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AN APPRAISAL OF GAY MARRIAGE UNDER THE NIGERIAN LAW* 

 

Abstract 

Gay marriage is a global phenomenon. Same-sex marriage also known as gay marriage is the marriage of two 

people of the same legal sex. In contrast to the traditional definition or concept of marriage as the voluntary 

union for life between one man and one woman to the exclusion of all others same sex marriage or gay 

marriage is marriage between two persons of the same gender. Same sex relationships and marriage is a trend 

which is now spreading across the globe as the number of countries that support it increases as time goes on. 

But Nigeria appears to be counted outside this growing world community as the Nigerian National Assembly in 

2013, passed a law prohibiting same sex marriages in any form. The aim of the study was to critically examine 

gay marriage and the legal import and make to compare with other foreign jurisdictions. The research 

methodology was doctrinal approach, using expository and analytical research design. The main sources of 

data collection were various legal literatures, both from the physical library and the e-library.  The study 

observed that Same-sex relationships and marriage is a trend which is now spreading across the globe as the 

number of countries that support it increases but Nigeria appears to be counted outside this growing world 

community as the Nigerian National Assembly in 2013, passed a law prohibiting same sex marriages in any 

form. However, it is recommended among others that on the basis of the relationship between law and morality 

it is advocated that Nigeria should not legalize same sex or gay marriages in the country regardless of what the 

practice is in other jurisdictions. 

 

Keywords: Gay, Legal, Marriage, Rights, Same Sex marriage. 

 

1 Introduction 

Gay marriage is a global phenomenon but it is controversial and relatively new in Nigeria. There is no law in 

Nigeria according recognition to that relationship which is still abhorred by the majority of members of the 

society mainly on account of their cultural pattern and religious inclinations.1 Same-sex marriage also known as 

gay marriage is the marriage of two people of the same legal sex. In contrast to the traditional definition2 or 

concept of marriage as the voluntary union for life between one man and one woman to the exclusion of all 

others,3 same sex marriage or gay marriage is marriage between two persons of the same gender. Same sex 

relationships and marriage is a trend which is now spreading across the globe as the number of countries that 

support it increases as time goes on. But Nigeria appears to be counted outside this growing world community 

as the Nigerian National Assembly in 2013, passed a law prohibiting same sex marriages in any form.4 This 

paper examines the statute of same sex marriage relation in Nigeria by analyzing provisions of various laws 

including the Nigerian Constitution. The paper also discusses the content of the law passed by the National 

Assembly prohibiting same gay or same sex marriage and compares it with the practice in other jurisdictions. 

The paper concludes with the view that the law, strictly speaking, is inconsistent with the fundamental rights 

guaranteed by the constitution.5 However, it is recommended among others that on the basis of the relationship 

between law and morality it is advocated that Nigeria should not legalize same sex or gay marriages in the 

country regardless of what the practice is in other jurisdictions. 

 

2. Gay Marriage in History 

The ancient reference to marriage between same-sex couples appears in the Sifra (the Halakhic midrash to the 

book of Leviticus) which was written in the 3rd century CE. The Book of Leviticus prohibited homosexual 

relations; and the Hebrews were warned not to ‘follow the acts of the land of Egypt or the acts of the land of 

Canaan’ (Lev. 18:22, 20:13). The Sifra clarifies what these ambiguous ‘acts’ were, and that they included 

marriage between same-sex couples: ‘A man would marry a man and a woman a woman, a man would marry a 

woman and her daughter, and a woman would be married to two men. What is arguably the first historical 

mention of the performance of marriages between same-sex couples occurred during the early Roman Empire 

 
*By Chinwe Patricia ILOKA, BA(ED), LLB, BL, LLM, PhD, Lecturer, Faculty of Law, Chukwuemeka Odumegwu 

Ojukwu University, Anambra State, Nigeria. Email: chypat4@gmail.com, cp.iloka@coou.edu.ng. Telephone: 08035696281;  

*Chisom Maria-Gorretti AGHADINUNO, LLM, BL, Ministry of Justice Abuja Nigeria. Email: 

aghadinunochisom@gmail.com; Telephone: +2349034771772; and 

*Onyinyechukwu Chinedum OBIKEZE, LLM Candidate, Faculty of Law, Chukwuemeka Odumegwu Ojukwu 

University, Anambra State, Nigeria. Email:obikeze1a@gmail.com; Telephone: +234703858439 9. 
1 E Sessou, Nigerian Law is against our Fundamental Rights-Gays, Saturday Vanguard 29 June 2013 
2 Traditional definition used in the loose sense.  
3HYDE vs. HYDE (1866) LR 1 P&D 130. 
4Same Sex Marriage (Prohibition) Act (SSMPA), 2013 
5 Section 39(1) 1999 Constitution of the Federal Republic of Nigeria (as amended). 

mailto:chypat4@gmail.com
mailto:cp.iloka@coou.edu.ng
mailto:aghadinunochisom@gmail.com


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62 

according to controversial6 historian John Eastburn Boswell. Child emperor Elagabalus referred to his chariot 

driver, a blond slave from Caria named Hierocles, as his husband.7 He also married an athlete named Zoticus in 

a lavish public ceremony in Rome amidst the rejoicings of the citizens. According to Craig A. Williams, some 

Romans as early as the first century clearly did participate in formal ceremonies in which two males were 

married. These marriages were seen as atypical. Williams writes that ‘a marriage between two fully gendered 

