Introduction
It is well a
known fact that history of humankind is replete with several instances of
shying away from the truth; therefore, human race has never stop to amaze me. Shortly
after the vote on the same sex marriage in the Senate chambers, my first
reaction was not to be bought into the debate, for just one reason that in my
mind, it was a suspicious move by the government (Federal and National
Assembly) to divert Nigerians attention from the impending political fuel
subsidy removal and other social problems bedeviling the country. At this
moment, I am compelled to talk and state my mind clearly on this issue. Not
minding the fact that the fuel subsidy removal threat still hangs overhead, or
that Boko Haram is becoming more ferocious in its bombing activities in the
country or that the social problems bedeviling Nigeria have refused to just
being wished away. I am also compelled to speak my mind on this issue even
though, I am aware of the consequences according to anti Same Marriage Act,
that I could be charged and sentenced to up to 10 years in prison for promoting
same sex marriage.
Most importantly, I am compelled to write this piece, because same
marriage issue has become an issue that is challenging our human rights struggles
and campaigns in Nigeria. It is an extant issue that is causing rift within the
Nigerian human rights community and among activists. It is also an issue that
has been reduced to unimportant personal issues by some on one side, while the
other side has dubbed it an important civil rights matter. More so, an issue
that has drawn strong opposition based on religious and cultural reasons.
However, what we are seeing in Nigeria among the human rights community and activist
alike is nothing new to same sex recognition issues across world.
By this write-up, I join others of like minds and
orientations who view this new discriminatory law as out of place and a gross
violation of fundamental human rights of gays, lesbians, bisexuals, queers, and
transgender. As a corollary I am living up to my responsibilities as an intellectual
including speaking the truth and exposing lies. Against this backdrop, the premise of discussion
shall be on the following three levels- same sex rights, same sex marriage and
deconstruction of marriage institution and The State, Law and Criminalisation
of same sex relationship.
Gay/Lesbian/Transgender/Queer Right
is Human and Constitutional Right
Proponents
and supporters of same sex or gay marriage are currently facing a testy time
from their conservative heterosexual counterparts who characteristically always
see a fault in alternatives even when they are good. There are two views to all
the growing opposition to the issue. The first, being that, humans tend to
advance personal reasons to disagree with an issue as sensitive as this by
categorising it as unnatural or abnormal in order that their disagreement can
be excused. For this group of humans, their claim is that they will find it difficult
to accept the site of same sex couples kissing or romancing each other in
public. Furthermore, this group believe same sex marriage will bring a
screeching halt to procreation within the next 50-100years.
The second group comprises of those whose
opposition is based on religious grounds, and to this group same sex marriage
is seen as a sin against God. While the earlier group could be excused on the
grounds that there is a strong tendency for them to change their opposition
since it is not strongly fundamental; at the same is it not ridiculous that we
tend to moderate other peoples' way of life from our perspective? In addition,
thanks to science, procreation is no more the reserve of heterosexual couples.
The latter group may not likely change their view and opposition being the
conservative fanatical group, and the view of this group appears strongest as
they are determined to uphold their fanatical disagreement with issue. As it is today, the discussion on the topic is polarized between the liberal minded group whose attitude to the issue is live
and let live, on one side and the fanatical ‘religious’ group on the other.
This polarization is rather unfortunate because it leads many to believe the
only reason one might object to same -sex marriage is out of religious belief.
The crux of the matter is the manner of anchoring the on-going debate, which
seems to bring religious morality of an action above rights of individuals
residing in a liberal democratic environment. Another group populated by pseudo
cultural and African tradition protectors have also continually argued that same
sex practice is unAfrican and antithetical to our culture.
Meanwhile, it is pertinent to state that, rights
are the basis of our liberal democratic political order and key to contemporary
thinking about moral and ethical issues. In a world govern by liberal
democratic constitution, and conventions and not religious nor cultural belief;
morality becomes a contentious issue as the bound of democratic liberalism is
beyond morality, so also is the bound of liberalisation of society beyond
morals. Once upon a time in history of humankind, it was impossible for humans
to engage or even practice how much more contemplate the conception of inter-
racial, tribal, clans, ethnic, and religious marriage. Today, many thanks to
liberal democracy and human rights as well as tolerance, all the issues which
were hitherto considered anathema are currently being practiced.
