The Anti-Gay Law in Nigeria: A Re-appraisal of the Nexus between Law and Morality
Grace Titilayo Kolawole-Amao:
Abstract
There has been the argument that crimes which have a moral basis are condemned as wrong or bad and proscribed by society. Law, unarguably, is founded on the social ethos. The paper discusses and specifically seeks to answer whether there exists and if so, the relationship between law, crime and morality, to what extent can moral wrong be criminalized and whether the recently passed Same-Sex Marriage (Prohibition) Act in Nigeria is as some people believe an infringement of rights. By necessary implication, the work equally appraised the limit and scope, or the extent to which morality can be taken into consideration in determining the criminality of a conduct or an omission. The paper also discusses homosexuality in the medical context as well as the health implications and risk of homosexual sexual behaviours on the parties and the society. It is the argument of this paper that there is a nexus between law and morality which is inseparable, and that certain private acts capable of harming the corporate morality of the society should not be excluded from the ambits of the law. The paper concludes that the Same-Sex Marriage (Prohibition) Act does not infringe on individual rights nor does it have any ominous implications on individual rights.
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* Grace Titilayo Kolawole-Amao, LL.B. (Ibadan), LL.M. (Ibadan), B.L., Lecturer, Department of Public and International Law, Faculty of Law, Bowen University (of the Nigeria Baptist Convention), Iwo, Osun State, Nigeria.
1. Introduction
The subject of homosexuality has become a topical issue globally. The debate has to do with what behaviour criminal law should deem an offence because it strikes at the core of a society’s moral value. Usually the dispute is, should acts which may be thought to be immoral by many, but which the actors involved claim is not harming anyone, because it is consensual and done privately be an offence? Morality exhibits the beliefs of a particular society as well as its people and every moral rule presupposes the morality of the society. Moral rules are not universal but peculiar. They are notionally sectional. What is moral rule in a society may not be in another society. In the workings of the state, morality is relative. It is not universally accepted, in that what is seen as morally wrong in a particular place may not be morally wrong in another. The law enforces morality, but not all aspects of morality. There are differences in what may be considered immoral from one society to another. The Zambian case of State v Wolfgang Seifarth,[1] illustrates this. Inthis case the accused a German tourist in Zambia was convicted under Zambian Morality Law which outlaws ‘unnatural’ sex acts and provides for a maximum jail term of 14 years. The accused in his defence argued that the perpetrated sexual conduct alleged against him is an acceptable sexual practice in Germany and as such not immoral. The court in its judgment stated that customs of other countries which are an abomination in Zambia must not be allowed to be practiced by tourists or anybody.
Nigeria as a highly pluralistic society made up of varying cultures, ethnicities and religions has never been a society that has condoned homosexuality from its inception, despite these multiplicity of cultures, ethnics and religion. Morality is passed down from age to age, it is in the hearts of the citizens, through practice, experience and history. Nigeria still has a strong attachment to morality and respect for it as a source that should drive the law. It can therefore not be said that morality should not be found in the realm of criminal law because basically all laws have moral backgrounds. Historically, Nigeria has never been a nation that condoned homosexuality. Homosexuality has for many years been forbidden in Nigeria.
2. Description of Law, Morality and Crime
No civilized society can exist without some legal framework. By law, we mean the body of rules that regulates a society which is enforced by the State to maintain order. They are rules intended to channel behaviour and prevent certain conducts injurious to the society. Law is said to be the bulwark of a society.[2] Law is a necessity in the society, for organization, justice, peace, advancement and protection of lives, property and the state.[3]
Morality on the other hand, can be said to be the basis of all human actions, it creates awareness to the effect of crimes. Morals are set of social standards, they are social prescription or conception of what conduct or behaviour, collectively, is viewed as right or wrong, good or bad, acceptable or condemnable. A moral system is a set of rules for right living. Morality is defined as the conformity with recognized rules of correct conduct, the character of being virtuous especially in sexual matters.[4] Morality can also be defined as principles concerning right and wrong, or good and bad behaviour.[5] A particular act is deemed to be immoral when it is repugnant to good conscience of one group or others.[6]
Often, it is difficult and elusive to define most legal terms. Such is the case when one tries to define the word ‘crime’ which is just a branch of law. Thus, it is difficult to give a universal definition of crime but a working definition of the term will suffice. A crime may be described as an act, default or conduct prejudicial to the community, the commission of which by law renders the person responsible liable to punishment by fine or imprisonment in special proceedings, normally by officers in the service of the crown.[7]
Crime could also be described as a legal wrong that can be followed by criminal proceedings which may result in punishment.[8]The Criminal code which is one of the primary laws in Nigeria defines an offence which is used interchangeably with the word crime as:[9]
An act or omission which renders the person doing the act or making the omission liable to punishment under this Code.
