THE PROHIBITION OF HOMOSEXUALITY IN NIGERIA: AN INFRINGEMENT ON A PERSON’S RIGHT TO FREEDOM OF EXPRESSION? YES
According to Oxford Advanced Learner’s Dictionary, 8th edition, homosexuality is defined as an act of being sexually attracted to people of the same sex. Homosexuality was not an issue in Nigeria, and there was no denial of the fact that homosexuals were in existence in Nigeria before any law was passed against it. But Nigeria, being scared that the western trend of legalizing homosexuality might land on the shores of the country decided to pass legislation prohibiting and criminalizing homosexuality in its entirety by the enactment of the Same Sex Prohibition Act on the 7th of January, 2014. But this law is an unjust law because it’s an infringement on human rights.
There is logic to heterosexuality in the construction of men and women making them anatomically compatible for the procreation of children and the preservation of species. That is what we understand. But we must also understand the fact that there are some things we do not understand, and because we do not understand them does not give us the right to prohibit them. Judges, ladies and gentlemen, we can all admit to the fact that human nature has a nagging tendency to get things wrong quite often. As a result, we have people with varying degrees of deformity and handicaps. We have men who seem to be born in the body of women and vice versa. We even have cases of Siamese twins who are born with two heads in one body and with two people sharing organs. For this reason, it doesn’t make sense to criminalize a tendency simply because we don’t understand or don’t like it. Besides, research has shown that gay tendency can be biological. According to a 2014 study in the journal psychological medicine, it was shown that a gene in the X chromosome called Xq28 is found in a higher percentage of men who are homosexuals. That study involving more than 400 pairs of gay brothers, followed the 1993 report by geneticist Dean Hamer suggesting the existence of gay genes. Since research has proven that they can be born that way, then they should live their life that way and not as others.
The law in Nigeria however reflects the position of most Nigerians. A study of 39 nations around the world by the US Pew Research Center in 2014 found out that 98% of Nigerians believe that the society should not accept homosexuality because it’s not normal to them. But I must be quick to add that if we are part of the majority group, we tend to think others in the minority group are abnormal because we have defined normal to be what we are. And the true mark of democracy according to democracyweb.org is the protection of the rights of the minority.
The law prohibiting homosexuality in Nigeria, though accepted by the people, is unconstitutional, against the order of nature and ambiguous. It violates certain universally recognized fundamental rights enshrined in the constitution of the Federal Republic of Nigeria. These include the right of association guaranteed under section 40; the right to freedom of expression under section 39; the right to freedom from discrimination under section 42 and the right to freedom from unequal treatment guaranteed under the preamble which states that the constitution is based on the principle of equality and justice. All these rights are part of fundamental human rights and according to Kehinde Mowoe in his book Constitutional Law in Nigeria, fundamental human rights are defined as those rights which accrue to a person by virtue of being human. Take note of the word “human” which means typical of a person. Hence, denial of these rights must have as a necessary prerequisite the fact that the object is not human. I put this question to my opponent and everyone here, aren’t homosexuals humans? If they are, isn’t it injustice denying them of their right to freedom of expression? Prohibiting and criminalizing homosexuality is nothing but just punishing certain group of people for an offence over which they have no power over which is the occurrence of their birth.
Nigeria is a democratic society and one of the basic features of a democratic society is the adherence to the doctrine of the rule of law. According to Prof A.V. Dicey, the doctrine of rule of law entails the supremacy of the law, equality before the law and the protection of fundamental human rights of the people. The supreme law in Nigeria is the Constitution. Fundamental human rights are entrenched in the Constitution, and though it does not constitute everything in the constitution, yet every other thing is nothing without it. Equality before the law is guaranteed under the preamble of the Constitution. Freedom of expression is one of the fundamental human rights. Homosexuals are humans. They are not animals. And since they are humans, they have the right to the enjoyment of their fundamental human rights.
Furthermore, in many respects, the law prohibiting homosexuality in Nigeria does not make practical sense. Judges, ladies and gentlemen, how can one prove that a man or woman is homosexual? In Nigeria, heterosexual men sometimes walk holding hands. Are we to presume henceforth that people doing this are homosexuals? If two men or women are living together in the same house, would we then conclude that they must be homosexuals? If we are to use such measures to judge, then perhaps, everyone here is guilty. This kind of law that violates human rights and is virtually impracticable to implement judiciously is only useful for jungle justice.
Why would anyone choose to be homosexual in a world that makes life so difficult for homosexuals? Why would anyone choose to have his freedom of expression being prohibited when he has the power to regain his freedom? The answer is obvious. Any law that infringes on the fundamental rights of citizens is an unjust law, and according to Saint Augustine, an unjust law is no law at all.