3.3 Sodomy
3.3.1 Legality and Constitutionality
A lot of theories have been propounded on the relationship between law and morality, among which includes the natural school of thought, the Utilitarian school of thought promoted by Jeremy Bentham, and the legal positivists which John Austin and Professor L.H.A Hart are the leading figures. Proponents of the natural law school of thought recognised the existence of a common or higher law, the distinction between law and nature, and maintained that law should be based on nature or morality.129 Those innate feelings in us of what is good and bad constitutes the natural law, and the proponents insist that at all times the human-made law should derive from and not be inconsistent with the natural law. In the description of the offence of sodomy, the Code referred to it as having ‘carnal knowledge against the order of nature.’130 The ‘order of nature here’ is in consonance with the dictates, and an appeal on the natural school of thought. Influential proponents of this natural law school of thought include St. Thomas of Aquinas and St. Augustine.
Jeremy Bentham of the Utilitarian school of thought, on the other hand, argues for a separation between morality and legality. Law, according to him serves a functionalist purpose and should be about maximising utility. He posits that nature placed man under the governance of two sovereign
127 Sec 10 CFRN 1999, as in note 7 above
128 Sec 38 CFRN 1999, as in note 7 above
129 SIMPSON P., Aristotle on Natural Justice, 3 Studia Gilsoniana (2014), pp. 367–376; ARISTOTLE, Rhetoric 1373b2–8
130 Sec 214 The Criminal Code Act, as in note 27 above
masters; pleasure and pain.131 For a man seeks those things which will give him pleasure and avoid those that will cause him pain. This pleasure or pain could result from physical, political, moral and religious causes or sanctions.132
John Austin, who was regarded as the father of legal positivism, in his “command theory of law”
focused on what law is as against what law ought to be. According to him, law is a command issued by the sovereign and backed by a threat of sanction in the event of non-compliance.133 He stated that the dogma of legal positivism is the fact that
The existence of law is one thing; its merit or demerit is another.
Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.134
To him, legality is different from morality. This does not mean that moral values do not influence what law is sometimes, but that whatever the sovereign posits as law, whether pernicious or not, and whether morally sound or immoral, is law in so far as it is coming from the sovereign. An act may be immoral, yet legal, while another may be illegal while being morally right. This is because legality is determined by the source of norm, which is the sovereign, and not by the merits of its substance. In Nigeria, laws are made by the sovereign, and the subjects have an obligation to obey them, the failure of which attracts penal sanctions. John Austin’s Command Theory of law is in tandem with Nigeria’s legal structure. In present day Nigeria, it is the duty of the legislatures to make laws. This they do by sitting in their respective legislatives houses and passing bills into laws. The bills would afterwards be sent to the executive for assent before they become laws. Once they become laws, the citizens have an obligation to obey them or risk penal sanctions. The fact that a particular law did not take into consideration the dictates of natural law does not make the said law not to be binding, as its bindingness comes from the fact that such law proceeded from
131 BENTHAM J., An Introduction to the Principles of Morals and Legislation (Oxford: Clarendon Press, 1907) p. 4, available online at http://www.econlib.org/library/Bentham/bnthPML1.html
132 BENTHAM J., as in note 131 above, p. 6
133 AUSTIN J. (1832), The Province of Jurisprudence Determined, in RUMBLE W. (ed.), (Cambridge: Cambridge University Press, 1995) p. 157; BIX B., "John Austin", The Stanford Encyclopedia of Philosophy (Spring 2015 Edition), in ZALTA E. N. (ed.), URL = <http://plato.stanford.edu/archives/spr2015/entries/austin-john/>. Accessed on 05.04.2016 at 21:20
134 AUSTIN J., as in note 133 above
the sovereign. All the Nigerian anti-LGBT laws proceeded from the sovereign. This makes them legal given that they followed due process and were made by the institution empowered under the Constitution to make laws.135 However, the fact that they are legally made does not mean that such laws are not unconstitutional. Legality and constitutionality are two different concepts that any given legislation must satisfy before the said legislation would be binding. Legality has to do with following due process in the making of laws while constitutionality means the law not being inconsistent with the provisions of the constitution. The Nigerian anti-LGBT laws target only a section of the society thereby serving as a ground for discrimination which is against the provisions of the Constitution. The Constitution prohibited discrimination of any sort against any person or people on the basis of sex, circumstances of birth, etc.136 As already shown, LGBT conducts could be as a result of a circumstance of birth. By targeting LGBT conducts and persons, the said laws clearly discriminated against the LGBT community and portrays them as inferior citizens when compared to their heterosexual counterparts. This apparent discrimination is inconsistent with the provisions of the Constitution, and the said laws could be said to be unconstitutional.137
Now back to the discussion on law and morality, Professor Hart in his criticism of the stance of both Jeremy Bentham and John Austin, identified a convergence between the two concepts which he called “the intersection of law and morality”.138 This intersection could be likened to two partially-overlapping circles representing the twin concepts of law and morality. Areas outside the overlap, but within each of the circles, represent the spheres ruled solely by law and morality separately. While the area of intersection between both circles represent the point of convergence between the two concepts.
The analysis of the relationship between law and morality above goes to show the importance and influence morality has in the making of laws. No matter how much we try to, law cannot totally be divorced from morality. Law as it is and law as it ought to be has a converging point and the dictates of morality, in certain situations informs what should be posited as law. In the Nigerian
135 The Constitution grants the National Assembly the power to make laws for the federation or any part thereof. Sec.
10 CFRN 1999 as amended
136 Sec. 42 CFRN 1999 as amended
137 Sec. 1 (3) CFRN 1999 as amended
138 HART H. L. A., Positivism and the Separation of Law and Morals, 4 (71) Harvard Law Review (1958), p. 608, available online at http://www.jstor.org/stable/1338225?seq=1#page_scan_tab_contents, and http://www.umiacs.umd.edu/~horty/courses/readings/hart-1958-positivism-separation.pdf,
Criminal Code under discussion, it was given an express mention that offences under listed therein are offences against morality.139