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A LEGAL AND JURISPRUDENTIAL ANALYSIS OF HOMOSEXUALITY AND SAME SEX MARRIAGES: SUPPORTING THE NIGERIAN POSITION

CHAPTER ONE

1.0 Introduction

The aim of this chapter is to provide a broad overview of homosexuality as a topical issue across civilisations and time. As discussion on same sex marriage would necessarily require an understanding of its gradual development in human societies, it would inevitably require some background information on the phenomenon of homosexuality as conducive ground for the growth of same sex marriage. This chapter further explains the meanings surrounding these concepts and a historical overview of their development, from the era of their condemnation to that of tolerance, acceptance and, recently in some jurisdictions, legal protection.^[1]

1.1 Definition and Meaning

Homosexuality has been defined as sexual attraction to (or sexual relations with) persons of the same gender^[2]; erotic activity with another of the same sex^[3].  Homosexual‘ is a combination of Greek and Latin terms. Homo (Greek) means same‘, and the term properly connotes sexual relationship between persons of the same sex.^[4] Homosexuality‘ is a term coined by a Hungarian doctor, Karl Maria Benkert in the mid-nineteenth century. ‗It was first put to use to express defiance and indignation at bigotry, ignorance and intolerance towards the male genital body in its male-tomale genital relations.‘^[5] Over the years, people have used several pejorative words to identify this activity believed by many to be abnormal.^[6] The shades of words employed over the centuries include: homoeroticism, homophilia, paraphilia, pederasty, buggery^[7], sodomy⁹ etc.

Each of these concepts, synonymous as they are now regarded, shows, on careful examination, the progressive evolution in the societal psyche regarding same sex relationship.

Paraphilia means ‗abnormal sexual activity‘ or sexual pervasion,‘^[8] a term denoting the odium attached to same sex act. Pederasty, on the other hand, denotes an erotic relationship between an older man and a younger boy^[9], something borrowed, as will be seen later, from the classical Greek period when such relationships were rampant. Buggery means intercourse via the anus, committed by a man with a man or woman.¹² Homophilia was a term favoured in the 1970‘s by gay rights activists because it emphasises on the love between persons of the same sex rather than on the sexual relationship. It was coined by German author and psychoanalyst, Karl-Günther Heismoth, in 1924 in his doctoral dissertation Hetero- und Homophile.^[10]

In this thesis, homosexuality or homosexualism will be used to denote the sexual attraction, union and relations between persons of the same gender. Same sex marriage will be used as defined in the Same Sex Marriage (Prohibition) Act 2013: ‗the coming together of persons of the same sex with the purpose of living together as husband and wife or for other purposes of same sexual relationship.‘^[11] Such is the scope of the affair with which this thesis is concerned.

1.2 Homosexuality in Popular Culture

Homosexuality is not a modern trend but a thing of antiquity. It can be traced back to the ancient civilisations of the world. What is responsible for its repression over the years is not its paucity but its secretive nature owing to the obloquy attached to it. But despite these, the theme of homosexuality resonates in ancient literary works such as the Iliad of Homer.^[12] The practice was also rampant in the Orient where the Hans emperors of China showed marked proclivity to homosexualism.^[13]

Homosexuality was also forbidden to the Hebrews. The Mosaic Law against

homosexuality was clear and its punishment was fierce. ‗Neither shall you lie with a male as if a woman; it is an abomination.‘^[14] Christianity was equally opposed to homosexuality. Although the founder of Christianity, Jesus Christ, said much about morality, he was silent on homosexuality, even though it was rampant in the Roman provinces where he was familiar.^[15] But Apostle Paul, a Christian Jurist, took up the course with much vehemence and condemnation.^[16] Paul‘s denunciation of homosexuality in strong terms is evidence of its influence^[17]; indeed, Paul‘s epistles were directed at converts, most of who were themselves formally steeped in homosexual practice.²⁰

The influence of homosexuality continued down the annals of history, embracing the high- and the low-born. Europe, having contacted Christianity, did not have the tolerance of homosexuality as did the Greeks and the Romans. But in spite of this, homosexuality continued to spread.

A prominent character of the time who was involved in homosexual scandal was Oscar Wilde. His homosexual relationship culminated in the case of Wilde v Queensberry in which he was charged with sodomy under the English Criminal Law Amendment Act of 1885^[18], and was sentenced to two years imprisonment. He had been in a relationship with a certain Douglas who later chronicled the whole incident. In answer to a question posed by the prosecution about the type of love he had for Douglas, Wilde had answered, ‗The love that dares not speak its name‘ – which has now become a euphemism for homosexualism.

