A Legal And Jurisprudential Analysis Of Homosexuality And Same Sex Marriages; Supporting The Nigerian Position
1.1 Definition Of Homosexuality
Homosexuality is the romantic attraction, sexual attraction or sexual behavior between members of the same sex or same sex . 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 .
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.” 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.
Who is a homosexual?
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 , 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).
The Lexicon Webster Dictionary (supra) defined a lesbian as a female homosexual and lesbianism as homosexual relations between females .
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 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) .
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 . 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 .
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. 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. 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.
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Conclusion and Recommendations
Sexual orientation exists along a continuum that ranges from exclusive homosexuality to exclusive heterosexuality and includes various forms of bisexuality. Bisexual persons can experience sexual, emotional and affectional attraction to both their own sex and the opposite sex. Persons with a homosexual orientation are sometimes referred to as gay (both men and women) or as lesbian (women only).Sexual orientation is different from sexual behavior because it refers to feelings and self-concept. Persons may or may not express their sexual orientation in their behaviors. The word homosexual is usually avoided because of its negative connotations relating to the way it has been used in the past.
Different countries of the world over time resisted the pressure and agitation by different groups to recognize same gender marriage by passing gender neutrality laws that allows same-sex couples to be married like the heterosexual couples. But at the wake of the 21st century most of those countries gave in to such pressure and then amended their laws to accommodate same-sex marriage into their legal system. The whole idea of same-sex marriage couples is about adult pleasure desires and nothing more. This, in our opinion, could be achieved without seeking the instrumentality of the law to gain recognition and legitimacy without tinkering with the traditional conception of marriage. Same-sex couples could as well go about their activities without seeking any license from the state or government for any form of legitimacy so long as the law of the land permits them.
Our worries here are how long Nigeria would continue to resist such pressure particularly those from the international community championed by the United Nations Human Rights Council, which say the present law against same-sex marriage is anti-human rights. We are afraid that the day will come when Nigeria will decriminalize same-sex association or union and enact a marriage law that is gender neutral, to accommodate same-sex association.
The issue of homosexuality is one of the few areas which gained majority support of Nigerians and the House of Assembly, unlike other issues which had divided opinion; the reason behind this is that Nigeria is a country; irrespective of her bad and corrupt image to the outside world, still holds strongly to morality when making laws. On the other hand, the issue of morality when making law that after the northern part of Nigeria (Panel Code) is not to be debated, due to the religious nature of such laws.
Following from my strong belief and hold to morality as a source to all laws, I strongly support the attempt by the Nigerian legislature to criminalize homosexuality and gay marriage. Reason being that unnecessary sexual satisfaction or genetical disorder that a man would want to have sex or get married to a fellow man. It is quite absurd and disgusting. It must be noted that according to the scripture and the holy Quran, the major purpose of marriage and sex is for procreation. The big question that arises is, how does the act of homosexuality and same-sex marriages intend to sustain procreation? It is undoubtedly impossible.
Ipso factor, homosexuality and same-sex marriages have no benefit to the society at large, except disgusting and selfish sexual satisfaction which brings to such persons who engage in homosexual activities. Therefore, the Nigerian legislature and any other morally based country should go ahead with its criminalization.
On the other hand, it is quite unfortunate that super-power countries of the world like the United States of America, Canada and the United Kingdom have legalized this immoral act, and have stated categorically to cut off aids to any country which criminalizes the act. And our dear country Nigeria is unfortunately one of those countries who receive aids from such super-power countries and have gone ahead to criminalize the act; irrespective of such countries treat.
Finally, I strongly believe that this is a bold step in the right direction by the Nigerian National Assembly. Although, the aids which our country might not get will definitely rock the nation for a while. I am also sure that before the National Assembly went on to criminalize this act; strategies must have been put in place to make Nigeria independent of such conditional foreign aids. As my father will say “if what will kill a man approaches, what will also remedy the situation will definitely follow”.
Flowing from the above argument, the following are my recommendations:
- Nigerian government should not accredit diplomats of same-sex marriage sent to the country by a foreign country that has legalised same sex marriage.
- Homosexuality should be criminalized, since if it is left to the free conscience of men will affect the state.
- In countries where homosexuality has been legalized, the adoption of children by homosexual or lesbians should be criminalized, since the act of homosexuality and lesbianism is against the natural process which brings about a child.
- In cases where persons claim that they were given birth to as homosexual, such persons should be taken to rehabilitation centre or advised to see a psychologist.
- Finally, since the main aim of criminalizing offences, is to deter persons from engaging in such offences. The Nigerian legislature should go ahead and criminalize homosexuality.