2.1 Relationship between Law and Morality
Historically, morals have influenced the development of law; land law, matrimonial causes, criminal law etc., all had moral foundations which cannot be denied. The role of criminal law is outlined in an effort to articulate when legal intervention is justified, and how the perceived need for such intervention has continued to evolve, as society’s sense of what is morally acceptable has developed and changed over time. This role demonstrates particular controversy when faced with questions related to the expression of one’s sexuality in the private realm.[10] The relationship between law and morality is, not surprisingly, one of the key issues in legal philosophy.[11] Law and morality are both concerned with practical reasoning – that is, with reasoning about what to do, what goals to aim for and what sort of person to be. In this sense, both law and morality are about right and wrong, good and bad, virtue and vice, these contrasts are “normative”: they express value judgments. [12] In other words, law is very often and usually in agreement with morality.
The question of whether a conduct is morally wrong is a sufficient element to make it fall within the ambit of criminal law and this has been subject of debates through the past decades especially in the realms of sexual morality.
In Britain in 1957, the Wolfenden Committee was set up to look into homosexuality and prostitution, whether such acts should be criminalized. The Committee resolved that homosexuality among consenting adults in private is not the business of the law. As a result, United Kingdom removed this conduct from the realm of criminal law. According to the Committee, there must remain a realm of private morality and immorality which is not the business of the law. The Wolfenden Report in its recommendation, stated that: [13]
[t]here must remain a realm of private morality and immorality which is … not the law’s business. To say this is not to condone or encourage private immorality.
Professor Hart engaged in a very famous debate with Lord Devlin in the context of law and sexual morality. In the notable exchanges between Lord Delvin and Professor H.L.A. Hart, Delvin’s argument was that a society is entitled to use the criminal law against behaviour which may threaten its existence; that there is a common morality which ensures the cohesion of society; that any deviation from this common morality is capable of affecting society injuriously; and that it may be justifiable and necessary to penalize immoral behaviour.
In response, Delvin’s opponents have broadly followed the approach of John Stuart Mill and proclaimed that the main or only acceptable reason for criminalizing behaviour is that it causes harm to others, and that supposed immorality is not a sufficient reason.[14] The modern concept of which acts will be criminalized is rooted in a principle articulated by philosopher John Stuart Mill. His 19th century essay, On Liberty, sought to clarify that although immorality formed part of the basis of that which could be deemed criminal, criminal law should only intervene in order to prevent acts which would harm others. The only justification for the state to make moral conducts crimes is as far as such an individual’s conduct will harm others, whether the conduct is good for him or not is left to him. Mill saw this as fundamental in order to protect the concept of freedom in a modern society: “[e]ach is the proper guardian of his own health, whether bodily, or mental and spiritual”.[15] Thus, this school of thought believes that it is only when the expression of an individual causes harm to another free member of society, that the law is justified in intervening. The Wolfenden committee clearly subscribes to ideals of individual autonomy proposed by Mill. Although many members of society then (and today) thought of homosexuality as immoral, the committee held that it is contrary to individual freedom and minority rights to simply criminalize an act because it is deemed immoral by society. It must harm another member of society in order to incur liability.[16]
In this writer’s opinion, even if such immoral acts between consensual adults are done in private and they see no wrong in what they have done because it has caused no harm to anyone, such acts are harmful to society’s fabric. Whatever can corrupt public morals should be the business of the law, if it disgusts and offends our sensibility.
Both John Stuart Mill and H.L.A. Hart, believe that the society cannot use law to compel anyone to conform to a moral conduct. The position of criminal law remains a difficult one, it is argued that a certain level of interference in the private realm of citizen’s lives is necessary in order to protect society from harm[17] of which I concur to.