The opinion of the public on homosexuality at this period was not a favourable one.^[19] In his Commentaries on the Laws of England, William Blackstone, reluctant to talk about homosexuality, referred to it as a crime so dark in nature that the accusation of it, if false, deserves a punishment inferior only to the punishment for the crime itself.^[20]

But despite this great odd, some people like Jeremy Bentham had started questioning the rationale for imposing morality as law, especially for  ‗victimless‘ crimes like homosexuality.  In The Principles of Morals and Legislation, Bentham maintained that homosexuality practised between two consenting adults, gives pleasure to both parties but does not harm others. Bentham wrote papers arguing for the repeal of sodomy laws, but he could not bring up the debate publicly for fear of controversy and possible imputation of the offence on his person. The Ecclesiastical England rejected his arguments, and it was in France that Napoleon saw the merit of his work and adopted it as a basis for his criminal law.^[21]

Africa, in all these periods, was not immune to the influence of homosexuality, despite the claim that ‗sub-Saharan Africa [was] ―exempt from this moral pestilence‖.^[22] It seems that the dearth of its record was as a result of lack of written records, coupled with the fact that where practicers of homosexuality would be regarded as abominators and ostracised. It was only later, with the influence of globalisation and its attendant change, and adoption of laws other than customary law, did its influence become pronounced in the society.

1.3 Changing World-View and Legal Interventions

On the issue of homosexuality, the world has moved from active resistance to passive tolerance and even acceptance. As the issue of homosexuality become more rampant in societies, the need to formulate laws regulating the phenomenon became imperative. At this period, the concern of the society was with homosexuality, not same-sex marriage.^[23] Once the battle was won for homosexual intimacy, new battle started for the recognition of homosexual partners to the same marriage status and privileges available to heterosexual partners. This presented a considerable impact on not just morality – which the world no longer placed much premium upon – but also on the institution of marriage, a millennia-old institution universally accepted as the basis of the society.^[24] For, from inception, every culture and society have defined marriage – whether monogamous or polygamous or even polyandrous – as the union of man and woman i.e., persons of opposite gender. This very definition is questioned by the 21^st century agitation for the extension of ‗marriage rights‘ to

persons of the same sex.

United Kingdom 

The English society predating the Renaissance was strongly influenced by the ecclesiastical order, which in turn influenced its laws on morality generally and homosexuality in particular. Series of laws were enacted in England to curb homosexuality and its variants like buggery, sodomy etc. Prosecution of homosexuality in England can be traced to the reign of Henry VIII who in 1533 passed The Buggery Act.^[25] It was one of the first anti-sodomy laws passed by any Germanic country. All Germanic codes up to this time ignored all sexual activities except adultery. The Buggery Act was piloted through Parliament by Thomas Cromwell. The Act made buggery with man or beast punishable by hanging, a penalty in place until 1861.^[26] The Offences against the Person Act of 1861 introduced standard prison term for indecent assault, and in 1885, Labouchere‘s Amendment introduced the offence of ‗gross indecency.‘^[27] By 1954, there were about 1,000 men in prison for homosexual acts. This prompted the setting up of a Committee, headed by Sir Wolfenden, to investigate homosexuality and prostitution. The Committee was appointed, among other things, to consider the ‗law and practice relating to homosexual offences and the treatment of persons convicted of such offenses by the court‘.^[28] The Committee recognised that ‗the laws of any society must be acceptable to the general moral sense of the community if they are to be respected and enforced‘, but that is no justification to extend ‗the inquiry of law into the private moral conduct of the individual,‘ nor to bring religious sentiments into the law.^[29]

The committee recommended that ‗homosexual behaviour between consenting adults in private should no longer be a criminal offense.‘^[30] The Report resulted in the enactment, in 1967, of The Sexual Offences Act^[31] which repealed sodomy laws and decriminalised homosexual activities between consenting adults in private. This marked ‗progress‘ in tolerance to homosexuality after decades of religious domination. It opened way for further debates on the rights of homosexuals.

The European Court of Human Rights decriminalised homosexuality among member states in 1981 in the case of Dudgeon v United Kingdom^[32] when it held Section 11 of the Criminal Law Amendment Act of 1885 to be in violation of European Convention on Human Rights^[33]. Following the decriminalisation of homosexuality and influenced by the increasing awareness of human rights, there were clamour for full realisation of equal rights for homosexuals as enjoyed by heterosexual. Civil Partnership Act was enacted in 2004 to legalise ‗relationship between two people of the same sex‘ who register as ‗civil partners,‘ or

to recognise such partnership when done outside UK.^[34] This does not equate ‗civil partnership‘ to marriage.³⁸ Seven years later saw the enactment of Marriage (Same Sex

Couples) Act 2013, which provides that ‗marriage of same sex couples is lawful‘.³⁹ Section 9

of the Act allows existing civil partnerships to be converted to marriage proper.

