Introduction
Nigeria is not a pluralist state from the point of view of legislation relating to same-sex activities.Footnote 1 Before the enactment of recent legislation outlawing same-sex marriages, the issue of potential conflict of laws about same-sex marriages was not apparent. This is true particularly in light of the application of the Criminal Code and Penal Code in the Southern and Northern parts of Nigeria respectively.Footnote 2 Historically, issues of same-sex activities have generally been regulated by statutes, except that states in Northern Nigeria, where sharia law is applicable, may apply other, stiffer punishments. Consequently, it is not contradictory that the operation of the provisions of the criminal statutes on homosexuality prohibits states in Nigeria from making laws regarding same-sex marriage and / or civil unions for themselves. But Nigerians may migrate to other countries, like South Africa, America or the United Kingdom, and establish a new residence, and may contract a same-sex marriage in that country.Footnote 3 Hence, the Same-Sex Marriage (Prohibition) Act 2013 (SSMPA) is legislation that, apart from expressly prohibiting same-sex marriage or the civil union of same-sex partners in Nigeria, also declares such arrangements void if they were validly contracted in a foreign country.Footnote 4
Despite international criticism of Nigeria before and after the enactment of the SSMPA, international law nevertheless recognizes the sovereignty of states to determine applicable domestic law on subject matters such as same-sex marriage, gender and sexuality.Footnote 5 To this end, international law supports democratic self-governance by limiting advanced and industrialized nations from foisting their world views on less powerful countries during treaty negotiations. This has been made possible using limitation clauses or moral provisions, the objective of which is to secure the greatest state participation and ratification during the period when a particular human rights treaty regime is open for signature.Footnote 6
The issue of same-sex marriage, though not recognized under treaty regimes, may still raise valid concerns that implicate the interest of another country due to the movement of national(s) of one country to another. Thus when different value systems come into conflict on the issue(s) of the benefit accruing from foreign same-sex marriage, for instance, conflict of laws analysis should serve as a doctrinal tool for determining the extent of legitimate interest or public policy of the enforcing forum. In cases with a tenuous link with another forum, it would be consistent with comity or international public policy to suspend, albeit temporarily, the domestic public policy of the enforcement forum even if it is expressly codified in a statute. Such may be the case with the provision of section 1(2) of the SSMPA, which provides that “[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 there-from by virtue of the certificate shall not be enforced by any court of law”. However, courts in cases with strong links with Nigeria should not serve as a forum for the recognition of rights and benefits accruing from same-sex unions, since there is no res or subject matter for the court to address or enforce. Again, countries that prohibit same-sex marriage and the benefits accruing from it invariably have criminal laws and penal sanctions affixed as a consequence of homosexuality. In addition to the Nigerian Criminal and Penal Codes, the SSMPA also contains provisions expressly linked to the offence of homosexuality. For example, section 4 provides that “(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.” While the effect of non-recognition of the benefits of same-sex marriage under section 1(2) of the Act may produce adverse implications in the transnational context, the prohibition of registration of gay clubs or organizations, and other criminal legislation against homosexuality, may negatively affect homosexual individuals in Nigeria in a significant manner. Therefore the importance of public policy limitation in light of the foregoing issues cannot be overemphasized. This article aims to ascertain the importance of public policy limitations with respect to the issues of the non-recognition of the benefits accruing from same-sex marriage and the prohibition of registration of gay clubs and organizations under the SSMPA.
First, a strict application of the rule of non-recognition of same-sex marriage (or civil union), including the benefits attached to such relationships, may produce absurd results in certain circumstances that may involve foreigners or immigrants in Nigeria. Second, the prohibition on registration of gay clubs violates freedom of association, which is guaranteed under the Nigerian Constitution and the African Charter on Human and Peoples’ Rights. Even though Nigerian courts may rationalize the prohibition of the registration of homosexual clubs and bars on the grounds of concepts such as public policy or morality, the slippery nature of such concepts may lead a judge to arrive at a decision that does not approximate the legitimate interest of the government. Further, the limitation clause relating to freedom of association under the African Charter is poorly designed to provide certainty and predictability to a system that ought to have allowed homosexual individuals to organize their basic affairs with a degree of confidence concerning where that will or will not render them subject to prosecution. This consideration is necessary because of the nexus between the Nigerian Constitution and the African Charter.
Hence this article examines the legal framework governing sexual minority rights under the SSMPA regime from a conflict of laws perspective. Following the introduction, the next part provides a brief historical background of laws governing homosexual rights in Nigeria. The second section discusses the SSMPA and its clash with provisions of the African Charter, particularly as the latter relates to the question of public policy. The third part discusses conflict of laws approaches to questions of the transboundary implications of the extant legal provisions governing laws about same-sex relationships in Nigeria; this provides a theoretical approach for determining when and why it would be unreasonable for a Nigerian court to raise the issue of public policy in denying the benefits accruing from foreign same-sex marriage in some situations.Footnote 7 This will be examined within the context of cases with strong and weak connections. Before the conclusion, the fourth part examines judicial attitudes to homosexuality in Nigeria and recent developments in Nigerian jurisprudence on the matter, particularly the judgment in Registered Trustees of the Initiative for Equal Rights v Federal Republic of Nigeria and Anor.