Lord Delvin[18] argued that there is a public morality which is an essential part of the bond which keeps society together; and that society may use the criminal law to preserve morality in the same way that it uses it to preserve anything else that is essential to its existence, this is very correct and true. He rejected the distinction of public and private morality, and claimed that the protection of morals in the public interest is more powerful than the protection of the freedom of consenting parties in an immoral act.[19] The society is entitled to use the instrumentality of the law to protect what is dear to it, to protect what binds the society together, what holds the fabric of the society together, in essence law could be used to preserve morality. Law should not only be concerned with immoral conduct in the public but also in the private especially immoral conducts that has the ability of tearing into pieces the social ethos and value of a society in the interest of protecting the public.
However, still in Britain, after the Wolfenden Report, to show the attachment of the society in respecting moral conducts, in Shaw v DPP[20], the accused composed and published a magazine which he called the Ladies directory. The magazine gave names and addresses of ladies who were ready to be prostitutes and the sex acts they liked to engage in. He was prosecuted and convicted for conspiracy to corrupt public morals. The judges felt that they are custodians of public morality and could make that decision. Lord Simonds asserted that:
The sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to converse not only the safety and order but also the moral welfare of the state….
Also in 1967, the case of R. v Knuller (Publishing and Printing Company)[21], the defendant and its three directors were charged with conspiracy to corrupt public morals, they published a magazine which had adverts about the availability of homosexual acts in private. They were convicted on the basis that they had corrupted public morals.
In R v Brown,[22] the appellants were privately and consensually participating in sado-masochistic acts of violence in the pursuit of sexual gratification. The appellants belonged to a group of sado-masochistic homosexuals who over a 10-year period from 1978 willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury.
The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants. Video cameras were used to record the activities and the resulting tapes were then copied and distributed amongst members of the group. The tapes were not sold or used other than for the delectation of members of the group. The appellants were tried on charges of assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to section 20 of that Act. The Crown’s case was based very largely on the contents of the video tapes. Following a ruling by the trial judge that the consent of the victim afforded no defence to the charges, the appellants pleaded guilty and were sentenced to terms of imprisonment.
The appellants appealed against their convictions, contending that a person could not be guilty of assault occasioning actual bodily harm or unlawful wounding in respect of acts carried out in private with the consent of the victim. The Court of Appeal dismissed their appeals. The appellants appealed to the House of Lords. The court held, (Lord Mustill and Lord Slynn dissenting), that Consensual sado-masochistic homosexual encounters which occasioned actual bodily harm to the victim were assaults occasioning actual bodily harm, contrary to section 47 of the 1861 Act, and unlawful wounding, contrary to section 20 of that Act, notwithstanding the victim’s consent to the acts inflicted on him, because public policy required that society be protected by criminal sanctions against a cult of violence which contained the danger of the proselytization and corruption of young men and the potential for the infliction of serious injury.
Accordingly, a person could be convicted of unlawful wounding and assault occasioning actual bodily harm, contrary to sections 20 and 47 of the 1861 Act, for committing sado-masochistic acts which inflicted injuries which were neither transient nor trifling, notwithstanding that the acts were committed in private, the person on whom the injuries were inflicted consented to the acts and no permanent injury was sustained by the victim. It followed that the appellants had been properly convicted and that their appeals would be dismissed.
The appellants sought to exonerate themselves from criminal liability for the assaults in the eyes of the court by emphasizing the consensual nature of their behaviour. The court dismissed the argument holding that consent was not a defence because it was not in the public interest that a person should wound or cause actual bodily harm to another. The private consensual acts committed were thus caught under the criminal law with the justification of public interest, it is not in the public interest that people should cause each other actual bodily harm for no good reason. Crime and morality have a point where they intersect. Though there are still some so called sexual immoral conducts that are not crimes, e.g. adultery in some jurisdictions.[23] There still remains an area of demarcation between crime and morality. It is not all moral wrongs that should be made crimes, those that have the capability of tearing at the fabric and essence of the society should be criminalized.
3. The Anti-Gay Law in Nigeria
The Nigerian Criminal and Penal Codes, as well as Sharia Law which operates in the Northern part of Nigeria prohibits (indirectly, by calling it unnatural carnal knowledge, sodomy) sexual relations between individuals of the same sex. There are relevant provisions in the Criminal and Penal Codes[24] that criminalizes immoral acts referred to as offences against morality, carnal intercourse against the order of nature referred to as unnatural offences and gross indecency, and homosexual acts come under these provisions. Hence, the nature of our laws in this country already criminalizes homosexual acts.
