By Hossein Saheed

INTRODUCTION

Though the most developed countries of the world significantly USA, England etc, legalized same sex marriage and homosexuality. These two acts, regardless, remain immoral in those countries amongst the majority. In Nigeria, the acts get neither legal nor judicial approval, hence makes it a crime.

 

Islamically, homosexuality and same sex marriage are forbidden, this can be seen in Quran 15 V. 61-77 where Allah talks about the people of Lot (sodomy and Gomorrah); a group where same sex attract each other sexually and marry each other which as a result they were all perished by Allah  evidently in Quran 15 V. 74 by raining upon them stones of hard clay. In the Hadith narrated by Abdullah ibn Abbas: The prophet (peace be upon him) said: if you find anyone doing as Lot’s people did, kill the one who does it, and the one to whom it is done- Sunan Abu Dawud 38: 4447. This is to show that the punishment for doing so is more severe in Islamic law than common law. Likewise, it is discuss in the Bible as something condemnable, this is stated in Genesis 19:2-29.

In a nutshell, it is intended in this article to trace the definition and history of same sex marriage/homosexuality, its position under Nigerian law and the court that has jurisdiction to entertain matters relating to same sex affairs.

DEFINITION OF SAME SEX MARRIAGE

According to section 7 of Same Sex Marriage (Prohibition) Act, 2013 “same sex marriage” means the coming together of persons of the same sex with the purpose of living together as husband and wife or for other purposes of same sexual relationship.

According to Encyclopedia Britannica, same sex marriage is a practice of marriage between two men or between two women. The two definitions point irresistible to the fact that same sex marriage is a practice which involves two people of the same sex such as man to man or woman to woman.

HISTORY OF SAME SEX MARRIAGE

To exhaustively pen down the history on same sex relationship, the history of people of Lot cannot be set aside. These people were the first group on the planet (earth) to engaged in same sex affairs. They did it openly without fear, due to this a prophet was sent to them to preach to them the word of God and stop them from the sinful act but, they refused and they were all perished by God.

From this time on, homosexuality and same sex marriage continue to repeat itself in the globe despite the vivid knowledge by the countries practicing it on how God puts end to the nation of Lot. According to John Boswell a controversial historian as tagged, the first occurrence of same sex marriage took place in the early Rome Empire. The historian added that the first emperor in Rome reported to engaged in same sex affairs was Neo who married a male and two other males in different occasions. This was how it goes,  later around 342 AD, a law was passed by a Christian emperor with the name ConstantiusII in which same sex marriage was prohibited and execution was recommended for those found doing it. With this, it can be rightly put that prior to the time of ConstantiusII there was no law in Rome forbidding same sex marriage.

It was further strengthen that Denmark was the first country that gave legal recognition to same sex marriage in which the right given to the heterosexual couples was also given to same sex couples. After this, same sex marriage began to get establishment law in other countries and the first country to establish same sex marriage law was Netherlands.

To the writer’s view, this got other countries that legalized the act, the privilege to back the nefarious act been perpetrated in their lands by law. Therefore, in today’s sun, same sex marriage law got legislative mercy in different countries of the world which does not exclude UK, USA, France, German, to mention but few.

In the case of BOWERS V. HARDWICK in 1986. In the case Michael Hardwick who was living in Georgia, US was found violating the Georgia law that criminalized sodomy by having sex with another man. He challenged the law that criminalized sodomy in Georgia stating that the law is in violation of privacy and his fundamental rights to the 14th Amendment of the U. S Constitution. The court held: Georgia law that criminalized sodomy was constitutional, stating that “there is no such thing as a fundamental rights to commit homosexual sodomy”.

However this decision was overturned in 2003 in the case of LAWRENCE V. TEXAS, in the case Lawrence was found in his apartment having sex with another man. They were arrested by police, charged and convicted. Kennedy J. Held: “when sexual overt finds expression in intimate conduct with another person,  the conduct can be put one element in a  personal bound that is more enduring. The liberty protected by the constitution allows homosexual person the right to make his choice.”

However, it is to be pointed out that in 2015 the decision of US Supreme Court in the case of OBERGEFELL V. HODGES was also favorable to same sex marriage couples. With the aforementioned, it can be evidently put that more favorable same sex marriage/homosexual rights court’s decisions can still be expected.