The historical context of sexual minority rights and legislation in Nigeria
Several authors have offered critical insights into the historical context surrounding the enactment of the SSMPA and the general cultural and political attitudes towards the legislation, which has been the subject of an outcry locally and internationally.Footnote 8 The Nigerian context of the history of and cultural attitudes towards homosexuality is complex and has spanned a long period, starting from the colonial era.Footnote 9 This has complicated the political landscape, making any potential discussion about the harshness of the law a Herculean aspiration. The earliest laws on sexual minorities in the area now known as Nigeria are traceable to the consolidated Criminal Code enacted by the British colonial government in 1916. This code was adapted from Australia’s Queensland Criminal Code, itself based on the codified English Criminal Code, which was then first received into Nigeria at the colony of Lagos.Footnote 10 Like the extant Nigerian Criminal Code, the Queensland Criminal Code has terms such as “against the order of nature”.Footnote 11 The language and spirit were in tandem with Victorian-era morality, particularly the discrimination in legal consequences following from male-on-male and male-on-female sex acts. Later, in 1958 and 1959, “sodomy” provisions were enacted by the regional government of the predominantly Muslim Northern Nigeria region, under a Penal Code derived from the colonial Indian Penal Code, although the Criminal Code continued to operate in the Southern region.Footnote 12 The outlawing of sexual minorities continued after independence, as the states that succeeded these two regions continued to use variations of the two codes as the basis for their criminal laws. Despite these statutory provisions being an embodiment of the prevalent British moral standard at the time, rather than the moralities of Nigeria’s foundational societies,Footnote 13 the independent Nigerian state did not attempt to correct course.Footnote 14 The postcolonial Nigerian state, however, adopted a republican Constitution in 1963 that set out clauses protecting fundamental rights, including freedom from discrimination based on sex, although no specific provisions were included for LGBT+ related issues.Footnote 15
Nigeria’s military dispensations and civilian administrations have maintained this colonial legislative blueprint to date, occasioning a general lack of concern towards the rights of sexual minorities.Footnote 16 If anything, attitudes about same-sex rights have remained draconian, inconsiderate and unjust, with political leaders choosing to slant towards sentiments reflecting religiously extreme views in the predominantly Muslim North and Christian South.Footnote 17 This has often been found to be the easier approach to avoid the possibility of incurring the wrath of influential political demographics in a country where the political process is greatly impacted by religion and ethnicity.
The Nigerian legal landscape is replete with legislation criminalizing same-sex relations at the federal and state levels, either inherited from colonial times or enacted after Nigeria’s independence in 1960 by domestic legislatures.Footnote 18 The most pertinent federal laws are the Criminal Code Act (enacted in 1916), the Penal Code (Northern States) Federal Provisions Act (1960), the Armed Forces Act (1993) and the Same-Sex Marriage (Prohibition) Act (SSMPA) (2014). At the state level, some of the better-known laws are the Sharia Penal Code Law (adopted in 12 predominantly Muslim states in the North), the Same-Sex Marriage (Prohibition) Law of Lagos State, the Prostitution and Immoral Acts (Prohibition) Law of Kano State, and the Prostitution, Lesbianism, Homosexuality, Operation of Brothels and Other Sexual Immoralities (Prohibition) Law of Borno State. This legislation offers a variety of prohibitions on same-sex relationships, particularly between men. Some worthy of mention include the federal Criminal Code Act, which provides that a person who is found guilty of having “carnal knowledge of any person against the order of nature; or … permits a male person to have carnal knowledge of him or her against the order of nature” is liable to 14 years’ imprisonment.Footnote 19 The Criminal Code further penalizes “any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him”.Footnote 20
At the subnational level, state laws, even though they have less territorial application, also subvert the rights of sexual minorities. One such example is the Prostitution, Lesbianism, Homosexuality, Operation of Brothels and Other Sexual Immoralities (Prohibition) Law of Borno State (2000), which provides thus:
“(3) Any person who engages in prostitution, lesbianism, homosexual acts or pimping in the State commits an offence. …
(7) Any person who engages in sexual intercourse with another person of the same gender shall upon conviction be punished with death. …
(10) Any person who screens, conceals, harbours or accommodates a prostitute, lesbian or homosexual person commits an offence and shall on conviction be liable to imprisonment for a term of one year or twenty-five thousand naira (N25,000.00) fine or to both such fine and imprisonment.”
As we shall see in the analysis below, these laws clash with some provisions of the 1999 Constitution of the Federal Republic of Nigeria within the context of the Bill of Rights contained in its chapter IV. This Constitution provides for, among other rights, the rights to privacy, assembly and association, expression and freedom of conscience.Footnote 21 Nigeria has also ratified and domesticated the major international human rights laws, including the African Charter, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.Footnote 22
The SSMPA for its part carries on the colonial legacy of outlawing same-sex partnerships and any form of association. In what is the most recent and most severe attempt at criminalization of sexual orientation, gender identity and related issues, the Act contains, inter alia, the following provisions:
“(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.