3.1 The Concept of Homosexuality and Same Sex Marriage
Homosexuality is the fact of being sexually attracted to people of the same sex.[25] It is sexual attraction or sexual behaviour between members of the same sex or gender, that is, gay, lesbianism. Homosexuality has also been defined as one who is motivated in adult life, by a definite preferential erotic attraction to members of the same sex, and who usually, but not necessarily, engages in overt sexual relations with them.[26] Same sex marriage on the other hand is marriage between partners of the same sex.
The Same-Sex Marriage (Prohibition) Act is not a new invention in our laws, it has always been part of our laws, it is just a more adequate and all-encompassing law to further prohibit any formal manifestation of homosexual relations and its likes. The Same Sex Marriage (Prohibition) Act criminalizes same-sex marriage and provides for up to 14 years jail term for offenders under the Act. For instance, membership or support of gay organizations, associations or clubs carries a penalty of up to 10 years imprisonment. This law prohibits homosexuals from even meeting in groups of two or more, bans marriage or civil unions between people of the same sex and criminalizes gay clubs and events.
In Brown’s case [supra], the premise on which the House of Lords judgment rested was founded on a number of points. First, that although the appellants defined sado-masochism as the expression of their sexuality, the acts performed were primarily violent in nature, rather than sexual. Second, the practices were deemed highly dangerous and degrading to both the victims’ bodies and minds. Moreover, the majority of the Law Lords expressed a concern that the behaviour was unpredictable in its potential severity and that it glorified cruelty.Third, the fact that the appellants were surely not the only members of the public to partake in such practices, and that such others may fail to ensure adequate levels of control and consent, was also considered relevant, suggesting the need for the court to hold the appellants criminally responsible in the interest of protecting the public. This last point was further emphasized by the court’s concern for the heightened risk of contracting infectious diseases due to the nature of the acts, and the desire to limit such public health risks. Brown’s case is thus a modern example of the limits of personal autonomy in the scope of criminal law.[27]
This case was a well decided case which could be applied to the Anti-gay law, it shows that there is a realm of private morality which should be the business of law. Law should be able to interfere in the realm of not only public morality but also of private morality where it poses risk to the public. The House of Lords’ purpose in Brown’s case is to prevent sado-masochistic harm on members of the public who may be non-consenting, or whose consents were secured through methods of intimidation or persuasion. If they ruled that the behaviour was outside the reach of criminal law due to its consensual, sexual and private nature, then it will be an avenue for variety of harms to be inflicted on others in the name of sexual expression. As Lord Templeman stated,[28]
[t]he violence of sadists and the degradation of their victims have sexual motivations but sex is no excuse for violence [and] society is entitled and bound to protect itself against a cult of violence.
Thus, the function of criminal law is basically to protect the public against harm, while still respecting the personal autonomy of individuals.
African values, customs and cultures are completely different and distinct from that of western nations. The west seems to have embraced homosexual rights and despite the protests of a fairly sizeable number of their populace, western nations have accepted these rights. For Africans, there seems to be nowhere in their culture, mindset and mentality for the acceptance of homosexuality. As a matter of fact, most Africans, whether Christians, Muslims or non-religious see homosexuality in all its shades and forms as a taboo.[29] The laws of any nation are a reflection and collection of their cultural, religious and societal beliefs and customs. The question then is, if African nations see homosexuality and its like as totally abhorrent to their customs, beliefs, mindset and mentality, why should anyone including the western politicians and citizens be surprised that Nigeria, the most populous African nation has passed laws criminalizing same sex marriage?[30]
A study of 39 nations around the world by the U.S. Pew Research Center found that 98 percent of Nigerians believe the society should not accept homosexuality,[31] making the country the world’s least tolerant when it comes to homosexuality issues. And it perhaps is the voices of 98 percent of a country of over 170 million people that all heard loud and clear after the Same Sex Marriage (Prohibition) Act criminalizing same-sex marriage in Nigeria was signed into law.[32] Nigeria has never believed in homosexuality, so criminalizing same-sex marriage is not a wrong thing to do as a nation. Nigeria’s bias against homosexuality stem mainly from our religious and cultural beliefs which form the basis of our moral and social ethos, it is therefore difficult for Nigerians to imagine homosexuality in the society.
