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ASSESSING SAME SEX MARRIAGE (PROHIBITION) ACT 2013 (SSMPA) OF NIGERIA
Writer: Akwasi Boakye
Introduction
Same-sex sexual activity is prohibited under the Criminal Code Act and the Same-Sex Marriage (Prohibition) Act 2013 (SSMPA), criminalizing acts of ‘carnal knowledge against the order of nature’, ‘gross indecency’, same-sex unions, and LGBT advocacy. These provisions carry a maximum penalty of fourteen years imprisonment. Both men and women are criminalized under the law. Same-sex sexual activity is also criminalized at the state level and in some states, through the Sharia law, under which the maximum sentence is death by stoning. In addition to potentially being captured by laws that criminalize same-sex activity, trans people may also face prosecution under state-level Sharia laws.
The laws criminalizing ‘carnal knowledge against the order of nature’ and ‘gross indecency’ were inherited from the British during the colonial period, in which English criminal law was imposed upon Nigeria. Nigeria retained these provisions upon independence and further criminalized LGBT people through the adoption of the SSMPA in 2013. At the state level, the northern states criminalize same-sex sexual activity through an interpretation of Sharia law.
There is substantial evidence of the law being enforced in recent years, with LGBT people being frequently subject to arrest, individually or en masse, often accompanied by police violence and brutality. A high-profile case saw 57 people arrested at a party in 2018, with 47 of them subsequently being charged and tried under the SSMPA, before the case was thrown out in 2020. There have been consistent reports of discrimination and violence being committed against LGBT people in recent years, including assault, mob attacks, harassment, extortion, and the denial of basic rights and services.
Background of this law
In October 2013, Nigeria’s Federal High Court dismissed a challenge to the SSMPA brought by Joseph Teriah Ebah, a Nigerian man who lives in the UK, on the basis that he did not have standing to bring a case. Therefore, In January 2014, the Same-Sex Marriage (Prohibition) Act 2013 (SSMPA) came into force.
In March 2015, Nigeria voted in favor of a failed Russian draft decision at the UN General Assembly’s Fifth Committee (Administrative and Budgetary) that would have had the Secretary-General withdraw his bulletin providing UN staff benefits for same-sex couples. This painted a picture of the real stance of Nigeria on this matter of LGBTQ+ to the world.
Criminal Provisions in the Criminal Code and SSMPA
Criminal Code Act, Section 214 which is Carnal Knowledge Against the Order of Nature criminalises ‘carnal knowledge’ against the order of nature with a penalty of fourteen years’ imprisonment. It applies to sexual intercourse between men. Section 215 also criminalizes attempts to commit the offenses prohibited under Section 214. Section 217 prohibits acts of ‘gross indecency’ between men, or the procurement or attempted procurement thereof, with a penalty of three years imprisonment.[1]
Same-Sex Marriage (Prohibition) Act 2013, Section 5(1) Same-Sex Marriage or Civil Union. Also, Section 5(1) prohibits entering into a same-sex marriage or civil union with a penalty of fourteen years. Again, Same Sex Marriage (Prohibition) Act 2013, Section 5(2) criminalizes registering, operating, or participating in gay clubs, societies, or organizations, or making a public show of a same-sex relationship with a penalty of ten years imprisonment. Section 5(3) criminalizes administering, witnessing, aiding, or abetting the solemnization of a same-sex marriage or union or supports LGBT organizations with a penalty of ten years imprisonment.[2]The Sharia law in 12 northern States criminalizes same-sex intimacy between both men and women.
Effectiveness and implementation of the law
The effectiveness and implementation of the SSMPA have been subjects of debate and criticism, both domestically and internationally. Here are some key points to consider.
Effectiveness:
The law was enacted to reflect traditional cultural and religious values in Nigeria. However, critics argue that it violates human rights principles and inhibits personal freedoms.
Public Perception:
There is a range of public opinion on the law. Some segments of society support it, while others, including human rights organizations and international bodies, have expressed concerns about its impact on the rights and well-being of LGBTQ+ individuals.
Implementation:
Arrests and Prosecutions: Reports indicate that there have been cases of arrests and prosecutions under the SSMPA. However, obtaining concrete data on the number of arrests and prosecutions specifically related to the law can be challenging due to the sensitive nature of the topic and how such data are handled.
Impact on LGBTQ+ Community:
The law has been criticized for fostering discrimination and harassment against LGBTQ+ individuals, driving them further underground and making them vulnerable to human rights abuses.
International Response:
The law has received international criticism for its potential infringement on human rights, with concerns raised by various human rights organizations, foreign governments, and international bodies.
Overall, the effectiveness and implementation of the SSMPA are complex issues. While there have been instances of arrests and prosecutions, the law's enforcement and impact can vary across different regions of Nigeria. Additionally, the law's effects on the LGBTQ+ community, as well as on Nigeria's international reputation, have been subjects of ongoing debate and concern. There have been cases of police arresting some people but they were never tried or jailed because the prosecution most times was not able to prove beyond reasonable doubt this offense when persons claimed to be indulged in them are caught and arrested.
Sharia Law:
The Sharia law is always very severe. Implications for LGBTQ+ individuals caught under Sharia law can be quite severe. In some cases, those accused of engaging in same-sex relationships or activities may face legal actions that include corporal punishment, such as flogging, or even capital punishment through methods like stoning.
The Sharia law is believed to be derived from Islamic teachings but the implementation of these laws depends on how the ruler interprets these teachings and these interpretations vary from state to state.
In 2014, a gay man was lashed 20 times after being convicted in Bauchi State. In Ilorin State, 3 gay men were sentenced to death by stoning on July 18.
In all these convictions, the Sharia leaders need the approval of the State governors to execute their sentences and they have not been getting the approval very often because of the severity of their sentences. It does not deter them either.
How effective is this law
From the many reports read and reviewed on this law, in my personal opinion, the SSMPA does not seek to fix anything in particular, it even goes against the Nigerian Constitution but I think the bill was signed to reduce same-sex marriage by instilling fear in possible perpetrators.
The Nigerian Constitution, under section 40, guarantees that: “Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union, or any other association for the protection of his interests.”[3] Also, Section 17 states that “every citizen shall have equality of rights, obligations, and opportunities before the law.”
The SSMPA violates the constitutional principle of equality and non-discrimination. Article 42 of the Nigerian Constitution prohibits discrimination based on sex, religion, place of origin, ethnic group, or political opinion.[4]
The SSMPA can also be seen as infringing on the right to privacy guaranteed by the Nigerian Constitution. The law criminalizes same-sex relationships in private spaces, which violates individuals' right to engage in consensual activities without interference from the state.
With these stated sections and articles of the constitution, one will be right to say the SSMPA was done without proper recourse to the Constitution of the Federal Republic of Nigeria.
Conclusion
The SSMPA has a lot of vagueness and ambiguity that does not make the law bite and serve the purpose it was created. Since the SSMPA was passed into law, it has rarely put anyone behind bars to ensure deterrence because of how ambiguous the law was crafted and created.
I am a mere law student and I may not know everything in this world especially in law but on the face of this SSMPA, I think that it was rushed and creating the law lacked tactfulness making the law ambiguous, useless, and of no effect.
It will therefore be my humble opinion to get this SSMPA law amended into one that will be specific and will lack any sense of ambiguity.