TheSame Sex Marriage Prohibition Act was signed into law in January, 2014. The Act expressly prohibits anyone from entering into same sex marriages as well as same sex co-habitation and prescribes punitive measures of up to 14 years imprisonment. The Act also criminalises the formation, operation and support of gay clubs and organization with penalties of up to 10 years imprisonment.

AN OVERVIEW OF THE SAME SEX MARRIAGE PROHIBITION ACT 2014

The Act consists of 8 sections:

The first section is made up of two sub sections; it prohibits any marriage contract between persons of the same sex and further provides that such unions shall not be entitled to the benefits that accrue to heterosexual couples. It ends with a provision voiding marriage certificates acquired outside Nigeria and declares same to be unenforceable in Nigeria.

The second section prohibits the solemnization of same sex marriages in any place of worship in Nigeria while the third section provides that only heterosexual marriages are recognised and valid in Nigeria.

The fifth section is the penalty section that spells out punitive measures for defaulters. For persons entering into same sex union has a penalty of 14 years imprisonment, while registration, operation and participation in same sex union, direct or indirect show of same sex amorous relationship attracts a penalty of 10 years imprisonment. Administering, witnessing or aiding the solemnization of same sex marriage or union, supporting the registration, operation, sustenance of gay clubs, societies, organization, processions or meetings also attracts a penalty of 10 years Imprisonment.

The sixth section vest jurisdiction over any offence in the Act on the High Court of Nigeria. Thus any person arrested and arraigned based on the provisions of the SSMPA would find it difficult being admitted to bail in the Magistrate court as it is the practice of magistrate not to grant bail for offenses that are beyond their jurisdiction. The applicant may have to approach the High Court, which may not be fast.

The seventh section deals with definitions of terms used in the Act while section eight deals with thecitation of the Act.

THE IMPLICATION OF THE SSMPA ON HUMAN RIGHTS OF LGBTI PERSONS IN NIGERIA.

The SSMPA implicates on the right of LGBTI persons in Nigeria inthe following ways;

1. It limits the freedom of association: – S. 4

2. It limits the freedom of expression – S. 5 (2)

3. It limits the freedom of thought, conscience &religion: – S. 2

4. It limits the right to health: – S. 5 (3)

5. It is purported to target activists in the field of Civil andSexual Reproductive Rights: – S. 5

6. It restricts the visibility of LGBTI persons: – S. 4 & 5

7. It conflicts with some basic rights guaranteed under severalinternational treaties. Articles 19 and 22 of the ICCPR; Theprovisions of the African Charter on Human and PeoplesRights. Articles 1O (1), Art 20(1) of the UHDR.

THE IMPLICATION OF THE SSMPA ON THE HUMAN RIGHTSOF LGBTI PERSONS IN NIGERIASSMPA & HUMAN RIGHTSIN NIGERIA

SSMPA further exacerbates the discrimination against LGBTIpersons. Since its inception in 2014, the rate of blackmail,extortion, indiscriminate arrest, unlawful detention, assault bystate and non-state actors, police raid, exorcism, forcefulejection, murder, rape, imprisonment, honour killing, etc isheightened, as LGBTI persons suffer several forms of abusesand violations based on their real and or perceived sexualorientation and expression.

This prompted the African Commission on Human and Peoples’Rights at its 55th Ordinary Session held in Luanda, Angola, from28 April to 12th may, 2014 to adopt its Resolution 275, decryingthe increasing incidence of violence and other human rightsviolations and other forms of persecution of persons based ontheir imputed or real sexual orientation, gender identity andexpression.

The powers of the police are limited. They are subject toconstitutional provisions, particularly the provisions of Chapter4 of the Constitution of the Federal Republic of Nigeria, 1999 (asamended). Section 4 of The Police Act also states that, “Thepolice shall be employed for the prevention and detection ofcrime, the apprehension of offenders, the preservation of lawand order, the protection of life and property and the dueenforcement of all laws and regulations with which they aredirectly charged, and shall perform such military duties withinor outside Nigeria as may be required of them by, or under theauthority of this or any other Act.

Basically, the police is empowered to arrest, investigate,prosecute and prevent the commission of crime in theirmandate to preserve law and order.

LIMITATIONS OF THE POWERS OF THE POLICE:  SSMPA & HUMAN RIGHTS IN NIGERIA

It is not the law that the police should arrest anyone based onhis perceived sexual orientation and or expression because nolaw in Nigeria criminalizes sexual orientation and expression,what the SSMPA, Section 214 of the Criminal Code and certainprovisions of the penal code criminalizes, is the act of engagingin same sex marriage; supporting a gay club, or havingsexual intercourse against the order of nature.

We should know that only unlawful activities are criminalizedby law and not the Sexual reproductive right work ofprevention, treatment, awareness, advocacy and provision oflegal representation of persons based on their real or imputedsexual orientation.

However the police must perform these functions within theconfines of the constitutionally guaranteed rights of all persons.The police as an agent of state must exert their duties with fullrealization that they have the obligation to RESPECT, PROTECT,FULFILL and PROMOTE the fundamental rights of everyone insociety. They must take cognizance of the right to life providedfor in S. 33 of the CFRN; the right to dignity of the humanperson in S. 34; the right to personal liberty in S. 35; the right tofair hearing in S. 36; the right to privacy in S. 37, the right tofreedom of thought, conscience and religion in S. 38; the rightto freedom of expression in S. 39; the right to freedom ofassociation; right to freedom of movement in S. 41; the right tofreedom from discrimination in S. 42; the right to ownimmovable property in S. 43.

Even the derogations contained inSection 45 of the CFRN does not to abrogate these rights.

It only limits same based on the same provisions of the law.  Such limitations must be reasonably justifiable in ademocratic society. It must be in the interest of defence, public safety, publicmorality or public health, and for the purpose of protecting the rights and freedoms ofother persons.

This provision of the law does not suffice as a reason forunlawful arrest, detention and invasion of the privacy ofanyone and we are expected to rise against same.

Over the years the onslaught on LGBTI persons have beenbased on trumped-up charges and perceived sexualorientation of LGBTI persons.

RECOMMENDATION

Until LGBTI activist stop being on the defensive, the humanrights violations of LGBTI will continue. We must devise ameans of creating change;

  1. By holding the state accountable;
  2. By embarking on proactive litigations to bring about policychange;
  3. By expecting due diligence on the part of state agentsduring prosecution of LGBT persons;

Synergize on our collective response to human rightsviolations of LGBTI persons in Nigeria.