Nigeria: Nigeria's failed bill to ban same-sex marriage

STEFANO FABENI: The law, known as the "Same-sex Marriage Prohibition Act 2007" went far beyond the criminalization (please, note, criminalization and not prohibition) of same-sex marriage. First of all it defined same-sex marriage in such an extensive way so as to include not only marriage as defined by family law, but any form of de facto cohabitation among individuals of the same sex. Secondly, and even more importantly, it banned any form of expression, advocacy, assembly, free speech on any issue related to LGBT rights, in public as well as in private.

Section 7 of the bill read "Registration of gay clubs, societies and organizations by whatever name they are called in institutions from secondary to the tertiary level or other institutions in particular and, in Nigeria generally, by government agencies is hereby prohibited." The bill was going far beyond by specifying that "[p]ublicity, procession and public show of same sex amorous relationships through the electronic or print media physically, directly, indirectly or otherwise are prohibited in Nigeria " and "[a]ny person who is involved in the registration of gay clubs, societies and organizations, sustenance, procession or meetings, publicity and public show of same sex amorous relationships directly or indirectly in public and in private is guilty of an offence and liable on conviction to a term of five years imprisonment". This basically meant that any private conversation on issues related to LGBT rights would have been criminal; cohabitation between two persons of the same sex for economic reasons would have been suspect; paradoxically even challenging the law in a court of law would have been criminal. The bill had very many implications that could be used to target any citizen for any reasons that had nothing to do with sexual orientation or gender identity. It would have been a law undermining the human rights of Nigerians as well as basic principles of democracy.

AWID: For what reasons was the bill eventually unsuccessful?

SF: It is not fully clear why the bill was not approved. In fact it has never been clear why it was proposed, besides the official explanation of the concern that LGBTI activists were starting to get organized to claim their rights in the country. Certainly the strong mobilization of different sectors of the civil society (mainstream human rights groups, women rights groups, youth groups and labor organizations) before and during the joint public hearing that the Women Affairs, Justice and Human Rights Committees of the House of Representatives held on February 14, 2007 made it clear that support for the bill was not unanimous. Even the Nigerian Human Rights Commission, a state agency, defined the bill "unnecessary and redundant". The fact that the legislature's term was coming to an end also helped; the three Committees did not agree on the final version. When in the final days before the election the bill was introduced before the Senate, it did not make it there because of the increasing sense of the uselessness of that piece of legislation. Senators in particular understood there were political reasons that pushed the Executive to introduce the bill, and were not convinced about its need. Let's indeed remember that this bill was a political move of the former president, possibly to get support from conservative religious communities for a third term, or to target specific political opponents. And the support of some religious communities, especially the Christian churches, under the lead of Archbishop Peter Akinola, certainly helped this bill to gain its way. The attention and pressure of the international community may have also played a deterrent role.

AWID: What strategies did you and other organizations employ to oppose the passing of the proposed bill?

SF: The first move that Global Rights made, together and in coordination with other international human rights organizations, was to support Nigerian activists who were willing to take a position against the bill. That could have been dangerous because if the bill had been approved, those activists could have been arrested. We also worked with international organizations and foreign government to ensure that they all understood the implications of the bill and persuaded Nigerian authorities to reconsider their decision. Also, Global Rights started, together with local partner organizations, a process of education with some of the key actors, trying to reach out journalists, politicians, as well as the public opinion at large with a full page advertorial on a national newspaper that was published at the beginning of June.

AWID: To what extent, if any, was the campaign against the bill able to rely on mainstream Nigerian civil society support or international support?

SF: As indicated above, interestingly enough the bill itself raised the interest of mainstream Nigerian civil society organizations. Since the very beginning of the campaign, with the open letter to former president Obasanjo that Amnesty International and Human Rights Watch wrote, that was signed by all major international NGOs, a few mainstream Nigerian NGOs, such as the Civil Liberties Organization, the Center for Democracy and Development and LEDAP, endorsed the document. These and other mainstream NGOs, such as the Constitutional Rights Project and Lawyers Alert, got engaged in the debate, were part of the sexual rights coalition led by INCRESE, were present at the hearing and, finally, were at the forefront of the advocacy and education activities that Global Rights facilitated in the last period of the legislature. The bill also received significant attention from the international community. Foreign embassies monitored the legislative process, while several parliaments in European countries, as well as the European Parliament and some members of the US Congress, wrote letters and took position on the issue. The director of UNAIDS delivered a testimony during the public hearing underlining the nefarious consequences that the bill would have had on HIV/AIDS prevention. One important moment was the joint press communique released by four UN special rapporteurs.

AWID: What lessons did you learn from the whole process?

SF: I believe this campaign was a test case for Nigeria and for Africa. We were aware that if this bill was approved, there could have been a domino effect in other African countries. In a sense the extreme implications in terms of potential human rights violations that this bill would promote helped to create some consensus against it. Certainly the broader human rights approach that human rights activists underlined helped to create this consensus, which would probably have not been possible if the issue was strictly around LGBTI rights. We won a battle though. There is a significant need to support the sexual and LGBTI rights civil society in the country. There is also a huge need for education within the country. The way for instance that newspapers dealt with the issue was completely misleading and inaccurate. There were dozens and dozens of articles articulating arguments without any basis. Unfortunately Nigeria is not an isolated case in Africa and in the world. It did not bring up anything that we did not know already.

AWID: Does the failure of the proposed bill have any impact on LGBTI rights as they stand in Nigeria bearing in mind that homosexual relations were criminalized already? Has the process opened up any space for debate or advocacy?

SF: Unfortunately the failure of the bill did not have a positive impact on the state of LGBTI rights. Criminal provisions banning same sex sexual activities between consenting adults are still in force. And, unfortunately, even if the bill is dead, at least for now, the issue is not. On the August 5, 2007 18 young men were arrested in a hotel in the city of Bauchi and charged with cross-dressing under Shari'a law. Not only the circumstances of the arrest are suspect, but so far there is no evidence that the "crime" was committed. Still, the police (not even the hisba, the religious police) arrested them stating that they were caught while performing same-sex weddings. Basically the police arrested them on the basis of a non-criminal act precisely because the bill has not passed) and delivered them to the religious police in the attempt to find some reason to incriminate them. During the first hearing the defendants and their lawyers were attacked by the crowd. Eleven of them are still in jail.

The debate on the bill has certainly created public hysteria on a topic, the issue of same-sex marriage, that had never been an issue until the Executive created it. However, precisely because the bill created the conditions for a dialogue with other sectors of the civil society, and because the question of LGBTI rights is rather "popular" with the newspapers, there is some room for debate. There are chances to engage with human rights activists, and even with other key actors, like lawyers and journalists, to show how what we are talking about is the question of respect for human rights, as recognized internationally and by the same Nigerian legal system. In this sense, both the bill, as well as this recent case in Bauchi, can be used as "case studies" to show how state power uses sexuality and gender stereotypes to violate rights.

By: Kathambi Kinoti

AWID Friday File

07 September 2007