(2) A person who registers, operates or participates in gay clubs, societies and organisation [sic], 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.
(3) A person or group of persons who administers, witnesses, abets or aids the solemnization of a same sex marriage or civil union, or supports the registration, operation and sustenance of gay clubs, societies, organisations, processions or meetings in Nigeria commits an offence and is liable on conviction to a term of 10 years imprisonment.”Footnote 23
Sections 1 and 2 of the SSMPA prohibit and deny official recognition to same-sex marriages or civil unions in Nigeria respectively. Section 7 defines same-sex marriage as “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”. It further defines a civil union as “any arrangement between persons of the same sex to live together as sex partners, and includes such descriptions as: (a) adult independent relationships; (b) caring partnerships; (c) civil partnerships; (d) civil solidarity pacts; (e) domestic partnerships; (f) reciprocal beneficiary relationships; (g) registered partnerships; (h) significant relationships; and (i) stable unions”.Footnote 24 Furthermore, section 5 criminalizes same-sex marriages or civil unions and the actions of persons who administer, witness, abet or aid same-sex marriages or civil unions or promote same-sex activities. The foregoing provisions are indeed far-reaching in terms of the criminalization and limitations they impose on the rights of same-sex partners to marry, as well as the denial of their social benefits to freely associate. In this way, an international human rights organization, the Human Dignity Trust, posits that “the definition of the types of relationships regulated by the SSMPA is broader than mere marriage and could capture any type of committed, caring and emotional partnership of same-sex people who happen to be living together”.Footnote 25 The SSMPA also criminalizes several activities associated with homosexual identity, including free association through “gay” organizations. This includes prohibitions on registering gay clubs, societies and organizations and their sustenance, processions and meetings, or the public showing of same-sex amorous relationships directly or indirectly.Footnote 26
Consequently, it appears that these provisions not only confront the principle of equality, but place limitations on the constitutional and African Charter rights of Nigerian citizens and persons lawfully living in Nigeria to be free from discrimination, to enjoy private and family life, to freely associate and to be free from human indignity.Footnote 27 Therefore it is important to discuss the relationship between the Nigerian Constitution and the African Charter; only with a broad picture of this nexus can we understand the superiority of the Charter over and above any other domestic legislation, such as section 4 of the SSMPA and decisional practices that may be inconsistent with the Charter.
The SSMPA and its clash with the Nigerian Constitution and the African Charter
The African Charter is considered Africa’s most significant legislative instrument relating to human rights at the regional level.Footnote 28 It is designed to enable domestic courts to advance effective means for promoting and enforcing human rights and should accordingly facilitate the protection of the human rights of citizens irrespective of their sexual orientation. Unlike the United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), the African Charter and its provisions do not provide compulsory, absolute and comprehensive substantive rules directed particularly to national courts for the recognition and enforcement of the human rights of individuals in a society.Footnote 29 To this end, it is not self-executing and therefore is not directly applicable in national courts except with the interposition of domestic executing legislation.Footnote 30 This is evident in article 1 of the Charter, which provides that “member states … shall recognize the rights, duties and freedoms enshrined in this Charter and shall undertake to adopt legislative or other measures to give effect to them”.
Nigeria domesticated the African Charter in 1983, in accordance with section 12 of the 1979 Constitution.Footnote 31 Thus the Charter has the “full force of law” in Nigeria and is inseparable from the Constitution of the Federal Republic of Nigeria (1999) as amended.Footnote 32 In Topba v FRN, the Court of Appeal held that:
“Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the African Charter on Human and Peoples’ Rights (Ratification & Enforcement) Act can never be effectively divorced from each other in the event of seeking the enforcement of the human rights of persons. The African Charter on Human and Peoples’ Rights[,] as it were, is an offspring of Chapter IV of the Constitution and owes its existence to it.”Footnote 33
The domestication of the African Charter thus creates a new set of private rights of action which homosexual individuals can invoke in Nigerian courts. It is immaterial that the Nigerian Constitution does not contemplate those rights to the same degree as the African Charter. Although no international or regional treaty may violate existing constitutionally guaranteed rights, it may create new contracts above those that the Federal High Court or the Supreme Court of Nigeria had previously enforced. Thus the fact that in Pamela Adie v Corporate Affairs Commission, the Federal High Court refused to extend the constitutional freedom of association to the claimant, whose application for registration of the Lesbians Equality and Empowerment Initiative was rejected by the Corporate Affairs Commission (CAC) on the ground that the application violates section 4 of the SSMPA, does not resolve the issue of whether the African Charter protects such a request under its express freedom of association provision.Footnote 34 As a binding legal instrument, the provisions of the African Charter or the cases interpreting those provisions supersede inconsistent national law, such as section 4 of the SSMPA, which prohibits the registration of homosexual clubs and organizations.
