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JURISPRUDENTIAL ANALYSIS OF HOMOSEXUALITY AND SAME SEX MARRIAGES: SUPPORTING THE NIGERIAN PERSPECTIVE

JURISPRUDENTIAL ANALYSIS OF HOMOSEXUALITY AND SAME SEX MARRIAGES:  SUPPORTING THE NIGERIAN PERSPECTIVE

CHAPTER ONE

INTRODUCTION

 1.1 Background of the study

Homosexuality is the romantic attraction, sexual attraction or sexual behavior between members of the same sex or same sex[1] . As a sexual orientation, homosexuality is “an enduring pattern of emotional, romantic, and/or sexual attractions” to people of the same sex. It also refers to a person’s sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions[2] .

The phenomenon of homosexuality has long been ignored in many African countries and Nigeria is no exception. Most African countries see this phenomenon as a European concept and thus the rebellion of African states from European oppression to the colonial era, which led them to reject homosexuality. Homosexuality is said to be against the basic institutions and foundations of society and the family respectively and the laws of God, hence the famous saying that “God created Adam and Eve and not Adam and Steve.”[3] Homosexuality is therefore perceived as an evil in society. Conversely, due to the modernization and emergence of the notion of human rights, the Declaration of Rights and other treaties of international law, a different dimension of opinions against homosexuality. The ever-increasing emergence of fundamental human rights has led to acceptance of the conceptualization of homosexuality by many countries, including African countries. Therefore, in many countries, homosexual marriages and other relationships are accepted by state institutions and society. Nigeria remains an exception and homosexuality in Nigeria is not accepted or recognized by the state. This led to the question of whether Nigeria was in breach of its obligations under international law and its constitution in which the Bill of Rights was rooted.

[4] A homosexual person is romantically or sexually attracted to people of their own gender. Men who are romantically or sexually attracted to other men are called gay.          According to the Lexicon Webster Dictionary[5] , a homosexual is one who is characterized by sexual interest in a person of the same sex. The Oxford Dictionary of Current English defines a homosexual in its adjectival form; as a feeling or involving sexual attraction for people of one’s own sex.

From the definition above, it is clear that a homosexual is a person who prefers and affects affections, intimately and sexually to persons of the same sex; He is a man who would rather have sex with a man; And a woman who would rather have sex with another woman.It is clear therefore that a homosexual person can either be a man or a woman.  A male homosexual is often referred to as gay, which according to the Oxford Dictionary of Current English (supra), is a homosexual man.  While a female homosexual; is regarded or known as a lesbian (which originates from Lesbos; a Greek Island and homo of Sappho; who expressed her love for woman in her poetry).[6]

The Lexicon Webster Dictionary (supra) defined a lesbian as a female homosexual and lesbianism as homosexual relations between females[7] .

The attitude of society towards homosexuality has varied from age to age; from society to society and from group to group.  Homosexuality has sometimes been extolled (praised enthusiastically); and at other times, it has been condemned as a heinous crime; a classic example is the destruction of Sodom and Gomorrah by God in the Bible[8] Homosexuals vary in personal capabilities and appearances as widely as other groups, many are ordinary men and women (just ordinary people), a few have a made outstanding contributions in artistic and other field; for example, George Michael (Pop Musician), Sir Elton John (Musician)[9] .

Criminalising homosexuality dates back to 1553 by the British, though the act was considered a purely moral issue and done within the preserve of the privacy of the practitioners. However, the act later became legal in Britain with no form of punishment attached[10] . Over time, the practitioners gradually fought for recognition first attaining the status of civil partnership, until the wake of the 21 st century when it attained the status of marriage which saw the passage of the gender neutrality in marriage and marriage laws which gave birth to same sex or gender marriage. This has become a policy which is being championed by the United Nations Human Rights Council. The developed nations of the world are daily embracing this phenomenon called same sex marriage[11] .

