Law in General
Law is a very interesting and dynamic phenomenon. Since it is mostly impossible to describe and explain in a comprehensive fashion, some philosophers have come up to explain the breakdown of the meaning and rationale behind the concept of law. This, with many other reasonings and philosophies, is what gives birth to the concept of Jurisprudence. While some believe law is a natural phenomena arising from innate human origins such as conscience and reason (natural law), others think it is merely a command from one entity in society to another entity or entities, a command which is backed up by threat of sanction or punishment on disobedience(legal positivism). Yet another of these jurisprudential perspectives opines that law is a reflection of the culture and history of the people of that territory(Historical school of thought).
Alas, this write up is not about the theories of law. So I will just talk a little bit about the school of thought that concerns this discourse: The Sociological School of thought. This one reflects that a law is the product of the conducts and values of a society, the school provides that the origin of law lies in the sociological factors, human conduct and social conditions in the society/from the characteristics of a nation. To put it more simply it is only what the society finds abominable that the law should find abominable. If the values of a society are not reflected in law then the law is essentially useless and has no practical backing because t will be disobeyed. A very common example is the bigamy laws in place. According to Section 27 of the Marriage Act it is an offence for a man married under the Act (this is the marriage in a registrar’s office, the one some will readily call “court marriage”) to have another wife. In fact the offence attracts a term of years of imprisonment. Despite this provision and despite the rampancy and notoriety of this same practice all over the country by people married under the Act there is no record of anyone being convicted or sentenced for the offence. In other words it is practically a dead law; this is because this provision is a product of British jurisprudence. Bigamy as an offence is alien to us but since the British take monogamy very seriously it was instituted in their statutory codes and extended here during colonisation, part of which we wholly and uncritically received into our own native laws on independence. Since it does not really reflect the value of the people it can be said that the law is ineffective. This is a good illustration of the sociological school of thought at work.
The Nigerian Direction
I feel a need to explain the Sociological school so that my readers can get the rationale behind the introduction of the (not so) new so-called anti gay law passed by the Nigerian legislature. Despite the fact that many other economically developed countries the world over are actually massively adjusting towards getting used to the concept of homosexuality and same sex marriage, having their laws and legal codes adjusted to embrace the phenomenon, and changing their age old definitions of marriage and civil union- Nigeria and some other African countries are actually rather going in the other direction. Making laws that seek to emphasise and express their lack of tolerance and support for it.
A westerner may look down on this country and see us as backwards-thinking, stone-age, bigoted assholes because we do not want to embrace and recognise the rights of these homosexuals and people of alternative sexual lifestyles (collectively called the Lesbian, Gay, Bisexual, Transexual-Community or LGBT Community). What they do not seem to understand is our conducts and values as a society does not leave room for such, in fact the rooms it leaves is for the abhorrence of the concept and deep-seated intense disgust. The same way we see nothing wrong in bigamy and abhor homosexuality, they see nothing wrong or amiss in homosexuality and have issues with bigamy. Since no society can be said to be objectively better or have better values than another, I do not think these Western countries have any right to look down on or criticise the countries that actively prohibit it, so far no fundamental human rights is being infringed upon.
The expression of our intolerance as a country for homosexual people and homosexual tendencies is perhaps a good thing, it should be a way of showing that we are not completely cultural stooges to the West and we are capable of making our own decisions with what we prefer as a country. I believe it is safe to say that a solid majority of Nigerians are happy with the law when enacted and they gave kudos to the legislature at doing at least one thing right in which the masses are actually glad about.
Nevertheless, it remains pertinent that we should not resort to cutting off the head in a race to get rid of our headache. Care must be taken not to overreach with these laws and infringe the basic, guaranteed, constitutional rights of men merely because we want to decisively stamp out the issue of homosexuality and homosexuals from our ever corroding our consciousness. On the matter of the law itself, I have seen it, and I must say that I find some of its provisions either unnecessary or unconscionable. It needs to be stated how much moderation is important for the things we do and the laws we make. To explain my point further let us take a brief look at this statute.
The Act is called the Same Sex Marriage Prohibition Act, and it was signed into law in 2013 by President Goodluck Ebele Jonathan. This Act prohibits a marriage contract or civil union entered into between persons of the same sex, and provides penalties for the solemnisation and witnessing of same thereof. It has 8 Sections. Section 1 provides for prohibition of marriage or civil union by persons of same sex; 2 provides for solemnisation of same sex marriage in places of worship ; 3 identifies the recognised marriages in Nigeria; 4 is about homosexual societies; and 5 on offences and penalties. The last three sections provides for matters on jurisdiction, interpretation and citation.
I shall now go into some of the provisions of this statute and attempt to explain its implications and possible consequences.
Section 2(1) provided that a marriage contract or a civil union entered into between persons of the same sex shall not be solemnised in any place of worship in Nigeria. It is one thing no to lend legal status to something, it is another thing to make it a criminal matter. This provision would restrict the right to freedom of religion of these groups that may seek to bless such a union despite being no legal consequences attached. A witness, priest and participant of any gay marriage ceremony are now deemed criminals. This is a violation of the right to freedom of thought, conscience and religion as provided for in Section 39 of the Nigerian Constitution. It provides that every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance. As can be deciphered from the foregoing, apart from violating the right to freedom of region, the proposed law also deprives people with same-sex preferences of the freedom of thought and how to exercise or express their conscience. It gives the individual no choice as to what to think or the choice to be made in his or her private life. A provision that compels churches and mosques not to celebrate or recognize same-sex relationships clearly contravenes this constitutional provision.
The Constitution also protects the freedoms of persons to freely assemble and associate with other persons in order to protect their interests. In this regard, section 40 provides as follows: Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union or any other association for the protection of his interests. Yet Section 1 prohibits a civil union or associations entered into between persons of the same sex, Section 7 defines such a civil union as arrangement between persons of the same sex to live together as sexual partners. The Act effectively provides a punishment of 14 years imprisonment for it, in other words the Act is criminalising not only public Acts of homosexual amorousness but also the ones done in private, in the enclosure of one’s own household. I don’t think it is obvious to exclaim how much it crassly violates the constitutionally guaranteed freedom of private life in addition to association above.
Other parts of the section that defined marriage and prohibits same sex marriage I find mostly redundant as we already have laws that performed this function, and these laws are still in existence. The Criminal Code in Section 214-217 already deal with these, same with the Nigerian Penal Code in Section 405. The Marriage Act has already provided for the rudiments of a valid marriage. Having this new law to reiterate that same sex marriage is not valid appears to be another point of redundancy.
It would seem that in a haste to stamp out this abnormality from culture our lawmakers have disregarded basic constitutional rights and freedoms so that we can please our sensitivities.
You can get a copy of the Act here