Nigeria’s same-sex prohibition law: mark of intolerance or affirmation of sovereignty?

The Nigerian government’s decision to outlaw gay, lesbian, bi-sexual, and transgender/LGBT relationships raises cogent issues not only about individual rights but also about the extent to which the state is justified in circumscribing those rights. At the core, however, is how to reconcile conflicting and parallel wills, specifically, those of the individual, the society to which s/he belongs, and the international community, howsoever defined. The same-sex prohibition law poignantly raises the question whose will would prevail–the individual’s, the Nigerian state’s, or that of sovereigns external to Nigeria.

Let’s quickly examine the antecedents to the latest controversy. On Monday, 13 January 2014, Nigeria’s President Goodluck Jonathan, signed into law a bill criminalizing same-sex relationships. The bill took a long time to be passed into law, having started its journey as early as 2006. Under the new law, titled Same Sex Marriage (Prohibition) Act/SSMPA, it is an offence to solemnize or participate in same-sex marriages. The Act goes on to empower local authorities to disregard marriage certificates issued by foreign countries to same-sex couples. Anyone found guilty of entering into a same-sex marital union or of openly identifying as a party to same-sex “amorous relationships” faces a penalty of 14 years imprisonment.

By enacting the SSMP bill into law, Nigeria joined other African countries in their defiance of European nations, particularly, nations that had not only legalized same-sex unions but had also gone a step further by conferring on same-sex couples the same rights enjoyed by their hetero-sexual counterparts. The question on every critic’s lip is whether Nigeria’s sovereign status covers interference in matters as personal as who to express “amorous” feelings for. Is the Nigerian state now in the business of deciding who to love or hate? Aren’t there more pressing issues that require the state’s undivided attention than that of who sleeps with whom–issues like unemployment, corruption in high and low places, infrastructural decay, water shortage, electricity power outages, impaired access to health, education, and law enforcement services?

Interestingly, one of the vocal critics of the law banning same sex relationships is Nigeria’s former colonial overlord, Britain. Its Prime Minister, David Cameron, peremptorily demanded the abrogation of the law, threatening to discontinue British aid to Nigeria if the latter was adamant on keeping the “offensive” law on its statute book. The ultimatum backfired. Rather than prompt a rethink of the SSMPA, Cameron’s ultimatum strengthened Nigeria’s resolve to stay the course and to assert its independence of Britain. Nigeria, the law’s advocates reminded Cameron, is no longer a British colony. It is a sovereign state invested with the power and authority to legislate for the order and good government of its territory. In so far as Nigeria cannot tell Britain what laws to make or rescind, Britain has no right to order Nigeria around.

Surprisingly, a handful of local activists with foreign links have sided with Britain on the SSMPA. Ignoring the larger picture, opponents of the SSMPA have focused on individual rights, and have done so without considering the merits of competing and equally plausible rights. In the SSMPA critics’ reckoning, to acquiesce with the promulgation of the SSMPA is to condone the abridgement of individual freedom. What right does the state have to question or condemn the sexual orientation of an individual? The critics ask.

There is no denying the fact that it is the individual that knows what is good for him/herself—not an entity external to him/herself. The right to choose one’s sexual partner inheres in the individual concerned, not in his/her parents, not in the extended family, not in the larger community, and certainly not in the state. As it so happens, the various religious orders acknowledge the sovereignty of the individual in matters concerning none but him/herself. Contrary to popular belief, “arranged” marriages are alien to Islamic law as they are to Nigeria’s contemporary marriage act. Marriages solemnized without the consent of both parties are, under the Sharia, presumed not to have taken place.

However, the right to choose carries a price, notably, the responsibility for the consequences of any particular choice. The Qur’an, for instance states unequivocally in Sura 31, Ayat 28 that “Your creation as well as your resurrection is but as an individual soul….” The import of that is that the individual right to choose is inalienable, and the consequences of each choice are neither escapable nor transferrable.

It is thus safe to assume that none but the individual knows what is good (or bad) for himself. Armed with this rare and exclusive knowledge–the knowledge of what constitutes his/her best interest–the individual does not need society, much less its agent, the state, to dispose of matters which concern none but him/herself. Indeed, a truth that is generally held as self-evident is that all men (and women) are born free. Not so evident, however, is the possibility of one person’s freedom extinguishing or seeking to extinguish, another person’s right.