The foregoing has been espoused by case law which makes a notable pronouncement on the responsibility of the Nigerian government not to make laws that violate the provisions of the African Charter. In Abiola v Abacha, the court held that:
“The Government of Nigeria cannot deliberately enact laws in contravention of its fundamental undertakings and obligations. Therefore, the courts must interpret domestic statutory laws in a way as is compatible with states’ responsibility not to be in breach of international laws as laid down by law creating treaties, conventions, agreements, protocols, whether of the United Nation Organisation or the Organisation of African Unity.”Footnote 35
The limit(s) of the right to freedom of association under the African Charter
Certain human rights under the African Charter are subject to limitation clauses that allow state parties to rely on domestic law provisions to deny a citizen the enjoyment of such rights in some situations.Footnote 36 For example, article 11 provides that “[e]very individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.” The limitation clauses aim to protect the private or public interest (public policy) of the state. In the light of the limitation clauses under article 11, room may exist for restrictions on the right to assembly, on legitimate grounds of national security, safety, health and the rights and freedoms of others, but the same cannot be said about ethics, which is synonymous with morality or public policy. In this vein, violations of public policy will defeat the recognition of rights, regardless of the consensual nature of parties’ sexual activity within the forum whose norms have been violated. Notwithstanding, the problem with public policy lies in its elasticity and the possibility for mischief in determining the state’s interest concerning the rights of sexual minorities and their external association.Footnote 37 Even though it is inconceivable in present Nigerian society to expect a court to recognize a consensual public display of homosexual activity (or even a consensual public display of heterosexual activity), the “public policy” shibboleth exists as a tool which potentially denies homosexuals freedom of association.Footnote 38
An alternative to the provisions of the African Charter that seek to protect the rights of individuals, particularly as it affects the right of homosexuals’ freedom to freely associate and assemble, is article 17(3) of the Charter, which provides that the promotion and protection of morals and traditional values recognized by the community shall be the duty of the state. This provision can be problematic, in that it offers states an avenue through public policy to be able to stymie the rights of minorities, in this case homosexuals. However, it remains to be seen if courts can toe the line of the inviolability of the right to freedom of association as an inalienable right, which is being recognized by most advanced democracies.
While the scope of the public policy (limitation clause) underlying the relevant articles of the Charter is inward-looking, article 61, on the other hand, is outward-looking, as it directs member states to, among other things, take “into consideration … legal precedents and doctrine” during the interpretation of limitation clauses.Footnote 39 Thus the prospect of limitation clauses has in practice been restricted by the doctrines that various international human rights adjudicatory bodies have embraced in determining the scope of such clauses. However, doctrines such as the “necessity principle” or the “margin of discretion” are not just poorly designed but also give overly broad discretion to judges, the mixture of which may provide little guidance for courts and such like, and therefore little or no predictability for homosexual individuals.Footnote 40
Given the absence of a clear solution under the African Charter, identifying a state’s legitimate interest in matters of same-sex activity generally should be fact-dependent and within context. For instance, each case may present a peculiar fact and should thus be determined by harmonizing the Nigerian treaty obligation with the underlying ideal and objective of the bill of rights contained in the Constitution, both of which are presumably founded on values such as non-discrimination and equality.Footnote 41 The ultimate question is whether the prohibitions on the registration of gay clubs and organizations and the criminal sanctions against consensual homosexual affairs have a justifiable connection to a legitimate government purpose. If the answer is negative, then those prescriptions directly infringe on certain guaranteed rights of homosexuals under the Constitution and the relevant treaty regime. This will be discussed under the following illustrative scenarios that will serve as a guide or approach in determining whether the interest of the Nigerian government is legitimate or not in certain prohibitions of same-sex activities.
The state’s permissible interest
There may be situations when it is both proper and necessary to invoke the limitation clause (public policy) or for states to become involved in regulating consensual sexual activities; the state’s involvement is anticipated and accepted in such situations. As a matter of course, the difficulty with such a process lies in differentiating proper kinds of state involvement from improper ones and ascertaining the best possible way to reduce or put an end to the latter. It follows that the problem with a system that criminalizes harmless conduct (such as private sexual relationships and prohibition of the registration of gay clubs) is that it often does not specify the preconditions below which a state’s interference on the ground of public policy or morality would be inadequate or unjustifiable in protecting the reasonable and legitimate interest of members of the public.Footnote 42
In some instances, state interference serves to prevent sexual activities that might otherwise be considered harmful to a party or the integrity of the state. Such kinds of permissible interference might be classified as borderline incursion, as they comply with both the tenets of international human rights law and the principles fundamental to public and private approval of international and regional human rights regimes. Examples include a government prohibition on public advocacy of homosexuality or where police upon credible intelligence invade a residence where consensual adults are engaging in sadomasochism.Footnote 43 Here, state concern is legitimate, since the intervention is to protect the interest of minors and the right to life and dignity of human persons respectively. Regarding the latter, it suggests that the right to privacy under section 37 of the Constitution is not absolute but subject to section 45(1), which provides that “[n]othing in section 37 … of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of … public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons”.