4. Human Rights Perspective of the Anti-Gay Law
The Same Sex Marriage (Prohibition) Act which has just been passed in Nigeria has drawn widespread international condemnation from western countries including the United States, Canada and Britain as well as a host of non-governmental organizations. The United States, through its Secretary of State, Mr. John Kerry, said the United States was “deeply concerned” by Nigeria’s new law which “dangerously restricts freedom of assembly, association of all Nigerians.” He also said that the act “is inconsistent with Nigeria’s international legal obligations and undermines the democratic reforms and human rights protections enshrined in the 1999 Constitution.”[33]
The British Foreign and Commonwealth Secretary William Hague expressed disappointment that the Nigerian Same Sex Marriage (Prohibition) Bill has received Presidential assent. He said:[34] “…The Bill also directly infringes on fundamental rights of expression and association, which are guaranteed by the Nigerian Constitution and by Nigeria’s international treaty obligations. We are concerned by the prospect this raises of further action against an already marginalized section of society…”
It has been argued at the international terrain that the law is manifestly incompatible with international human rights standards and against the fundamental human rights provisions in the Nigerian Constitution. The international community is deeply concerned about Nigeria’s Anti-gay law’s restrictions on freedom of assembly, association and expression of individual rights and also that the Anti- gay law is inconsistent with Nigeria’s international legal treaty obligations and overtly seeks to undermine the democratic reforms and human rights protections mechanism enshrined in the 1999 Constitution.[35] It is believed that the Act violates the provisions of the Constitution on Fundamental Human Rights, especially the rights to privacy, freedom of expression and freedom of association.[36] Some literature concludes that the law as it is, is inconsistent with the fundamental rights guaranteed by the Constitution[37]
The Nigerian Constitution guarantees and protects the right to private and family life in Section 37[38], freedom of expression in Section 39[39] and freedom of association in Section 40[40] but not without some restrictions. Section 45(1)(a)[41] of the Constitution provides to the effect that the right to private and family life can be justifiably restricted in a democratic society to protect public safety, public order, public morality or public health. Therefore, same-sex marriages or affairs touch on the private lives of homosexual persons but the provisions of the Same-Sex Marriage (Prohibition) Act can be reasonably justified in a democratic Nigeria based on the provisions of Section 45 that is, to protect public morality, as determined by the state. By virtue of this section, some of the provisions of the fundamental human rights can be derogated from if it is deemed justifiable to do so. Thus, in the interest of public morality and public health, the Same-Sex Marriage (Prohibition) Act is not an infringement of rights to privacy, freedom of association and freedom of expression as claimed by some, those rights are not absolute. In Ukegbu v N.B.C.[42]the Court of Appeal held that the rights in section 39 of the Constitution are not absolute rights.
Also in Ukpabio v N.E.V.C.R.[43] the court held that the fundamental right enshrined under section 39 of the 1999 Constitution for freedom of association…was subject to the derogation set out in section 45(1)(a) of the said Constitution, hence section 37 of the Constitution is not absolute as it cannot invalidate any law that is reasonably justifiable in a democratic society “in the interest of defence, public safety, public order, public morality or public health.
The clear import of section 45(1)(a) is to limit the extent to which individuals may enjoy their fundamental human rights, it gives constitutional backing to laws that restrict certain human rights in so far as such laws are reasonably justifiable in a democratic society. It is the opinion of this writer that the present Same-sex Marriage (Prohibition) Act comes within the purview of this constitutional provision and as such remains valid.
5. Homosexuality in Medical Context
There is the argument that homosexuality is genetic. It is evident that there is a drastic change in human sexuality and orientation in recent times. The change in sexual orientation is one of the clearest evidences that homosexuality is not hard-wired by genes or anything in the biological environment but that it is more attributed to external and environmental factors.[44] Genetic research have shown that from an understanding of the gene structure and function, there are no plausible means by which genes could dictate same sex attraction or other behaviours in a person and genetic influence is believed to be weak and too indirect.[45] Research have shown that no genetically determined human behaviour has yet been found nor has studies shown any direct genetic cause of homosexuality.[46]
Modern studies have also shown that the male and female brains at birth are not structurally different, this makes the likelihood of a specifically homosexual brain remote but rather the environment has effects on the brain from birth to puberty and beyond.[47] Neuroscientists have agreed that even as adults, we are what we make our brains and if differences are found between homosexual and heterosexual brains, they could easily be the result of years of conditioning (repeated thinking patterns and behaviour).[48]
It has also been argued that if homosexuality is a deeply ingrained instinct, it can also be responsive to training as other instincts such as self-preservation, hunger, and reproduction are among the most deeply embedded impulses, but are able to be controlled and responsive to training.[49] Thus, in the development of sexual attractions, people who experience same sex attractions can make conscious choices about their behaviours.[50]
Geneticists, Development psychologist, neuroscientists, sociologists and medical researchers into gender study are in broad agreement about the role of genetics in homosexuality, and have concluded that genes do not make homosexuals do such acts. Research has also shown that sex hormones play a considerable role in powering human sexuality, but they do not control the direction of it.[51] Rather individual reactions to random factors are very important.