It need to be said that our mere disagreement with
the idea of same - sex marriage either on moral or religious basis is not
strong enough to ban same sex people from marrying each other. Just as previous
human disagreement with ground breaking and controversial medical as well as
scientific feats like vitro-fertilization, stem cell research and abortion, as
well as social issues failed on the premise of the of the arguments centred
around immorality, so too the present disagreements with gay marriage will
eventually give way. Make no mistake; we Nigerians are at yet another cross
road in our history that will test our nerve just as military rule did to us
for more than 30 years of our country flag independence.
Whatever side of the divide we chose to belong;
there is the need to understand that the very foundation of the world since the
end of 2nd World war in 1945, stand firmly on pillars of fundamental rights of
every human being. These rights are held unalienable and sacrosanct to every
individual, irrespective of skin colour, nationality, sex (sexual
orientations), culture, religion, and political affiliations. Among these
rights are articles, which protect humans' rights to freedom of association,
religion, choice, expression and a whole of gamut of other personal rights. To all intent
and purposes, it is instructive to state unequivocally here ‘Same Gender Marriage (Prohibition) Bill 2011’ completely
violates the section 42, 1, of the 1999 Nigerian Constitution which guarantee the right to freedom from
discrimination on the basis of, ethnic group, place of origin, sex,
religion or political opinion as well as
other international treaties and conventions to which Nigeria is a signatory.
For example, the bill violates the right to freedom from discrimination
in the African Charter on Human and Peoples’ Rights, ratified by Nigeria in
1983 and which has become part of Nigeria’s national laws. Article 2 of the
African Charter states: “Every
individual shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in the present Charter without distinction of any
kind such as race, ethnic group, colour, sex, language, religion, political or
any other opinion, national and social origin, fortune, birth or other status.” The aim of this principle is to ensure equality of
treatment for individuals irrespective of nationality, sex, racial or ethnic
origin, political opinion, religion or belief, disability, age or sexual
orientation.”
In
addition, this bill (‘Same Gender Marriage
(Prohibition) Bill 2011’) Section 5 (2) also state that “Any
person who registers, operate or participates in gay clubs, societies and
organization or directly or indirectly make public show of same amorous
relationship in Nigeria commits an offence and shall each be liable on
conviction to a term of 10 years imprisonment.” Without any doubt,
the section clearly negates the provision
the chapter 4 section 40 of the 1999 Nigerian Constitution which guarantees the every Nigerian the right
to freedom of association or freely associate which states inter-alia: “every person shall be entitled to assemble
freely and associate with other persons, and in particular he may form or
belong to any political party, trade union or any other association for the
protection of his interests”. The
implication is bill is that there now exist two laws and two constitutions
operating in Nigeria, one for the heterosexual and same sex people. This
situation is unfortunate and regrettable for a country where civil democratic
rule is at infancy.
As far this writer is concerned, the decision to be
either gay or lesbian as well as, to marry each other abides adequately in
their fundamental rights as humans. Furthermore the right to choose who to
marry, gay, heterosexual or bisexual, where to worship also lies within the
prerogative of every human being (heterosexual, queer, transgender, gays and
lesbians inclusive). To the extent that we live in societies founded on the
tenets of liberalism, we should not be seen to be perpetuating the violation of
others’ rights. Against the backdrop of the foregoing, I therefore raised the
question, should same sex marriage be? I say an emphatic YES to this. Is it
moral? The crux of the matter is not the morality, because morality is
subjective and it cannot be seen to be elevated to the level of superiority
over fundamental rights. We must also not forget that morality or societal
norms are bye product of culture, and by implication culture an extension of
human relationships.
