2014 was an interesting year for Africa’s Lesbian Gay Bisexual Transgender Intersex (LGBTI) community. As usual Nigeria was in the international news: it had enacted the Same Sex Marriage (Prohibition) Act 2013(the Act), criminalising the existence, expression, support, direct or indirect sustenance or inclusion of same-sex relationships, LGBTI groups or individuals with 10 and 14years imprisonment depending on the particular offence committed. This is in addition to the already existing Criminal Code and Penal Code stipulation which provide for imprisonment and death by stoning respectively.
The world protested that the Act was unconstitutional and violation of Nigeria’s numerous constitutional, regional and international human rights treaty commitments which demand the right to personal dignity and equal enjoyment of rights without discrimination or unjust restrictions but Nigeria remained unflinching. The effects of the Act are limitless and increase as time advances.
2.1. The negative effects of the Same Sex Marriage Prohibition Act 2013
The Act legitimates homophobia and the argument that being gay, lesbian, bisexual or transgender is against our cultural heritage as Africans. Needless to say, The Act, in 2014, resulted in countless reported and unreported human rights violations nationwide especially targeted at the Nigerian Lesbian Gay Bisexual Transgender Intersex(LGBTI) community and those suspected to be members or allies both by state and non-state actors.
Some of the relevant, but not so popular cases that made it to court are :
2.1.1 Ifeanyi Orazulike v. Inspector General of Police & Another
The applicant, (a health worker and LGBTI rights activist) brought action against the government for violating his rights to privacy, dignity of human person, peaceful assembly, amongst others, in response to a police raid at his Abuja office on 22nd October 2014, and his subsequent unlawful arrest and detention (for 4 hours at a location outside the police station, only to be released after several calls and protests had been made by colleagues and allies). This case is yet to the receive judgement at the trial court till date.
2.1.2. Mr. Teriah Ebah v. Federal Government of Nigeria
The applicant (an England based Nigerian accountant), brought an action demanding that the court declare the Same Sex Marriage Prohibition Act illegal, unjust and unconstitutional. However, the court struck out the case on the grounds that the applicant was not part of the LGBTI community, is in no way affected by THE ACT and as such has no locus standi or right to bring such application before the court.
In 2014, 105 cases of LGBTI rights violation were reported under the human rights infograph developed by the Initiative for Equal Rights(TIERS) with the support of five other LGBTI focused organisations in Nigeria- Advocate for Grassroots Empowerment(AGE); Access to Good Health Initiative(AGHI); Access to Health and Rights Development Initiative (AHRDI); International Centre for Advocacy on Rights to Health (ICARH); Improved Sexual Health and Rights Advocacy Initiative.
2.2. 2015 LGBTI rights violations
In the face of the events of 2014, 2015 was worse. More violence and violation of human rights were targeted at the Nigerian LGBTI community. The ‘2015 Report on Human Rights Violations Based on Real or Perceived Sexual Orientation and Gender Identity in Nigeria’, thereafter the Report(prepared by the Initiative for Equal Rights in collaboration with the five other Nigerian LGBTI focused and inclusive organisations mentioned above) records that such human rights violation were occasioned through:
2.2.1 Forms of violence
a. Arbitrary arrests
b. Unlawful detention
c. Blackmail and Extortion
d. Battery and Assault
e. Mob violence
f. Threat to life
h. Curative rape
i. Invasion of Privacy
j. Forceful eviction
m. Stigma and Discrimination
n. Attempted Murder
o. Wrongful dismissal from employment
Not all cases of violation were reported. For the reported cases, however, for security reasons the actual names of the victims who reported were not included to forestall the chances of further violation.
2.3. Violations of LGBTI rights as recorded across Nigerian states in 2015
STATE NUMBER OF CASES REPORTED
a. Abia 3
b. Abuja 23
c. Adamawa 2
d. Anambra 10
e. Borno 3
f. Delta 3
g. Ebonyi 2
h. Enugu 47
i. Gombe 1
j. Imo 3
k. Jigawa 4
l. Kano 13
m. Katsina 1
n. Lagos 31
o. Oyo 1
p. Rivers 21
q. Sokoto 3
r. Zamfara 1
The Report sums up that in 2015, from the 172 violations reported, recorded and verified, 282 persons were violated across 18 states by 7 organisations in Nigeria. The perpetrators recorded to be responsible includes state actors(38 violations); non-state actors (124 violations); collaboratively between state and non-state actors(10 violations).