Sociologist have also argued that there is a more higher occurrence of homosexuality among those who have been raised in large cities, rather than in rural areas, arguing that the environment is much more powerful than genes in the development of homosexuality.[52] Social and cultural pressures can affect an individual’s lifestyle no matter how they were born. Thus, science has not shown that homosexuality is an inborn or biologically-determined characteristic.
- Health Risk and Effects of Homosexuality
It is not true that homosexual behaviour harms no one. The homosexual lifestyle is highly promiscuous and brimming with diseases although pro-homosexuals will try to separate the behaviour from related illnesses in their attempt to demonstrate that homosexual behaviour doesn’t harm anyone. But the evidence does not support that notion.[53] Reports about sexually transmitted diseases indicate that gay men are in the highest risk group for several of the most serious diseases. Scientists believe that the increased number of sexually transmitted diseases (STD) cases is the result of an increase in risky sexual practices among homosexuals who believe HIV is no longer a life-threatening illness.[54] Promiscuity is a constant phenomenon amongst homosexuals as some even have opposite sex partners and have greatly increased the risk of STDs in the larger society. A study in the American Journal of Public Health concurs that bisexual women are at increased risk for contracting sexually transmitted diseases. Its findings corroborate the finding that women who have sex with men and women are more likely than women who have sex with men only to engage in various high-risk behaviour and also to engage in a greater number of risk-related behaviours.[55]
In a study of male homosexuality, it was discovered that few homosexual relationships last longer than two years, with many men reporting hundreds of lifetime partners.[56] Sexual relationships between members of the same sex expose them to extreme risks of Sexually Transmitted Diseases (STDs), physical injuries, mental disorders and even a shortened life span.[57]Health report also shows that homosexual men with HIV have a 37-fold increase in anal cancer, a 4-fold increase in Hodgkin’s disease (cancer of the lymph nodes), a 2.7-fold increase in cancer of the testicles, and a 2.5-fold increase in lip cancer.[58] Thus, the overall health risk experienced by homosexuals is a threat to the society and should not be overlooked even for the protection of fundamental human rights.
6. The Limit and Scope of Morality in the Context of Crime
The values of the society cannot be alienated from the law, the law comes as a reflection of these values. The relation between law and moral values is a very complex one indeed.
The scope and limit of morality in the context of crime should be to the point of acts that may impact negatively on the society at large. Immoral conducts should only be criminalized on grounds of social expediency rather than on the immoral nature.[59] The law should be interested in private acts which in the long run will threaten the existence of the society.
Consent of parties involved is not a ground to oust the interference of law in immoral conducts carried out in private, it is necessary to prevent harm even to the parties themselves. Homosexuality, not only causes health harm to the parties but indirectly to others. The law does not allow someone to consent to serious bodily harm or injury inflicted on oneself or another, and the State has compelling interest in protecting the citizens from harm whether done in private or public.[60] The idea that there exist a realm of private morality where the law cannot interfere has long been resolved by Lord Delvin’s argument. The Act is a product and the representation of the Nigerian moral and cultural sentiments.[61] The Act is a codification of the corporate moral position of the Nigerian people on sexual morality. It is the society at large that determines her moral code and it has the duty of promoting and protecting same.
7. Conclusion
The law of every modern state shows at a thousand points the influence of both the accepted social morality and wider moral ideals.[62] There is an inevitable interrelation between law and morals. The law of modern state is influenced by acceptable social morality. Morality binds the people of a society. Thus, morality plays a prominent role in the process of formulating some laws. While the international community and the western world believe that homosexuality as a culture has come to stay and should be allowed to thrive in modern life, the African and Nigerian attitude is that homosexuality is foreign to our culture and must be resisted. Law can and should be used to enforce certain moral ethos.
There is still an inevitable nexus between law and morality that cannot be overlooked. Law exists for the protection of the society, as it protects individuals from injury, exploitation and corruption; it also protects the institutions and community of ideas, political and moral, without which the people in a society cannot live together.