'men' was inconceivable; if two males were joined together, one of them had to be 'the woman’.’8 The first 

Roman emperor to have married a man was Nero, who is reported to have married two other males on different 

occasions. The first was with one of Nero's own freedmen, Pythagoras, with whom Nero took the role of the 

bride.9 Later, as a groom, Nero married Sporus, a young boy, to replace his wife Poppaea Sabina following her 

death, and married him in a very public ceremony with all the solemnities of matrimony. Contemporary 

historians variously trace the beginning of the modern movement in support of same-sex marriage to anywhere 

from around the 1980s to the 1990s. In United States of America, same-sex marriage became an official request 

of gay rights movement after the Second National March on Washington for Lesbian and Gay Rights in 1987.10 

In 1989, Denmark became the first country to legally recognize a relationship for same-sex couples, establishing 

registered partnerships, which gave those in same-sex relationships ‘most rights of married heterosexuals, but 

not the right to adopt or obtain joint custody of a child.’11 In 2001, the continental Netherlands became the first 

country to broaden marriage laws to include same-sex couples. Since then, same-sex marriage has been 

established by law in 31 other countries, including most of the Americas and Western Europe. Yet its spread has 

been uneven;  South Africa  is the only country in Africa to take the step and Taiwan is the only one in Asia.12 

 

3. The Legal Position of Gay/ Same-Sex Marriage in Nigeria 

 

Criminalization of Same Sex Sexual Conduct 

Chapter 21 of the Nigerian Criminal Code criminalizes certain sexual conducts and terms them, ‘Offenses 

against Morality’. Sections 214 and 215 of this Chapter make ‘carnal knowledge of any person against the order 

of nature’ a felony punishable by fourteen years imprisonment.13 This is the language traditionally used to 

penalize same-sex sexual activity. Additionally, Section 217 of the Criminal Code states as follows: 

Any male person who, whether in public or private, commits any act of gross indecency with 

another male person, or procures a 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. 

 

Punishment can be even more severe in Nigeria’s twelve northern states, which have adopted Sharia law. In 

those states, adults convicted of engaging in same-sex sexual activity may be subject to execution by stoning.14  

 

Sharia Law and Criminalization of Same-Sex Intimacy  

In Northern Nigeria, where Sharia law is implemented in 12 states, consenting homosexual conduct between 

two adults is punishable. For example, the Zamfara Sharia Penal Code stipulates that: ‘Art. 130: Sodomy 

(Liwat) defined it thus; 

Whoever has carnal intercourse against the order of nature with any man or woman is said to 

commit the offence of sodomy: Provided that whoever is compelled by the use of force or 

threats or without his consent to commit the act of sodomy upon the person of another or be 

the subject of the act of sodomy, shall not be deemed to have committed the offence.  

 

Art. 131: Punishment for Sodomy 

 
6Shaw criticizes Boswell's methodology and conclusions as disingenuous Shaw, Brent (July 1994).’A Groom of One’s Own?  

The New Republic.’ Pp. 43–48. Archived from the original on 7 May 2006. Retrieved 20August 2022. 
7Bunson, M., Encyclopedia of the Roman Empire, Infobase Publishing, 2009, p. 259. 
8Williams, CA.,Roman Homosexuality: Second Edition, Oxford University Press, 2009, pp. 279–284. 
9 Ibid.  
10<https://www.harvardmagazine.com/2013/03/how-same-sex-marriage-came-to-be> Retrieved 20 August 2022. 
11Sheila Rule, ‘Rights for Gay Couples in Denmark’. New York Times (2 October 1989) 

<https://www.nytimes.com/1989/10/02/world/rights-for-gay-couples-in-denmark.html> Retrieved 20 August 2022.  
12D. Crary and M. Corder,’The Dutch went First in 2001; Who has same-sexmarriage now?’ 

https://apnews.com/article/europe-africa-netherlands-job-cohen-western-europe-e08b053af367028737c9c41c492cc568 

Retrieved 20 August 2022. 
13 Criminal Code Act (1990) Cap. 2, Ss. 214-15. 
14Bureau of Democracy, Human Rights, and Labor, 2008 Human Rights Report: Nigeria,U.S. DEPT. OF STATE 

http://www.state.gov/j/drl/rls/hrrpt/2008/af/119018.htm Retrieved 20 August 2022. 

https://www.harvardmagazine.com/2013/03/how-same-sex-marriage-came-to-be
https://www.nytimes.com/1989/10/02/world/rights-for-gay-couples-in-denmark.html
https://apnews.com/article/europe-africa-netherlands-job-cohen-western-europe-e08b053af367028737c9c41c492cc568
http://www.state.gov/j/drl/rls/hrrpt/2008/af/119018.htm


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63 

Whoever 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).  

               

              Art. 134: Lesbianism (Sihaq) defined  

Whoever being a woman engages another woman in carnal intercourse through her sexual 

organ or by means of stimulation or sexual excitement of one another has committed the 

offence of Lesbianism. 

 

Art. 135: Punishment for Lesbianism  

Whoever 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. 

