LGBT rights in Nigeria

LGBT rights in Nigeria

Nigeria
Same-sex sexual activity legal? Illegal under federal law since 1901 (as Northern Nigeria Protectorate and Southern Nigeria Protectorate)[1]
Penalty:
 States under Shari'a law: Death
(Applies to persons who have consented to jurisdiction of Shari'a courts plus all Muslims)
States not under Shari'a law: 14 years' imprisonment
Gender identity/expression Illegal in northern states
Discrimination protections No
Family rights
Recognition of
relationships		 The Same-Sex Marriage Prohibition Act criminalises all forms of same-sex unions
Cape Town Pride 2014 participants protested in support of LGBT rights 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,[2] 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.

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.

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] By 2015 this percentage decreased to 87%. 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 widely criticized by human and civil rights organizations, as well as the United Nations, for failing to uphold, and even violating, the rights of LGBT people.

Criminal law

Federal Criminal Code in all southern states

Sex acts between men are illegal under the Criminal Code that applies to southern Nigeria and carry a maximum penalty of 14 years' imprisonment. Sex acts between women are not mentioned specifically in the code, although it is arguable that the gender-neutral term "person" in Section 214 of the code includes women. Chapter 21 of that code provides in pertinent part as follows:[6]

Any person who -
(a) has carnal knowledge of any person against the order of nature; or
* * *
(c) permits a male person to have carnal knowledge of him or her against the order of nature;
is guilty of a felony, and is liable to imprisonment for fourteen years.
Any person who attempts to commit any of the offences defined in the last preceding section is guilty of a felony and is liable to imprisonment for seven years. The offender cannot be arrested without a warrant.
Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for three years. The offender cannot be arrested without a warrant.

Federal Penal Code in all northern states

Section 284 of the Penal Code (Northern States) Federal Provisions Act, which applies to all states in northern Nigeria, provides that:

Whoever has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.[7]:page: 69

Section 405 provides that a male person who dresses or is attired in the fashion of a woman in a public place or who practises sodomy as a means of livelihood or as a profession is a "vagabond". Under Section 407, the punishment is a maximum of one year's imprisonment or a fine, or both.[7]:page: 127

Section 405 also provides that an "incorrigible vagabond" is "any person who after being convicted as a vagabond commits any of the offences which will render him liable to be convicted as such again".[7]:page: 127 The punishment under Section 408 is a maximum of two years' imprisonment or a fine, or both.[7]:page: 128

Shari'a law enacted by certain northern states

Twelve northern states have adopted some form of Shari'a into their criminal statutes: Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe, and Zamfara. The Shari'a criminal laws apply to those who voluntarily consent to the jurisdiction of the Shari'a courts and to all Muslims.[7]:page: 45

Meaning of sodomy

In the states of Kaduna and Yobe, "sodomy" is committed by "[w]hoever has anal coitus with any man".

In the states of Kano and Katsina, "sodomy" is committed by "[w]hoever has carnal intercourse against the order of nature with any man or woman through her rectum".

In the states of Bauchi, Gombe, Jigawa, Sokoto, and Zamfara, "sodomy" is committed by "[w]hoever has carnal intercourse against the order of nature with any man or woman".[7]:page: 69

Punishment for offense of sodomy

In the states of Gombe, Jigawa, and Zamfara, a person who commits the offence of sodomy shall be punished:

(a) with caning of one hundred lashes if unmarried, and shall also be liable to imprisonment for the term of one year; or
(b) if married with stoning to death (rajm).[7]:page: 70

In the state of Kano, a person who commits the offence of sodomy shall be punished:

(a) with caning of one hundred lashes if unmarried, and shall also be liable to imprisonment for the term of one year; or
(b) if married or has been previously married with stoning to death (rajm).[7]:page: 70

In the state of Bauchi, a person who commits the offence of sodomy "shall be punished with stoning to death (rajm) or by any other means decided by the state".[7]:page: 70

In the states of Kaduna, Katsina, Kebbi, and Yobe, a person who commits the offence of sodomy "shall be punished with stoning to death (rajm)".[7]:page: 70

In the state of Sokoto, a person who commits the offence of sodomy shall be punished:

(a) with stoning to death;
(b) if the act is committed by a minor on an adult person the adult person shall be punished by way of ta'azir which may extend to 100 lashes and minor with correctional punishment.[7]:page: 70