Moreover, Nigerians believe that homosexuality is a way of life that society should not accept. The Same-sex Marriage (Prohibition) Act is not a contradiction to the Nigerian Constitution of 1999, which is the grundnorm in Nigeria, in particular Chapter Four which protects the rights to privacy, to freedom of expression and to freedom of association because it falls under the justification provision in section 45 of the Constitution. Nigeria’s law reflects a religious and conservative society that considers homosexuality a deviation, homosexuality is anathema to our culture, society and religion. I hereby submit that homosexuality is a serious and odious conduct which should not be condoned in Nigeria as a democratic society. It is the argument of this paper that the nexus between law and morality is inseparable, and certain private acts capable of harming the corporate morality of the society should not be excluded from the ambits of the law.
[1] Cited in A.K. Anya, “Quest for Criminalizing Perceived Immorality in Nigeria: Challenges and Prospects” (2008) 1&2 Ife Juris Review 118-130 at 124.
[2] S.I. Oji, Introduction to Legal Method, New ed., (Ibadan: Ababa Press Ltd, 2011), p. 15.
[3] E. Malemi, The Nigerian Legal System Text and Cases, (4th ed.), (Ikeja: Princeton Publishing Press Co., 2012), pp. 10, 12.
[4] H.C. Black, Black’s Law Dictionary, (6th ed.), (St. Paul Minn.: West Publishing Co. 1990), p. 1032.
[5] J. Turnbull, Oxford Advanced Learner’s Dictionary, International Student’s Edition, (8th ed.), (Oxford: Oxford University Press, 2010), p. 960.
[6] Anya, above note 1 at at 119.
[7] M. Woodley (ed.), Osborn’s Concise Law Dictionary, (10th ed.), (London: Sweet and Maxwell, 2005), p. 123.
[8] G. Williams, Textbook of Criminal Law (2nd ed.), (London: Stevens & Sons, 1983), p. 27.
[9] Section 2 of the Criminal Code, CAP C38, Laws of the Federation.
[10] B. Falsetto, “Crossing the line: Morality, Society and the Criminal Law”, (2009) Cambridge Student Law Review, Retrieved from http://login.westlaw.co.uk/maf/wluk/app/document?&srguid=i0ad8289e000001499b5446e00a455a50&dcguid=ID616592003BC11E2B1DEA435255BFFC8&hitguid=ID616592003BC11E2B1DEA435255BFC8&rank=6&spos=6&epos=6&td=1684&crumb-ction=append& context=136&resolvein=true, last accessed on 10 November, 2014.
[11] J. Casey, “Offences of Indecency Revisited”, (2003) 27 Scots Law Times, 225–230, Retrieved from http://login.westlaw.co.uk/maf /wluk/app/document?&srguid=ia744d06500000149a0468551cdd4 8206&docguid=ID46B4DB1E72111DA9D198AF4F85CA028&hitguid=ID46B4DB1E72111DA9D198AF4F85CA028&rank=2&spos=2&epos=2&td=1684&crumb-action=append&contex t=23&resolvein =true, last accessed on 6 November, 2014.
[12] Cane, P., “Morality, Law and Conflicting Reasons for Action”, (2012) 71 (1) Cambridge Law Journal 59-85 Retrieved from http://login.westlaw.co.uk/maf/wluk/app/document?&srguid=ia744d06500000149a0468551cdd48206&docguid=I156F38F387B011E1BF2ED535FDE7B006&hitguid=I156F38F387B011E1BF2ED535FDE7B006&rank=7&spos=7&epos=7&td=1684&crumb-ction=append& context=23&resolvein=true, last accessed on 6th November, 2014.
[13] Wolfenden Committee, Wolfenden Report on Homosexual Offences and Prostitution (HMSO, 1957), para 61.
[14] Ashworth & Horder, op. cit., at 35.
[15] Falsetto, above note 10.
[16] Ibid
[17] Ibid.
[18] D. Ormerod, Smith and Hogan’s Criminal Law, (13th ed.), (New York, Oxford University Press, 2011), p. 9.
[19] P. Devlin, “Morals and the Criminal Law”, Maccabean Lecture, 1957.
[20] [1962] A.C. 220, Retrieved from http://www.e-lawresources.co.uk/Shaw-v-DPP.php last accessed on 11 November, 2014.
