Same-sex prohibition law: issues of international diplomacy, morality and human rights

New laws will further create relative isolation and drive groups underground. The precarious circumstances for sentencing and the treatment of offenders in our criminal justice administration system, which is punitive rather than be reformative, in my view, will make the law to be counterproductive in the end.

As of January 2016, no fewer than 79 countries, including Nigeria, have criminalised same – sex acts or gender-variant behavior, through anti- gay laws. Many of these laws are legacies of colonial imposition of the British penal code. Interestingly, throughout the world people face severe discrimination and lack of state protection because of their sexual orientation and gender identity. This is even true in the progressive and permissive societies like the USA and UK where the socio – legal environment for lesbian, gay, bisexual, transgender and intersex (LGBTI) people are to very some extent questioned, especially by conservative religious leaders and groups.

However, there has been growing public awareness about gay orientation in Nigeria since President Goodluck Jonathan signed into law a bill, which bans same-sex marriages, gay groups and display of same-sex public affections. The law in contention had passed through the Nigeria legislative process and largely reflects the people’s cultural and religious tendencies. However, sexuality and sex issues in Nigeria are often seen and considered as a taboo and more often than not, culturally, social and religiously unacceptable, particularly in a country that is blindly and superficially religious, but notoriously corrupt and often time hypocritical in the conduct of state and personal affairs.

The wide acceptance from the so-called spiritual leaders (pastors and imams) and the ongoing discourse in the court of public opinion shows that the law is a reflection of the beliefs and orientation of the Nigerian people, which I think is not in doubt. Nonetheless, the Same-Sex Marriage Prohibition Act, which criminalises same-sex marriages and provides penalties of up to 14 years in jail for same-sex marriage and up to 10 years’ imprisonment for membership or encouragement of gay clubs, societies and organisations, raises great concern about Nigeria’s human rights posture in the international arena.

Furthermore, the law has received widespread international condemnation from the point of view of our democratic values propositions to the international community and the readiness of the Nigerian state to protect its citizens, however different they are. It is against this background that this article examines some critical emerging issues from international diplomacy, morality and international human rights law perspectives, particularly from the point of views being canvassed by the international community, most especially the human rights groups, the European Union, Canada and the United States of America. The international community is deeply concerned about Nigeria’s restrictions on freedom of assembly, association and expression of individual rights but, also, the law is inconsistent with Nigeria’s international legal treaty obligations and overtly seeks to undermine the democratic reforms and human rights protection mechanisms enshrined in the Nigeria 1999 constitution.

Indeed, the global terrain of protection and persecution for sexual and gender diversity is complex, shifting and often paradoxical. Hence in many countries of the world people’s vulnerability or safety varies considerably based on social class, religion, race and social networks. To survive social stigma and violence, people learn to deny, cover or hide their sexual orientation or gender identity, particularly in a country that frowns at such groups. Therefore, the new law will further create relative isolation and drive the group underground. The precarious circumstances for sentencing and the treatment of offenders in our criminal justice administration system, which is punitive rather than be reformative, in my view, will make the law to be counterproductive in the end. The enforcement of the law remains to be seen in the nearest future in Nigeria. South Africa, which recognises same- sex marriage still has cases of corrective rapes targeting lesbians and the like, most of which are never investigated by the South African Police. Moreover, this law will also enhance more police brutality of torture and humiliation because of non-disclosure and concealment of offenders.

From international human rights perspective, the United States of America’s position on Gay rights is unambiguous. This was clearly articulated by then- secretary of State Hilary Clinton in a December 2011 address in Geneva when she said that, “It is a violation of human rights when governments declare illegal to be gay, or allow those who harm gay people to go unpunished or because they do not conform to cultural norms about how men and women should look or behave.” It is against this background that we should understand the America government outcry and condemnation against this piece of legislation. The US Secretary of State, John Kerry, has also lent his voice in the criticism of the law and affirming the misgiving of the White House in this matter. The diplomatic and foreign policy loss to Nigerian government cannot be immediately ascertained. It is hoped that threat of sanctions from the international community will not come into fruition soon.

At the United Nations level, violations against same-sex marriage has been documented and articulated. There have been calls at the highest levels, for equal rights, non-discrimination, an end to violence and the abrogation of laws that criminalise same-sex relationships. As the jurisprudence of same – sex marriage evolves, the framer of the law would have some issues to contend with, particularly from international conventions and norms, which Nigeria is a signatory and by extension had ratified.

One major challenge for the global north and indeed the European Union and particularly Canada for the condemnation of the Nigeria anti – gay law and indeed the unprogressive policies of government is the bogus and contentious issue of international migration, detention, deportation and asylum-seeking claims that would come from Nigerians on the grounds of persecution from sexual orientation by the Nigerian state and its agents and the receiving countries’ inability to cope with the influx of such migrants. Canada is the first country in the world to officially extend refugee protection to people facing persecution based on sexual orientation or sexual identity and, increasingly, potential asylum seekers on the grounds of gay have overwhelmed Canada. It should be noted that the west and indeed the global north is against many of our laws because of the manifest danger it poses to their home countries that will bear the burden in terms of irregular migration and associated cost to their citizens.

Therefore, as a country, our international diplomacy should not dwell on international criticism, but rather much attention should be placed on understanding the dynamics of international politics. Hence, it was surprising to hear the negative and undiplomatic comments from the supervising minister for Foreign Affairs on this subject matter.

Nigeria’s relevance within the global system depends on relative strength and control at the domestic level and our continued relevance within the Africa continent and indeed the world. Therefore, Nigeria’s international communication and image – building mechanism must be handled with diplomatic caution and decency to avert possible face – off with, and repercussions from, the world powers.

While it is the responsibility of the Nigerian state to protect its citizens, there is dire need for skilful diplomacy that would enable us to recognise the necessity for choice and avoid knocking our head against the wall of negative international politics because we will always have within the international space, friends, competition and more importantly enemies. In my view, it is now absolutely necessary to adopt the diplomacy of selective engagement and promote informal diplomacy in the promotion of our national interest and domestic legislations that do have global appeals and international attention, especially the anti – gay prohibition Act, that had received condemnation since its passage to law. I strongly feel that we should have learnt from the Ugandan experience before signing the bill into law.

Lastly, our international engagement strategy as a country should be done with diplomatic finesse and dexterity. Pragmatic efforts should be made to explain domestic legislations to the global community, due diligence must be applied in our lawmaking process and Nigeria should desire to play by the rule of international obligations and norms in spite of its visible failings and lost opportunities in the international arena.

Written by Samuel Orovwuje

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