United States

In the United States, the judiciary was at the forefront of the legal intervention in homosexual legislations. Sodomy laws in the United States were largely in the precincts of the states rather than the federation.^[35] As a result of this, the sodomy laws differed from state to state. The effect of this difference is that some laws upheld by the state supreme court might be struck down by the federal Supreme Court. In Pilcher v State of Iowa⁴¹, an Iowa law which prohibited consensual sodomy with a person other than one‘s sex was held to be unconstitutional. But at the same time, the US Supreme Court held in Doe v Commonwealth’s Attorney of Richmond^[36], confirming the decision of the lower court, that the Virginia‘s Sodomy statute was constitutional. In the 1980 case of People v Onofre^[37], a New York law prohibiting consensual sodomy was held unconstitutional. In Bowers v Hardwick^[38], a Georgian law prohibiting consensual adult homosexual act as illegal sodomy was held valid and constitutional as there was no constitutional right to engage in homosexual act. But this case was reversed 17 years later by Lawrence v Texas^[39] where U. S. Supreme Court struck down as unconstitutional a Texas law which classified consensual adult homosexual intercourse as illegal sodomy. In overruling Bowers v Hardwick, the Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process clause under the 14^th Amendment. Other cases in which private consensual homosexual sexual relations were struck down as illegal include: State v Morales^[40], Commonwealth v Wasson^[41]; Campbell v Sundquist^[42]; Gryczan v Montana^[43]. These cases deal with sexual relationship between persons of the same sex rather than marriage between persons of the same gender.

 ^[44]In Obergefell v Hodges⁵⁰ the petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. The respondents are state officials responsible for enforcing the laws in question. The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition. The Court‘s majority opinion was: ‗…that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them… the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.‘

Africa

Africa remains largely conservative in the issue of homosexuality even at the turn of 21^st Century, although there were jurisdictions where homosexual acts between consenting adults have been decriminalised.^[45] The Botswana’s case of Utjiwa Kanane v The State^[46] merits consideration. It was alleged that on 26 December 1994, the appellant (Utjiwa Kanane), a male, permitted Graham Norrie (male) to have carnal knowledge of him ‗against the order of nature‘. This was in violation of the Botswana Penal Code which provides in Section 164(c) that ‗any person who permits a male to have carnal knowledge of him or her against the order of nature, is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.‘ The appellant contended that the provision of the Penal Code was ultra vires Section 3 of the Botswana Constitution which guarantees non-discrimination. Mwaikasu J., delivering the judgment of the court, held that the Sections of the Penal Code in contention were not in violation of the constitution. The question arose whether in Botswana at the time present and circumstances demanded the decriminalisation of homosexual practices as between two consenting adult males. The court also noted the changes in other jurisdictions with regard to homosexuality but arrived at the conclusion that there was nothing in the attitude of the Botswana people showing that the time had arrived for decriminalisation of homosexual practices even as between two consenting adults.

Another important African case emanated from Zimbabwe in the case of Banana v The State^[47]. The appellant was a former non-executive president of Zimbabwe. In 1997, his aidedecamp, D, was convicted by the High Court of having murdered a police constable. The appellant was convicted, inter alia, on two counts of sodomy. He appealed against the conviction to the Supreme Court. The Court had to decide whether, amongst others, the common-law crime of sodomy was in conformity with section 23 of the Zimbabwean Constitution, which guaranteed protection against discrimination on the ground of gender.

By a majority of three to two, the Court held that section 23 of the Constitution did not include an express prohibition against discrimination on the ground of sexual orientation. That provision prohibited discrimination between men and women, not between heterosexual men and homosexual men. The latter discrimination was prohibited only by a constitution which proscribed discrimination on the grounds of sexual orientation. The real complaint by homosexual men, in the majority‘s view, was that they were not allowed to give expression to their sexual desires, whereas heterosexual men were. In so far as that was discrimination, the majority thought it was not the sort of discrimination which was prohibited by section 23 of the Constitution.

