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When Love is a Crime: Is the Criminalisation of Same Sex Relations in Nigeria a Protection of Nigerian Culture?

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Abstract

Even though studies suggest that people do not have a choice about their sexual orientation since it is innate in them, some African countries including Nigeria continue to criminalise same sex conduct between two consenting adults. Before the administration of President Goodluck Jonathan passed the Same Sex Marriage (Prohibition) Act 2014 into law in Nigeria, there have already been laws in the country criminalising sexual relations between persons of the same sex. It appears that the Act of 2014 was motivated to show a resolve by the Nigerian government to clearly point out to certain sections of the international community, who at that time were lobbying for the decriminalisation of same sex relations in the country, that there was no intention by the Nigerian state to cave into any such demand. This paper re-examines the prohibition of same sex relations in Nigeria with a focus on whether the laws protect the culture of the Nigerian people or the moral ideals introduced by religion.

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Notes

  1. AFP (2018).

  2. Ibid. See also Buchan (2018).

  3. Eyoboka et al. (2018).

  4. Ibid.

  5. Tshabalala (2015).

  6. Mabvurira and Motsi (2012).

  7. The Penal Code, modelled after the Criminal Code of Sudan was introduced to address the concerns of the northern part of Nigeria which criticised the Criminal Code which introduced in 1916 for being suitable for a Christian society.

  8. Section 407 of the Penal Code.

  9. Alimi (2015).

  10. Ibid.

  11. See Cantu (1999).

  12. Anderson (2007).

  13. Du Plessis (2014).

  14. Alozie et al. (2017).

  15. Smith (2014).

  16. Being alien to African culture.

  17. Vincent and Howell (2014).

  18. Nyanungo (2014).

  19. Schwummer (2003).

  20. Murray (2000).

  21. Sexual Minorities Uganda (2014).

  22. Beyers (2017).

  23. Spencer-Otey (2012).

  24. Geertz (1973) at 89.

  25. Bonney (2004) at 25.

  26. Ibid.

  27. Jacob Beyes, op cit (note 22) at 8.

  28. Richard Bonney, op cit (note 25) at 27.

  29. Ibid at 30.

  30. Vaughan (2016)

  31. See Section 10 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which prohibits the adoption of state religion by any government in the country.

  32. van Klinken (2016).

  33. Ibid.

  34. Ibid.

  35. Saalih al-Munajjid (2018).

  36. Huda (2018).

  37. Ibid.

  38. Ibid.

  39. These are Zamfara, Bauchi, Kebbi, Jigawa, Sokoto, Kaduna, Kano, Niger, Borno, Gombe, Katsina and Yobe.

  40. Human Dignity Trust (2015).

  41. Dickson (2014).

  42. The law criminalises same sex marriages and civil unions of persons of the same sex. It also proscribes the free association of any persons through so-called gay organisations (Section 6).

  43. Gander (2017).

  44. Ibid.

  45. Beresford (2017).

  46. Zweynert (2017)

  47. Ibid.

  48. Human Dignity Trust op cit (note 29).

  49. Alturi (2016).

  50. Silas Obinna Okuefuna, ‘LGBT and the Law: Protecting the Rights of Minorities in Nigeria’ (2016) Unpublished Masters Dissertation, University of Eastern Finland at 1.

  51. Akogun (2011) at 1.

  52. The notion that homosexuality is un-African and against African or Nigerian culture has been debunked earlier.

  53. See Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

  54. Section 33 (as above).

  55. Section 34 (as above).

  56. Section 37 (as above).

  57. Section 40 (as above). It is pertinent to note that the Same Sex Marriage (Prohibition) Act 2014 which outlaws the formation or membership of a gay club is a direct violation of this right.

  58. Section 42 (as above).

  59. Signed on 31 August 1982 and ratified on 22 June 1983.

  60. Deposited on 29 July 1993.

  61. Deposited on 29 July 1993.

  62. Signed on 28 July 1988 ratified on 28 June 2001 by the federal government of Nigeria.

  63. There is currently no law in Nigeria that is anti-transgender. However, it is possible that the Nigerian state may prosecute a transgender person if they had sexual intercourse with a person of their original gender.

  64. See Rights of Sexual and Gender Minorities available at https://www.hrc.co.nz/files/1914/2388/0525/HRNZ_10_rights_of_sexual_and_gender_minorities.pdf accessed 26 April 2018.

  65. Robert Mugabe quoted in Maguire (2004).

  66. Quoted in Hepple (2012).

  67. Article 3 Universal Declaration of Human Rights; Article 6 International Covenant on Civil and Political Rights.

  68. United Nations (2012)

  69. Section 37 of the 1999 Constitution.

  70. Section 38 of the 1999 Constitution.

  71. Section 39 of the 1999 Constitution.

  72. Section 40 of the 1999 Constitution.

  73. Article 2 ACHPR.

  74. Aribisala (2014).

  75. Ibid.

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Authors and Affiliations

  1. Centre for Comparative Law in Africa, Faculty of Law, University of Cape Town, Cape Town, South Africa

    Augustine Edobor Arimoro

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  1. Augustine Edobor Arimoro
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Correspondence to Augustine Edobor Arimoro.

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Arimoro, A.E. When Love is a Crime: Is the Criminalisation of Same Sex Relations in Nigeria a Protection of Nigerian Culture?. Liverpool Law Rev 39, 221–238 (2018). https://doi.org/10.1007/s10991-018-9217-y

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  • DOI: https://doi.org/10.1007/s10991-018-9217-y

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