POSITION OF NIGERIAN LAW ON SAME SEX MARRIAGE

As we have seen earlier, same sex marriage is a marriage of individuals of the same sex. It could either be between two males or two females. This got no judicial or statutory mercy in Nigeria as it is made illegal by law and punishment is there attached to whoever found guilty. However in 2013, Same Sex Marriage (Prohibition) Act was enacted which made same sex marriage illegal in the country. Prior to this Act, the Criminal Code of the Southern Nigeria had made gay relationships between men illegal and other sexual activities that is in total contradiction to the order of nature.

Chapter 21 of C.C talks about offences against morality and thereunder section 214 provides that:

Any person who-

(1) has carnal knowledge of any person against the order of nature; or

(2) has canal knowledge of an animal; or

(3) permits a male person to have carnal knowledge of him or her against the order of nature;

is guilty of felony and is liable to imprisonment for fourteen years.

The code provides also in section 215 that any attempt to commit any of the offences in section 214 is punishable upon conviction by 7 years imprisonment.

In aiding the aforementioned provisions, Same Sex Marriage  (Prohibition) Act, 2013 went further and specifically prohibits same sex marriage and provides punishment for whoever found guilty. To further buttress the points, section 1(1) (a)-(b)  of SSMA, 2013 provides that:

(1) a marriage contract or civil union entered into between persons of same sex:

(a) is prohibited in Nigeria;and

(b) shall not be recognised As entitled to the benefits of a valid marriage.

With the consideration of the legal recognition given to the act by some countries of the world, legislature that actualized the Act was of the view, according to the opinion of the writer, that some men or women of same sex may obtain certificate of marriage outside Nigerian (foreign) and intend to make Nigeria their country of residence, therefore provides subsection 2 of the section above to void such union as soon as they enter Nigeria. The subsection therefore reads:

(2) A marriage contract or civil union entered into between persons of same sex by virtue of a certificate issued by a foreign country is void in Nigeria, and any benefit accruing therefrom by virtue of the certificate shall not be enforced by any court of law.

With the emergency of the Act, no church, mosque or any other place of worship in Nigeria has power to solemnize same sex marriage or civil union and no certificate issued therefrom shall be valid. This is provided by section 2 of the Act which reads:

2 (1) A marriage contract or civil union entered into between persons of same sex shall not be solemnized in a church, mosque or any other place of worship in Nigeria.

(2) No certificate issued to persons of same sex in a marriage or civil union shall be valid in Nigeria.

However, to clear the cloud and to end the misconception regarding the valid type of marriage in Nigeria, section 3 of the Act in conformity with the provisions of MCA (Matrimonial Causes Act), provides that:

  1. Only a marriage contracted between a man and a woman shall be recognized as valid in Nigeria.

It should therefore, be noted that any marriage contracted outside the fence of a man and a woman is not a valid marriage in Nigeria and it is not recognised.

In 2018, LGBT activist, Pamela Adie, the leader of Lesbian Equality and Empowerment Initiative (LEEI) in Nigeria sued CAC before the Federal High Court for disallowing the registration of the organization, but she unfortunately lost the case for lack of merit. However, she felt disappointed and tweeted, “I felt this was an infringement on my constitutional rights to freedom of association…”

In the year 2020, she filed an Appeal before the Court of Appeal claiming a mysterious and inconspicuous right forgetting the fact that she has no right whatsoever under the Nigeria law to embark on same sex affairs, or make public show of same sex amorous relationship directly or indirectly. Howbeit, it is to point out here that CAC has no power to register gay or lesbian clubs, societies or organizations, this is provided for under section 4 of the Act which reads:

  1. (1) The Registration of gay clubs, societies and organisations, their sustenance, processions and meetings is prohibited.

(2) The public show of same sex amorous relationship directly or indirectly is prohibited.

In order to ensure total control from the act, section 5 of the Act provides an appropriate punishment for people engaging in homosexuality or same sex marriage. The section reads:

(1) A person who enters into a same sex marriage contract or civil union commits an offence and is liable on conviction to a term of 14 years imprisonment.

