by Oguntoye Oluwaseyi

From this, one begins to wonder; why would a man want to marry a fellow man and a woman want to marry a fellow woman? The question becomes important not because the world is not filled with stranger things; but because we are forced to ask ourselves as to what next from here? Where do we as human beings go from here? What do we do next? Do we start marrying animals?

                            “The heart has a reason that reason itself knows nothing of”

                                                                                                                 – Blaise Pascal

California is the ninth largest economy in the world; its capital, Los Angeles is the centre of show biz and even pornography. In 2008, in a voter sponsored initiative, the state voted against same sex marriage in a law called Proposition 8. In June 2013, it took a narrow 5- 4 majority of the United States Supreme Court to strike down that particular proposition, thereby opening the doors for the resumption of same sex marriage in California.

After that particular judgment, many states in the United States legalized it, rising to a total of 39 out of 50. It would appear surprising that a state like California would fight the anti gay war up to the Supreme Court level! That in itself says a lot of things; the same sex marriage mantra does not have wide support in America itself!

However, far removed from this issue of western hypocrisy is a call for an examination of the bounds that makes us human; the qualities and consciousness that separate us from the animal kingdom. We are called to examine the righteousness or otherwise of some things and our response in such cases leave much to be desired. I find the noise about this anti gay law in all ramifications a total waste of time and a misplacement of priorities in the midst of myriads of problems plaguing the African continent.

Wars, poverty, rape, bad governance etc, decimate our numbers everyday and we are not preoccupied with ways of ameliorating our ‘pathetic existence’. Rather, we are doused everyday in protests in order to follow the white man’s way of doing his things. What are even the facts as they appear to be?

The proponents have found their voices in their ‘right’ to express their living in whichever way they choose and such a liberty should be guaranteed by the state. While not disputing that the state has the duty imposed on it to guarantee individual rights and to give maximum expression to those rights, it should also be remembered that it’s a two way traffic situation. The state in upholding this duty is supposed to serve as a balance between conflicting interests. But before one even proceeds, it is concomitant to state that it is a misconception of fact in itself to ask the state to recognize a right unknown to it!

A right is state derived. A lot of people would vehemently oppose the last submission and would rather want to believe that inasmuch as a right is guaranteed by the state, it is derived in nature. That opens up the age long jurisprudential natural law-positive law rivalry. In as much as I, myself would never believe the efficacy of natural law as against positive law, even for argument sake, the basis of natural law in argument for same sex marriage becomes fallible. The proposition of natural law exponents state to the effect that there are certain principles derived from the law of nature and human law must look to these thresholds for its validity and existence. And one is forced to ask; what does nature say about human sexual interaction?

The question answers itself and the reason for saying the state would not enact a law unknown to it becomes apparent. Nature itself created us male and female for specific reasons. The law of nature is predicated on a male – female interaction.  It becomes totally foreign to this supposed law of nature for human beings of same sex to engage in sexual relations; nature goes against that. It would therefore amount to asking the state to enact a law unknown to nature. But even that supposition stops there. It is believed that law is very dynamic and must be capable of responding to the changing society.  The law and the state are therefore confronted with a strange problem- how does the state respond to this new wave of sexual thoughts?

A lot of factors come into determining the appropriate response to this. Chief among these are the duties of the state to strike a balance in the conflicting societal interests in her social engineering role. Also the state has a duty to uphold public morality. The sphere of public morality is a controversial one and highly subjective based on individual perspectives. But that is where the stark contrast between western and African societies becomes very apparent.  There is a form of morality which is embedded in age long customs and social values which is very evident in the way we do things here.

Therefore, importing the white man’s ways here, in total contradiction to our ways of life is impracticable to say the least. Now, it is a duty of the government to uphold the observance of these social values through legislation and to protect the continued survival of the society based on these values. The concept of public morality is not strange but even has its foundation in the English legal system where the House of Lords once held that there is a sphere of public morality and that the government has to protect that through legislations. Legalizing same sex marriage in a country like Nigeria goes against the concept of public morality. That morality is public because it represents the views of a wide majority of people.

However, there is a more important consideration; that is the sovereignty of a state within its powers to legislate on issues within her competence and is not subject to interference from any other nation. These concepts of sovereignty, non interference and equality of states are guaranteed in articles 2(4) and 2(7) of the UN charter. It is in this respect that the hypocrisy of the west especially the United States and the United Kingdom becomes suffocating.

The Nigerian government and fellow African countries have the sovereign rights to legislate on whatever issues they deem fit and are therefore not open to any threat of any sort. Though these concepts of equality of states are undermined by the practical realities of ‘super states’ like the US and UK, it is going too far for them to resort to threat of withdrawal of aid. When did the United Kingdom itself recognize same sex? 17^th of July, 2013!

At the time the United States was pressurizing African countries into legalizing same sex marriage, it was illegal in majority of her 50 states! Yet, both countries were going about threatening dependent African states. We leave ourselves open to such threats because of our economic mirage and over dependence on natural resources fuelled by years of governmental incompetence, corruption and ethnic wars. But, it shows the difference in approach between the United States as a waning power and a growing power like China.

China’s presence is being felt in a host of African countries; but there are no strings attached to any such aid. China also has its own national politics that dictate the directions of her foreign policies; however, she does not allow such policies to get in the way of her investments in Africa. China is strictly concerned with the business side of things and does not get enmeshed in the politics.

From this, one begins to wonder; why would a man want to marry a fellow man and a woman want to marry a fellow woman? The question becomes important not because the world is not filled with stranger things; but because we are forced to ask ourselves as to what next from here? Where do we as human beings go from here? What do we do next? Do we start marrying animals? And when such a time comes, are we going to resort to assertion of rights? We talk of these rights like they are absolute or just exist on their own.

The right to same sex marriage has no foundation in any known human or natural principle and the quest to make the state recognize it cannot be seen as compulsory.  The Nigerian government has promulgated a law prescribing a 14 year jail sentence for offenders of the crime; that concludes it and any one that has issues with that law should have his day in court. It is a very simple thing. The Nigerian government within her sovereign rights has enacted that said law and it has deemed it fit to protect her public morality, just like Vladimir Putin did in Russia. It was De Reneves who wrote of the human quest to rise above the realm of the law to the realm of the spirit. It is safe to conclude that such a quest is on the downward turn. Rather than an elevation to the realm of the spirit, with this continued shout for legalization of gay rights; we are fast moving to the realm of bestiality.

——————————

Oguntoye Oluwaseyi is of the Nigerian Law School, Kano

 Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.