Homosexual practice is not a new phenomenon.1 Homosexual activities either between male or female adults were considered as acts or activities carried out between two consenting adults as purely private affairs in society.2 Different legal systems of the world at one time or the other frowned at it and by legislations criminalized3 it, thereby making it a punishable offence with terms of imprisonment.[12] The concept of same sex marriage was unknown to legal jurisprudence till about the end of the 20th century. It was towards the tail end of the 20th century and the dawn of the 21st century that countries from the different continents of the world predominantly western societies commenced the process of reviewing their legal systems to legalise same-sex union orassociation.[13] These reviews brought about the introduction, acceptance and legal recognition of same-sex union in the form of civil partnership and later marriage between same sex partners.

Marriage is the process by which two people make their relationship public, official, and permanent. It is the joining of two people in a bond that putatively lasts until death, but in practice is increasingly cut short by divorce.Marriage also is a universal institution which is recognized and respected all over the world.  As a social institution, marriage is founded on, and governed by the social and religious norms of society[14] .  Consequently, the sanctity of marriage is a well-accepted principle in the world community. Marriage is the root of the family and of society.

Marriage is the world’s oldest institution. In Christendom, it is believed that it was instituted by God himself, [15] and it is as old as man’s creation.[16] Marriage therefore, is believed to be a sacred union that exists between a man and a woman.    The  term  marriage  has  been  described  elsewhere  as  “a  socially  sanctioned union, typically of one man and one woman, in this connection called husband and wife. Typically they form a family, socially, through forming a household, which is often subsequently extended biologically, through children. It is found in all societies, but in widely varying forms.”[17] In Islam,  marriage  has  been  defined  as  “a  contract  that  results  in  the  man  and  woman living with each other and supporting each other within the limits of what  has  been  laid  down  for  them  in  terms  of  rights  and  obligations.”[18] Furthermore, “it is a mutual contract between a man and a woman whose goal is for each to enjoy the other, become a pious family and sound society.

The common law definition of marriage is credited to Lord Bughley wherein he refers to it as, “the voluntary union for life of one man and one woman to the exclusion of all others.”[19] The existing marriage law in Nigeria, the Marriage Act, made no attempt to define marriage. However, recourse can be had to the Interpretation Act, which again did not define marriage. According to the Act, “monogamous marriage to mean a marriage which is recognised by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage.”[20] Marriage has been further defined as “a legal union entered into between persons of opposite sex in accordance with the Marriage Act, Islamic and Customary Laws.” In Islam, the function of marriage has been stated thus:

Marriage acts as an outlet for sexual needs and regulates it so one does not become a slave to his/her desires. It is a social necessity because through marriage, families are established and the family is the fundamental unit of every society…Marriage is the only legitimate way to indulge in intimacy between a man and a woman[21] .

It is universally accepted that marriage, being a union of man and woman, involves two persons of opposite sex.  Consequently, sex constitutes an essential determination of marriage relationship[22] .  In order, therefore, to establish the existence of a valid marriage, it must be proved that the persons involved are man and woman.  Ordinarily, this seems a straightforward question.  However, the issue has been complicated by the existence of hermaphrodites and pseudo-hermaphrodites and advances in medical science which has made sex-change operation feasible.  In the light of this important development, the legal question has arisen as to the sex of personswho had undergone sex-change operations and whether such person can be regarded as “man” or “woman” for the purposes of contracting a valid marriage.  This question has been considered in different jurisdictions[23] .

In the English cases of Corbett v Corbett[24] , the petitioner and the respondent went through a ceremony of marriage in September, 1963.  The petitioner knew that the respondent had been registered at birth as a male and had in 1960 undergone an operation for the removal of the testicles, most of the scrotum and the construction of an artificial vagina.  Since that operation, the respondent had lived as a woman.  In December, 1963, the petitioner filed a petition for a declaration that the marriage was null and void because the respondent was a person of the male sex or alternatively, for a decree of nullity on the ground of either incapacity or willful refusal to consummate.  [25] The respondent in the answer prayed for a decree of nullity on the ground of either the petitioner’s incapacity or hiswillful refusal to consummate the marriage.  Furthermore, she pleaded that the petitioner was stopped from alleging that the marriage was void. Ormrod, J. held that the respondent had remained at all times a biological male and that, accordingly, the so-called marriage was void.  The learned judge observed.

