Nigeria as a social precinct is presumed to be morally inclined although not on a realistic zone but on the theoretical plain.The assertion above is credited to the realities located in Nigeria as crimes and moral absurdities like rape, theft, jungle Justice, and all forms of barbaric activities gain substantial fecundity. Well, despite the eroded nature of our moral state, we undoubtedly would concur to the fact that we, as a peoples, cherish good conducts and abhor evil — notwithstanding that we are still struggling to substantially realize this. For instance, we disdain rape, murder and theft in all manner possible even to the extent of criminalizing them, yet they gain breath through one way or the other.
To now paint on the canvas, the purport of this paper is a proper consideration of the moral rectitude of Nigeria as a political clime with respects to the growing absurdity to sexuality in form of same sex relationships and marriages. This writer concedes to the fact that persons who are gay, lesbians, bisexuals and even transgenders have the right against discrimination by virtue if section 42 of the constitution of the Federal Republic of Nigeria (1999) as amended. Well,it may appear that the enactment of the Same Sex Marriage Prohibition Act, 2015 defeats section 42 of the Constitution above. However, it should be noted that public morality overrides individual liberty and it will be antithetic to reason to pin our nation’s morality on a hanging pendulum by trying to play to the dictates of lesbians, gays, bisexuals and transgenders (LGBT). Well, before taking a side on whether the above act infringes on the constitutional provision above, it is only apposite and plausible that the act be duely analyzed within the corridors of reason.
Section 7 of the (SSMP) Act has recognized marriage to mean a legal union entered into between persons of opposite sex in accordance with the marriage act, Islamic law or customary law. The same section defines same sex marriage as the coming together of persons of the same sex with the purpose of living together as husband and wife or for some sexual relationships.
Section 1(2) prohibits marriage between same sex persons in Nigeria while section 1(3) prohibits recognition of any marriage between persons if the same sex entered into in other countries. Section 1(1) provides that a marriage contract or civil union entered into between persons of same sex (a) is prohibited in Nigeria and (b) shall not be recognized as entitled to the benefits of valid marriage. Section 1(2) is to the effect that a marriage contract or civil union entered into by persons of same sex by virtue of the certificate shall not be enforced in Nigeria and any benefit accruing there from by virtue of the certificate shall not be enforced by any court of law.
Also, Section 5 of the Act the offenses and penalties for holding same sex marriages or for performing, witnessing or holding the ceremony of same sex marriages. Engaging in the marriage is punishable by 14yrs behind bars while the crime of participating in gay organizations, public show of amorous same sex relationship, witnessing and abbetting the solemnization of same sex marriages, registering or supporting the registration and operation of gay clubs, societies and organizations in Nigeria attracts a penalty of 10 years behind bars vide section 5(2).
Having highlighted some sections of the prohibition act which at first blush appears to have eroded some sections of the Constitution, it is only apposite that the Act be analysed in line with the Constitution.
It is no longer knew that the Constitution defines the relationships between the state and the individuals, the organs roles, powers and limits of the government and the rights and duties of the citizens. It provides for protection of citizens and rights that the government must seek to protect. This stems from the social contract theory which presupposes that due to the harshness of the state of nature and its constant capabilities to degenerate into conflict, people voluntarily consented to form a civil society.
By virtue of section 4(3) CFRN, the National Assembly is competent to legislate on what must receive a recognition as law in Nigeria with regards to the peace, order and good governance save as otherwise provided in the Constitution and on any other matter included in the Exclusive legislative list. Item 61 of the executive legislative list is on the formation, annulment and dissolution of marriages other than marriages under the Islamic law and customary law including matrimonial causes relations. Since the birth of the same sex marriage prohibition act by the National Assembly as duely empowered to do by the Constitution, advocates of same sex amorous relationships have tenaciously alleged that the prohibition act contravens the freedom if expression, association and other rights guaranteed under sections 39, 40 and 42 CFRN. In deciding if the allegation holds water, this writer deems it expedient to treat those rights independently.
Looking at the freedom of expression, section 39(1) CFRN is to the effect that every person shall be entitled to expression, including freedom to hold opinions and to receive and impart ideas and information without inference. Section 39(2) also provides that every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions provided that no person, other than the Government or any other person authorized by the president on the fulfillment of conditions laid down by an act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever. Same Sex Prohibition Act has not joked witht these rights of expression except where such expressly aggregates to aiding or abetting same sex marriage which equates to an offence vide section 5(3) of the Act.