In Sokoto, "ta'azir" means "a discretionary punishment for offence whose punishment is not specified".[7]:page: 53

Meaning of lesbianism

In the states of Bauchi, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Sokoto, Yobe, and Zamfara, lesbianism is committed by "[w]hoever, being a woman, engages another woman in carnal intercourse through her sexual organ or by means of stimulation or sexual excitement of one another." Bauchi, Jigawa, Katsina, Kebbi, Sokoto, Yobe and Zamfara states include the following official explanation: "The offence is committed by the unnatural fusion of the female sexual organs and/or by the use of natural or artificial means to stimulate or attain sexual satisfaction or excitement."[7]:page: 71

Punishment for offence of lesbianism

In the states of Gombe, Jigawa, Kebbi, Sokoto, Yobe, and Zamfara, a person who commits the offence of lesbianism "shall be punished with caning which may extend to fifty lashes and in addition be sentenced to a term of imprisonment which may extend to six months".[7]:page: 71

In the state of Bauchi, a person who commits the offence of lesbianism "shall be punished with caning which may extend to fifty lashes and in addition be sentenced to a term of imprisonment which may extend to up to five years".[7]:page: 71

In the state of Kaduna, the punishment for committing the offence of lesbianism is ta'azir, which means "any punishment not provided for by way of hadd or qisas".[7]:page: 53 "Hadd" means "punishment that is fixed by Islamic law".[7]:page: 54 "Qisas" includes "punishments inflicted upon offenders by way of retaliation for causing death/injuries to a person".[7]:page: 54

In the states of Kano and Katsina, the punishment for committing the offence of lesbianism is stoning to death.[7]:page: 71

Meaning of gross indecency

In the state of Kaduna, a person commits an act of gross indecency "in public, exposure of nakedness in public and other related acts of similar nature capable of corrupting public morals".

In the states of Kano and Katsina, a person commits an act of gross indency "by way of kissing in public, exposure of nakedness in public and other related acts of similar nature in order to corrupt public morals".

In the state of Gombe, a person commits an act of gross indecency by committing "any sexual offence against the normal or usual standards of behaviour".

The states of Bauchi, Jigawa, Kebbi, Sokoto, Yobe, and Zamfara do not define gross indecency. Their laws instead say: "Whoever commits an act of gross indecency upon the person of another without his consent or by the use of force or threat compels a person to join with him in the commission of such act shall be punished".[7]:page: 71

Punishment for offence of gross indecency

A person who commits the offence of gross indecency "shall be punished with caning which may extend to forty lashes and may be liable to imprisonment for a term not exceeding one year and may also be liable to fine".

In the state of Bauchi, a person who commits the offence of gross indecency "shall be punished with caning which may extend to forty lashes and may be liable to imprisonment for a term not exceeding seven years and may also be liable to fine".

In the state of Kaduna, the punishment for committing the offence of gross indecency is ta'azir, which means "any punishment not provided for by way of hadd or qisas".[7]:page: 53 "Hadd" means "punishment that is fixed by Islamic law".[7]:page: 54 "Qisas" includes "punishments inflicted upon offenders by way of retaliation for causing death/injuries to a person".[7]:page: 54

In the state of Sokoto, a person who commits the offence of gross indecency "shall be punished with caning which may extend to forty lashes or may be liable to imprisonment for a term not exceeding one year, or both, and may also be liable to fine".[7]:page: 71

Meanings of vagabond and incorrigible vagabond

In the states of Bauchi, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Sokoto, Yobe, and Zamfara, "any male person who dresses or is attired in the fashion of a woman in a public place or who practises sodomy as a means of livelihood or as a profession" is a vagabond.[7]:page: 127

In the states of Kano and Katsina, "any female person who dresses or is attired in the fashion of a man in a public place" is a vagabond.[7]:page: 127

In the states of Bauchi, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Sokoto, Yobe, and Zamfara, an "incorrigible vagabond" is "any person who after being convicted as a vagabond commits any of the offences which will render him liable to be convicted as such again".[7]:page: 127

Punishment for being a vagabond or incorrigible vagabond

In the states of Bauchi, Gombe, Jigawa, Katsina, Kebbi, Sokoto, Yobe, and Zamfara, "[w}hoever is convicted as being a vagabond shall be punished with imprisonment for a term which may extend to one year and shall be liable to caning which may extend to thirty lashes".[7]:page: 127