The question then becomes, what is meant by the word ‘woman’ in the context of a marriage, for I am not concerned to determine the ‘legal sex’ of the respondent at large.  Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormones which can exist in a person with male chromosomes, male gonads and male genital cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.  In order words, the law should adopt in the first place, the first three of the doctor’s criteria, i.e. the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly and ignore any operative intervention.  The real difficulties of course will occur if these three criteria are not congruent… My conclusion, therefore, is that the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth[26] .

1.2     Statement of the problem

A same sex marriage is a concept that has over the past years been rejected by most ideologists, law framers and enforcement agencies. The rejection is due to the fact that homosexuality is considered to be against public morals and church morals. Modern constitutions and international laws have however led to certain countries relaxing their laws concerning homosexual marriages. An example of such a country is South Africa in which same sex marriages can now be solemnised and have the same consequences as heterosexual marriages. In Nigeria however the situation is different, hence same sex marriages are strictly prohibited. This situation is that which has triggered the need to investigate as to whether the prohibition of same sex marriages does not affect the rights as guaranteed under the constitution and international instruments to which Nigeria is party.

[1] The Same Sex Marriage Prohibition Act came into effect on the 7th day of January, 2014. It prohibits and sanctions any marriage contract or civil union between persons of the same sex and the solemnization of such marriage or union. It also criminalizes the registration of gay clubs, societies and organizations, their sustenance, processions and meetings. The work questions the constitutionality of the Act and argues that if homosexualitywas caused by genetic factors, then it would be protected by the phrase ‘circumstances of birth’ under section 42

(2) 1999 CFRN (as amended). The authors have shown that lesbian cannot be guilty of anal inter course under sections 214, 284 and 81 of the Criminal Code Act, Panel Code Act and the Armed Forces Act respectively. The paper recommends that the Nigerian National Assembly should take steps to repeal the Act. The work appraises the prohibition and sanctions created by the Act. It also investigates the constitutionality of the Act as well as Nigerian Criminal Jurisprudence on anal Intercourse and questions its reasonability in a democratic state.

The Act prohibits any marriage contract between homosexuals or civil union entered into in Nigeria and declares that such marriage contract or civil union is void. Consequently the parties involved shall not be entitled to the benefits of a valid marriage. The Act further renders void any same sex marriage or civil union entered into in a foreign country and any benefit accruing therefrom shall not be enforced by any court of law in Nigeria. The first point to note is that the Act does not distinguish between a Nigerian and a non Nigerian in the context of its application. Thus, any homosexual marriage contracted outside Nigeria is voided by the Act once the parties are within the shores of Nigeria. Second, the parties to such a marriage do not derive any benefit from it. This second point has far reaching implications in view of the benefits of a valid marriage[2] .

The most important benefit of a valid marriage is consortium. This connotes a bundle of rights and obligationsbetween spouses. Some of the elements of consortium are: Change of name, cohabitation, sexual intercourse and mutual defence. Although it is customary for a wife to drop her surname and take on the husband’s surname but this is not a legal requirement. A divorced wife can still retain the husband’s surname and the husband cannot by injunction restrain her from so-doing[3] .Another aspect of consortium is cohabitation. This entails living together of the spouses. However, this is not limited to physical cohabitation. 2 Where the spouses are forced by circumstances to live apart, this is still cohabitation in its wider sense; provided there is mutual consent otherwise this may lead to the offence of desertion[4] . It is also necessary to point out that where a third party (not being the parents of either the wife or the husband) denies a spouse the companionship or society of the other, he or she shall be liable in damages.