 

Same Sex Marriage (Prohibition) Act 2013  

The Same Sex Marriage (Prohibition) Act (SSMPA), 2013, was enacted by Nigeria’s National Assembly in 

December 2013 and signed into law by the President on the 7th day of January, 2014. Although the law’s title 

refers to ‘Same Sex Marriage’, the scope of the law is much broader. It includes same sex relations. By the 

provisions of this Act, not only is the act of same sex marriage prohibited by the law, the witnessing of such is 

also prohibited. The explanatory memorandum of the Act15 states as follows: ‘This Act prohibits a marriage 

contract or civil union entered into between persons of same sex, and provides penalties for the solemnization 

and witnessing of same thereof.’ The Act cited as Same Sex Marriage (Prohibition) Act 2013 (SSMPA) contains 

eight (8) sections. Section 1 clearly prohibits marriage or civil unions between persons of the same sex. The 

section clearly provides that such marriages or unions will not be recognized in Nigeria nor shall they be entitled 

to the benefits of a heterosexual marriage which the Act describes as a valid marriage. The section finally 

declares a marriage certificate relating to such prohibitive unions derived from a foreign country void. Section 

1(2) provides inter alia:  ‘A marriage contract or civil union entered into between persons of same sex by virtue 

of a certificate issued by a foreign country is void in Nigeria, and any benefit accruing there-from by virtue of 

the certificate shall not be enforced by any court of law’.. Section 2 of the Act prohibits the solemnization of 

such unions in any place of worship in Nigeria. Under the Nigerian Law, even where such marriage has taken 

place and a certificate issued to that effect, such certificate issued in such a marriage shall not be valid in 

Nigeria; as only marriages contracted between a man and a woman shall be recognized as valid in Nigeria.16  

From the provision of section 2, it is clearly implied that if two persons A and B conduct a marriage in a country 

where same sex marriage is recognized and a certificate issued to that effect, it then means that in Nigeria, the 

said certificate will not be recognized irrespective of the fact that it was recognized in the country where the 

marriage was celebrated. Section 4 of the Act relates to the registration of homosexual clubs and societies. The 

section prohibits the registration of gay clubs, societies and organizations. It further prohibits the sustenance, 

processions and meetings of such clubs and societies. The public show of same sex amorous relationship either 

directly or indirectly is equally prohibited17. It is important to point out at this juncture, that the section is 

spuriously silent on the private show of amorous relationship either directly or indirectly.  

 

The law prescribes punishment for persons who enter into a same sex marriage contract or civil union. Such a 

person is said to have committed an offence and liable on conviction to a term of 14 years imprisonment.18 The 

law goes further to prescribe punishment for person who registers, operates or participates in gay clubs, societies 

and organization, or directly or indirectly makes public show of same sex amorous relationship in Nigeria.19 The 

implication of this provision is that such businesses are illegal in nature and as such, the Corporate Affairs 

Commission cannot register such businesses in Nigeria. Again, even if Mr. A from Costa Rica is gay, he cannot 

be allowed to display such amorous show in Nigeria. In the same vein, person or group of persons who 

administers, witnesses, abets or aids the solemnization of a same sex marriage or civil union, or supports the 

registration, operation and sustenance of gay clubs, societies, organizations, processions or meetings in Nigeria 

commits an offence and is liable on conviction to a term of 10 years imprisonment.20 Where a person is in 

 
15 SSMPA, 2013 
16 Sections 2(2) & 3 SSMPA 
17 Section 4(2) SSMPA 
18 Section 5(1) SSMPA. 
19 Section 5(2) SSMPA- 10 years imprisonment 
20 Section 5(3) SSMPA 



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breach of the provisions of the SSMPA, the court seized with the jurisdiction to hear the matter is the High 

Court of a State or the Federal Capital Territory.21 

 

It is observed that the Act is also silent on the many other variants of Gender and Sexual variations that form the 

LGBTQ+ community. A transgender person for instance, who seeks transition in or outside Nigeria, the law is 

completely silent on this. The Law is equally silent on the status of a transgender person who having 

transitioned seeks to marry ‘heterosexually’ in accordance with his/her acquired sex or same sex with the 

acquired sex. In such circumstances, which one of the above will come within the purview of the Act?  

 

Perspectives on the Criminalization of Gay/Same Sex Marriage in Nigeria Particularly in the Light of the 

SSMPA 2013 

 

Domestic Human Rights Perspective  

The justification for same sex marriage (SSM) and the LGBTQ+ causes have been largely rooted in Human 

Rights. The first concern the SSMPA creates is as it relates to the right to privacy as guaranteed by the 

constitution22 as well as other international treaties that Nigeria is a party to. There are several aspects to the 

right of privacy which may include the privacy of one’s personal information, one’s body, personal space, and 

one’s communications.23 People who argue against the justification of the SSMPA are of the view that the law 

violates people’s right to privacy. The argument may however fail as it remains unsettled how private the 

exercise of the liberty of gender and sexual orientation are. For instance, in the case where Tran’s women24 now 

insist to be enlisted in sporting competition against biological or cisgender female while retaining their 

biological advantage as biological men already moves their gender issue out of private domain into a public 

sphere and a host of other issues.25 Be that as it may, the right to privacy is not unfettered. Section 45(1)(a) 

CFRN, 1999 empowers the government to make laws that may curtail same in the interest of defence, public 

safety, public order, public morality or public health. Another human right issue raised against the SSMPA is 

the right to freedom of association26 denied the LGBTQ+ (Lesbians, Gay, Bisexual, Transgender, Queer, etc) 

community under Section 4 of SSMPA. This argument is however spurious as the law cannot by any stretch of 

imagination allow meetings upon illegality that would amount to blowing hot and cold.27 Further still, Section 

40 is also fettered by Section 45(1)(a) CFRN, 1999 which empowers the government to make laws that may 

curtail same in the interest of defense, public safety, public order, public morality or public health. 