In the state of Kano, "[w}hoever is convicted as being a vagabond shall be punished with imprisonment for a term which may extend to eight months and shall be liable to caning which may extend to thirty-five lashes".[7]:page: 127

In the state of Kaduna, the punishment for being convicted as a vagabond is ta'azir,[7]:page: 127 which means "any punishment not provided for by way of hadd or qisas".[7]:page: 53 "Hadd" means "punishment that is fixed by Islamic law".[7]:page: 54 "Qisas" includes "punishments inflicted upon offenders by way of retaliation for causing death/injuries to a person".[7]:page: 54

In the states of Gombe, Jigawa, Katsina, Kebbi, Sokoto, Yobe, and Zamfara, "[w]hoever is convicted as being an incorrigible vagabond shall be punished with imprisonment for a term which may extend to two years and shall be liable to caning which may extend to fifty lashes".[7]:page: 128

In the state of Bauchi, "[w]hoever is convicted as being an incorrigible vagabond shall be punished with imprisonment for a term which may extend to two years and shall be liable to caning which may extend to forty lashes".[7]:page: 129

In the state of Kano, "[w]hoever is convicted as being an incorrigible vagabond shall be punished with imprisonment for a term which may extend to one year and shall be liable to caning which may extend to fifty lashes".[7]:page: 129

In the state of Kaduna, the punishment for being convicted as an incorrigible vagabond is ta'azir.[7]:page: 129

Secular criminal law enacted by certain northern states

Same-sex sexual activities

In the state of Bormo, a person who "engages in ... lesbianism, homosexual act ... in the State commits an offence". A person who "engages in sexual intercourse with another person of the same gender shall upon conviction be punished with death".[8]:pages: 199-200

Males imitating the behavioural attitudes of women

In the state of Kano, a person who "being a male gender who acts, behaves or dresses in a manner which imitate the behavioural attitude of women shall be guilty of an offence and upon conviction, be sentenced to 1 year imprisonment or a fine of N10,000 or both".[8]:page: 202

Recognition of same-sex relationships

On 18 January 2007, the cabinet of Nigeria approved the Same Sex Marriage (Prohibition) Act 2006 and sent it to the National Assembly for urgent action.[9] The bill, however, did not pass.[Note 1]

On 29 November 2011, the Senate of Nigeria passed the "Same Sex Marriage (Prohibition) Bill, 2011". The bill was passed on 30 May 2013 by the House of Representatives of Nigeria.[10] If signed into law by President Goodluck Jonathan, the bill would:

On 13 January 2014, The president of Nigeria, Goodluck Jonathan signed into law the Same-Sex Marriage Prohibition Act, which parliament passed in May 2013. The law follows a similar one passed in Uganda in December 2013, which imposes life imprisonment for some types of homosexual acts.

Anti-discrimination protections

The Constitution of the Federal Republic of Nigeria does not specifically protect LGBT rights, but it does contain various provisions guaranteeing all citizens equal rights (Section 17(2)(a)) as well as other rights, including adequate medical and health care (Section 17(3)(d)) and equal opportunity in the workplace (Section 17(3)(a)).[12]

There is no enacted legislation protecting against discrimination or harassment based on sexual orientation or gender identity. None of the political parties in Nigeria has formally endorsed LGBT rights. Two of the most successful political parties in the National Assembly, the People's Democratic Party and the All Nigeria Peoples Party, are overtly hostile to LGBT rights. Smaller, more liberal political parties have also spoken against LGBT rights.

