HOMOSEXUALITY IS LAWFUL UNDER LAGOS CRIMINAL LAW BUT A CRIME UNDER THE SAME SEX MARRIAGE PROHIBITION ACT: RECONCILING THE CONFLICT
By
O. G. Chukkol, ACIArb (UK)
Lagos is a state in Nigeria that has the record of always blazing the trail in almost all aspects, law making inclusive. This time around we are looking at how Lagos singled itself out and tinkered with the traditional view of consensual adult homosexual conduct under Nigerian criminal law. Homosexuality simply means a sexual or romantic attraction between people of the same sex or gender. This article raises some questions: what is the effect of the Same Sex Marriage (Prohibition) Act, 2014 (SSMPA), which has criminalized homosexual conduct? Can the SSMPA apply in Lagos to override the provisions of the Criminal Law of Lagos which has decriminalized homosexual conduct? In the light of these glaring conflicts, what is the fate of homosexuals in Lagos State?
This article aims to address these questions. On this note, it will first discuss the provisions of Lagos Criminal Law and the SSMPA as they relate to homosexuality after which the conflict between the two laws will be reconciled before drawing the curtain with recommendation(s).
*Homosexual offences under the Criminal Law of Lagos State, 2011*
In the new Criminal Code of Lagos State, there is no provision for the offences of lesbianism or sodomy. However, the law describes what it calls sexual assault by penetration. It provides as follows:
“A person who penetrates sexually the anus, vagina, mouth or any other opening in the body of another person with a part of his body or anything else, *without the consent of the person* is guilty of a felony and liable to imprisonment for life.”
With this emphasis on consent (or rather, the lack thereof), the provision of the Lagos State law has changed the entire narrative of homosexuality in Nigerian criminal law in the direction of decriminalisation of consensual adult homosexual conduct. For sodomy to be an offence under this law, it must have been done with coercion. Where there is mutual consent, then no crime is committed.
While consensual adult homosexual conduct has been omitted as an offence from the Lagos Criminal Law, it should however, be pointed out that Lagos State, been a component unit of Nigeria is inevitably affected by the nationwide applicability of the SSMPA. What does SSMPA say?
*Homosexual offence under SSMPA*
The SSMPA clearly prohibits marriage or civil union by persons of same sex. The Act in its own definition of marriage, states in section 1 as follows: “Marriage means a legal union entered into between persons of opposite sex in accordance with the Marriage Act, Islamic law, or customary law.”
The emphasis on persons of opposite sex is very important here. Under the three types of marriage obtainable in Nigeria, none accommodates same-sex marriage. The SSMPA clearly 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 other purposes of same sexual relationship’.* By the provisions of section 1 SSMPA, persons of the same sex are not only prohibited from marrying but they cannot also enjoy the benefits (sex, mutual defence and cohabitation) of a valid marriage in Nigeria. Therefore, if persons of same sex engage in sexual affair, they will be liable to be jailed for 14 years under the SSMPA.
A controversial aspect of the Act is the prohibition of show of affection between persons of same sex in public. With this provision, even non-homosexuals are likely to be dragged into the criminalisation of homosexual activities. The framers of this law might not have taken cognisance of the fact that heterosexual Nigerians like to express filial affections to one another openly. If you visit beaches in Nigeria, you see Nigerians dressed in skimpy clothing hugging, holding hands and pecking. Meanwhile, they are not homosexuals. Can such demonstration of affection qualify as ‘amorous relationships’? This should be a topic for another day.