As James Madison eloquently put it in the Federalist Paper No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary”.
Chaos is inevitable where everyone is free to do as s/he pleases. When freedom goes unchecked, life would, as foreseen by Hobbes, be “poor, nasty, brutish, and short.” A third party, society, is obliged to step in as soon it senses the possibility of one person enjoying his freedom to the detriment, or at the expense, of his neighbour. When one freedom conflicts with another, society, through its agent, the state, must intervene to check anarchy and enforce public order. Where the state is either nowhere to be found or is otherwise negligent and corrupt, homicide would go unpunished, kidnapping, rape and plunder would be the order of the day, and right and wrong would be a matter of opinion.

The obvious risks which an individual runs in the state of nature thus provide a clear justification for the withdrawal of a fraction of his/her sovereignty and the transfer of the residual, nay, redundant, sovereign rights to the state. It is beyond dispute that the state should be invested with the power and authority to make laws likely to sustain society’s peace and stability. Examples of such incontestable laws are those prohibiting homicide, terrorism, arson, rape, pedophilia, robbery, embezzlement and breach of trust. When one individual exercises his “freedom” to commit a crime, he has, by that very act inflicted harm on another individual or a collection of individuals. In that case, the state is perfectly justified to hold the former accountable for disregarding, or trampling upon, the freedom of the latter.

While legal restrictions on one category of freedoms are easy to defend, championing other types of restrictions can be problematic. I refer in particular to freedoms the enjoyment of which inflicts no visible or direct harm on another individual but which the state still feels inclined to check. “Indecent exposure” is a crime in many countries, except possibly in nudist colonies. But then, one may be forgiven for asking how exposing too much of one’s own skin harms another person, more so, when the skin exposed belongs to the exposer and not to this other person, the one that is griping? The answer, contestable as it may be, is simple. Society, right or wrong, believes that when an individual moves from her/his private chamber to a public space, s/he has an obligation to be mindful of other individuals’ sensibilities, including, but not limited to, personal allergies or religious objections to over-exposed skins. It is the same public-space argument that legitimizes one society’s prohibition of polygamy as against another society’s acquiescence with the practice. Public consumption of liquor is banned in some communities but is built into the people’s life style in others. What constitutes libel or sedition in one state is protected by the free speech provisions of another’s constitution.

We have so far left unanswered the question where the prohibition of same-sex unions fit into all these. Do the advocates of the prohibition rest their case on the direct harm that same-sex relationships inflict, or are likely to inflict, on fairly recognizable individuals, or on the gross indecency that the public is presumably forced to witness within its own space and to approve as demanded by occupants of spaces external to itself? Could, the ban be grounded, as yet another alternative, on sovereign Nigeria’s inherent power to legislate on any subject demanded by its people not caring how any external sovereign may feel? While one cannot rule out the possibility of the same-sex ban falling back on the first two (direct-harm and public-space) arguments, affirmation of Nigeria’s sovereign rights would appear as the most compelling. Let us take the same-sex’s pros and cons one by one, but in the reverse order.

Opponents of the same-sex ban hinge their argument on the sanctity and inalienability of individual rights. They contend that the law banning gays and lesbians from engaging in “amorous” relationships is unwarranted in so far as the law interferes in matters of no concern to it. The law could only wade in if and when evidence could be adduced indicating that same-sex liaisons harm not only the parties involved but also non-participants, that is society at large. Parties to same-sex compacts, the ban’s critics insist, are consenting adults who know what they are doing and whose choices harm none outside themselves.

The advocates of the ban respond by identifying one category of individuals whose rights are threatened by same-sex marriage–the children adopted by same-sex couples. These minors have no say in the decision to initiate them into same-sex culture, and may therefore grow up accepting as normal a life-style they might otherwise consider abhorrent.

