Still on the Criminalisation of Same Sex Marriage

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.