According to Lord Penzance in the celebrated English case of Hyde v Hyde and Woodmansee,170 marriage was defined as the “voluntary union for life of one man and one woman, to the exclusion of all others.” This was a case for divorce brought by the petitioner171 whose wife172 stayed back in Utah, United States where they got married in accordance with the Mormon faith. Polygamy was legal among Mormons in Utah during the time the marriage was contracted. The petitioner alleged that the respondent had married the co-respondent in Utah as a result of the petitioner’s excommunication from the Mormon faith thereby committing adultery; a matrimonial offence. In dismissing the petition, Lord Penzance held that
A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a marriage as understood in Christendom; and although it is a valid marriage by the lex loci, and at the time when
166 Section 39 (1) CFRN 1999, as in note 7 above
167 Sec 37 (1) CFRN 1999, as in note 7 above
168 As amended
169 Unless there is a clear intention on the part of the legislature to amend the constitution, and the procedures laid down in the constitution for amendment must be followed strictly otherwise the whole attempt would be a nullity.
170 [1866] LR 1 P&D 130
171 The husband
172 The Respondent
it was contracted both the man and the woman were single and competent to contract marriage, the English Matrimonial Court will not recognise it as a valid marriage in a suit instituted by one of the parties against the other for the purpose of enforcing matrimonial duties, or obtaining relief for a breach of matrimonial obligations.
The above position of the court portrays the deep influence religion played and continues to play in the organisation of communities and the rules that guide them. Religion, to a certain degree reinforces public morals and dictates the tune on what should be lawful or unlawful within a particular society. Thanks to colonialism, the British Christian common law concept of marriage was imported into Nigeria through section 45 (1) of the Interpretation Act which received “the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st of January, 1900.”173 The Interpretation Act made the received English laws to be applicable in Nigeria subject to local circumstances or laws made by the Nigerian legislature. It is however unfortunate that neither the Marriage Act174 nor the Matrimonial Causes Act175 made any attempt to define marriage as both assumed the common law definition as posited by Lord Penzance since 1866. The Common Law definition of marriage has been reinforced through several judicial pronouncements in Nigeria.176 Most jurisdictions, including the United Kingdom, have moved beyond Lord Penzance’s postulations to a more inclusive definition of marriage as a union between two persons to the exclusion of others.177 Before the coming of the colonialists, the different nationalities that make up Nigeria engaged in polygamous marriages.178 When statutory marriage was introduced, it co-existed alongside the other forms of marriage without abolishing them. It is common to see couples go through traditional as well as statutory marriages so as to receive greater social approval in the society.
Recognising that marriage is an institution which is the nucleus of the society, it is never the intendment of this research work to argue for a redefinition of marriage to include same-sex relationships if the public opinion still prefers to retain the one-man one-woman definition by Lord Penzance. Marriage as an institution is the fulcrum upon which the society stands. If the public
173 Section 45 (1) Interpretation Act, Cap I 23, Laws of the Federation of Nigeria, 2004
174 Cap M 6 Laws of the Federation of Nigeria (L.F.N) 2004
175 Cap M 7 Laws of the Federation of Nigeria (L.F.N) 2004
176 Moses Oghenerume Taiga v Nneka Mercy Moses-Taiga [2012] 10 NWLR (Pt 1308)
177 The Marriage (Same Sex Couples) Act 2013 for England and Wales
178 Customary law marriages and Islamic law marriages
moral demands that there be no change in the definition, without attaching criminal sanctions, then so be it. There was really no justification for the passage of the Same-Sex Marriage (Prohibition) Act 2013 given the fact that Lord Penzance’s definition of marriage is still applicable in Nigeria and the conditions laid down for a valid statutory marriage in both the Marriage Act and the Matrimonial Causes Act are in line with the said definition. If the purpose of the new legislation was just to clarify the legal definition of marriage without criminalising any conduct, there may not be much uproar against it as it will only seek to reinforce the already known and accepted Lord Penzance’s definition.