The advocates of the ban also point to the link, no matter how tenuous, between the gay life-style and the dreaded HIV/AIDS. The information currently in the public domain would seem to support this argument. According to the Center for Disease Control, gay, bisexual, and other men who have sex with men (MSM)) account for a mere 2 percent of the United States population. Yet, they are the population most severely affected by HIV (http://www.cdnaids.ca/hivaidsandgaymen). In 2010, young MSM (aged 13-24 years) accounted for 72 percent of new HIV infections among all persons aged 13 to 24, and 30 percent of new infections among all MSM. At the end of 2010, an estimated 489,121 (56 percent of) persons living with HIV in the United States were MSM or MSM-IDU (http://www.cdc.gov/hiv/risk/gender/msm/facts/, accessed 21 February 2014).

Among all MSM, white MSM accounted for 11,400 (38 percent) estimated new HIV infections in 2010. The largest number of new infections among white MSM (3,300; 29 percent) occurred in those aged 25 to 34. In contrast, the black/African American MSM accounted for 10,600 (36 percent of) estimated new HIV infections in 2010 (even though black African-Americans are a demographic minority). The largest number of new infections among black/African American MSM (4,800; 45 percent) occurred in those aged 13 to 24. From 2008 to 2010 new infections increased 20 percent among young black/African American MSM aged 13 to 24 (http://www.cdc.gov/hiv/risk/racialethnic/bmsm/facts/index.html)

With a creaky public health care system, Nigeria is ill-equipped to respond to the HIV/AIDS challenge. It thus stands to reason that any life style that is remotely linked to the scourge would come within the ambit of the law. The government is not arguing that homosexuality is a disease. It is simply saying there is a connection between that life-style and a dreaded disease.

Glossing over the statistics linking MSM with HIV/AIDS, opponents of the same-sex ban readily dismiss another argument supporting the ban–that is, the public space argument. If Christians and Muslims are united in their opposition to same-sex relationships, adherents of the two faiths must realize that not everyone occupying the same public space shares their belief. This sounds convincing–on the surface. It is difficult if not impossible to fault the argument that a belief is something personal. No-one has a right to force his/her belief on another person. That is the crux of the matter. If neither a Christian nor a Muslim is morally justified to complain about same-sex trysts, what right does a same-sex advocate have to compel Christians and Muslims to turn their backs on their specific religious obligations? This is where society finds itself in a dilemma–a situation in which no automatic technique exists to reconcile conflicting but equally plausible affirmations. The only method yet devised by the human mind to unravel antinomies and paradoxes within a particular space is a state founded on the will of the people, specifically, the majority.

Faith in the judgment of the people is the foundation of state sovereignty. In so far as the ban on same-sex unions is founded on the will of the majority of Nigerians, those opposed to the ban are striking at the root of Nigeria’s sovereignty. They may of course argue that Nigeria’s record to-date in the exercise of its sovereignty has been generally dismal. Instead of bowing to the will of the people, the state has constituted itself into an object that must be venerated and worshipped by the people.

That notwithstanding, Nigerians would take their chances with a sovereign state that assures them a measure of control on their life. External opposition to the same-sex ban, in fact, raises the question whether cherished indigenous values must be constantly panel-beaten to accord with foreign whims and fads. Britain which is today ridiculing Biblical injunctions was the one that set itself the task of fulfilling Lord Curzon’s pledge, which was to carry “civilization, humanity, peace, good government and Christianity” to the farthest end of the earth”. The Bible which its missionaries brought as part of the civilizing mission has no room for same-sex marriage which Britain is now vociferously championing. Well, Britain has a right to change its mind and even rewrite the Bible. Nigerians apparently believe that God is not that fickle to change His mind on a matter as crucial as what constitutes marriage.

The Nigerian God is also highly unlikely to divest the human being of his/her basic attributes. This brings to mind the case of Blondie Bennett, a Californian woman who appears to be fed up with staying human. She is undergoing hypnotherapy sessions with a view to transforming herself from a human into a brainless Barbie doll (http://www.refinery29.com/2014/02/63004/barbie-obsessed-woman-hypnotherapy). If Blondie succeeds in her self-dehumanizing mission, others may follow her footsteps. It is a matter of time before brainlessness would be in vogue, and discriminating against human plastics would be illegal. When that happens, states worldwide may be required to ratify an “international convention” recognizing the rights of unfeeling, unthinking, and morally neutral, non-human humans. There is no cause for concern. A human doll would never know if and when his/her/its rights are being violated.

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