 

Finally, it is equally argued that they enjoy the right against discrimination as provided under section 42 CFRN 

which protects every citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or 

political opinion from being discriminated against by reason only that he is such a person.28 The proponents of 

such arguments assume that the use of ‘sex’ in this context connotes sexual orientation. With respect however, 

the word as used connotes sex as in male or female. The mind of the drafters of the constitution was to eliminate 

gender discrimination as it is prevalent in Nigeria even in those times. The LGBTQ+ with respect was not an 

issue in this country then and could therefore not have elicited such constitutional protection while in the same 

vein criminalizing same in the Criminal and Penal Codes.29 This would be tantamount to breathing hot and cold. 

 

International Human Rights Perspective 

In response to the enactment of the SSMPA, The African Commission’s Special Rapporteur on Human Rights 

Defenders in Africa - Mrs. Reine Alapini- Gansou, issued a press release noting that she ‘is deeply concerned 

about the consequences this law may have on sexual minorities who are already vulnerable as a result of social 

 
21 Section 6 SSMPA 
22  Section 37, CFRN 199 
23Charles Raab and Benjamin Goold, Protecting Information Privacy 

<https://www.equalityhumanrights.com/sites/default/files/research-report-69-protecting-information-privacy.pdf> Accessed 

20 August 2022. 
24 That is, a man who transitioned into a woman by aid of medical technology. 
25Andrea Jones, Males Don’t Belong in Women’s Sports—Even If They Don’t Always Win 

<https://www.heritage.org/gender/commentary/males-dont-belongwomens-sports-even-if-they-dont-always-win>  accessed 

20 August 2022 
26 Section 40, CFRN 1999 
27Ijale v Ijale (2018) LPELR-46637(CA); Luke Okoro & Ors v Hilary Egbuoh & Ors (S.C) 395/2001; Eshwarappa v The 

Special Land Acquisition Officer MFA8200/2015. 
28 Navanethem Pillay, ‘UN Human Rights Chief Denounces new Anti-Homosexuality Law in Nigeria,’ January 14, 

2014<http://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=14169& 

LangID=E#sthash.VWy5ccuC.dpuf> Accessed 18 August, 2022. 
29 Major Bello Magaji v The Nigerian Army [2008] LPERL-1814(SC). 

http://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=14169&%20LangID=E#sthash.VWy5ccuC.dpuf
http://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=14169&%20LangID=E#sthash.VWy5ccuC.dpuf


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prejudice.’30 Further stating: ‘The Special Rapporteur is concerned by some provisions of the Act, in particular, 

Sections 4(1) and 5(2) which prohibit and provide for penalties against defenders of the rights of lesbian, gay, 

bisexual and transgender (LGBT) people. These provisions undermine the work of human rights defenders and 

are against any public debate on this crucial issue.’ The enactment of the SSMPA also elicited concern from the 

international community, including the United Nations and the African Commission, about its potential impact 

on human rights. On January 14, 2014, former United Nations High Commissioner for Human Rights, 

Navanethem Pillay, called the SSMPA a ‘draconian new law’ that ‘makes an already bad situation worse’31: 

Rarely have I seen a piece of legislation that in so few paragraphs directly violates so many basic, universal 

human rights ... rights to privacy and nondiscrimination, rights to freedom of expression, association and 

assembly, rights to freedom from arbitrary arrest and detention: this law undermines all of them.  Again, Former 

UN High Commissioner Navi Pillay predicted the law risked ‘reinforcing existing prejudices towards members 

of the LGBT community and may provoke an upsurge in violence and discrimination.’ At the same time, the 

Joint United Nations Programme on HIV/AIDS (UNAIDS) and the Global Fund to Fight AIDS, Tuberculosis 

and Malaria (Global Fund) warned that the SSMPA would impede access to HIV services for LGBT people in 

Nigeria.32 While examining the ICCPR (International Covenant on Civil and Political Rights), the following 

should be noted: Firstly, Article 6 of the ICCPR proclaims that, ‘Every human being has the inherent right to 

life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’33 Article 7 declares that 

nobody can be ‘subjected to torture or to cruel, inhuman or degrading treatment or punishment.’34The Human 

Rights Committee’s General Comment No. 20 established that the purpose of the prohibition against torture and 

cruel, inhuman or degrading treatment is to ‘protect both the dignity and the physical and mental integrity of the 

individual.’35 Between December 2017 and November 2018 civil society organizations monitoring violations on 

grounds of sexual orientation, gender identity, and gender expression reported 15 cases of torture of individuals 

based on their real or perceived sexual orientation, gender identity or expression were reported along with 38 

cases of assault and battery, 17 cases of threats to life, and 4 cases of murder.36 

 

Secondly, Article 9 of the ICCPR protects the right to liberty and to the security of the person. Specifically, it 

states that ‘No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty 

except on such grounds and in accordance with such procedure as are established by law.’37 Arbitrary arrests 

and unlawful detentions are perpetrated by state actors and non-state actors and are often based on one's 

perceived sexual orientation.38 Most times, arrests are based on one's sexual orientation because a lot of 

individuals have limited knowledge on gender identity.39 However, anyone who is expressing gender identity 

that is non-conforming to the society's expectation is still a target.40 The number of cases of arbitrary arrests and 

unlawful detentions of people based on their real or perceived sexual orientation, gender identity, or gender 

expression reported to human rights organizations between December 2017 and November 2018 was 30.41 