The state’s impermissible interest
Other kinds of state involvement are unwarranted and may be classified as borderline intrusion. Such intrusion is of two kinds: first, where legislation makes a distinction by prohibiting certain public or private activities which if performed by homosexuals attract a certain penalty, whereas activity of an identical nature is not prohibited or penalized if it is performed by heterosexual persons. A good example from a public activity point of view is section 4 of the SSMPA, which criminalizes the registration of gay clubs and organizations (and public display of same-sex amorous relationships).Footnote 44 This kind of prohibition ignores the constitutional guarantee of equality before the law, under section 42 of the Constitution, without legitimate justification.Footnote 45 It also flagrantly violates the freedom of association which every Nigerian (including homosexuals) is entitled to enjoy under sections 39 and 40 of the Constitution.Footnote 46
It is arguably a parochial perspective to hold that the sole purpose of gay clubs or organizations is for the promotion of same-sex activities.Footnote 47 On the contrary, homosexual individuals may wish to use their association or club as a medium for engaging in peaceful advocacy for health concerns.Footnote 48 It is worth mentioning that article 25 of the African Charter provides that “[s]tate parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights, as well as corresponding obligations and duties, are understood”. A plausible argument in this respect is to interpret this provision as being inherently attuned to the need for public rights and health advocacy by homosexual groups. They may also desire to use their club for a socio-political agenda towards prevailing on the public the harmlessness and legitimacy of their claims. To this end, it would be homophobic for the government to invoke the public policy shibboleth concerning matters of peaceful advocacy that find a basis in the principle of the right to freedom of speech and assembly.Footnote 49
Another example from a private activity point of view is the proscription of consensual private same-sex intercourse between adults. Before the enactment of the SSMPA, about 12 states in Northern Nigeria passed the Sharia Penal Code, which imposes the death penalty for consensual private homosexual affairs. The mere existence of the death penalty for the offence of homosexuality constantly and (in)directly impedes certain fundamental rights of homosexuals, and it strongly suggests that the likelihood of contravention of those rights is expected or probable.Footnote 50 If the police or other security agencies learn that an individual is homosexual or is allegedly participating in homosexual activity, those individuals are very likely going to suffer unlawful arrest, prolonged detention in police custody and continual blackmail. The death penalty also violates the unambiguous provisions of article 4 of the African Charter and article 3 of the UDHR, of which there is a consensus, albeit implicitly, that their applicability is only restricted to serious offences such as murder. The irrationally discriminatory purpose of criminalizing certain same-sex activities and not proscribing their heterosexual equivalents is no doubt invidious and reveals utter prejudice and the tragic implications of such a prohibition. The consequence is obviously humiliating and detrimental to self-discovery and self-expression.
The second kind of borderline intrusion is where a national court adopts extremely parochial interpretations of sodomy laws, contrary to constitutional provisions and applicable human rights treaties as well as modern decisional practices under those treaties. Those decisional practices, for instance, have struck down the criminal prohibition on adult consensual homosexual sex by finding justification to do so within the constitutional law of the state instead of an obligation arising under international law.Footnote 51 For example, in National Coalition for Gay and Lesbian Equality (NCGLE) v Minister of Justice, Justice Ackermann of the South African Constitutional Court struck down section 20a of the Sexual Offences Act that criminalized same-sex intercourse between adult males as being inconsistent with the South African Constitution.Footnote 52 In a suit of a similar nature, the High Court of Botswana, in Letsweletse Motshidiemang v State in June 2019, held in a unanimous decision that the sodomy laws of the country violate the country’s constitutional rights to privacy, liberty and dignity. The president of the Court of Appeal, Ian Kirby, in affirming the decision of the trial court, held that “those sections [of the penal code] have outlived their usefulness, and serve only to incentivise law enforcement agents to become keyhole peepers and intruders into the private space of citizens”.Footnote 53
On 4 October 2023, the Supreme Court of Mauritius, in Abdool Ridwan (Ryan) Firaas Ah Seek v The State of Mauritius, struck down section 250(1) of the Mauritius Criminal Code of 1838, as it held that the constitutional prohibition on discrimination based on sex also contemplates sexual orientation. Also, in 2003, the United States Supreme Court in Lawrence v Texas ruled in a majority decision that criminalizing consensual sexual conduct between two homosexuals was unconstitutional and a breach of the right to privacy.Footnote 54 In contrast, the Nigerian court in Pamela Adie may have missed the chance to strike down section 4 of the SSMPA as being discriminatory and also a violation of freedom of association under the Nigerian Constitution and to that extent impermissible in a democratic society. Fundamentally, the criminalization of homosexual activities should not be used to usurp the duty of a court to interpret the Constitution in an unbiased manner and not by the benchmark of majoritarian private moral judgement.Footnote 55
It is also noteworthy that the provisions of the African Charter on non-discrimination and equality before the law, the right to life and liberty, the right to freedom of expression and association, and the right to privacy under article 12 of the UDHR are all declaratory of customary international norms.Footnote 56 A customary norm obligates all nations, as well as those that have not acknowledged it on the condition that they have not explicitly and consistently opposed its evolution.Footnote 57 Thus if the provisions of section 4 of the SSMPA are found by a court to be unconstitutional, then, a fortiori, it should be struck down not only for being a violation of the Nigerian Constitution but also for violating the norm of customary international law.
Conflict of laws approaches
Concerning Nigeria as a whole, there is no argument that the whole question of same-sex marriage is a uniform standard that is regulated by the SSMPA. However, the following section offers a normative analysis of the conflict of laws questions in various situations where a foreigner moves to Nigeria. The aim is to highlight where it may be necessary to calibrate the national standard to respect the concerns that bind the comity of nations without violating the public policy of the enforcement forum.
