPR. Similar conclusions have been argued by the Special Rapporteur on violence against women, its causes and consequences, as well as by the observations of treaty bodies, such as the Committee against torture in its interpretation of the Convention against Torture (CAT) in the past 10 years.

Urgent call for action to His Excellency, the President of the Federal Republic of Nigeria, members of the Senate and House of Representatives of the Federal Republic of Nigeria

We, the undersigned members of  Nigerian civil society organizations, human rights defenders, feminist forum, media advocates, social health workers, and concerned Nigerians hereby ask His Excellency, The President of the Federal Republic of Nigeria, and Distinguished members of the Senate and House of Representative to;

• Immediately withhold the proposed Same Sex Marriage Prohibtion Bill, 2011 due to its implications and repressive provisions that will further pave way for gross human rights violation with impunity on all Nigerans irrespective of their sexuality and bar Nigeria from the comity of democratic nations.

• Take measures in addressing and tackling extrajudicial actions taken by law enforcement agencies and the reports from around the country of mob actions,  intimidation,  inhuman and degrading treatment of people and individuals who are already being targeted due to discuss on the proposed legislation even when such legislations are not passed to law .

• Take immediate measures for consultation with civil society and stakeholders in the preparation, review and changes made in proposed legislations such as the Same Sex Marriage Prohibtion Bill, 2011 and other law that may have human rights and democratic consequence on all Nigerian citizens.

• Uphold democratic principle and parliamentary procedure of ensuring balanced and diversified opinions from all civil society and the general public particularly as the proposed law affect the long years of work to curb the spread of HIV/AIDS in Nigeria.

Look into the report of  the Integrated Bio- Behavioral Surveillance Survey (IBBSS)-2007 conducted by NACA which further stresses the importance of integrating Men who have sex with men (MSM) into HIV/AIDS programming in Nigeria, which based on the proposed Same Sex law is crimin