Ayomikun Kuewumi (Adekunle Ajasin University) has posted The Legal Status of LGBTQIA+ Persons in Nigeria: A Critical Examination of Criminalisation, Fundamental Rights and Human Rights on SSRN. Here is the abstract:
The legal position of lesbian, gay, bisexual, transgender, queer/questioning, intersex and asexual persons in Nigeria cannot be accurately stated by the bare proposition that ‘LGBTQIA+ is illegal’. Nigerian law does not create a single federal offence consisting merely in possessing a sexual orientation or gender identity. Rather, a network of criminal, matrimonial and associational rules criminalises specified conduct and relationships, while constitutional and international human-rights norms continue to protect the personhood of those affected by the law. This essay examines the subject principally through the Criminal Code Act, the Penal Code (Northern States) Federal Provisions Act, the Same Sex Marriage (Prohibition) Act 2013 (SSMPA), applicable State and Sharia-based criminal laws, and Chapter IV of the Constitution of the Federal Republic of Nigeria 1999. Particular attention is given to the statutory language itself, the very letters of the law so that the distinction between what is expressly criminalised and what is inferred from social or moral attitudes remains clear. The essay explains the SSMPA’s prohibition of same-sex marriage and civil unions, non-recognition of foreign same-sex unions, prohibition of solemnisation, restrictions on gay clubs, societies, organisations, processions and meetings, prohibition of public displays of same-sex amorous relationships, and the corresponding penalties. It separately considers the Criminal Code provisions on ‘unnatural offences’ and ‘indecent practices between males’, the Northern Penal Code provision on ‘carnal intercourse against the order of nature’, and additional restrictions arising under Sharia and certain State laws. The analysis then tests these regimes against constitutional guarantees of dignity, personal liberty, fair hearing, privacy, expression, assembly and association, and freedom from discrimination, with particular emphasis on the limitation clause in section 45 and the supremacy clause in section 1. Internationally, Nigeria’s obligations under the African Charter, the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights and relevant African Commission practice are examined, with the domestic effect of treaties considered under section 12 of the Constitution. Nigerian judicial responses, including Major Bello Magaji v Nigerian Army, Teriah Joseph Ebah v Federal Government of Nigeria, Pamela Adie v Corporate Affairs Commission and Registered Trustees of the Initiative for Equal Rights v Federal Republic of Nigeria, are evaluated to demonstrate both the limits and possibilities of rights-based litigation. The essay ultimately argues that the extant legal position is one of substantial criminalisation and non-recognition of same-sex relationships, coupled with unresolved constitutional tension. Sexual orientation or identity and criminal conduct must nevertheless be kept analytically separate as the former describes an aspect of personhood, the latter consists of acts to which legislation attaches legal consequences. This distinction is indispensable to a precise statement of Nigerian law and to any serious assessment of whether the present regime is constitutionally and internationally sustainable.
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