The choice of law rules on foreign marriages
As a general rule, the choice of law rule that determines the validity of a foreign marriage is the law of the place where parties were domiciled during the time of the marriage, unless that law violates the strong public policy of another forum which had the most significant relationship with the parties. Even though the interests of two countries are implicated in such a situation, more of a premium should be placed on upholding parties’ expectations for the purposes of predictability and certainty, but without necessarily placing these concerns at any advantage over the interest of another country that has a strong connection with the parties. Just as “the proper religion for each man, said an oracle of Delphi, is the religion of his fatherland”, this choice of law rule thus recognizes that the validity of an act depends on the law of the place where it is carried out– locus regit actum.Footnote 58 Such recognition in circumstances where the public policy of the enforcement forum is not implicated should also be accompanied by the benefits that usually go along with such acts (foreign marriages). The prohibition on same-sex marriages or civil unions of same-sex persons under the SSMPA is a demonstration of strong Nigerian public policy against homosexuality. Even though the Act does not recognize nor bestow benefits attached to such relationships validly entered into in a foreign country, conflict of laws analysis should be applicable in determining to what degree a foreign interest should be respected, notwithstanding the provisions of the Act.
In Nigeria, just like in England, rules about the validity of marriage for conflict of laws purposes are demarcated into two clear-cut categories: those relating to formal validity and those addressing essential validity.Footnote 59 The Marriage Act (MA) and Matrimonial Causes Act (MCA) in Nigeria regulate issues relating to the formal and essential validity of marriage respectively.Footnote 60 Though the MA and MCA do not indirectly recognize same-sex marriage, the SSMPA fills that gap, as it expressly provides under section 3 that “only a marriage contracted between a man and a woman shall be recognized in Nigeria”.Footnote 61 In essence, the SSMPA is the mandatory law in Nigeria that clearly regulates questions of the transnational effect of a same-sex marriage conducted in a foreign country. In the context of the non-recognition of benefits accruing from a same-sex marriage (or civil union) celebrated abroad, the question is whether there are situations where the Nigerian court may confer such benefits despite the prohibition under sections 1(2) and 3 of the SSMPA. Put differently, is there a basis for a party in a same-sex marriage validly conducted abroad to enjoy benefits, rights and privileges under the federal statutory provisions which make marital status a condition for those entitlements? The answer to the foregoing question will be illustrated with two scenarios referred to as cases with strong or weak connections, with each scenario presenting a different analysis and outcome.
Cases with strong connections
Someone from Nigeria who is living elsewhere cannot avoid the mandatory law of Nigeria – the forum that has the most important relationship with them – by validly celebrating a same-sex marriage in that foreign country. An illustrative scenario is a same-sex marriage of two Nigerians domiciled in Johannesburg, South Africa, and the parties’ later move to Nigeria where same-sex marriages are prohibited. Here, Nigeria is the forum with the most significant relationship to the spouses and the marriage during the time of the union. The pertinent question therefore is whether there are reasons for Nigeria to confer certain benefits of a marriage that is valid where it was celebrated but which could not possibly have been celebrated in Nigeria or would not be valid if celebrated there.
Nigerian policy against same-sex marriage is so strict that the wording of section 1(2) of the SSMPA mandates that a Nigerian court shall not privilege the union with any benefits. Nigeria would be free to assert its regulatory policies against same-sex marriage as a matter of course, to the detriment of the interests of the state of Johannesburg (and by implication South Africa) that permitted such marriage, even when Johannesburg was the domicile at the time of the marriage. Nigeria, whose benefit is now in question, can be said to be advancing its policy over that of South Africa – a usual occurrence in choice of law analysis. In other words, Nigeria is at liberty not to recognize the validity or benefits accruing from the marriage where such recognition contradicts its public policy. Under this scenario, it would be presumptuous to say that South Africa can extend its law on same-sex marriage to Nigerian partners who are seeking marriage benefits in Nigeria. Such may be tantamount to extraterritorial power, where foreign law interferes with the laws and policies of another country in a manner that offends the principle of sovereign equality and respect for local values which international law seeks to foster.
On the one hand, the national law of the enforcing forum should play a distinctive role in the determination of some enforcement questions relating to foreign same-sex marriages or civil unions relating to nationals of that forum. On the other hand, the national law of the place where the same-sex marriage was conducted cannot be used to replace the express mandatory provisions of another national law that belongs to a forum where recognition of the marriage or its benefit is being sought by nationals of that forum. It should be treated as immaterial that the parties had the capacity to enter into the marital union under foreign law, such as of Johannesburg, the other connected legal system in the validity of the marriage. Viewed from the point of view of the rule of public international law, the SSMPA provides a nationality basis for penalizing the conduct of Nigerians domiciled in foreign countries.Footnote 62
Further, the policy behind the SSMPA is also to prevent Nigerian nationals from evading their marriage laws with a view to celebrating a valid same-sex marriage abroad. The flipside to the Johannesburg example is where two same-sex Nigerians travel to Johannesburg to get married and later return to Nigeria. Based on the principle of fraus legis (fraude à la loi), then a fortiori it would be easy to assert that the Nigerian court would certainly not recognize the marriage and the benefits the marriage purports to confer.Footnote 63 To this end, the SSMPA is one piece of legislation that deals with the evasion of marriage laws in Nigeria, and the provisions should therefore apply to all Nigerians on moral, religious and political grounds, irrespective of their domicile. Generally, the Act regards the public and not the private interest as being at stake here, and Nigerian policy would notably be affected even in the scenario of a strong connection where the marital home of the partner is established abroad.