Living conditions

Public hostility to homosexual relations is widespread in this largely conservative country.[13]

Eighteen men were arrested in August 2007 by Bauchi state police and charged with "addressing each other as women and dressing themselves as women, which is illegal under the Shari'a penal code". They were originally charged with sodomy, but the charges were later changed to vagrancy.[14] As of the end of 2009, the trial of the men had been postponed numerous times, with five of the men released on bail and the remaining 13 in jail.[15] By the end of 2010, all the men had been released on bail[16] but no final resolution of the case had been reached by the end of 2011.[17]:51

On 12 September 2008, four newspapers published the names, addresses, and photographs of the twelve members of the House of Rainbow Metropolitan Community Church, a LGBT-friendly church in Lagos. As a result, some members were threatened, stoned, and beaten. One woman was attacked by 11 men.[14] As of the end of 2010, no action had been taken against the perpetrators.[16] During 2011, church members and the clergy received threatening e-mails, telephone calls, and letters from unknown persons. The church and partner groups cancelled conferences on sexual rights and health scheduled for Lagos and Abuja in December because of concerns about the safety of conference attendees after the proposed Same-Sex Marriage (Prohibition) bill refocused negative attention on the Church.[17]:51

Some organizations in Nigeria try to assist LGBT persons, such as the Metropolitan Community Churches. Attendance at church meetings, however, is risky.[18]

The U.S. Department of State's 2011 Human Rights Report found,

Because of widespread societal taboos against homosexuality, very few persons openly revealed their orientation. The [non-governmental organizations] ... Global Rights and The Independent Project provided lesbian, gay, bisexual, and transgender (LGBT) groups with legal advice and training in advocacy, media responsibility, and HIV/AIDS awareness. Organizations such as the Youths 2gether Network also provided access to information and services on sexual health and rights for LGBT persons, sponsored programs to help build skills useful in social outreach, and provided safe havens for LGBT individuals. The government and its agents did not impede the work of these groups during the year.[17]:50

HIV / AIDS

The Nigerian government estimates HIV prevalence among men who have sex with men at six sites in the country to be 17.2 percent, compared to 4.1 percent among the general population.[19]

Discrimination against persons living with HIV / AIDS was widespread in 2011, as the public believed HIV / AIDS to be the result of immoral behavior and a punishment for same-sex sexual activity. Those persons often lost their jobs or were denied health services. Authorities and non-governmental organizations sought to reduce the stigma and change perceptions through public education campaigns.[17]:51

Although there is discrimination on the ground of sexual orientation and gender identity in Nigeria, HIV programming exist for Men who have sex with Men. Organizations like the Independent Project for Equal Rights implement a sexual health program for MSM in Lagos state through a peer education approach and also organization vocational training that will enhance the skills of the men and make them less vulnerable to contracting HIV.

TIP's approach to HIV prevention is not only surrounded by condom and lube promotion but also capacity building of the men so that they can be less dependent or discouraged in engaging in prostitution.

Nigeria's Ambassador to the UN's views

In a statement dated 19 September 2006, the Nigerian ambassador to the United Nations, Joseph Ayalogu, stated, "The notion that executions for offences such as homosexuality and lesbianism [are] ... excessive is judgemental rather than objective. What may be seen by some as disproportional penalty in such serious offences and odious conduct may be seen by others as appropriate and just punishment."[20]

Summary table

Same-sex sexual activity legal (Penalty: Up to death in Shari'a states; up to 14 years imprisonment in non-Shari'a states)
Equal age of consent
Anti-discrimination laws in employment only
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech)
Same-sex marriages
Recognition of same-sex couples
Step-child adoption by same-sex couples
Joint adoption by same-sex couples
Gays and lesbians allowed to serve openly in the military
Right to change legal gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

Notes

  1. ↑ The bill would have:
    • provided that "only marriage entered into between a man and a woman under the marriage Act or under the Islamic and Customary Laws are valid and recognized in Nigeria"
    • made void in Nigeria any "marriage entered into by persons of same sex pursuant to a license issued by another state, country, foreign jurisdiction or otherwise"
    • prohibited the issuance of a marriage license to persons of the same sex
    • prohibited recognition in Nigeria of "[m]arriage between persons of same sex entered into in any jurisdiction whether within or outside Nigeria, any other state or country or otherwise or any other location or relationships between persons of the same sex which are treated as marriage in any jurisdiction, whether within or outside Nigeria"
    • required "[a]ll arms of government and agencies in the Federal Republic of Nigeria ... [to] not give effect to any public act, record or judicial proceeding within or outside Nigeria, with regard to same sex marriage or relationship or a claim arising from such marriage or relationship"
    • provided that all "contractual or other rights granted to persons involved in same sex marriage or accruing to such persons by virtue of a license shall be unenforceable in any Court of law in Nigeria"
    • denied the courts of Nigeria the "jurisdiction to grant a divorce, separation and maintenance orders with regard to such same sex marriage, consider or rule on any of their rights arising from or in connection with such marriage"
    • prohibited the celebration of same sex marriage "in any place of worship by any recognized cleric of a Mosque, Church, denomination or body to which such place of worship belongs"
    • imposed up to five years' imprisonment for anyone who "goes through the ceremony of marriage with a person of the same sex" or "performs, witnesses, aids, or abets the ceremony of same sex marriage"
    • imposed up to five years' imprisonment for anyone who "is involved in the registration of gay clubs, societies and organizations"
    • prohibited "[p]ublicity, procession[,] and public show of same-sex amorous relationship through the electronic or print media physically, directly, indirectly or otherwise"
    • made same sex couples ineligible to adopt children

