by Ayo Sogunro
And that is why every sensible legal system understands that what goes on in a person’s underwear is not the business of the law—to the extent that person hasn’t dragged in an unwilling third party.But Nigeria has never been noted for being sensible.
However, as is usual in my articles of this controversial nature, I will assume you are a reasonable Nigerian (maybe one who hates homosexuality a tad—or even a whole lot—that’s fine) but not one who thinks stoning a homosexual person to death is some sort of divine injunction—or that armed robbers are preferable to lesbians. If you’re the latter type of person, don’t bother reading this article, there are more important things for you to do: like amending your new law to allow you to directly murder gays and rape lesbians and save costs on the whole jailing thing.
But for the rest of you, well meaning, straight Nigerians, here are a few things that you should get—well, straight—about the new anti-gay law. So you can keep up with me, download a copy of the Same Sex Bill here.
1. The Law Is Not About Marriage: Fine, the proper name of the law is titled “Same Sex Marriage Act” and the general rationale from the sponsors of the bill is something to the effect that “gay marriage” was a devaluation of African and religious family values and similar nice sounding ideas taken right out of the holy books—which sounds like divorce ought to be a crime too, though nobody seems to mind that. But don’t be deceived by the PR, the anti-gay law is just that: an anti-gay law. As a matter of fact, homosexual marriage has always been invalid in Nigeria since British rule—this so-called innovation is simply about punishing homosexuality. Let’s start with s.1(1) of the law: “Marriage contract or civil union entered between persons of same gender is hereby prohibited in Nigeria”. Did you notice the “civil union” part? That means, even non-marital relationships are prohibited and criminalised. And just to drive the point home—in case you’re still arguing from the “marriage” angle—the law goes on to describe “civil union” to include: “independent relationships, caring partnership, civil solidarity pacts, domestic partnerships, reciprocal beneficiary relationships, significant relationships”, and a host of other non-existent types of relationships borne out of a level of paranoia that is matched only by the political system’s level of corruption. In short, gay/lesbian relationships of any type are criminalised—whether marital or not. And this is why, before the President could even pocket his signing pen, Bauchi State had already arrested people under the fresh law. Did these people organise a marriage ceremony while the law was being signed? If that is not proof that this has nothing to do with marriage, then you tell me what is proof.
And the next time some religious person argues for the law on the premise that marriage should be only between a man or a woman, ask the person: “Fine, but what about a reciprocal beneficial relationship?”
Whatever the hell that means.
2. The Law Doesn’t Care About Deterring Homosexuality: See, ordinarily, an activity becomes worthy of criminal status when people keep reporting to the police that it has begun to affect them negatively. And so it becomes necessary to deter that rampant activity. Crimes don’t come out of the blue—they are a result of problematic activity in a society. Well, this law is not deterring gay marriage because gay marriage isn’t an activity in Nigeria. It’s not even deterring gay relationships because gay relationships are virtually secret in Nigeria. Secret to the point of non-existent. Instead, it is a witch-hunting law—one that punishes people whose opinions differ, even if the said opinions are not causing any problems. The law is a solution to a non-existent problem. Take, for example, s.4(1): “The registration of gay clubs, societies and organisations, their sustenance, processions and meetings are hereby prohibited.” Meetings? Even armed robbers are not guilty of merely “meeting”. A meeting—and nothing more—doesn’t even hurt a fly. That’s like jailing union leaders for meeting to discuss a strike—in a democracy. Come on, they were probably meeting to discuss how not to be gay in a homophobic country! The law isn’t interested in the substance of the meeting; it is only interested in jailing the attendees.
And if anyone should be jailed for meetings that harm the country, it should be the Federal Executive Council!