Cases with weak connections
Unlike the strong connection scenario above, cases with weak connections involve situations where the parties (foreigners) have contracted a same-sex marriage and continue to be domiciled in a foreign country which allows same-sex marriage. However, the transnational commercial transactions made possible by globalization have meant that individuals and investments have connections that are both more far-ranging and more transitory in nature than was ever the case in the past. To put it in context, a foreigner who is a spouse in a same-sex marriage may travel to Nigeria for investment purposes; s/he may wish to acquire land and / or property during his / her transitory stay in Nigeria and may subsequently die intestate. In such situations, a different choice of law rule should be applicable given the peculiar circumstances of the case.
In this example, Nigeria as an enforcing forum has a weak connection with the foreign same-sex partners and still less stake in the validity of the partner relationship.Footnote 64 Instead, the Nigerian court should enquire into its conflict rule by examining the law of the country where the parties were domiciled to determine their marital status; if their domicile would regard them as married, the judge should bestow on the surviving spouse the right to inherit the deceased’s property in Nigeria, a benefit that it would ordinarily grant to its citizens. Because the foreign surviving partner does not desire to establish a residence within the relevant lex fori, Nigeria has no interest in advancing its public policy with regard to the encouragements that bestowing benefits may have upon the parties’ valid relationship.Footnote 65 After all, the obvious and acknowledged purpose of the SSMPA is to prevent marriage contracts or civil unions of persons of the same sex in Nigeria and also to refuse recognition of foreign same-sex marriages or civil unions. Where this is not the case, granting one of the parties to a same-sex marriage the benefit of inheriting property in Nigeria, as exemplified by the weak connection scenario, does not contradict the purpose of the statute or the public policy of Nigeria. For the specific purpose of bestowing benefits incidental to same-sex marriage, therefore, the incapacity imposed by the SSMPA, and not the foreign law where the marriage was conducted, must be completely ignored.
Analysed from a jurisdictional point of view, it would amount to an assertion of exorbitant jurisdiction if a Nigerian court should void same-sex marriage or civil union contracts between foreigners whose marital homes are abroad; this would create an impression of Nigeria’s hegemony in a particular system of marriage. This position is a clear breach of international comity and nothing other than disrespectful of the social mores and values of the country to which the foreigner belongs. That country had legitimately determined that the foreigner can contract a same-sex marriage or civil union, and it would be arrogantly paternalistic within the Nigerian context to impose only heterosexual marriage on that foreign country. Hence it would be out of place for a Nigerian court to assert jurisdiction to void or deny the benefits of same-sex marriage where the foreign spouse’s connection with Nigeria is weak.
In sum, the distinction between the strong and weak connection scenarios is important for establishing the limit and scope of section 1(2) of the SSMPA, the lex fori. If a judge invoked section 1(2) of the Act separated from context, it would not only result in excessive application of the lex fori but also its application in violation of Nigeria’s conflict norm.Footnote 66 Apart from the state’s power or sovereignty to determine which category of marriage it considers safe and compatible with its social mores, states also have the power to invoke public policy (limitation clauses) to circumscribe certain fundamental rights within the domain of that particular state, as discussed earlier. However, this power should not be exercised in a manner that violates the protected rights of any citizen in favour of pre-existing criminal legislation that only leads a judge to exaggerate the state’s undefined and unjustifiable concern or interest.
