Jurisprudential Analysis of Homosexuality and Same Sex Marriages: Supporting the Nigerian Perspective
CHAPTER ONE
OBJECTIVE OF STUDY
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.[1] The concept of same sex marriage was unknown to legal jurisprudence till about the end of the 20th century.
CHAPTER TWO
LAW AND MORALITY IN RELATION TO HOMOSEXUALITY AND SAME MARRIAGES
The Moral Implication of Homosexuality and Same-Sex Marriage
Some people who approve of homosexuality as a legitimate lifestyle have said that homosexuality and homosexual marriage are not moral issues. Often, this is stated in an attempt to distance themselves from ethics and focus on the social and political agenda to promote homosexuality. Still, is homosexuality and homosexual marriage a moral issue? Yes, it is. Morality deals with person-to-person relationships and what ought and ought not to be done within them.
The Stanford Encyclopedia of Philosophy defines morality: “descriptively to refer to some codes of conduct put forward by a society or, some other group, such as a religion, or accepted by an individual for her own behavior or normatively to refer to a code of conduct that, given specified conditions, would be put forward by all rational persons.”
Dictionary.com says of morality: “of, pertaining to, or concerned with the principles or rules of right conduct or the distinction between right and wrong; ethical: moral attitudes.
Both of these definitions deal with right “conduct,” that is, with a person’s behavior. Marriage commitment and sexual conduct are both laced with moral issues such as:
What ought marriage be defined as?
How should a marriage be dissolved?
What ought to be the age restrictions on marriage?
Should we be free to have sex with anyone we want to?
Should sex be restricted to marriage partners only?
Who decides what is right and wrong inside of marriage?
These issues are, by nature, moral; and the claim that homosexuality is not a moral issue is simply false.But, the moral issue is not where homosexuals want to do battle–well, not normally. They might claim the moral right to have sex with anyone they want or have the “right” to marry a person of the same sex, but on what are their morals and rights based? If they reply that society and personal preferences determine morality, there are problems that arise.
Homosexuality is the erotic response to, and the sexual desire of members of one’s own sex. It isn’t just sexual contact with one’s own sex, because that could also be due to limited sexual opportunities or even ritualistic cultural practices, as in the case of the New Guinean Sambian people. Their male youths engage exclusively in homosexual practices with older males because it is believed that they must “drink men’s milk to achieve the fierce manhood of the head hunter.” Once they reach marrying age though, their behavior turns heterosexual.
CHAPTER THREE
ANTI-HOMOSEXUALITY AND SAME-SEX MARRIAGE LEGISLATIONS IN NIGERIA
Lesbian, gay, bisexual, and transgender (LGBT) persons in Nigeria face unique legal and social challenges not experienced by non-LGBT residents. The country does not allow or recognise LGBT rights. There is no legal protection against discrimination in Nigeria — a largely conservative country of more than 170 million people, split between a mainly Muslim north and a largely Christian south. Very few LGBT persons are open about their orientation, and violence against LGBT people is frequent[1].Both male and female same-sex sexual activity is illegal in Nigeria. The maximum punishment in the twelve northern states that have adopted Shari’a law is death by stoning. That law applies to all Muslims and to those who have voluntarily consented to application of the Shari’a courts. In southern Nigeria and under the secular criminal laws of northern Nigeria, the maximum punishment for same-sex sexual activity is 14 years’ imprisonment. The Same-Sex Marriage Prohibition Act criminalises all forms of same-sex unions and same-sex marriage throughout the country[2].
According to the 2007 Pew Global Attitudes Project, 97 percent[3] of Nigerian residents believe that homosexuality is a way of life that society should not accept, which was the second-highest rate of non-acceptance in the 45 countries surveyed[4]. In 2015, a survey by an organisation founded by a Nigerian homosexual activist based in London claimed this percentage decreased to 87%. In this survey by Bisi Alimi, as of the same period the percentage of Nigerians who agree LGBT persons should receive education, healthcare, and housing is 30%[5]. Nigeria has been criticized by human and civil rights organizations based in the West where LGBT’s have more or equal rights, as well as the United Nations, for failing to uphold, and even violating, the rights of LGBT people[6].
CHAPTER FOUR
OPINION ACROSS THE WORLD SOCIAL AND LEGAL VIEW POINT OF HOMOSEXUALITY AROUND THE WORLD HISTORY
Homosexuality is becoming more and more accepted, especially during the past few years[1]. Lesbian, gay, bisexual, transgender (LGBT) rights in Africa are limited in comparison to many other areas of the world, with the BBC estimating that homosexuality is outlawed in 38 African countries. In 13 nations, homosexuality is legal or there are no laws pertaining to it[2].
In recent years, more first world countries are considering or implementing laws that limit or prohibit aid to countries that restrict the rights of homosexuals.[3] In spite of this, many countries are continuing to breach international human rights laws and refusing to consider increasing LGBT rights, and in some cases drafting laws to increase sanctions against LGBT lifestyles. Many African leaders that gay rights are against their cultural and religious value systems, and believe they have a sovereign right to reject what is seen as a imposition by mainly Western nations, which attempts to affect national sentiment via aid.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
CONCLUSION
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.
RECOMMENDATIONS
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.
REFERENCES
- Agaba, J. A. (2011). Practical Approach to Criminal Litigation in Nigeria – Pre-trial and Trial Proceedings. Abuja: Law Lords Publication, p.332.
- Agbede, O. (1990). Modalities for the Enforcement of Financial Compensation for the Victims of Crime. In: Adetiba S. (Ed.), Compensation and Remedies for Victime of Crime in Nigeria. Lagos: Federal Ministry of Justice, pp. 23-37.
- Agbedo, F. (2009). Rights of Suspects and Accused Persons under Nigerian Criminal Law. 1st ed., Lagos: Crown Law Publications, p. 35.
- Ahamba, M. (2005). Sustainable Democracy in Nigeria: Challenges and Prospects. Paper presented at Imperial College, London, September 2005.
- Ahire, P. T. (1991). Imperial Policing. Milton Keynes: Open University Press, p. 45.
