by Abdulrahman Abdulraheem Akintoye

Sogunro’s legal argument is flawed on so many levels. First, there is the mistake of assuming that the purpose of law, especially criminal law is a phenomenon upon which there is a consensus among jurists.

This is a response to Ayo Sogunro’s recent widely published article titled: ‘Why you should be worried about Nigeria’s anti gay laws.’

Let me confess that I am ordinarily a fan of Ayo Sogunro’s characteristically challenging articles. I am especially fond of his pieces wherein he takes on the Nigerian government and its military. However, on this issue of homosexuality in our society, it is my humble view that he is way of the mark.

I have chosen to write this rejoinder because I believe that Ayo Sogunro has done a good job of representing a movement that has begun to find its voice in defence of homosexuality in our society. Jude Abaga (a reputable and very popular rapper) a.k.a. M.I’s site placed overt expression of approval, before posting the article.

What follows is a succinct (and I hope insightful) rebuttal of Ayo’s supposedly reasonable arguments.

The legal argument:

There are two major points that Sogunro makes under this subhead as far as I can see:

1. That morality should ordinarily not be legislated

2. That morality and the law should only overlap where the law contemplates harm being done to third parties.

He therefore concludes the argument by categorizing homosexuality as something that is private and that hurts no one and that should therefore not be punished by the law.

Sogunro’s legal argument is flawed on so many levels. First, there is the mistake of assuming that the purpose of law, especially criminal law is a phenomenon upon which there is a consensus among jurists. Hear him: ‘ …in case you are puzzled, the jurist will further tell you that basic role of law is- should be- the protection of the state and other individuals from the acts of other individuals or other states, and every other function of the law derives from that basic premise. He will explain that as long as an individual has not threatened the welfare of other individuals, the law has no- should have no- problem with that individual…’.

Anyone who knows the slightest about jurisprudence knows that the image of a consensus among scholars about the purpose of law is at best a figment of Ayo’s imagination. He uses the term ‘jurist’ many times in the course of his ‘legal argument’. We may ask: which Jurist? Certainly not the customary law jurist, but culture and customs are another issue that will be addressed later. If we assume that by ‘Jurist’, he is referring to the English law ‘jurist’, may we then remind him that even among scholars of English law, there are different schools of thought that hold radically different views about the purpose of law. We may go further to point out that the distinction between the private and the public that he invoked formed the basis of the Wolfenden report of the committee on homosexual offences and prostitution 1957 which sparked off a great debate in the U.K by opposing factions of JURISTS.

Second, the idea that morality should not be legislated i.e. that no particular set of moral ideas should be imposed on the society through the law is a demonstrable fallacy. I shall demonstrate the fallacy by alluding to two points:

– If we are to have law at all, it will have to be based on some moral views.

– It is impossible to base the law exclusively on moral views on which there is unanimity in the society, for it is a fact that in every significant issue, contrasting views are held by different groups. If there is to be a law, it is therefore inescapable that some moral ideas will have to be imposed on some people, not in the sense of forcing them to agree with the ideas, but in the sense of demanding that they act according to them or at least of making them liable to suffer a penalty if they fail to do so.

To illustrate the above point, the position of ‘allowing each person to do as he wishes’ itself constitutes a specific moral position and lays preference to some values over others. Some people may advocate the prohibition of using drugs, even in private based on certain values while others advocate the lifting of the ban on use of drugs based on other values, one such principle being that (as is Ayo’s position) society has no right to interfere in the activities of its members as long as they do not harm third parties. The latter position stresses different values, especially human freedom. Therefore, as Elegido notes in his book ‘jurisprudence, 1994’ it would be a misdescription of the opposing positions to claim that one tries to enforce certain moral ideas while the second does not; each of them is based on a different moral view and advocates that the law be fashioned according to that view, that is in a way of speaking that that view be ‘enforced’. The conclusion is therefore that the only matter about which one can argue is that of which moral view should be enforced through the law, because if we are to have any kind of law at all, some moral view will have to be enforced.

My candid view is that our society, like all others in history, should firmly defend its values and if that means criminalizing homosexuality, so be it!

Third, the argument that law and morality should, and only overlap where there is a contemplation of harm being done to third parties is also demonstrably false. A casual reference to modern law shows that modern law disregards the ‘harm principle’. Few examples like the law compelling motorists to use seat belts, the imposition of the use of helmets on motorcyclists, the imposition of stiff taxes on Alcohol and tobacco in order to discourage their consumption… the list is endless.

The moral argument:

Sogunro proceeds here from the premise that minorities must be protected because the majority of today may become the minority of tomorrow. He makes the mistake of assuming that all minorities must be protected. This is not so. Homosexuality and bestiality are very similar, in that they are both unnatural. Do we then follow Ayo’s argument and say that people who indulge in bestiality are a minority that should be protected? When a minority contravenes the moral code of a society, it better be ready for the consequences of its actions. So, history has taught us.

The cultural argument:

Here, his major argument is that culture is always changing and so, as the wind of homosexuality has come to stay, we should grow up and let our culture evolve to accept homosexuality. Apart from the fact that this argument shows Ayo’s rather blissful ignorance of the workings of the African culture and tradition, it also echoes the disdain of the white man for the African culture in those days, probably yet still. This is sad, for it has come at a time when we need more intellectuals to present the African perspective of things to the world. In any case, you can’t argue that culture should change, it will, if the circumstances demand it.

I fear that this piece will become too long.

Let me stop here as I hope that the conversation will continue, for no true intellectual argues his position without leaving the allowance that he may be wrong or that there is a turn or nasty twist to his opponent’s argument that he missed.

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