Actions by non-state actors are further validated by the behavior of state actors, specifically law enforcement, 

who also extort people based on their sexual orientation, gender identity, or gender expression by evoking fear 

 
30 Special Rapporteur on Human Rights Defenders in Africa, Press Release on the Implication of the Same Sex Marriage 

[Prohibition] Act 2013 on Human Rights Defenders in Nigeria, 5 Feb. 2014, available at 

http://www.achpr.org/press/2014/02/d190/  
31 Ibid  
32 UNAIDS and the Global Fund Express Deep Concern about the Impact of a New Law Affecting the UNAIDS Response 

and Human Rights of LGBT People in Nigeria,’ UNAIDS press release, January 14, 2014 

http://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2014/january/20140114nigeria Accessed 

19 August 2022. 
33 Article VI, International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 

(entered into force Mar. 23, 1976). 
34 Article VII, International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 

(entered into force Mar. 23, 1976) 
35 Human Rights Committee, Gen. Comment 20, Art 7 (Forty-fourth session, 1992), Compilation of Gen. Comments and 

Gen. Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 30 (1994) available at 

http://www1.umn.edu/humanrts/gencomm/hrcom20  
36 The Initiative for Equal Rights, Human Rights Violations based on Real or Perceived Sexual Orientation and Gender 

Identity in Nigeria, 2018 
37Article IX, International Covenant on Civil and Political Rights; opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 

(entered into force Mar. 23, 1976). 
38 Mx. Emmanuella David-ette, TIP for Human Rights in Nigeria (THRIN) 
39 Ibid. 
40 Ibid. 
41 The Initiative for Equal Rights, Human Rights Violations based on Real or Perceived Sexual Orientation and Gender 

Identity in Nigeria, 2018 

http://www.achpr.org/press/2014/02/d190/
http://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2014/january/20140114nigeria
http://www1.umn.edu/humanrts/gencomm/hrcom20


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of legal reprisal.42 People who have been wrongfully arrested do not report these incidents for fear of possible 

backlash and social stigma.43 

 

Thirdly, Article 2 and Article 3 mandate that ‘States Parties take all necessary steps to enable every person to 

enjoy’ all individual rights recognized in the Covenant. This means that States must take all steps necessary ‘to 

put an end to discriminatory actions, both in the public and the private sector, which impair the equal enjoyment 

of rights.’44 Nigeria’s patriarchal system of society fails to recognize women's sexuality and fosters a culture of 

silence on issues that affect them.45 Many women in Nigeria marry men to hide the fact that they are lesbian to 

avoid persecution.46 This has led to the normalization of violence both gender-based and otherwise against 

women.47 Another factor is the prevalence of backlash both publicly and privately on women.48 Reporting 

violations is therefore low, and in some cases, non-existent, which continues to encourage perpetrators and the 

suppression of women.49 

 

Nigeria fails to fulfill its obligations under Article 3 by allowing crimes committed against women and 

transgender women on the basis of their sexual orientation and gender identity, simply because of their sexual 

orientation. One particularly heinous crime prevalent in Nigeria is ‘Corrective rape.’ Former UN High 

Commissioner for Human Rights, Navi Pillay, stated that, ‘Corrective rape commonly combines a fundamental 

lack of respect for women, often amounting to misogyny, with deeply-entrenched homophobia.’50 ‘Corrective 

rape’ is an extreme crime that causes irreparable physical and psychological harm. Violence is a common 

response to women’s inability to pursue heterosexual relationships and this violence is many times meted out 

through corrective rape.51 Violence against lesbian women is prevalent in Nigeria and the state is 

unresponsive.52 Many are afraid to report sexual crimes committed against them for fear that the police will 

perpetuate the abuse or humiliate them.53 Women’s access to justice is often impeded by insufficient budget 

allocations for legal aid, alleged corruption and stereotyping within the judiciary.54 The situation is particularly 

serious in the Northern part of the country, where Sharia law is adopted. In northern Nigeria there is a lack of 

civil societies that women can report violations to. Further, there are multiple layers of discrimination in these 

cases. Women who are sexual minorities face discrimination for being a woman as well as discrimination 

related to their sexual orientation, gender identity, and gender expression. These multiple layers of 

discrimination make it extremely challenging to find out about these cases. 

 

Again, Article 2 of the ICCPR provides that ‘each State Party to the present Covenant undertakes to respect and 

to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present 

Covenant, without distinction of any kind,’ including sex or other status.55 Similarly, Article 26 prohibits 

discrimination on any ground, including sex or other status. It declares that all persons are ‘equal before the law 

and are entitled without any discrimination to the equal protection of the law.’ In 1994, the Human Rights 

Committee held that States are obligated to protect individuals from discrimination on the basis of their sexual 

orientation in Toonen v Australia.56  This position is reflected in later decisions of the Committee.57 Not only 

 
42 Ibid.  
43 Ibid.  
44 General Comment No. 28. 
45 (n, 40) 
46 Telephone Interview with Hope Alive Health Awareness Initiative (Apr. 4, 2019): Human Rights Situation for Lesbian, 

Gay, Bisexual and Transgender (LGBT) Persons and Sexual Rights in Nigeria Report presented to the UN Human Rights 

Committee 126th Session July 1 to July 26 of 201. 
47 (n, 40) 
48 (n, 40) 
49 (n, 40) 
50 Pillay Navi, ‘The shocking reality of homophobic rape’ in The Asian Age, June 20, 2011. 
51Keren Lehavot and Tracy L. Simpson, Incorporating Lesbian and Bisexual Women into Women Veterans Health 

Priorities, June 27, 2013 
52 The Initiative for Equal Rights, Human Rights Violations based on Real or Perceived Sexual Orientation and Gender 

Identity in Nigeria, 2018 
53 Ibid. 
54 Committee on the Elimination of Discrimination against Women, Concluding Observations: Nigeria, para. 13, U.N. 

