A cursory look at some fellow African countries who are in the same boat with Nigeria, and where sexual acts against the order of nature is outlawed, may show some glimmer of hope for the African continent. In Kenya, a Kenyan court in a case218 overturned the decision of the N.G.O Coordination Board not to register a proposed NGO for the LGBT community and issued an order of mandamus directing the respondent to register the said N.G.O. holding “…that the Board also violated the petitioner’s right to non-discrimination by refusing to accept the names proposed on the basis that the proposed NGO sought to advocate for the rights of persons who are not socially accepted.”219 The court made a distinction between sexual orientation,220 and engaging in homosexual act.221 The court insisted that both must be treated differently. According to it, ‘an interpretation of non-discrimination which excludes people based on their sexual orientation would be in conflict with the principles of human dignity, inclusiveness, equality, human rights and non-discrimination.’222
216 As in note 27 and 29 above
217 Section 1(3) CFRN 1999, as in note 7 above
218 Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others [2015] eKLR, available online at http://kenyalaw.org/caselaw/cases/view/108412/, accessed on 16.04.2016 at 10:00
219 Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others, supra as in note 189 above
220 which is not criminal and which is in fact protected by Kenya’s Constitution which guaranteed everyone the right to freedom of conscience, opinion and belief, freedom of expression, non-discrimination and association.
221 which the penal code criminalised as an offence against the order of nature.
222 Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others, supra as in note 189 above
In reaction to the refusal to register the association based on moral grounds and the fact that the proposed association aimed to promote prohibited acts, the court maintained that ‘no matter how strongly held moral and religious beliefs may be, they cannot be a basis for limiting rights.’223 Finally, the court concluded that the respondents breached the provisions of Article 36 of the Kenyan constitution on the fundamental right of freedom of association by ‘failing to accord just and fair treatment to gay and lesbian persons living in Kenya seeking registration of an association of their choice.’224
Right to freedom of association protected under the Kenyan Constitution flows from the provisions of Article 11 of the African Charter on Human and Peoples’ Rights. Article 11 provides that
Every individual shall have the right to assemble freely with others.
The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the Safety, heath, ethics and rights and freedom of others.225
Both Kenya and Nigeria are signatories to the Charter and are bound by its provisions. The refusal of the administrative authority in Kenya to register the proposed N.G.O mirrors the provisions of section 5 (2) of Nigeria’s Same-Sex (Marriage Prohibitions) Act 2013 which criminalised the formation, registration, or operation of gay clubs. This criminalisation is inconsistent with the Constitutionally guaranteed right to freedom of association.226
In another case,227 the Zambian courts acquitted a man who was charged for ‘soliciting for immoral purposes’ in a public place which the authorities alleged contravened the penal code of Zambia.
The man’s offence was that he expressed an opinion on a privately owned television station to the effects that the rights of sexual minorities, including LGBT people and sex workers, should be recognised.228 The courts held that the man was merely exercising his right to freedom of
223 Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others, supra as in note 189 above
224 Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others, supra as in note 189 above
225 Article 11 of the Charter
226 Sec. 40 CFRN 1999
227 The People v Paul Kasonkomona, CR No. 9/04/13, pdf available at http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2014/03/Kasonkomona-Ruling.pdf, accessed on 16.04.2016 at 10:30
228 ‘Africa Rulings Move LGBT Rights Forward,’ https://www.hrw.org/news/2015/08/05/africa-rulings-move-lgbt-rights-forward, accessed on 16.04.2016 at 10:12. Also available at http://www.jurist.org/hotline/2015/08/meerkotter-reid-no-fault.php
expression which was guaranteed him by the constitution, and ‘distinguished between soliciting someone to engage in same-sex sexual acts, a criminal offense in Zambia, and advocating for people's rights’.229
In Botswana, some activists sought to register their organisation, LEGABIBO,230 with the government. Their application was turned down on the ground that it would contravene Botswana’s Societies Act by operating for ‘unlawful purpose or other purpose prejudicial to, or incompatible with, peace, welfare or good order in Botswana’ as the Botswana’s constitution does not recognise homosexuals.231 In their application to have the refusal upturned, the court held that the refusal violated the applicants’ rights to equal protection of the law, right to freedoms of expression, association, and assembly. The court subsequently made an order for the registration of the said organisation.232 The court contended that laws prohibiting homosexual acts did not criminalise homosexuality per se nor advocacy for the reform of those laws, but only the commission of the homosexual acts or conducts that are unlawful. Homosexuality is an orientation about one’s sexual preferences while a homosexual act is the manifestation of those sexual preferences through acts that were prohibited by the law. The judgment made a distinction between who a person is, which is the person’s (sexual) identity, and what a person does, in this case the practice or the manifestation of those sexual identities through acts that were criminalised under the Botswana law. For a person could be a homosexual, which refers to the person’s sexual identity, but at the same time could be celibate by deciding not to have active sexual life or refusing to put the homosexual identity into practice by engaging in homosexual conducts which the current laws in Botswana forbid. Finally, the court concluded that gay, lesbian and bisexual people have the same rights as anyone else, regardless of laws that criminalise consensual same-sex conduct.233 In South Africa, the South African 1996 Constitution in section 9 provides thus
Everyone is equal before the law and has the right to equal protection and benefit of the law… The State may not unfairly