The attitude of South African Courts differs significantly from those of other courts in Africa. This is primarily because of its Constitution which expresses the liberal attitude of the time.^[48] It includes sexual orientation in its non-discrimination clause.^[49] As a result, it has upheld many petitions against discrimination on the ground of homosexuality.^[50]

In February 2014, Uganda’s Anti-Homosexuality Act was signed into law, bringing to a climax a five-year saga sparked and sponsored by American evangelical groups. Less than half a year later, the country‘s Supreme Court struck down the law on technical grounds, allegedly due to pressure put on President Museveni by Western governments.^[51]

Nigeria has passed some laws prohibiting homosexuality even before the enactment of Same Sex Marriage Prohibition Act. The Penal and Criminal Codes prohibit homosexual acts, and in the northern states, the various sharia laws of different states also prohibit same sex intimacy with heavy penalty – in some states, death penalty. With the anti-homosexual laws still in place in various parts of the world, Nigeria enacted in 2013 an Act prohibiting same sex marriage, a reaction likely prompted by the desire to further secure the Nigerian legal system against the intrusion of Western homosexual concept. The implications of this Act on the human rights of the Nigerian citizens will form the crux of this thesis and will be analysed accordingly in the appropriate chapter.

United Nations

Globally, with the increased internationalisation of human rights, issues like homosexuality have also entered international arena. The major international conventions on human rights, the United Nations Declaration on Human Rights (1948), the International

Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966) all prohibit discrimination on the ground of sex ‗or other status‘ which has been interpreted to include sexual orientation. In 2008, the United Nations passed a resolution on Sexual Orientation and Gender Identity. It was adopted on 17^th June, 2011. It has been signed by 96 members (Nigeria is still among the 54 opposing members).^[52] A worldwide adoption of this resolution will mean – at least to the UN member states – the abolition of offences relating to sexual orientation such as homosexuality and same sex marriage. The Human Rights Committee blazed the trail with the decision in Toonen v. Australia⁵⁹ when it held that a statute criminalising various forms of sexual contact between men, including all forms of sexual contact between consenting adult homosexual men in private, was a violation of the International Covenant on Civil and Political Rights (ICCPR).^[53]

1.4 Conclusion

Homosexuality is a thing of antiquity which has for centuries been attached with public opprobrium. However, with the loss of religious influence, increased secularisation of the world and the advancement in technology generally, homosexualism has come to be accepted as a normal sexual orientation in many societies. The change in public opinion – or perhaps public morality – has also resulted in the decriminalisation of homosexuality and, in some countries, in the legalisation of marriage between persons of the same sex.

However, Nigeria remains one of the countries resistant to change. It does not only retain its laws on sodomy in the penal and criminal codes, and allowed for state enactments on sodomy, it has further opted to ply the opposite direction from the rest of the world, with the enactment of the 2013 Same Sex Marriage (Prohibition) Act. The debates surrounding this

Act before its enactment forms the kernel of the next chapter.

[1] Odiase-Alegimenlen and Garuba, ‘Same Sex Marriage: Nigeria at the Middle of Western Politics’, Oromia Law Journal [Vol 3, No. 1] 261.

[2] Chambers Dictionary, 13^th Edition (2014) Android version edition by WordWeb Software.

[3] Merriam-Webster dictionary.

[4] Andrian Room, A Dictionary of True Etimologies (1986), p. 84; Statt, David, A Student‟s Dictionary of Psychology (2004), p. 93, cited in Wikipedia, online at www.wikipedia.org.

[5] Leslie Moran, The Homosexual(ity) of Law (London, Routledge, 1996) p. 3.

[6] BBC News, „How Gay became children‟s insult choice of words,‟ March 18, 2008

<http://news.bbc.co.uk/2/hi/7289390.stm>  accessed July 13, 2016; Kehinde Obasola, ‘An Ethical Perspective of Homosexuality Among the African People’, European Journal of Business and Social Sciences, (Vol. 1, No. 12, 2003), 77.

[7] H. G. Cocks, Nameless Offences, Speaking of Male Homosexual Desire in Nineteenth-Century England (I.B.Tauris & Co Ltd, 2003) at p. 45: ‘Sodomy had been made a civil offence in 1533 by Henry VIII, a law confirmed during the reign of Elizabeth I. Although the 1533 Act did not attempt to define what was meant by ‘buggery’, later jurists attempted to specify what the act of sodomy actually described in law. Sir Edward Coke’s Institutes of the Laws of England (1642) defined it as anal penetration of a man by a man, or a woman by a man.’ ⁹ ibid.

[8] Chambers Dictionary, 13^th Edition (2014).

[9] ibid. ¹² ibid.

[10] Wikipedia at https://en.wikipedia.org/wiki/Homophilia, accessed on July 13, 2016.

[11] Section 7.

