As was seen in chapter one of this work, an individual’s sexual orientation is the person’s inclination or predisposition towards a particular type of sexual behaviour. It is a label used to identify a person’s sexual preferences or desires. It is nothing more than an opinion or feelings towards a particular topic; sexual activity, same not necessarily being accompanied by the actual doing of the act which the person desires. In the Catholic Church, priests take the vow of chastity, making a solemn vow to God and to their local Bishop not to engage in any sexual activity from the point of their ordination until their death. This vow of chastity and abstinence does not take away the sexual orientation of those priests; it only took away or suspended their otherwise natural right to engage in sexual relations. Priests who are heterosexuals will continue to identify as heterosexuals while those who have homosexual tendencies may be closeted due to the stand of
151 Sec. 1 (3) CFRN 1999 as amended
152 NWAUCHE S. E., The Right to Privacy in Nigeria, 1 (1) CALS Review of p. 64, Nigerian Law and Practice (2007), available online from http://www.afrilegstud.com/calsreview/PDF/privacyinnigeria.pdf, accessed on 06.04.2016 at 22:20
153 For instance, an ex parte order developed in the English case of Anton Piller KG v Manufacturing Process Ltd [1976] Ch 55 wherein an applicant or law enforcement agents are mandated to enter the premises of the defendant without notice and obtain evidence.
154 Ferodo Bros v Unibros [1980] FSR 489; Sony Kahushiki Kaisha v Hahani & Co Ltd (FHC/L/31/81)
the Church on the issue, although deep within them they cannot deny their homosexual feelings or libido.
Sexual orientation is a thought process; it is how one perceives oneself with regards to sex issues.
Freedom of thought is a fundamental right guaranteed by the Nigerian Constitution which states that
Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance.155
The constitution guarantees everyone the right to hold any particular belief and to manifest or propagate such belief as the person deems fit, including forming and being part of an association holding a particular belief or orientation. This however does not include the right to form or belong to any secret society as the constitution itself declared this to be unlawful.156 When States begin to regulate the freedom of thought and conscience of its people despite the clear constitutional safeguard against such, then there is every reason to fear that the State is degenerating into a Police State where fundamental rights of individuals are suspended and subjected to the whims and caprices of those in power.
The law of criminal law is founded on the principle that for an act to amount to an offence there must be present an actus reus157 and the mens rea158 which usually must co-exist together at the same time in order for an offence to be deemed to have been committed. Except for offences of strict liability159 under the common law which does not require the presence of a mens rea, in other cases, both must be present otherwise the offence would be inchoate. There is no known principle of criminal law that seeks to punish intent alone, no matter how vile or repulsive it may be, which was not manifested or attempted to be manifested through the actual doing of a forbidden act. As was captured by the Latin maxim, cogitationis poenam nemo patitutr,160 no one gets punished for
155 Section 38 (1) CFRN 1999, as in note 7 above
156 Section 38 (4) CFRN 1999, as in note 7 above
157 This is the actual doing of a thing, an act or omission, which is illegal or unlawful
158 This simply refers to the ‘guilty mind’ an offender had at the time of the commission of an offence.
159 Strict liability offences ae those offences that does not require the presence of a guilty mind in order to amount to an offence. The mere commission of a prohibited act, without more, makes one liable
160 Which means ‘no one is to be punished for their thoughts.’
an intent which was not manifested in any way. The Nigerian Same-Sex Marriage (Prohibition) Act, 2013 in section 4 (1) prohibited the registration of gay clubs, societies, and organisations, their sustenance, processions and meetings. It stipulated in section 5 (2) that ‘a 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 commits an offence and is liable on conviction to a term of 10 years imprisonment.’161
To register, form or participate in a gay club is to identify as a gay. Mere identification as a gay or homosexual is a sexual orientation not coupled with the actual act of performing a gay act. Sexual orientation, as already identified above is a thought, and freedom of thought is a fundamental right which is protected by the Constitution as the said gay club is not a secret society.162 Displaying same-sex amorous relationship in public may however be unlawful and not covered by the constitutional fundamental rights as that seems to corrupt public morals. If done in private or in the privacy of their homes, criminalising same would be stretching public morality too far.
The Constitution also guaranteed persons the fundamental right to freedom of association and to associate with any person or particular person or persons and with any group that he or she feels may protect his or her interests.163 It provides 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:
Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.164
This freedom of association is breached by the prohibition of forming or belonging to gay clubs which is not a secret society, by the new Act.165 Gay clubs are also not political parties which the Independent National Electoral Commission could regulate pursuant to the powers granted it by the Constitution. This prohibition of forming or joining gay clubs also breached the fundamental
right to freedom of expression of persons who desire to form or participate in gay clubs in order to express their sexual orientation.166 The right to freedom of expression states that “Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”167
The Nigerian legislature derives its powers from the 1999 Constitution168 and cannot legislate outside the arm bit of the Constitution as any such attempt which produces an inconsistent law with the Constitution will, to the extent of such inconsistency, be void.169 The only way the National Assembly can legislate outside the arm bits of the 1999 Constitution will be to amend the Constitution itself and the strict procedures of Constitutional amendment must be adhered to in order to be valid.