Marriage obligates the parties to consummate it. However, the consummation of a marriage does not necessarily imply the discontinuance of further sexual intercourse. A spouse is not under an obligation to tolerate inordinate sexual demand of the other, especially where such will be injurious to the health of the other. Indeed such inordinate demand of a spouse may constitute a ground for holding that the marriage has broken down irretrievably[5] . Additional benefits of marriage can be found in the Criminal Code Act and Evidence Act. In terms of mutual defence, the Criminal Code Act provides that it is not an offence for a person to do an act which is reasonably necessary in the defence of himself or another from actual and unlawful threat of violence. Thus, a husband or a wife may employ reasonable force in the defence of each other[6] .

1.3Objective of the study

The general objective of this study is to discuss the jurisprudential analysis of homosexuality and same sex marriages:  supporting the Nigerian perspective. Also to examine same sex marriage in contradistinction with purpose of marriage in the ordinary sense

1.4 Justification of the study

The research really searches to investigate the implications of legalizing homosexual marriages in Nigeria, both legally and economically. In terms of the legal implications of legalising homosexual unions, it would be investigated as to how legalizing homosexual marriages will affect other legal statutes and laws already in place. The economical impact of legalising homosexual unions mainly stem at the costs that would be involved such as the drafting of such laws and also the use of other facilities to legalise such unions. Moreover the social acceptance of same-sex marriages was also be investigated and the consequences of such marriages.The emergence of international human rights instruments such as the ICCPR, ICESCR and the Bill of Rights the list in not exhaustive, has introduced a new dimension to the viewsregarding same-sex marriages. This view has introduced what is known as a nondiscriminationapproach based on sexual orientation, whereby rights such as the right to enter into marriage should not be withheld from persons based on their sexual orientation. The conceptualization of same-sex marriages has been aggressively discussed and rejected by theleaders of most African countries including Nigeria. Same-sex marriages are considered as a foreign concept which is alien to African societies.

Therefore, this study will serve as a guide in the implementation regarding legalizing same sex marriage. Findings from this study will be of outmost significance to the policy makers in Nigeria. Also, the results of this study will add to the existing literature.

1.5 Research Methodology

This research requires the use, mainly, of the doctrinal method to achieve the set objective. Therefore this research applies this method whereby information, facts and law are collected and analysed, having due regard to the constitutional provisions governing the topic of this research.

1.6 Literature Review

Both the issue and controversy generated by the concept of same sex marriage otherwise also known as ‘gay marriage’ is relatively new in Nigeria. Until recently, there was no known open discussion on the matter and presently, there is no law in Nigeria according recognition to that relationship which is still abhorred by majority of members of the society mainly on account of Nigeria’s cultural pattern and religious inclinations[1] . Indeed, both the criminal law and the Marriage Act prohibit same sex marriage. The situation is such that homosexuality can land men up to 14 years imprisonment in southern Nigeria and capital punishment for men in areas under Shari’a Islamic Law in northern Nigeria[2] .  Following this up, in 2006, under the leadership of President OlusegunObasanjo, the Federal Executive Council proposed a bill titled: Same-Sex Marriage (Prohibition) Bill to the National Assembly for enactment into law. While the Senate voted in favour of the bill in 2011, in July 2013, Nigeria’s lower chamber, the House of Representatives, unanimously voted for the outright criminalization of homosexual relations[3] . The efforts of the Nigerian National Assembly and the aggressive intolerance of homosexuals which has been predicated on the banner of ‘protecting the integrity of our religion and culture’, is not only a fallacy, they are also unconstitutional. For example, section 39(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that:

Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.

Besides, the combined effect of the provisions of sections 38(1), 37, 40 and 42(1) of the same Constitution invest every person with the rights to freedom of thought, conscience and religion as well as the right to decide freely on his/her private life. It is in view of the foregoing that this paper examines and makes a criticism of the penal legislations that are inimical to the right of individuals to engage in same-sex relations.