Doc.CEDAW/C/NGA/CO/7-8 (2017) 
55 Article II, International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 

(entered into force Mar.23, 1976). 
56 Communication No. 488/1992 (CCPR/C/50/D/488/1992). 
57 See, for example, YOUNG v. AUSTRALIA, Communication No. 941/2000 (CCPR/C/78/D/941/2000), para. 10.4; X v. 

COLOMBIA, Communication No. 1361/2005 (CCPR/C/89/D/1361/2005), para. 9; and Concluding Observations on Mexico 

(CCPR/C/MEX/CO/5) para. 21 and Uzbekistan (CCPR/C/UZB/CO/3), para. 22. 



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does Nigeria fail to protect the rights to non-discrimination and equality, it actively promotes the violation of 

these rights. As mentioned above, provisions of Nigerian criminal law discriminate against sexual minorities 

and violate the ICCPR. Further, by contributing to a pervasive climate of homophobia, these laws undermine 

Nigeria’s obligation to protect, respect and fulfill human rights of all individuals under its jurisdiction. Thus, 

rather than adopting legislative or other measures to give effect to the ICCPR rights to equality and non-

discrimination, as required by Article 2 of the Convention, Nigeria has adopted legislation that is overtly 

discriminatory against sexual minorities. These criminal provisions fan the flames of hatred and contempt. 

  

These criminal provisions deny individuals the equal protection of the law on grounds of their real or perceived 

sexual orientation or gender identity for the additional reason that they discourage the reporting of violence and 

other crimes and they make these individuals vulnerable to extortion and blackmail. Impunity is one of the 

driving forces of the continued violation of people based on their sexual orientation, gender identity, or gender 

expression in Nigeria. Sexual minorities find it extremely difficult to approach relevant government agencies for 

redress, for fear of stigma, more violence and discrimination. This is in direct contravention of Article 26 of the 

ICCPR, which provides that everyone is equal before the law and everyone must enjoy the same level of 

protection under the law. The existence of discriminatory laws provides an atmosphere where violations thrive. 

It creates a sense of impunity in perpetrators and fear in victims. It is common place for people to prey on 

people based on their sexual orientation, gender identity, or gender expression, often blackmailing and extorting 

money from them while leaving them in a state of constant fear and hopelessness. Religious and traditional 

sentiments, discriminatory laws and a hostile social environment have instilled fear in these people, leaving 

them with a life plagued by limited access to justice.58 LGBT individuals are often reluctant to take legal actions 

against police violations as this could further make them visible and expose them to stigma and discrimination.59 

This discrimination often extends to their family and friends and continues to breed a climate of fear and 

uncertainty.60 The direct breach of individual rights without proper restitution often leaves a negative impact on 

people.61 

 

Fourthly, Articles 19, 21, and 22 of the ICCPR respectively guarantee the rights to freedom of expression, 

assembly, and association. Article 19(1) state that everyone has the right to ‘hold opinions without interference.’ 

Article 21 states that ‘The right of peaceful assembly shall be recognized. No restrictions may be placed on the 

exercise of this right other than those imposed in conformity with the law.’ Article 22 states: ‘Everyone shall 

have the right to freedom of association with others.’ Individuals in Nigeria are denied freedom of association 

and assembly based on their sexual orientation, gender identity, or gender expression by Nigeria’s SSMPA. 

Under this law, ‘the Registration of gay clubs, societies and organizations, their sustenance, processions and 

meetings is prohibited.’ Participation in such organizations is criminalized: ‘A person, who registers, operates or 

participates in gay clubs, societies and organization . . . commits an offence and is liable on conviction to a term 

of 10 years imprisonment.’  

 

Additionally, ‘a person or group of persons who supports the registration, operation and sustenance of gay clubs, 

societies, organizations, processions or meetings in Nigeria commits an offence and is liable on conviction to a 

term of 10 years imprisonment.’ These provisions criminalize and impose severe penalties for activities that 

must be protected under the ICCPR. This law often affects transgender individuals within Nigeria who would 

love to express themselves, but for fear of being misidentified as having what Nigeria considers an unacceptable 

sexual orientation, their expression becomes hindered.62 Further, many LGBT individuals believe that 

transgender individuals who are expressive of their gender identity should not be allowed to come near them for 

fear of being outed.63 The Human Rights Committee has consistently promoted these rights for all in cases 

concerning sexual orientation, gender identity, and gender expression. For example, Irina Fedotova claimed to 

be a victim of a violation by the Russian Federation of her rights under Article 19 and Article 26 of the 