Judicial attitudes to homosexuality and recent developments
Judicial attitudes towards sexual minority rights and constitutionally guaranteed human rights have not been encouraging. A case in point is Magaji v Nigerian Army; although the facts of this case are not simply about sexual orientation or gender identity, the ratio decidendi of the Supreme Court split over their legal aspects.Footnote 67 To state the facts briefly, in 1997 Major Bello Magaji was arraigned before a Nigerian Army general court martial on a charge of sodomy, contrary to the Armed Forces Decree 1993. According to the particulars of the offence for which he was charged, in 1996 he was accused of having carnal knowledge of four men “against the order of nature” over some time. The accused pleaded not guilty to the charge. From the evidence provided in court, it appeared to be, in fact, a case of rape and sexual assault: the accused had used his superior military position to coerce young and poor civilian men, including a minor, into sexual acts. The accused was found guilty by the court martial and sentenced to seven years in prison. The accused appealed to the Nigerian Court of Appeal without any success and subsequently appealed to the apex court. Eventually, the Supreme Court reached its decision in 2008, which categorized the offence as sodomy rather than assault. The court has been criticized for taking a leaf out of the colonial playbook by focusing on same-sex elements rather than determining the matter based on the central elements of rape and sexual assault inherent in the facts of the case.Footnote 68
Justice Nikki Tobi’s statement in the decision of the apex court defines “order of nature” and reflects the general attitude of the legal framing of homosexuality as prohibited under the tenets of Abrahamic faiths. According to the jurist:
“The order of nature is carnal knowledge with the female sex. Carnal knowledge with the male sex is against the order of nature and here, nature should mean God and not just the generic universe that exists independently of mankind or people. It is possible I am wrong in my superlative extension of the expression. As that will not spoil the merits of the judgment, I leave it at that. Where there is a hole or an opening, there will be the possibility of penetration; penetration being the ability to make a way or way into or through. While the common usage of the word means putting of the male organ into the female sex organ when having sex, it has a more notorious meaning and that is the meaning in section 81. The natural function of anus is the hole through which solid food waste leaves the bowels and not a penis penetration. That is against the order of nature, and again, that is what section 81 legislates against … What the appellant decided to do was to dare nature in his craze for immoral amorphous satisfaction. By his conduct, the appellant re-ordered God’s creation. Has he got the power to do that? No. No human being, whether in the military or not, has the power to re-order God’s creation. After all, we are not talking of fighting a war. By his conduct, the appellant has brought shame to himself.”
However, a recent decision of the Federal High Court gives hope to sexual minorities and their enjoyment of their constitutional rights. In Registered Trustees of the Initiative for Equal Rights v Federal Republic of Nigeria and Anor, by an originating summons filed on 7 February 2020 and served on the defendants on 16 March 2020, the plaintiffs prayed the Honourable Court to determine whether sections 4(1), 5(2) and 5(3) of the SSMPA are prima facie inconsistent with and / or in violation of the provisions of section 39(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and / or article 9 of the African Charter.Footnote 69 The plaintiffs also asked the court to determine whether the provisions of the SSMPA are contrary to section 40 of the Constitution and / or articles 10(1) and 11 of the African Charter. The plaintiffs ultimately sought to determine whether prima facie contravention of the said sections of the Constitution is reasonably justified in a democratic society by its section 45. The court held that the provisions of the SSMPA that interfered with freedom of association were unconstitutional. This is an interesting judgment that sets a useful precedent, although it is subject to appeal to the higher courts.
Conclusion
The absence of international consensus on same-sex marriage due to varying governmental interests in the framework of the family largely underpins section 1(2) of the SSMPA, which voids foreign same-sex marriage and any benefit accruing from such a marriage. Hence, national courts have shown greater consciousness of the need to apply domestic conceptions within the bounds of their legal customs in justifying the prohibition of such same-sex activity. In the Nigerian context this belief is often expressed in the need to maintain the moral standard and traditional values of society, indirectly implying that same-sex marriage would destroy the traditional institution of marriage in Nigeria.Footnote 70 In other words, the prohibitions on same-sex marriage and the benefits accruing from it are an expression of Nigerian public policy. Even though no case law in Nigeria has tested the scope of the applicability of section 1(2) of the SSMPA, the country should not, however, make a blunderbuss of its public policy when the occasion arises. Nigerian courts should not just ignore the interests of the parties to a same-sex marriage or the country where such a marriage was validly celebrated. Instead, the court should balance these concerns with its interests or public policy. Where Nigerian interests are attenuated, the court should grant benefits accruing from a same-sex marriage (or the civil union equivalent) to foreigners whose presence in Nigeria is just fleeting.
The offence of homosexuality, a colonial-era penal law, was enacted under the Criminal and Penal Codes of Nigeria to mirror the prevailing morals of society at that period and which the Nigerian state up to now could justify as being unavoidably founded on a mix of moral, religious and political considerations. Today, however, the concept of public policy as a basis for the criminalization of same-sex activities conflicts with the legitimate claims of the homosexual minority seeking equal enjoyment of certain basic constitutional and fundamental human rights in an evolving international community.Footnote 71 This was the basis upon which some African countries, such as South Africa, Botswana, Mauritius, Angola and Mozambique, decriminalized same-sex relationships.Footnote 72
The question of how long criminal legislation against homosexuality could be regarded as inconsistent with the African Charter and / or the Nigerian Constitution or whether it is founded on private prejudice would indeed depend on when the Nigerian courts invoke the relevant text of the Charter to strike down certain sodomy laws, particularly sections 4 and 5 of the SSMPA.Footnote 73 Therefore court rulings concerning both the validity or the benefits of foreign same-sex marriage and the prohibition of certain same-sex activities should be within context and fact-dependent. The Nigerian courts, regardless of the provisions of the SSMPA, should adopt the various approaches that this article recommends in determining whether the conferral of the benefits of same-sex marriage and the prohibition on the registration of gay clubs conflict with Nigerian public policy or the legitimate interest of the Nigerian state. In other words, the courts should grant the benefit of same-sex marriage where it has a weak connection or less interest in the validity of the foreign same-sex relationship. The courts should also, when the opportunity arises, adopt a liberal interpretation of section 4 of the SSMPA and other provisions of Nigerian sodomy statutes to keep its treaty obligations under the African Charter.
Competing interests
None
Open access