*Reconciling the conflict between Lagos Criminal Law and the SSMPA, 2014*
First of all marriage is an item under the exclusive list set out in Part II of Second Schedule to the Constitution. Thus, by Section 4(2), (3) and (4) of the constitution, only the National Assembly is competent to legislate on same and by paragraph 2 of Part III of the same schedule, the power to legislate on items in the exclusive list includes creation of offences and providing for jurisdiction of courts in respect of those items
The implication of the foregoing is that the SSMPA is of general application. In other words, it applies to the entire federation including Lagos. This being the case, the provision of section 259 of the Criminal Law of Lagos State which decriminalizes same sex is of no effect and will remain inoperative till the day Same Sex Marriage Prohibition Act is either repealed or for any reason nullified by courts. This is mine with section 4(5) of the constitution which provides that the law enacted by the National Assembly shall prevail over laws by State Houses of Assembly in cases of conflict. See the cases of Musa v INEC (2002) LPELR-11119 (CA) and Attorney-General of Bendel State v Attorney-General of the Federation (1981) 10 SC
*Observations*
Consensual adult homosexual offences unlike other offences under Nigerian law do not come up for prosecution frequently probably because the offence is committed consensually and in private. Suffice to say that the SSMPA is one the popular legislations in the history of Nigeria’s legislative law making as there was no single dissenting voice amongst the law makers when it was passed (Akogwu, 2018). It is one law that attracted a lot of commendation from religious leaders and traditional rulers. It's enactment was greeted with wild jubilation among Nigerians of all social standing. Political, religious, and community leaders, students, professionals, academics, and ordinary citizens struggling to make ends meet were united in applauding the National Assembly and former president Goodluck Jonathan for what was considered resistance to be Western cultural imperialism. Homosexuality is believed to be immoral and there is need to protect morality in line with section 45 of the constitution.
Even the bench is not left out in expressing disgust for homosexuality in Nigeria. The first case of sodomy to be heard by the Nigerian Supreme Court is the highly celebrated case of Major *Magaji v Nigeria Army (2008) 8NWLR (Pt1089) 338.* The case was instituted and prosecuted for the violation of the sodomy provision of section 81(1) of the Armed Forces Act.
Tobi JSC brought to the fore the popular belief of the unnaturalness of a homosexual act while conforming to the popular hypothesis that heterosexual penile-vagina sex is the morally right and the religiously correct form of sexual activity. For Tobi JSC, anal sex is against nature and obviously ungodly. He gave a scathing assessment of the appellant’s action in the following statement:
“What the appellant decided to do was to dare nature in his craze for immoral amorous satisfaction. By his conduct, the appellant re-ordered God’s creation. Has he got the power to do that? No. No human being, whether in the military or not, has the power to re-order God’s creation … By his conduct, the appellant has brought shame to himself. Although a bit of the dent is on the army. I am not prepared to hold that force guilty of the conduct of the appellant. The army did not ask him to commit this heinous and atrocious offence. He is a terrible criminal. And he is alone, clearly alone.”
Justice Tobi, erudite law professor turned judge, did not hide his contempt for the act of homosexuality from his description and linkage of it as an attempt to challenge God. Without doubt, His Lordship’s verdict could also be seen as a great boost to the popular argument amongst religious Nigerians that consensual same-sex practices are acts against God. Tobi JSC is not alone in expressing his disdain for the offence of sodomy. Akintain JSC, in his concurring judgement added that ‘the offence for which the appellant was convicted is an unusual, abnormal and unbelievable one’. From Akintain’s viewpoint, the abnormality about homosexual offences could perhaps stem from mental imbalance. Bello’s case and the utterances of Nigeria’s most senior judges from the apex court is a clear pointer to the level of disdain Nigeria has for homosexuality. This writer has no hesitation in pitching tent with them.
*Conclusion*
In the light of the foregoing discussion, it is submitted that notwithstanding the provisions of the Lagos Criminal Law, homosexuality is a crime in Lagos. Same Sex Marriage (Prohibition) Act, 2014 which has criminalized homosexual conduct applies to the entire federation and overrides the provisions of the Criminal Law of Lagos. Thus, homosexuals in Lagos State are at the risk of going to jail. The SSMPA is a good law and more in tune with the prevailing culture and morality of Nigeria. It is recommended that the Lagos State House of Assembly should initiate amendment of the Lagos Criminal Law to delete consent clause in section 259 thereof.
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August 20, 2021
*O. G. Chukkol* is a 2021 Law School Bar Part II Aspirant. [email protected]