ICCPR.64 The author displayed posters that declared ‘Homosexuality is normal’ and ‘I am proud of my 

homosexuality’ near a secondary school building in Ryazan. Fedotova was stopped by police and ordered to pay 

a fine of 1’500 Russian roubles. Fedotova brought a complaint to the Human Rights Committee, which 

concluded that the conviction of an administrative offence for ‘propaganda of homosexuality among minors’ on 

 
58 The Initiative for Equal Rights, Human Rights Violations based on Real or Perceived Sexual Orientation and Gender 

Identity in Nigeria, 2018 
59 The Initiative for Equal Rights, Human Rights Violations based on Real or Perceived Sexual Orientation and Gender 

Identity in Nigeria, 2018 
60 Ibid. 
61 Ibid.  
62 Mx. Emmanuella David-ette, TIP for Human Rights in Nigeria (THRIN) 
63 Ibid. 
64 Irina Fedotova Vs. Russian Federation, Communication No. 1932/2010, U.N. Doc. Ccpr/C/106/D/1932/2010 (2012). 



African Customary and Religious Law Review (ACARELAR) 4 (2023) 

 

68 

the basis of the ambiguous and discriminatory section 3.10 of the Ryazan Region Law, amounted to a violation 

of Fedotova’s rights under article 19, paragraph 2, read in conjunction with Article 26 of the Covenant. 

 

Similarly, on 16 December 2009, Sergei Androsenko, together with other activists, handed a petition to 

representatives of the embassy of the Islamic Republic of Iran in Minsk calling for an end to punishment of 

homosexuals in that country.65 After the petition was delivered, the author, together with others, held a peaceful 

assembly (demonstration) during which he held up a poster that read ‘Stop killings of gays in Iran.’ In about 15 

minutes, the author was apprehended by the police and taken to the Department of Internal Affairs of the Soviet 

District, where he was charged with an administrative offence under article 23.34, paragraph 2, of the Code of 

Administrative Offences of Belarus. The Committee concluded that Belarus violated Androsenko’s rights under 

Articles 19 and 21 of the ICCPR.  

 

From 2006 to 2008, Nikolai Alekseev, a homosexual and a human rights activist, together with other activists, 

tried to organize a number of peaceful assemblies (gay pride marches) in Moscow, but they were all banned by 

the municipal authorities.66 Alekseev filed a complaint with the Human Rights Committee, asserting that the 

Russia Federation violated his right to peaceful assembly as protected by Article 21 of the ICCPR. In 2013, the 

Committee decided in Alekseev’s favor, stating that the right of peaceful assembly, as guaranteed under Article 

21 of the ICCPR, ‘is essential for the public expression of a person’s views and opinions, and indispensable in a 

democratic society.’ 

 

Fifthly, Article 17(1) ICCPR states that ‘no one shall be subjected to arbitrary or unlawful interference with his 

privacy, family, home or correspondence, or to unlawful attacks on his honor and reputation.’ Moreover, Article 

17(2) guarantees this right as against private individuals and imposes a duty on the state ‘to adopt legislative and 

other measures to give effect to the prohibition against such interferences and attacks.’ Nigeria’s laws 

criminalizing same-sex conduct violate the right to privacy under the HRC’s jurisprudence as established in 

Toonen v Australia67. Denial of status of transgender people, including, but not limited to, deprivation of the 

right to change name and sex, is a violation of the right to privacy. Similarly, the Human Rights Committee 

decided in favor of a female transgender in Australia who claimed that the refusal to change her sex on her birth 

certificate, unless she divorced from her spouse, constituted a direct arbitrary interference with her right to 

privacy under article 17 of the Covenant.68 Moreover, Article 17 requires that states take positive measures to 

protect the right to privacy. Nigeria 

does not allow transgender people to rectify their legal name and gender markers on official documents. 

Transgender persons must use official documents that do not reflect their identity and are therefore exposed to 

great discrimination and obstacles to their ability to access services essential to the realization of fundamental 

rights. Of course marriage certificates that fall under the right to family life cannot be issued to persons who 

have conducted gay marriage. 

 

Morality and the Law- The Moral Perspective 

While ethics/morality is distinct from the law, the law is normally tested against ethics/moral parameters to 

know whether the law is fair, good or just.69 It is in the light of this that the constitution empowers the state to 

make laws that protect the morality of the citizenry even at the expense of human rights in certain circumstances 

under Section 45(1) (a) of the CFRN 1999.  Section 45(1)(a) CFRN 1999 provides as follows: ‘Nothing in 

sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a 

democratic society (a) In the interest of defense, public safety, public order, public morality or public health, 

or…’ That the moral value system of a people needs protection was pronounced per Viscount Simonds in the 

celebrated case of SHAW v DPP70 where the appellant had published a 'ladies directory' which listed contact 

details of prostitutes, the services they offered and nude pictures. He was convicted of conspiracy to corrupt 

public morals, living on the earnings of prostitution and an offence under the Obscene Publications Act 1959. 

The court held inter alia: 

In the sphere of criminal law, I entertain no doubt that there remains in the courts of law a 

residual power to enforce the supreme and fundamental purpose of the law, to conserve not 

only the safety and order but also the moral welfare of the state and it is their duty to guard 

against attacks which may be more insidious because they are novel and unprepared for. 

