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Assessing the Human Rights Implications of the Nigerian Law Dealing with Sexual Orientation Assessing the human rights implications of the Nigerian law dealing with sexual orientation By Agada Akogwu Submitted in fulfillment of the requirements for the degree Doctor of Laws In the Faculty of Law, University of Pretoria February 2018 Supervisor: Prof Frans Viljoen i Declaration I declare that this thesis, which I hereby submit for the degree of Doctor of Laws at University of Pretoria, is my own work and has not been previously submitted by me for a degree at this or any other tertiary institution. ……………………….. Agada Akogwu (Student No # u14082226) Date 13 February 2018 Signed…………………………………….. Prof Frans Viljoen Director, Centre for Human Rights Faculty of Law University of Pretoria ii Contents Doctor of Laws Thesis 2018………………………………………………………………….. i Declaration…………………………………………………………………………….................. ii Dedication…………………………………………………………………………………………... x Acknowledgment…………………………………………………………………………………... xi Abstract ………………………………………………………………………….………………… xiii List of abbreviations……………………………………………………………………………… xv List of statutes…..………………………………………………………………………………… xvii List of cases cited……………………………………………………………………… ………… xxi Chapter 1: Introduction to the study….. ………..…………………………………….. 1 1.1 Background to the thesis……………………………………………………………… 1 1.2 Research problem………………………………………………………………………. 7 1.3 Research questions…………………………………………………………............... 8 1.4 Significance of the study………………………………………………………………. 8 1.5 Delineation, limitation and scope of the study……………………………….….. 9 1.6 Definition of terms ……………………………………………………………………… 10 1.7 Methodology of approach ……………………………………………………………… 17 1.8 Literature review ………………………………………………………………………… 20 1.9 Chapter analysis ………………………………………………………………………. .. 25 Chapter 2: Sodomy laws and the status of sexual minorities under Nigerian criminal law……………………………………………………….………….. 30 2.1 Introduction………………..…………………………………….……………………… 30 2.2 An overview of Nigerian penal law and criminal justice system…………….. 32 2.3 Criminal justice administration in homosexual offences …………………….. 34 2.4 The historical evolution of the crime of consensual adult homosexual conduct under Nigerian criminal law...................................... 39 2.4.1 Regulating homosexual conduct in pre-colonial Nigeria………….…. 39 2.4.2 Regulating homosexual conduct in colonial Nigeria……………..……. 44 2.4.3 Regulating homosexual conduct in post-independence Nigeria (1960-1998)………………….………………………………………… 47 2.4.4 Regulating homosexual conduct in democratic Nigeria (1998-2014)…………………………………………..…………………………. 48 2.5 Classification of homosexual offences under the Criminal Code Act……..…. 55 2.6 Classification of homosexual offences under the Penal Code Act….………… 58 2.7 A descriptive analysis of homosexual offences and punishments under the Sharia compliant states……………………………………………………………….. 60 iii 2.8 Homosexual offences under the Same-Sex Marriage (Prohibition) Act…….. 79 2.8.1 Offences and activities associated with homosexual conduct under the SSMPA…………………………………............................................ 80 2.8.2 Punishments for homosexual conduct and related activities under the SSMPA………………………………………..……………………………… 84 2.9 Application of anti-homosexual laws in Nigeria …………………………….….... 85 2.10 Conclusion…………………………………………………..……………..…………….. 95 Chapter 3: The human rights implications of Nigeria’s anti-homosexuality laws under the Constitution……………………………………….…….……….. 98 3.1 Introduction……………………………………………………………………………… 98 3.2 A scrutiny of the human rights provision of the Nigerian Constitution and the quest for rights for sexual minorities………………….………………………. 99 3.2.1 The right to life…………………………………………….……………………… 100 3.2.2 The right to dignity of the human person………………………………… .. 102 3.2.3 The right to private and family life….……………………………………….. 104 3.2.4 The right to freedom of thought, conscience and religion………………. 106 3.2.5 The right to peaceful assembly and association …………………………. 107 3.2.6 The right to freedom from discrimination …………………………………. 108 3.3 Constitutional violation of sexual minorities rights by Nigeria’s anti-homosexuality law……………………………………………………………..…. 109 3.3.1 Death penalty as the price for homosexual conduct in 12 northern Nigerian states……………………………………………............ 110 3.3.2 Stripping homosexuals of the right to dignity of the human person.. 113 3.3.3 Sodomy legislation as legitimisation for the invasion of privacy and family life of homosexuals…………………………………………………….. 114 3.3.4 Sodomy legislation as a regulator of the right to freedom of thought, conscience and religion of sexual minorities…………………………….. 116 3.3.5 Violation of the right to freedom of association ……….………….……. 117 3.3.6 Violation of the right to freedom from discrimination…………………. 