References

  1. ↑ Where is it illegal to be gay?
  2. ↑ The World Factbook - Nigeria, U.S. Central Intelligence Agency, webpage updated 31 July 2012
  3. ↑ The number of adults (all were at least 18 years of age) surveyed in Nigeria was 1,128, yielding a margin of error of 3 percent with a 95 percent confidence level.
  4. ↑ "Pew Global Attitudes Project", (pages 35, 83, and 117)
  5. ↑ Alimi, Adebisi. "Why My Mom Didn't Say 'I Love You' For 11 Years." National Public Radio. July 19, 2015. Retrieved on July 21, 2015.
  6. ↑ Chapter 21, Nigerian Criminal Code
  7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Sharia Implementation in Northern Nigeria 1999-2006: A Sourcebook, authored by Philip Ostien, Spectrum Books Limited, Ibadan, Nigeria, 2007, volume IV, chapter 4, part III (republished on the Internet by the University of Bayreuth with permission of the author and publisher)
  8. 1 2 Sharia Implementation in Northern Nigeria 1999-2006: A Sourcebook, authored by Philip Ostien, Spectrum Books Limited, Ibadan, Nigeria, 2007, volume III, chapter 3, part IV (republished on the Internet by the University of Bayreuth with permission of the author and publisher)
  9. ↑ "Appendix: A Bill For An Act To Make Provisions For The Prohibition Of Sexual Relationship Between Persons Of The Same Sex, Celebration Of Marriage By Them And For Other Matters Connected Therewith", reprinted in "Human Rights, Homosexuality and the Anglican Communion: Reflections in Light of Nigeria", Fulcrum: Renewing the Evangelical Centre, authored by Ephraim Radner and Andrew Goddard
  10. ↑ "Nigerian Same Sex Marriage Ban Violates LGBTI Rights", Freedom House
  11. ↑ Nigeria Same Sex Marriage Bill - final
  12. ↑ Constitution of the Federal Republic of Nigeria
  13. ↑ "Nigeria must withdraw anti-gay bill", Independent Online, reported by Heidi Vogt, 24 March 2006
  14. 1 2 2008 Country Reports on Human Rights Practices: Nigeria, Bureau of Democracy, Human Rights and Labor, U.S. Department of State
  15. ↑ 2009 Country Reports on Human Rights Practices: Nigeria, Bureau of Democracy, Human Rights and Labor, U.S. Department of State
  16. 1 2 2010 Country Reports on Human Rights Practices: Nigeria, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, page 58
  17. 1 2 3 4 2011 Country Reports on Human Rights Practices: Nigeria, Bureau of Democracy, Human Rights and Labor, U.S. Department of State
  18. ↑ "We are not asking for sanctions", D+C Development and Cooperation, authored by Rowland Jide Macaulay
  19. ↑ "Social and economic factors contributing to the HIV vulnerability of MSM in urban Nigeria: A qualitative study comparing Lagos and Kano", Sylvia Adebajo (Population Council, Abuja, Nigeria), Andrew Karlyn (Population Council, Washington, D.C.), Patrick Enweonwu (Love Planet, Nigeria), and Jack Tocco (University of Michigan), Poster Presentation, XIX International AIDS Conference, 22–27 July 2012, Washington, D.C.
  20. ↑ Response to the Oral Report delivered by Philip Alston, Special Rapporteur on extrajudicial, summary, or arbitrary executions at the United Nations Human Rights Council, reprinted in Love, hate and the law: decriminalising homosexuality, Amnesty International, footnote 102, 2008

External links

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