[21] [1972] 2 Q.B. 179.
[22] [1994] 1 A.C. 212, Retrieved from http://www.cirp.org/library/legal/ UKlaw/ rvbrown1993/ on 11th November, 2014.
[23] Criminal Code Act, Nigeria.
[24] Sections 214, 215 and 217 of the Criminal Code CAP ‘’C38’’ LFN and Sections 284 and 285 of the Penal Code.
[25] Turnbull, above note 5 at p. 720.
[26] F. Worthen, What is Homosexuality? Retrieved from www. freeministry.org/h/articles/worthen2.htm, last accessed on 22 March, 2016.
[27] Falsetto, above note 10.
[28] R. v Brown, op. cit.
[29] M.B. Anzaki, “Anti-Gay Law in Nigeria”, retrieved from http://thelawyerschronicle.com/anti-gay-law in-nigeria/ last accessed on 11 November, 2014.
[30] Ibid.
[31] Ibid.
[32] Senator Ihenyen, “The Same Sex Marriage (Prohibition) Act in Nigeria: Reactions and Counter Reactions,” Nigerian Law Today, retrieved from http://www.nigerianlawtoday.com/2014/02/the-same-sex-marriage-prohibition-act.html, last accessed on 12 November, 2014.
[33] Ibid.
[34] Ibid.
[35] S.A. Orovwuje, “The Nigeria Anti- Gay Law: International Diplomacy, Morality and Human Rights Perspectives”, Retrieved from http://www.academia.edu/6969322/The_Anti__Gay_Law_and_International_Diplomacy, last accessed on 12 November, 2014.
[36] F. Aribisala, Criminalizing Same-Sex Relationships in Nigeria, Retrieved from www.nigeriadevelopmentandfinance forum.org/ PolicyDialogue/ Dialogue.aspx?Edition=215, last accessed on 14 November, 2014 and Ugwu, D., Nigerian Same Sex Marriage Ban Infringes Individual Rights, Retrieved from www.jurist.org/hotline/ 2011/12/damian-ugwu-nigerian-marriage.php on 22nd March, 2016.
[37] E. Obidinma, & A. Odidinma, The Travails of Same Sex Marriage Relation under Nigerian Law, (2013) 17 Journal of Law, Policy and Globalization, 42- 49 at 42.
[38] 1999 Constitution of the Federal Republic of Nigeria.
[39] Ibid.
[40] Ibid.
[41] Ibid.
[42] [2007] 14 NWLR Pt. 1055 p. 551 at 580.
[43] [2008] 9 NWLR Pt. 1092 p. 219 at 248-249.
[44] My Genes Made Me Do It, Retrieved from www.mygenes.co.nz/summary.htm, last accessed on 22 March, 2016.
[45] Ibid.
[46] R.C. Friedman, & J. Downey, “Neurobiology and Sexual Orientation: Current Relationships” (1993) 5 (2) Journal of Neuropsychiatry 131-153 at 149.
[47] My Genes Made Me Do It, above not 44.
[48] Ibid.
[49] Ibid.
[50] J. Dallas, Desires in Conflict: Hope for Men Who Struggle with Sexual Identity (Eugene, OR: Harvest House Publishers, 2003), pp. 20-23.
[51] C.A. Tripp, The Homosexual Matrix (New York: McGraw-Hill, 1975), p. 12.
[52] Ibid.
[53] M. Slick, “Homosexual Activity Harms No One,” retrieved from https:// carm.org/homosexual-gay-sex-harms-no-one, last accessed on 22 March, 2016.
[54] T.J. Dailey, “Homosexuality: The Negative Health Effects of Homosexuality (2007),” retrieved from http://www.battlefortruth. org/articlesdetail.asp? id=235, last accessed on 22nd March, 2016.
[55] Ibid.
[56] Ibid.
[57] Eowyn, Medical Consequences of Homosexual Sexual Behaviours, Retrieved from http://www.dcclothesline.com/2013/07/04/medical-consequences-homosexual-sexual-behaviors/ on 22nd March, 2012.
[58] Dailey, above note 54.
[59] Anya, above note 1 123.
[60] Section 299 of the Criminal Code.
[61] Eseyin, M., Same Sex Marriage (Prohibition) Act of Nigeria, 2013: A Still Birth? (2015) 36 Journal of Law, Policy and Globalization 45-50 at 49.
[62] Anya, op. cit, at 129.