‘’It doesn’t matter what you do in the bedroom as long as you don’t do it in the street and frighten the horses’’ – Beatrice Patrick Campbell.

This notion means that whatever you do in your private life should not be infringed upon as long as it does not harm others. This is applicable to the debate on banning homosexuality/gay marriage in Nigeria. Is it a violation of the fundamental human rights of gays? Is the government right in banning gay marriage as it claims to be the reflection of the wish of the people since majority of Nigerians are against it? The purpose of this article is to argue the fact that banning same sex marriage could be a violation of human rights and to discuss the arguments against it.

The debate on allowing or banning same sex marriage has been going on in Nigeria for the past seven years. A bill was proposed in 2006 but the bill was finally passed into law legally banning same sex marriage in Nigeria on Thursday May 30th, 2013.  The law states that anyone who engages in same sex marriage would be jailed for fourteen years. However, people have different views and opinions regarding the issue of same sex marriage in Nigeria. The majority support the idea of banning same sex marriage due to the fact that they regard it as immoral and against their religious practices. While few Nigerians believe same sex marriage should not be banned as everyone has the right to choose who he/she chooses to be with irrespective of the religious and cultural practices in the country.

Banning Homosexuality as a Violation of Human Rights

There is no doubt that Nigeria is a highly religious country that upholds its religious and traditional values in which the values of the people contradicts or is not in favor of accepting same sex marriage. Irrespective of this fact in my opinion, banning same sex in Nigeria is an absolute violation of gay’s human rights. This is because it does not recognize the right to freedom of choice of their partners irrespective of their partner’s sex.  According to Article 16 of the Universal Declaration of Human Rights (UDHR) of the U.N, which states that ”Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution’’. Although Nigeria is a signatory member of the United Nations, one might argue that the UDHR is not binding as same sex marriage was not an issue then. The UDHR however states that an individual of full age should have no ‘’limitations’’ to marry and found a family. This means two people of the same gender should also not be seen as a reason to limit marriage. Banning same sex based on cultural and religious grounds is not sufficient enough as the UDHR clearly states that religious and cultural practices of a country should not interfere or violate the fundamental human rights of the citizens in that country. Also, according to section 10 of the 1999 Nigerian Constitution ‘‘the government or state of the federation shall not adopt any religion as a state religion”. That the country shall not adopt one religion for the whole country is to say that the drafters of the Constitution intended for Nigeria to be a secular state in which there would be a separation of religion from the state. The state shall not adopt any one religion as a yardstick or to influence the decisions for ruling the country as we have freedom of choice of religion. One might choose not to belong to any religion at all and so why impose the doctrine of other religions to the private life of an individual or group of individuals. This however is not the case or this is not practiced in the country as gays are banned on the basis of religious practices. Religion should be a private matter and not what the state should use as a yardstick for decision making in the affairs of the country. Banning or stopping same sex marriage in Nigeria is a discrimination of gays and violating their fundamental rights as they have the right to private life and family and if homosexuality is practiced in their private lives why should the government intervene in whom they choose to get married to or date. Nigeria is a country that claims to practice democracy which is supposed to uphold and protect the fundamental human rights of its citizens; why then should the government violate the right to freedom of expression to be themselves (gays) and the right to private life and family by banning same sex marriage?

Arguments against Same Sex Marriage/Homosexuality

Many Nigerians argue that one of the reasons why they would not accept homosexuality in the country is due to the fact that it is seen as a form of neo-colonialism. They feel it is imposing western cultures and views in the country as it conflicts with our traditional cultures. According to the Nigeria’s former Senate president David mark, who said gay marriage would never be accepted in Nigeria as an attempt to preserve the country’s decency and value of our culture as Nigeria promotes morality and sanity.  This is why majority of Nigerians don’t accept same sex marriage or are rather intolerant of the idea. According to the Pew Research Centre in which a research was conducted on 39 nations by the United States, the research shows that 98 percent of Nigerians are intolerant of homosexuality making them one of the least tolerant countries to homosexuality. However, one might also argue that, if majority of the citizens reject such practice, it is not wrong as the government is only reflecting the wishes of the people in preserving their traditional values.  One might fit Devlin’s argument to this in which he believed that the society has a shared morality of how a’’ right minded’’ person should behave. If these shared morals start depreciating, it would pose a threat and probably disintegrate the society. He believed it was the duty of the state or government to ensure the survival of the society by reinforcing these shared beliefs and morals – (Views expressed by Peter Cane in “Starting Points of Hart and Devlin Debate” in Taking Law Seriously” [2007]: 31). Based on this argument, it is the duty of the state to preserve this shared morality in Nigeria. Allowing homosexuality/same sex marriage would disintegrate the society and their shared values. This is a reasonable argument but then what about the interest of the minority? Are they not also to be given equal rights as well? Should their rights be neglected simply because majority of the citizens don’t support it or find it immoral?

The pro-gay groups in Nigeria have argued that as long their act is done in their private lives and does not infringe on others freedom or causes any harm to others then why should they be criminalized? This can be applied to John Stuart Mill’s “harm principle” which states that ”the only purpose, for which power can be rightly exercised over any member of a civilized community against his will, is to prevent harm to others” according to James Mooney in his work Stuart Mill’s Principle. If what gays do in their private lives does not affect the general public, then their rights should not be infringed. According to Peter Cane, another person who would fit into this argument is Professor H.L.A Hart. He was influenced by mill’s “harm principle” and also reacted to Devlin in which he took a liberal view concerning the right of the state enforcing strong held moral views. Hart questioned what the ‘’right minded’’ view was. Hart objected to Devlin’s view by saying that the state should not punish anyone who acts contrary to the shared moral views as long as the action of the individual causes no harm to the people. Hart also said that free will as an individual is moral but interference with this free will is immoral. Most importantly he pointed out that legislation suppressing ones sexuality is harmful as it affects the individual emotionally. Indeed if Nigerians would use the basis of immorality to ban same sex marriage then it could be argued as a hypocritical act. This is so as there are behaviors or acts that are considered immoral but these practices are not banned, for example prostitution and adultery.

There is no doubt homosexuality/same sex marriage practice does not go inline or is strange to the diverse cultures and religions in Nigeria. Some have argued that the government and the people should learn to embrace diversity in every aspect of life of the people but this issue is a very sensitive one as it involves religious beliefs and so it is understandable that such issue because of its sensitivity is not expected to be embraced totally by all the people. It is unlikely that the controversy of homosexuality/same sex marriage would be resolved by most African countries any time soon. Most African countries with Nigeria inclusive have had the difficulty of walking the tight rope and drawing the balance between its commitment to international human rights laws such as the UDHR and the question of homosexuality/same sex marriage. The questions that easily come to mind are; what should be the role of culture, religion and morality in our laws? Should cultural values, religion and morality be reflected in our laws? Should the human rights and freedom of an individual cover his or her personal or private life even if it is offensive to the majority? The answers to these questions are not easy and depending on who you talk to, there are no straight forward answers or conclusions.

Esther kubai Awan