 

 
65 Sergei Androsenko Vs. Belarus, Communication No. 2092/2011, U.N. Doc. Ccpr/C/116/D/2092/2011 (2016). 
66 Nikolai Alekseev Vs. Russian Federation, Communication No. 1873/2009, U.N. Doc. Ccpr/C/109/D/1873/2009 (2013). 
67 (n, 55) 
68 G. v. Australia, Communication No. 2172/2012, U.N. Doc. CCPR/C/119/D/2172/2012 (2017). 
69 Washington v. Glucksberg 521 U.S. 702, 720-21 (1992) 
70 1962 AC 220. 



ILOKA, AGHADINUNO &. OBIKEZE: An Appraisal of Gay Marriage Under the Nigerian 

 

69 

Medical Perspective 

Medicine is scientific and as such, does not work with sentiments or beliefs but with facts that are proven 

empirically. There are many illnesses that are associated with same sex relationships. Longmore and others 

states that Kaposi’s sarcoma, a cancer of connective tissues of the body mostly affects homosexual or bisexual 

men.71 Also, Baliga avers that Herpes Zoster Syndrome (Shingles), a painful blistering skin eruption occurs at 

least 7 times more frequently with homosexual men.72 Hepatitis C, a virus that causes severe liver damage is 

higher among homosexuals compared to their heterosexual counterparts.73 Furthermore, Peschke asserts that 

‘homosexuals also are at a high risk group for AIDS.74 Contagion is caused primarily by anal intercourse’.  

Other organisms causing infections of the stomach and intestines which manifests as diarrhea such as entamoeba 

histolytica, shigella specie, campylobacter specie and cryptosporidium specie have all been associated with 

homosexual men. The Same Sex Marriage (Prohibition) Act is therefore to the best interest of Nigerians 

medically as it tends to deter same sex relationships and its consequent medical hazards. 

 

4. Conclusion and Recommendations 

A lot of things may be said about the SSMPA, but it remains undisputable that the Act is a reflection of the 

moral value system of Nigeria. This truth was demonstrated in the polls conducted by NOI Polls75 in 2015 in 

conjunction with The Initiative for Equal Rights (TIERs).76 According to the poll, 87 percent of Nigerians 

support the SSMPA and the punitive measures provided under the Act. 81 percent believed homosexuals should 

not have equal rights which would directly relate to the LGBTQ+ relations not having the same status with 

heterosexual relationships or marriage. 90 percent also believed lesbian, gay, and bisexual people should not be 

allowed to hold LGBTQ meetings or establish LGBTQ organizations. Against this backdrop, it would be apt to 

say that the SSMPA is in line with the Nigerian volkgeist and therefore justified from the historical school 

praxis.77  Nigeria should not allow gay/same sex marriages simply because same is obtainable in other 

jurisdictions. The law of our land should be a representation of the principles and ethics that guide us and 

according to the above named poll; the citizens of Nigeria have shown their attitude towards the said same 

sex/gay marriage. For example, in Australia, Australians voted in favor of legalizing same-sex marriage, by a 

62% to 38% margin, in a non-binding, nationwide referendum before the law came to be in their land. Again, 

more than six-in-ten Irish voters (62%) voted ‘yes’ to amend the Constitution of Ireland to say that ‘marriage 

may be contracted in accordance with law by two persons without distinction as to their sex. The measure won 

approval by a 77-44 margin in New Zealand’s unicameral legislature. 

That being said, it is recommended that: 

a. Even though same sex/gay marriages are unacceptable in Nigeria, persons categorized in the LGBTQ+ 

group are still humans and should be protected by law from discrimination that would lead to torture or 

inhumane treatment and the likes. 

b. That the SSMPA be amended to capture the face of emerging multiplicity of gender and sexual 

orientations because the absence of this, may defeat, the mischief the Act could have cured. 

c. Gay marriage is against the natural law of marriage by God, no country should legalize guy marriage 

knowing fully well that family is the smallest unit in the society. If same sex is legalized what it 

denotes is complete failure of the marriage structure, hence a total disorder in the society, 

d. There is need for restructuring and reorientation of the law enforcement agents on the need to protect 

human rights while discharging their official duties. 

e. The Same Sex Marriage Prohibition Act should be amended to stipulate the test to grounding an 

allegation of same sex under the law to avoid overzealous enforcement agencies using the law as tool 

to abuse the rights of Nigeria. 

 

 
71 Longmore, M., Wilkinson, I.B., Davidson, E.H., Foulkes, A. & Mafi, A.R, Oxford Handbook of Clinical Medicine 8th ed. 

Italy: L.E.G.O. 2010  
72 Baliga, R.R, 250 Cases in Clinical Medicine, 4th ed. Edinburgh: Saunders Elsevier, 2010. 
73 S. Davidson, Davidson’s Principles and Practice of Medicine 20th ed. China: Elsevier 2010 
74 K.H. Peschke, Christian Ethics: Moral Theology in the Light of Vatican II, vol. 2, Bangalore: Theological Publications, 

1999. 
75 NOIPolls, June 11, 2013, http://www.noipolls.com/root/index.php?pid= 287&ptid=1&parentid=66 Accessed 23 August 

2022 
76 A Nigerian based NGO < http://theinitiativeforequalrights.org/.> Accessed 23 August 2022. 
77 Robert Rodes, ‘On the Historical School of Jurisprudence,’ (49) Am. J. Juris.; 165, (2004) 

http://www.noipolls.com/root/index.php?pid=%20287&ptid=1&parentid=66
http://theinitiativeforequalrights.org/