Same Sex Marriage and the
Deconstruction of the Institution of Marriage
Marriage as we know it according to all traditions
and religious beliefs has historically been between male and female. Over time,
this is historical relationship has, however, been made to appear as the
injunction from the almighty, as it has found interpretation in many religious
books and traditions. But this fact from conventional practice is not enough to
validate the position that marriage can only be between two opposite sexes. In
the same vein, the idea of marriage has been dubiously tied to procreation, as
children born out of wedlock have been dubbed bastards. Marriage, I dare to say
is a social phenomena or construction that is anchored on the old traditional
beliefs and morals. Whereas, motherhood is bestowed on a woman by nature, while
wifehood is bestowed by the society, only goes further to validate marriage as
social construction between two willing adults and not necessarily between male
and female. If this be the case, then it shouldn’t be legislated to be solely
the prerogative of female and male sexes to indulge in. Flowing from this
foregoing, it goes to confirm heterosexual marriage as a convention but not a
law, and convention by all means can never be sustained under any laws no
matter how long such convention(s) has been in existence. On another ground,
the heterosexual marriage was foisted on the world through the various major
religious tenets and laws drawn by and for a patriarchal world, where women
among others had no say. This therefore explains the current discriminations
and discriminatory laws that abound in the world today in relation to sexual
relationships and marriages.
Science has been the chief impetus in all these
reconstructions with the exception of same sex marriage, ordination of women
bishops and election of gay bishops which are social phenomena. In the opinion
of this writer, same-sex or gay marriage is another reflection of the many
changes and challenges facing us as human beings craving for alternatives to
held beliefs. This, to a large extent is antecedent and historical to all human
generations in the quest for alternatives and as such, same sex marriage
shouldn't be an exception. Without the fear of disapproval, we need to
understand that ambiguous paradoxes, which are idealistic that neither reflect
nor address 21st Century realities and contradictions, need be redressed.
Hence, the issue of same sex marriage is a form of
many deconstructions that have occurred in human societies across historical
times. Same sex marriage is a challenge to an assumption or a held belief that
the marriage institution should be heterosexual i.e. between two opposite sexes
(between man and woman). In other words the recognition accorded (with
legislation around the world) to same sex marriage, can be seen as a
reconstruction of the meaning or definition of the marriage institution to
include other forms of marriages. Same sex as alternative marriage, just like
other topical and controversial issues like adoption, abortion legalisation,
in-vitro fertilisation, stem research, ordination of women bishops, cloning and
evolution theory, inter-racial/inter marriages among others, have occurred over
time and humans have seen new meaning being constructed to replace what we are
used to knowing.
For the avoidance of any doubt, read the excerpts from this Bill ‘Same Gender Marriage (Prohibition) Bill
2011’:
Section 3 of the bill reads: "Only marriage contracted between a man and a woman either under Islamic law, customary law or Marriage Act is recognized as valid in Nigeria."
Section 4 (1) which
kicks against gay clubs reads: "The registration of gay clubs, societies
and organizations; their sustenance, processions and meetings are hereby
prohibited. (2) The public show of same sex amorous relationship directly or
indirectly is hereby prohibited."
Section 1 (2) and
(3) reads: "A marriage contract or civil union entered into between
persons of same sex is invalid and shall not be recognized as entitled to the
benefits of a valid marriage. (3) A marriage contract or civil union entered
into between persons of same sex by virtue of a certificate issued by a foreign
country shall be void in Nigeria, and any benefits accruing there from by
virtue of certificate shall not be enforced by any court in Nigeria."
The law also banned
solemnization of same sex marriage in churches and mosques in Nigeria. Section
2 (1) of the bill provides: "Marriage or civil union entered into between
persons of same sex by virtue of a certificate issued by a foreign country
shall be void in Nigeria and any benefits accruing there from by virtue of the
certificate shall not be enforced."
Section 5 (1) (2)
(3) which stipulates the penalties reads: "Persons who entered into same
sex marriage contract or civil union commit an offence and are each liable on
conviction to a term of 10 years imprisonment.
“Section 5 (2) Any
person who registers, operate or participates in gay clubs, societies and
organization or directly or indirectly make public show of same amorous
relationship in Nigeria commits an offence and shall each be liable on
conviction to a term of 10 years imprisonment.
"(3)Any person
or group or persons that witness, abet and aids the solemnization of a same sex
marriage or civil sustenance of gay clubs, societies, organization, process of
meeting in Nigeria commits an offence and shall be liable to conviction to a
term of 10 years imprisonment."
Anthony Kola-Olusanya is the author of this piece.