The Same-Sex Marriage (Prohibition) Act 2013 provided for a 14-year jail term for anybody found guilty of entering into a same-sex marriage in Nigeria. For marriages in Nigeria to be valid, it must be between a man and a woman. Any form of contract or celebration in anywhere in Nigeria between a man and another man or between a woman and a fellow woman is invalid and not a marriage.179 If such contract or celebration is invalid, it means that there was no marriage at all. If the above position is true, then there was no justification for imposing a 14-year jail term180 for a non-existent marriage. Since there was no marriage, it follows then that there was no conduct to punish because, as Lord Denning stated, “you can’t place something on nothing and expect it to stand.”181
The society has no stake in what an individual makes of his life with regards to his or her sexuality which is a private affair, but could be said to have so much at stake in what becomes of a family comprising of the individual and another individual. This is where same-sex relations differ from same-sex marriages. Same-sex relation is an affair between two consenting adult individuals of the same sex only without attaching their respective families, but (same-sex) marriage is a social institution, which in the traditional African setting is a union between two families, and not just the contracting individuals who are merely instruments through which both families unite.
Culture and tradition are so important in the life of an average Nigerian, be it Christian or Moslem, that every decision is viewed through the prism of cultural acceptance and relativity. Most Nigerian cultures regard homosexual acts as taboos, and there is little chance that homosexual couples
179 Hyde v Hyde, supra; Sec 1 SSMPA 2013, as in note 13 above
180 Sec 5 SSMPA 2013, as in note 13 above
181 UAC v McFoy [1962) AC 152
would attempt open display of homosexual affections without risking possible banishment from the community. Traditionally, marriages have always been between a man and one or more women, same with Islamic law marriages. The idea of a traditional marriage between a man and a man or between a woman and another woman has not been tried anywhere in Nigeria. The proponents of same-sex marriage in Nigeria would have an uphill task in trying to effect a change of attitude or public opinion towards the issue of same-sex marriage given the seeming abhorrence of same by most cultures and the strong opposition from religious leaders. According to a 2013 Pew Research Centre Poll on the Global Divide on Homosexuality tagged “Greater Acceptance in more Secular and Affluent Countries”, the survey of 39 countries drawn across the globe found Nigeria to be the most hostile country towards homosexuals. Only 2% of the surveyed population accepted that homosexuality should not be banned while the rest 98% believes that it should not be accepted by the society.182 The research also found a strong relationship between a country’s religiosity and opinions about homosexuality183 as there is low acceptance of homosexuality in countries where religion plays a vital role in the life of the ordinary citizens. However, there are some notable exceptions on the religiosity scale like Russia where religion does not play a big role in the peoples’ life, yet a large percentage of the populace think that homosexuality should not be allowed. Conversely, Brazilians and Filipinos are more receptive to homosexuals when same is compared with their high religiosity.184 It is not in doubt that Nigeria is a deeply religious country with thousands of church houses and mosques littered all over the country. Nigeria even boasts of having the biggest church building in the whole world. As was reported by BBC’s Barnaby Phillips on 30 November, 1999, “the Guinness Book of Records will have to be re-written, following the recent opening of what is being described as the largest church in the world”185 while referring to a Nigerian church with 50,000 sitting capacity. Until such a time when public opinions would change, and may be religiosity lowered to a certain degree, the idea of same-sex marriage may remain a dead end in Nigeria. This does not however justify imposing criminal sanctions on
182 Global Divide on Homosexuality, accessed from http://www.pewglobal.org/2013/06/04/the-global-divide-on-homosexuality/, on 15.04.2016 at 14:50
183 Global Divide on Homosexuality, as in note 182 above
184 Global Divide on Homosexuality, as in note 182 above
185 http://news.bbc.co.uk/2/hi/africa/542154.stm accessed on 15.04.2016 at 15:30
persons who seek to enjoy their fundamental rights as guaranteed them under the 1999 constitution.186