Subsection 2 of the section further prohibits public show of same sex marriage amorous relationships with the punishment of 10 years imprisonment for whoever found guilty by providing that:

(2) A person who registers, operates or participates in gay clubs, societies and organisation, or directly or indirectly makes public show of same sex amorous relationship in Nigeria commits an offence and is liable on conviction to a term of 10 years imprisonment.

With this provision, however, some people in Nigeria still makes public show of same sex amorous relationship, participates in gay clubs and displays as a gay but, i have not know why law is yet to take its full wrath upon this people; a case study of Bobrisky.

Subsection 3 makes it an offence to administers, abets or aids the solemnization of same sex marriage, civil unions, or supports the registration, operation and sustenance of gay clubs, societies, organizations etc, and whoever found guilty is liable on conviction to a term of 10 years imprisonment.

COURT WITH JURISDICTION TO ENTERTAIN MATTERS ON HOMOSEXUAL/SAME SEX MARRIAGE AFFAIRS IN NIGERIA

Jurisdiction is a constitutionally guaranteed power or authority upon a court of law to hear and determine a matter before it. It is not a gainsaying, with the above therefore, to state that, laws governing  same sex relationship in Nigeria are the Same Sex Marriage (Prohibition) Act, 2013 and other relevant laws i.e Criminal Code of the Southern Nigeria. Under the Same Sex Marriage Act which is the principal legislation in same sex marriage affairs, jurisdiction is conferred on the High Courts of the States and the Federal Capital Territory to hear and determine homosexual matters. This got statutory mercy under section 6 of Same Sex Marriage (Prohibition) Act, 2013 which provides that:

  1. The High Court of a State or of the Federal Capital Territory shall have jurisdiction to entertain matters arising from the breach of the provisions of this Act.

CONCLUSION

It can be safely put that same sex marriage/homosexuality is sinful, immoral and illegal in the world. Notwithstanding its recognition in some part of the world, the provisions of the law that legalized it cannot make it a moral and cannot cleanse it from being sinful in nature.

The aforesaid is evident in the 7 of Lord Dennig’s most controversial comments where Lord Dennig MR, during a parliamentary debate in England described homosexuality as a cult. Adding that it should not be allowed to be equated with heterosexuality in the land. He stated that homosexuality is a promiscuous exhibition and reservoir of venereal diseases to which he suggested that this should stop them being appointed as judges. This is because, history had it in England that there was a judge (Sir Terence Etherton), a Master of the Rolls, who was openly gay. This is to show that Lord Dennig MR was, then, endeavoring to preserve the moral and values of the people of England despite its legality.

The enactment of Same Sex Marriage (Prohibition) Act, 2013 in Nigeria is a clear indication that the country’s law is in total contradiction to the act. Section 214 of the Criminal Code of the Southern Nigeria forbids any offence against morality like that which is not in conformity with the order of nature.

Islam and Christen are the two dominant religion in contemporary time with the Quran and Bible, the sacred books for guidance. The two books, without contradiction, prohibit the act yet, the followers of the duo religions are found performing the prohibited act.

With the right guidance given in both Quran and Bible regarding this act, if either a Muslim or Christian is found doing the act even though it is recognise in his country, his faith regarding his religion should be put into consideration because, only a believer with low faith in his or her religion will go against the dictate of the two books.

In Nigeria, the act is outrightly forbidden by law in conformity with the provisions of the duo books that render it sinful. This makes it impossible for a sane person to come up with excuse either under the law or religion. The act is criminal in nature and the punishment is 10 years imprisonment, therefore, the only Court in Nigeria that has jurisdiction to try the offence is the High Court of a state or of the Federal Capital Territory.

Hossein Saheed aka H. A. Saheed, Law Student, Faculty of Law, Al-hikmah University, Ilorin, Nigeria

+2347030265309.

[email protected]

REFERENCES

  1. Same Sex Marriage (Prohibition) Act, 2013
  2. Criminal Code of Northern Nigeria
  3. The holy Qur’an
  4. The holy Bible
  5. Sunnan Abu Dawud
  6. Https://legal.check.com.ng
  7. Https://thetaskforce.org

8. Https://nigeriannewsdirect.com