Same-sex marriage contrasts with the ordthordox concept of marriage which conceives it as a relationship between a man and a woman. From a sociological point of view, marriage has been described as the union of a man and a woman for the purpose of rearing children and for the ultimate good of the society. A District court in the United States of America gave credence to this view when it described the institution of marriage as the social union of a man and a woman uniquely involving procreation and rearing of children within a family[4] . Seen from the religious perspective, marriage is the union of a man and a woman into one flesh[5] . The hallmark of this view of marriage is expressed in the definition of marriage by Lord Penzance wherein he defined marriage as ‘a voluntary union for life of one man and one woman to the exclusion of all others’[6] . [7] However, has asserted in this regard that:

It is universally accepted that marriage, being a union of man and woman, involves two persons of opposite sex. Consequently, sex constitutes an essential determination of marriage relationship. In order, therefore, to establish the existence of a valid marriage, it must be proved that the persons involved are man and woman.

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[1] Sessou, E. (2012), “Revealed: More People are secretly Practising Homosexuality in Nigeria”, available at www.vanguardngr.com/2012/06/r-evealed more-people-are-secretly-practising-homosexuality-in-nigeria/(accessed on 6/2/2017)

[2] Nanzing, J. &Garba, A. (2008) “The Crime of Homosexuality: A Comparative Study Between the United States of America and Nigeria” available at http:/dspace.unijos.edu.ng/bitstream/10485/351/1/206-231.pdf (accessed on 9/8/2017)

 

[3] Ikpechukwu, C. (2013), “Nigeria’s Fourteen-year Sentence for gay marriage”, available at

http://www.opendemocracy.net/chinedu-ikpechukwu/nigeria’s-fourte….. (accessed on 17/2/2019)

[4] Skinner v Oklohama (1942) 316 US, 535

[5] Elwell, W. (1993). The Concise Evangelical Dictionary of Theology, London: Marshall Pickering Publication Ltd; 303

[6] Hyde v Hyde (1886), LRIP & D, 130

[7] Nwogugu, E.I. (2011), Family in Nigeria, Ibadan:Heinemann Educational Books, xxxi.

[1] Section 1 (1) (a) (b) of the Same Sex Marriage (Prohibition) Act, 2013.

[2] Section 1 (2) Ibid.

[3] Fendall v. Goldsmith (1977) 2 PD 263; 264; Cowley v. Cowley (1901) AC 450; see E. I. Nwogugu, Family Law in Nigeria, (3rd ed.), Ibadan: Heinemann Educational Books, 1990, p. 71.

[4] Pulford v. Pulford (1923) p. 18, 21, per Lord Mervivale; E. I. Nwogugu, Op Cit, p. 72

[5] Section 15 (3) (1) Matrimonial causes Act, Cap M7, LFN 2010; E. I. Nwogugu, Op. Cit. P. 72.

[6] Section 32 (3) Criminal Code Act Cap.C38 LFN 2010; Section 33 (2) (1) CFRN 1999 (as amended) Cap. C23 LFN 2010

[1] Case No. S147999 in the Supreme Court of the State of California, In re Marriage Cases Judicial Council Coordination Proceeding No. 4365(…) – APA California Amicus Brief — As Filed” p. 30. Retrieved 21 December 2010

[2] Sexual orientation, homosexuality and bisexuality”.American Psychological Association.Archived from the original on 8 August 2013.Retrieved August 10, 2013.

[3] PhD, Associate Professor, Ag. Head of Department, Department of Jurisprudence and

International Law, Faculty of Law, University of Benin, Nigeria. Email:

obehiale@yahoo.co.uk

[4] Wong, Curtis (21 August 2014). “LGBT Customers Sound Off On Their Experiences With Anti-Gay Discrimination At Restaurants, Businesses”. HuffPost Queer Voices.Retrieved 17 March 2016.

[5] Delvin Patrick (1985).Easing the Passing.  The Browley Law, p. 207.

[6] Bearman, Peter; Brückner, Hannah (2002).“Opposite-sex twins and adolescent same-sex attraction” 107.American Journal of Sociology. pp. 1179–1205.

[7] Delvin Patrick (1985).Easing the Passing.  The Browley Law, p. 207.