[12] Louis Crompton, Homosexuality and Civilisation (The Belknap Press of Harvard University Press, 2003) p. 4-6.

[13] Ibid., p. 217.

[14] Leviticus 18:22, Byinton translation of the Bible.

[15] Perhaps his silence on homosexualism has prompted several debates on his sexuality. The dramatist, Christopher Marlowe, held that Jesus and John were homosexuals. But these are groundless assumptions.

[16] Romans 1:26,27 Byinton translation of the Bible.

[17] Corinthians 6:9-11: ‘Or do you not know that unrighteous people will not inherit God’s kingdom? Do not be misled. Those who are sexually immoral… men who submit to homosexual acts, men who practice homosexuality… will not inherit God’s Kingdom. And yet that was what some of you were‟. (New World Translation of the Holy Scriptures, emphasis added.)

[18] The Act was among the series of legislations on morality, starting from the Offences Against the Person Act 1861 which, inter alia, criminalised homosexuality.

[19] Edward Gibbons, The History of the Decline and Fall of the Roman Empire (Straham & Cadell, London 1776-89).

[20] William Blackstone, Commentaries on the Law of England (1765), quoted in Crompton (n 15) p. 529.

[21] Crompton, (n 15), p. 530.

[22] Neville Hoad, African Intimacies: Race, Homosexuality, and Globalization (University of Minnesota Press, London, 2007), p. 11.

[23] Same sex marriage becomes only an issue in societies that have accepted homosexuality. This is one of the reasons, as would be seen later, while Same Sex Marriage Prohibition Act (2013) in Nigeria can be regarded as a troublesome and redundant legislation: it attempts to tackle same sex marriage as an issue when homosexuality debate has not been settled.

[24] Obergefell v. Hodges (2015) US LEXIS 4250; 83 USLW 4592, (majority opinion of Justice Kennedy), p. 3.

[25] Cocks, (n 8), p. 30.

[26] Odiase-Alegimenlen and Garuba (n 2) p. 2.

[27] Ibid, p. 43.

[28] The Wolfenden Report, Terms of Reference 1.

[29] ibid, pp. 23-24.

[30] ibid, Chapter 5(62) p. 48.

[31] Amended in 2003.

[32] Series A, No. 45; IHRL 31 (ECHR 1981).

[33] J Oloka-Onyango, ‘Debating love, human rights and identity politics in East Africa: The case of Uganda and Kenya’, African Human Rights Law Journal, Vol. 15, 2015, p. 33.

[34] Section 1 of the Civil Partnership Act 2004. ³⁸ Wilkinson v Kitzinger (2006) EWHC 2022 (Fam) ³⁹ Section 1(1).

[35] Wikipedia: Sodomy laws in the United States

<https://en.m.wikipedia.org/wiki/Sodomy_laws_in_the_United_States>, accessed July 15, 2016 ⁴¹ (1976) 242 N.W. 2d 348.

[36] (1976) 425 U.S. 901.

[37] (1980) 415 N.E.2d 936.

[38] (1986) 478 U.S. 186.

[39] (2003) 539 U.S. 558.

[40] (1992) 826 S.W.2d 201.

[41] (1992) 842 S.W.2d 487.

[42] (1996) 926 S.W.2d 250.

[43] (1997) 942 P.2d 112.

[44] USLW. 4592; 2015 US LEXIS 4250.

[45] Madagascar, Congo, South Africa, Central African Republic, Cape Verde, Gabon, Equatorial Guinea, Mali, Burundi, Cote d’Ivoire, Rwanda <http://www.africapedia.com/AFRICAN–COUNTRIES–WHEREHOMOSEXUALITY–IS–LEGAL–OR–DECRIMINALISED> accessed February 24, 2016.

[46] (2003) 2 BLR 64 (CA).

[47] 2000) 4 LRC 621 (ZSC).

[48] Or perhaps because, in the words of Professor Akin Oyebode, South Africa is just a ‘European country masquerading as an African country.’

[49] Section 9(3) South African Constitution 1996.

[50] S v M (1990) 2 SACR 509(E); National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (2000) 2 SA 1 (CC).

[51] AM Ibrahim, ‘LGBT rights in Africa and the discursive role of international human rights law’, African Human Rights Law Journal (Vol. 15, 2015) p. 264.

[52] LGBT rights at the United Nations, retrieved from Wikipedia

<https://en.m.wikipedia.org.wiki/LGBT_rights_at_the_United_Nations> accessed February 24, 2016. ⁵⁹ Communcation No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).

[53] J Oloka-Onyango, (n 36) p. 34.