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Detailed Background

On 19 January 2006, Justice Minister and Attorney-General, Chief Bayo Ojo, presented to the Federal Executive Council of Nigeria an “Act to Make Provisions for the Prohibition of Relationship Between Persons of the Same Sex, Celebration of Marriage by Them, and for Other Matters Connected Therewith.”

The bill has since been approved by the Federal Executive Council and is now before the National Assembly.  It is expected to be passed and become law shortly.

Under the bill, a penalty of five years imprisonment will be imposed on any person who “goes through the ceremony of marriage with a person of the same sex,” or who “performs, witnesses, aids or abets the ceremony of same sex marriage,” or who “is involved in the registration of gay clubs, societies and organisations, sustenance, procession or meetings, publicity and public show of same sex amorous relationship directly or indirectly in public and in private.”

Anything deemed to acknowledge, support, condone, acquiesce, endorse or promote a “same-sex amorous relationship” or gay people’s welfare and human rights will become illegal.

Already, Chapter 42, section 214, of Nigeria’s criminal code penalises consensual homosexual conduct between adults with 14 years' imprisonment.  This law was originally introduced by the British colonial administration in the nineteenth century.

In addition, Sharia law, which was introduced in northern Nigeria in 1999, criminalises ‘sodomy’ in Chapter III “Hudud and Hudud related offences”, Part III “Sodomy (Liwat)”, Section 128-129 of the Kano State Shari’a Penal Code Law 2000.

By criminalising the peaceful expression of gay identity and any association in furtherance of lesbian and gay welfare and rights, the bill strikes at the fundamental freedoms previously enjoyed by the people of Nigeria – providing a dangerous precedent that could be used to later target and restrict the rights of other minorities and human rights advocates.

The Bill Contravenes International Law

The new law undermines fundamental freedoms protected under international law.

The African Charter on Human and Peoples’ Rights affirms the equality of all people:

Article 2 states: “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.”

Article 3 enshrines equality before the law.

Article 26 says: “Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.”

The International Covenant on Civil and Political Rights (ICCPR), to which Nigeria acceded without reservations in 1993, protects the rights to freedom of expression (article 19), freedom of conscience (article 18), freedom of assembly (article 21), freedom of association (article 22), and affirms the equality of all people before the law and the right to freedom from discrimination (articles 2 and 26).

In the historic, landmark 1994 legal case of Toonen v Australia, the United Nations Human Rights Committee, which monitors the compliance of member states with the ICCPR, ruled that sexual orientation should be understood to be a status protected from discrimination under these ICCPR articles.  States cannot therefore legitimately limit the enjoyment of human rights on the basis of sexual orientation.

The UN Human Rights Committee has since urged states not only to repeal laws criminalising homosexuality but to also enshrine the prohibition of discrimination based on sexual orientation into their constitutions or other fundamental laws.

This new bill, if passed, would seriously restrict essential freedoms, as well as the activities of human rights defenders and members of civil society.

The United Nations Declaration on Human Rights Defenders states in article 5 that:

“everyone has the right, individually and in association with others, at the national and international levels:

a) to meet or assemble peacefully;

b) to form, join and participate in non-governmental organizations, associations or groups."  Article 7 of the declaration affirms that "Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance.”

Indeed, the Special Representative of the U.N. Secretary General on Human Rights Defenders has specifically called attention to the “greater risks ... faced by defenders of the rights of certain groups as their work challenges social structures, traditional practices and interpretations of religious precepts that may have been used over long periods of time to condone and justify violation of the human rights of members of such groups. Of special importance will be ... human rights groups and those who are active on issues of sexuality, especially sexual orientation.” (“Report of the Special Representative to the Secretary General on human rights defenders”, UN Doc. E/CN.4/2001/94 (2001), at 89g)

■ My thanks to the International Gay and Lesbian Human Rights Commission for providing research and information for this background briefing.

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