In practice, the right to expression is not absolute in any country as it is commonly subject to limitations like defamation, obscenity and sedition including ethnic hatred. Obviously, the critics grossly misconstrued the provision of section 39 by not construing them together with other sections of the Constitution particularly section 45. A cardinal principle of interpretation of statutes is that it’s provisions must not be read in isolation. Therefore, a decision to express oneself sexually, emotionally e.t.c is only covered by section 39 to the extent that such expression of one’s sexual opinion complies with other constitutional provisions like public safety, public order, and public morality as provided under section 45 of the Constitution.
Moving on to the freedom of Association and Liberty, these rights are recognized both nationally and internationally. The right to freedom of Association is guaranteed at the international level under article 23 of UDHR, article 22 of the international convention on civil and political rights, and article 8 of the international covenant in Economic and social cultural Rights, article 10 of the African Charter on Human and people’s Rights all guarantee the right to freedom of association. In Nigeria, section 40 of CFRN provides that 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.
On the basis of the above,the same sex marriage advocates have argued that section 4 of SSMPA violates their right of association and liberty. According to them, it would have been understandable if the Nigerian government simply defined marriage strictly in terms of the union of one man and one woman, thereby shutting the door to same sex marriages. But to deny homosexuals the right of assembly, and to criminalize homosexuality even where it finds expression in private among consenting adults is a gross violation of the fundamental rights of a significant, even if minor segment of the population.
The argument above may seem to hold water but the question remains that if indeed the act is done secretly, then it should not be known by anyone as the law is strictly on public show of same sex amorous relationships. Although the right to freedom of association is guaranteed both nationally and internationally, the enjoyment of this right is not absolute. Hence, section 45 CFRN is to the effect that nothing in section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health, or (b) for the purpose of protecting the rights and freedom or other persons.
The fact is that if same sex group is allowed absolute enjoyment of their rights, others who are in the majority will have their own rights violated. Example, if there is a change in the legal definition of marriage, pressure will be brought to bear on Catholic schools and other institutions to teach and to accept that this form of sexual union is equal in worth to the committed, monogamous and heterosexual union sealed in marriage. This of course is an unacceptable infringement on the freedom of association and liberty, including not only freedom of worship but also freedom of religious practice.
At this point, it is expedient that the rationale for the provision of same sex marriage act in Nigeria be inspected mentally with dexterity. Marriage is not just any relationship between human beings. It is a relationship rooted in human nature and thus governed by natural law. Natural law’s most elementary precept is that “good is to be done and pursued, and evil is to be avoided”. By this natural reason, man can perceive what is morally plausible. Hence, he can know the end or purpose of each of his acts and how to transform the means that help him accomplish an act into the act’s purpose. Any situation that ventilates the circumvention of the purpose of sexual act violates natural law and the objective norm of morality. Being rooted in human nature, natural law is universal. It applies to the generality of human race equally. It forbids and commands consistently.
With this, the implication of changing the definition of marriage to a union of two persons thereby attributing to it a significance alien to its natural meaning is that the essential nexus between marriage, conception and biological parenthood would be scuttled at a boisterous sea.
It would undercut the idea that procreation is intrinsically connected to marriage. It would reduce marriage merely to sentimentality and to everyday sexual manifestations with emotional or romantic connection becoming the sole criterion by which the state is to determine what constitutes marriage. Moreover, it would corrode marital norms of sexual fidelity since the advocates of same sex marriage tend to downplay the importance of sexual fidelity in their definition of marriage.
Taken to its logical conclusion, the redefinition of marriage as a union of two persons would also amount to legalizing amorous lifestyle or group marriage, and produce a culture in which marriage is deflowered of its significance with disastrous results for children begotten and reared in a world of post-marital chaos.
From the foregoing, it is crystal clear that the government’s resistance to same sex advocates is within the spectrum of the law and reason. Indeed, it is glaring that the enactment of the Same Sex Prohibition Act has not precluded the ventilation of the rights of lesbians, gays, bisexuals and transgenders (LGBT) as the law concretizes the enactment.