2.4. Some cases of LGBTI rights violations are equally recorded as follows:
2.4.1. Violation of right to privacy, right to dignity of person, freedom of expression
i. Date: 22nd January, 2015
Location: Lagos Nigeria
Tari, male, was accosted, on his way to work, at a bus stop in Shomolu by police officers who demanded a body search. He obliged. After the search, they demanded to search his phone. In the course of the search, he was quizzed on the persons he conversed with in his private chat as they hinted of homosexual interactions. Subsequently, he was arrested and detained.
ii. Date: 5th June, 2015
Location: Lagos, Nigeria
Caleb, male and effeminate, walking home at night, was intercepted at Apapa Lagos by some boys who violently teased and taunted him about his mannerisms. The boys brutally assaulted him, stripped him of certain personal items and warned him to desist from being effeminate. They threatened to repeat the episode if he did not comply.
iii. Date: 29th September, 2015
Location: Onitsha, Anambra State
Mr Emeka, a lawful occupant and tenant at X address had his residence trespassed by the landlord’s daughter. She took his mobile phone and, without his permission, searched its contents. On discovering a private chat between Mr Emeka and his boyfriend, she told her parents. They were alarmed and invited the police who arrested Mr Emeka instantly. The landlord’s son intervened at the police station and Mr. Emeka was released.
2.4.2 Violation of right to life, personal dignity
i. Date: 2nd January 2015
Location: Abba, Ukpo and Akwa, all in Anambra State
Mr X,(gay) was invited to location Z within the community, by Mr Y(pretending to be gay and attracted to Mr X) whom he had been chatting with on an online social network. On Mr X’s arrival, Mr Y and some other men brutally assaulted Mr X, took down his home address and extorted N5,000(equivalent of $17) from him. Subsequently they demanded that Mr X made a continuous monthly payment of the above stated amount, failure of which will attract further brutality until death. After four months of diligent payment, Mr X could no longer afford to continue paying. Mr Y and the other men, in the company of the community youths(whom they had invited) broke into Mr X’s residence to brutally assault him. In the course of this, the police intercepted only to arrest Mr X. Subsequently, Mr X was detained, tortured and compelled to mention the names of other gay men in the community. Arrests were made. However, one of the named and arrested men contacted a lawyer who intervened and the matter was resolved.
ii. Date: 2015
Location: Oshodi, Lagos
A 19 year old female student was raped by five men. They told her it was her punishment for loving women instead of looking for men. In the course of the violation they told her that her sexual orientation will change if strong men have sex with her.
The ‘2015 Report on Human Rights and Violations Based On Real or Perceived Sexual Orientation and Gender Identity in Nigeria’, unfortunately is not exhaustive of the LGBTI rights violation that occurred in 2015 in Nigeria. This is because a larger fraction of the victim population are too terrified of the stigma that may follow speaking up or going public with such violation (this will be indirectly going public with their sexuality thus attracting further violation and threat to their lives).
2.4.3. Violation of right to life, freedom of association, freedom of expression
The Acr and the increasing rate of LGBTI rights violation has threatened the security and freedom of the LGBTI community such that they are discouraged from seeking medical attention specific for MSM(Men who have sex with men) at the LGBTI focused or inclusive organisations health centres such as the International Centre Advocacy on the Rights to Health. This is the achieved through the criminalisation of the existence, registration or participation in such organisations. This deters the LGBTI community from seeking adequate medical attention. This greatly affects the HIV positive fraction of the LGBTI community and is a threat to the life expectancy of both the members of the community and those who though not members are connected with the HIV positive members such as their spouses or heterosexual partners. In other words, The Act aids the spread of the HIV virus as it attacks the accessibility and continuity of adequate treatment.
The Act unjustly restricts and denies members of the LGBTI community their freedom of expression of same-sex loving relationships ‘directly and indirectly’ publicly. It also unjustly restricts and denies them freedom of expression and association even when done in private and affects or challenges the public safety, order and morality in no way. This it does by criminalising the existence and registration of LGBTI focused or inclusive organisations, clubs and societies. The Act further criminalises same-sex relationships, marriages and co-habitation arrangements between same-sex loving couples.
This is more so as The Act criminalises the staff, sponsors and volunteers of LGBTI focused or inclusive organisation. The Act is a limitation on the career choices and employment opportunities of medical and Para-medical experts who are interested in delivering efficient and effective MSM health services.