229Ibid
230 An acronym for Lesbians, Gays, and Bisexuals of Botswana
231 Africa Rulings Move LGBT Rights Forward, as in note 195 above
232 Thuto Rammoge & 19 ors v A. G Botswana, in Suit No. MAHGB 000175-13 and delivered on 14th November 2014.
The pdf is available at http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2014/11/LEGABIBO-judgment-low-resolution.pdf, accessed on 16.04.2016 at 11:24
233 Thuto Rammoge & 19 ors v A. G Botswana, supra as in note 232 above
discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.234
The South African Constitution for the first time recognised and prohibited discriminations based on social orientations. In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others,235 and National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others,236 the constitutional court of South Africa struck down legislations that discriminated against homosexual orientations and conducts. The second case concerned a referral from the Witwatersrand High Court to the Constitutional Court for confirmation that the following laws were unconstitutional, and therefore invalid in view of the right to equality under the Constitution.237
(a) the common law offence of sodomy; and
(b) the inclusion of sodomy in schedules to the Criminal Procedure Act 51 of 1977 and the Security Officers Act 92 of 1987, and s 20A of the Sexual Offences Act 23 of 1957 which prohibits sexual conduct between men in certain circumstances.238
The court found that the offences violated the right to equality as they unfairly discriminated against gay men on the basis of sexual orientation which was expressly prohibited under the Constitution.239 The Court opined that
The discriminatory prohibitions on sex between men
reinforces already existing societal prejudices and severely increases the negative effects of such prejudices on their lives…
Even when these provisions are not enforced, they reduce gay men . . . to what one author has referred to as ‘unapprehended felons’, thus entrenching stigma and encouraging discrimination in
234 Section 9 (1) (3) The Constitution of the Republic of South Africa Act 108 of 1996
235 (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999)
236 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998)
237 Sec. 9 South African Constitution, 1996
238http://www.equalrightstrust.org/ertdocumentbank/National%20Coalition%20for%20Gay%20and%20Lesbian%20 Equality%20and%20another%20v%20Minister%20of%20Justice%20and%20others.pdf
239 As in note 232 above
employment and insurance and in judicial decisions about custody and other matters bearing on orientation.240
On the right to the dignity of the human person and right to privacy, the court further held that
“[G]ay people are a vulnerable minority group in our society.
Sodomy laws criminalise their most intimate relationships. This devalues and degrades gay men and therefore constitutes a violation of their fundamental right to dignity. Furthermore, the offences criminalise private conduct between consenting adults which causes no harm to anyone else. This intrusion on the innermost sphere of human life violates the constitutional right to privacy. The fact that the offences, which lie at the heart of the discrimination, also violate the rights to privacy and dignity strengthens the conclusion that the discrimination against gay men is unfair”.241
Nigeria’s Constitution did not expressly forbid discrimination on the basis of sexual orientation like the South African Constitution did. However, this could be inferred from the wordings of the Constitution which prohibited discrimination on the basis of sex or circumstances of birth. The right to privacy and the dignity of the human person under the South African Constitution is on all fours with the right to privacy and the dignity of the human person in the Nigerian Constitution.
Both countries have the same Constitutional values. The Nigerian and South African fundamental rights protection under their respective Constitutions is in line with the provisions of the African Charter on Human and Peoples’ Rights. Nigeria’s criminalisation of sodomy without an amendment to the Constitution is an infringement on the right to discrimination and privacy of the affected LGBT persons.
Although the above cases have no probative judicial value in the Nigerian jurisprudence, given the fact that Nigeria is an independent sovereign State, but they are a good pointer to the fact that law is organic rather than static, and which evolves as the society evolves. There is evidence of change that is brewing across Africa; from Kenya to Botswana and to South Africa. Now is good time for Nigeria to do away with the old relics of its colonial history by reforming its laws to be in line with the modern view on fundamental rights principles. Nigeria should afford adequate fundamental
240 As in note 232 above
241 As in note 232 above
rights protection to its minority groups who were first human beings before being minorities of the society. The constitutional protection in chapter IV242 protects all individuals regardless of race, colour, religion, opinion, belief or sex. The right to non-discrimination based on sex243 includes sexual orientation. The constitution even recognised that there could be differences in circumstances of birth and stipulated that ‘no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth’.244 These circumstances of birth, in the case of some LGBT individuals relate to their inborn LGBT traits. These inborn traits in some LGBT persons was not as a result of any wrong doing on their part that ought to demand societal regulation or penalisation. They should not be discriminated, isolated, or criminalised for something which was inborn in them. To do or continue to do otherwise would be an unjust interference with the constitutional rights and liberties of the affected individuals.