119 3.4 The biological thesis of same-sex orientation and the right to non-discrimination under Nigerian Constitution…………………………..……. 119 3.5 Conclusion ………………………………………..…………………………………………. 125 Chapter 4: The human rights implications of Nigeria’s anti-homosexuality laws under international law…………………………………………..……………. 127 4.1 Introduction……………………………………………………………………………….. 127 iv 4.2 Defining the status of international law under Nigerian domestic law …….. 130 4.3 The UN human rights treaty-based system and its relevance to the issue of sexual orientation in Nigeria……………………………................................. 136 4.3.1 The ICCPR as the UN’s cornerstone treaty for civil and political rights protection……………………………………………………………..…… 137 4.3.1.1 Exploring for rights for sexual minorities under the ICCPR................. 139 4.3.1.2 Concluding Observations of the Human Rights Committee of the ICCPR and its consequence for LGBT rights protection in Nigeria.……. 145 4.3.2 The ICESCR as UN’s framework for economic, social & cultural rights protection…………………………………………………………………………… 146 4.3.2.1 Seeking for economic and social rights for sexual minorities under the ICESCR……………………………………………………………………………… 148 4.3.2.2 Concluding Observations of the Committee on Economic, Social and Cultural Rights and its consequence for LGBT rights protection in Nigeria………………………………………………………………………………. 150 4.3.3 CEDAW and rights protection for the ‘weaker’ sex ………………………. 154 4.3.3.1 Rights protection for lesbian and bisexual women under the CEDAW…………………………………………………………………………… 154 4.3.3.1 Concluding Observations of the Committee on Elimination of Discrimination against Women and its consequence for LBT rights protection in Nigeria……………………………………………………………. 155 4.3.4 Sexual minorities rights under the CAT …………………………………….. 157 4.3.4.1 Concluding Observations of the Committee against Torture and its consequence for LGBT rights protection in Nigeria……………………. 158 4.3.4.2 Individual complaints mechanism under the CAT and its relevance to LGBT rights discourse in Nigeria………………………………………. 159 4.4 The UN human rights UPR system and its protection of LGBT rights in Nigeria………………………………………………………………………………….….. 160 4.5 The jurisprudence of sexual orientation under the African Union and the African Commission on Human and Peoples’ Rights………………………....... 168 4.5.1 Progress towards protection of sexual minorities rights by the African Commission……………………………………………………………………… 171 4.5.2 The politics of accessibility of LGBT litigants before the AU judicial mechanism…………..…………………………………………………………. 172 4.6 Conclusion: Anti-homosexuality laws and the violation of Nigeria’s human rights obligation under international law………………………. 177 v Chapter 5: A critical analysis of the arguments in favour of criminalising consensual adult homosexual conduct in Nigeria in the light of Berlin’s theory of liberty…………………………………………………… 183 5.1 Introduction …………………………………………………….………………………. 183 5.2 The public morality objection (majority morality)……………………………….. 186 5.2.1 Revisiting the Hart-Devlin debate in the Nigerian context of homosexuality………………………………………………………….…………..…… 189 5.2.2 Insights for Nigeria from Mill’s Harm Principle ………………...…………….. 194 5.2.3 Limitation of rights under section 45 of the Nigerian Constitution in the light of the Siracusa Principles…………………………………………….. 197 5.3 Religious objection to consensual adult homosexual conduct……………... 203 5.3.1 Consensual adult homosexual conduct from the perspective of Christianity……………………………………………………………………. 204 5.3.2 Consensual adult homosexual conduct from the perspective of Islam…………………………………………………………………………….. 206 5.3.3 Consensual adult homosexual conduct from the perspective African Traditional Religion in Nigeria…………………………………… 209 5.3.4 Consensual adult homosexual conduct and the ethics of interpretation…………………………………………………………………… 210 5.4 Cultural objection to consensual adult homosexual conduct in Nigeria..…. 214 5.5 Isaiah Berlin’s theory of liberty: A theoretical framework for the acceptance of homosexual rights in Nigeria?........ ………………………………………..………. 221 5.5.1 Negative liberty from Berlinian perspective….……………………………….…... 221 5.5.2 Positive liberty from Berlinian perspective…………………..……………………… 223 5.5.3 A critical evaluation of Berlin’s theory and its applicability to the sexual minorities rights debate in Nigeria………………………...................... 225 5.6 Conclusion ………………………………………………………………………………. 227 Chapter 6: The emerging global trend on rights recognition for sexual minorities: Fertile sources of positive inspiration for the Nigerian LGBT discourse?…………………………………………….……………………….. 230 6.1 Introduction ……………………………………………………………………………. 230 6.2 The South African perspective on the recognition of human rights for sexual minorities: A historical overview….…...……………………………… …. 231 6.2.1 The South Africa Constitution, 1996 and
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