[8] Esteven, Epstein (1987).  Gay Politics, Ethnics Identity:  The Limits of Social Constructionisms, Socialist Review, Nos. 93, 94.

[9] Bem, Daryl (11 Oct 2008). “Is There a Causal Link Between Childhood Gender Nonconformity and Adult Homosexuality?”. Journal of Gay & Lesbian Mental Health 12 (1-2): 61–79. doi:10.1300/J529v12n01_05. Retrieved 10 February 2017.

[10] PhD, Associate Professor, Ag. Head of Department, Department of Jurisprudence and International Law, Faculty of Law, University of Benin, Nigeria. Email: obehiale@yahoo.co.uk

[11] LL.B., B.L., Assistant Lecturer, Department of Private and Property Law, Faculty of Law, University of Benin, Nigeria. Email: osamagiagiemwen.garuba@uniben.edu and Jacob.garuba@gmail.com 08023553099

[12] Criminal Code Act C38/2010, section 216. See also Criminal Law Amendment Act 1885, section 1885 which provides “any male person who, in public or private, commits, or is a  party to the commission of, or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years. Available at www.swarb.co.uk/acts/1885/ Criminal_Law_AmendmentActs.html, accessed on Feb. 22, 2014).

[13] The Netherlands Same Sex Law 2001, Belgium Same Sex Marriage Law 2003

[14] Haviland, William A.; Prins, Harald E. L.; McBride, Bunny; Walrath, Dana (2011). Cultural Anthropology: The Human Challenge (13th ed.). Cengage Learning. ISBN 978-0-495-81178-7. “A nonethnocentric definition of marriage is a culturally sanctioned union between two or more people that establishes certain rights and obligations between the people, between them and their children, and between them and their in-laws.

[15] Genesis 2:18 King James Version.

[16] “The institution of marriage dates from the time of man’s original creation”. Available at www.bible.dictionary.org/marriage, accessed on Aug. 3, 2013).

[17] Ibrahim B. Syed Same Sex Marriage and Marriage in Islam. http:/www.irfi.org/articles/articles_151_200/same_sex_marriage_and_marriage_i.htm,

accessed on February 22, 2017.

[18] Id.

[19] These were the wise words of William Cecil, also known as Lord Bughley, for decades the Minister of Finance to Queen Elizabeth I and later, King James. He wrote these words to his son in approximately 1600 and one should replace the word ‘wife” with spouse to give it contemporary spice. Marriage Definition: Available at www.duhaime.org/legaldictionary/ M.Marriage.aspx, accessed on February 3, 2017).

[20] Same Sex Marriage (Prohibition) Act, 2013, section 7. This is a recent legislation, at the time of the writing of this paper, it has not come to our knowledge that it has been published.

[21] Concept of Marriage in Islam.Available at www.islamawareness.net/Marriage/marriage _article001.html, accessed on Aug. 10, 2013).

[22] Bell, Duran (1997). “Defining Marriage and Legitimacy” (PDF).Current Anthropology. 38 (2): 237–54. doi:10.1086/204606.

[23] Lemmola, Francesca and CamperioCiani, Andrea (2009).  “New Evidence of Genetic Factors Influencing Sexual Orientation in Men:  Female Fecundity Increase in the Maternal Line”.  Archives of Sexual Behaviour (Springer Netherlands) 38.

[24] Mitchum, Robert (2007).  “Study of gay brothers may find clues about sexuality”.  http://archieves.chicagotribune.com2007/aug/12/nes.chi-gaygene_bd12aug12). Chicago Tribune.

[25] Vucheva, Elitsa. (30 July 2013) / Social Affairs / Europeans marry older, less often. Euobserver.com. Retrieved on 5 September 2013.

[26] Mitta, Manoj;  Singh, Smriti (2009). “India decriminalizes gay sex” (http://timesofindia.indiatimes.com/Delhi-High-Courth-legalizes-homosexuality/articleshow/4726608.cms).

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