3. The Law Punishes YOU, Even If You’re Definitely Straight: Take s.5(3), which is probably the most unfair punishment ever given to anybody for just being nice to another person: “Any persons or group of persons that witnesses, and aids the solemnisation of a same sex marriage contract or civil union or supports the registration of gay clubs, societies and organisations, processions or meetings in Nigeria commits an offence and liable on conviction on conviction to a term of 10 years imprisonment.” Here’s the deal: You will go to jail for 10 years, because you were cool enough to look the other way when you saw women making out. Why? Because you supported a same-sex civil union. In short, you will get jailed for having an opinion differing from the government’s opinion. You get jailed for being a reasonable straight person. Remember the “meetings” part? You will be sentenced to 10 years in jail for supporting a meeting. In other words: report any gay/lesbian persons and activity or go to jail with them. Don’t forget, the law isn’t limited to marriage—it affects other types of homosexual relationships.
Summary: This law also affects heterosexual relationships. Because God wants to see straight people sent to jail for refusing to be judgmental.
4. The Law Doesn’t Safeguard You: Fine, so you’re straight through and through. And fine, you have no problem about informing on gay people in your neighbourhood—in fact, you are positively excited about this particular civic duty. But what happens when YOU are accused by someone else? See, there are no standards of proof beyond being involved in a “civil union”, a phrase whose definition means a whole lot of nonsense. Take s. 4(2): “The public show of same sex amorous relationship directly or indirectly is hereby prohibited.” “Same sex amorous relationship”. This means, kissing, hugging, hand-holding, or other forms of affectionate—amorous—contact between the same gender is now prohibited in Nigeria. If you think this is a safe risk, wait till you are arrested and then try to prove otherwise. Maybe, a judge may ultimately find you not guilty, but think of the Nigerian justice system, and you will shiver at what powers to investigate your sexual life has been handed over to the Nigerian police.
5. The Law Is Set Up To Violate Privacy: In case, you didn’t know it, here’s what s.37 of the Nigerian Constitution assures every Nigerian: “The privacy of citizens…is hereby guaranteed and protected” which is a principal reason policemen are not allowed to spy into your bedroom without a warrant. Now, instead, the anti-gay law states in s.5(2) that “Any person who…directly or indirectly make a public show of same sex amorous relationship commits an offence and shall each be liable on conviction to a term of 10 years imprisonment.” Now, tie that law to the police powers of investigation and you will get the problem in at least 4 steps.
Step 1: the law ordinarily permits the police to investigate and arrest a person suspected of committing an offence in Nigeria.
Step 2: It is now an offence in Nigeria to directly or indirectly display same sex affection.
Step 3: the police (or someone else) is suspicious that you are committing this offence and the police wants to investigate your sexual life—to prove you’re not gay.
Step 4: There goes your private life.
Now, repeat Steps 1 to 4. This time between a male police officer and a female suspect.
6. The Law Is Plain Weird, Even By Nigerian Standards: Just take the basics, simple definitions: the definition of “civil union” isn’t closed, and can legitimately mean two girls sharing an apartment; “amorous relationship” is not defined and so even heterosexual greetings can be maliciously interpreted as the expression of a homosexual relationship; words like “support”, “meetings” are used carelessly without defined categories and exceptions; the burden of proof is not stated; the law does not provide for categories of unintentional or “inadvertent” offenders; and worse—it is a retrospective, and even retroactive, law—a type of law strongly disapproved of by our constitution. In summary, it’s a very lazy law—the kind a mob will hurriedly put together just to legalise their murderous instincts. But, you see, you can’t amend such a law to take care of these issues—because they deal with private matters that are difficult to enforce by the public without sacrificing people in the process.
And that is why every sensible legal system understands that what goes on in a person’s underwear is not the business of the law—to the extent that person hasn’t dragged in an unwilling third party.
But Nigeria has never been noted for being sensible.
Ayo Sogunro is the author of The Wonderful Life of Senator Boniface and other Sorry Tales. A lawyer by profession, he also indulges in socio-legal philosophy on www.ayosogunro.com. Interact with him on Twitter via @ayosogunro.
Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.