3.1The positive effects of the Same Sex Marriage (Prohibition) Act 2013
3.1.1.Provoked visibility of the LGBTI community
In response to the increasing rate of violence and human rights violation targeted towards the LGBTI community, most of the LGBTI community have gone underground in fear and extreme caution. However, a few members of the Nigerian LGBTI community have been provoked to openly and voluntarily acknowledge their sexual orientations or gender identity. Prominent instances include but are not limited to:
i. Kenny Bademosi: through his autobiography Exodus
ii. Seun Idris: on Facebook and the ‘Letters to My Africa’ blog
iii. Seyi Adebanjo
1.1. Increased audibility of the LGBTI rights activists and groups.
The emergence and implementation of the Same Sex Marriage Prohibition Act has gingered the increased participation of local and international non-governmental organisations, groups and individuals in the fight against LGBTI rights violations. Some of them include, but are not limited to:
a. Changing Attitudes Nigeria
b. Queer Alliance Nigeria
c. The Initiative for Equal Rights
d. International Centre for the Advocacy on Rights to Health
e. Advocate for Grass root Empowerment
f. Access to Good Health Initiative
g. Improved Sexual Health and Rights Advocacy Initiative
h. International Centre for Reproductive Health and Sexual Rights
i. The Bisi Alimi Foundation
j. Michael Daemon (a pseudonym) hosting the first Nigerian LGBTI weekly podcast on http://www.nostringspodcast.com .
k. Ngozi Chimamanda Adichie through her short stories.
1.2. Increased attention focused on the LGBTI rights conversation.
Owing to the enactment of the Act, increased violations and the increased activities of LGBTI rights activists and allies, LGBTI issues and concerns are constantly in the Nigerian news, online social media, sermons and discussions in places of worship, schools and public places.
In as much there has been more opportunity to air homophobic arguments and prejudice, there has also been greater opportunity to challenge homophobia, prejudice and preach the gospel of inclusion and accommodation. In this light, there has been increased social media activism and a gradual- though still not substantial- paradigm shift amongst the non-members of the LGBTI community towards inclusion.
2.0. The Human Rights structure available
The Constitution of the Federal Republic of Nigeria 1999(As amended) provides in its Chapter IV for the regard of the preservation and protection of fundamental rights. The African Charter on Human and Peoples Rights has been ratified and enacted into a local legislation as the African Charter on Human and Peoples Rights Ratification and Enforcement Act. Fundamental Rights claims are theoretically given special preference by virtue of the Fundamental Rights Enforcement Procedure 1999 and certain celebrated local cases such as Garba v. University of Maiduguri to the effect that:
a. The fundamental rights enforcement cases can be brought before both the Federal High Court and State High Courts(both of which ordinarily have original and appellate jurisdiction for specific cases, parties and subject matter);
b. Fundamental Rights enforcement cases are granted speedy hearing;
c. Fundamental Rights enforcement cases cannot be struck out for want of locus standi of party bringing the suit;
d. Public interest litigation in encouraged;
e. The provisions and rights conferred under the African Charter on Human and Peoples Rights have the force of law as though constitutionally provided for.
f. Recently, the Violence Against Persons (Prohibition) Act, 2015 was enacted, and thus criminalising all forms of unjust violence and violation of human rights.
Given that Nigeria has domesticated the African Charter on Human and Peoples Rights, it is expected that the standards of the Africa human rights system are equally integrated into the formulations and implementations of Nigerian laws and policies.
3.0. Challenges to the human rights structure available
In spite of all the above established structures and theories of the Nigerian legal and human rights system, certain factors challenge the system’s ability to combat homophobia. These are:
1. Lack of implementation and flagrant disregard of constitutional human rights standards and domesticated international human rights treaties, by the local judicial systems.
2. The dependence of the judiciary on the executive for remuneration thus reducing the chances of any revolutionary judicial precedent challenging homophobia anytime soon.
3. Homophobic attitudes and prejudice promoted, sustained and protected amongst the different arms of government.
4. Undue delay in delivery of human rights judgments.
5. Unchallenged negative attitudes, prejudice and violence directed at the LGBTI in communities, work places, worship place and other public places.
6. Homophobic statements and hate speech made by public officers and leaders in all spheres of the society.
1. Repeal of the Same Sex Marriage (Prohibition) Act 2013 to withdraw the legitimacy status from homophobia;
2. Amendment of the Penal Code and Criminal Code decriminalising voluntary homosexual acts and consensual same-sex relationships;
3. Further collaboration amongst LGBTI inclusive and focused organisations.
4. Individual freewill donations and sponsorships of LGBTI inclusive and focused organisations.
5. Intensive social media LGBTI rights activism.
6. Open and diplomatic confrontation of prejudice and homophobia.
It is 2016, there are still the likelihood of further violation. However, there are more hands on deck ameliorating the situation and building capacity to do so effectively than there were in 2014 when the Act was freshly enacted. Watching these play out: the struggle, and the gradual victory, there is hope, real hope. I see light ahead. It is like watching soft flesh harden.
(Originally submitted by David Nnanna Ikpo as his Country Report project to the Centre for Human Rights, Faculty of Law, University of Pretoria, February 2016 )