From Theory to Law

The above theories on law and morality showed the relationship and intersection between both concepts. The chapter in the Criminal Code¹⁴³ criminalising the offence of sodomy failed to distinguish between private and public morality. Admittedly, and as was espoused by Professor Hart,¹⁴⁴ it is difficult to divorce law from morality. Moral nuances would always be present in the motive behind some laws. However, what constitutes the morals that would influence what law ought to be need to be properly delineated and differentiated. Morality refers to those ideal principles which distinguishes between what is good and bad conduct, and between right and wrong. This morality is divided into public and private morality. Public morals are those ideals shared by a large section of the community and which could be taken to represent the community’s feelings on those issues. This is different from private morals which represent the ideals of each individual within the community. It is these individual ideals when held commonly that make up the community’s morals, but given the fact that individual feelings and idiosyncrasies differ, it is not all individuals’ ideals that qualify as a public moral.

Finding justification for criminalising conducts that tends to corrupt public morals will not be difficult given that the community or society has an interest in maintaining a particular ideal among its inhabitants for conducts or expressions that affect or has the potential to affect not just the individuals concerned but the whole community. Where the morally decadent conduct complained of is not detrimental to the community, punishing it will be unjustifiable and groundless.¹⁴⁵ According to John Stuart Mill, subject to background duties of justice and fair contribution, the coercive power of the State can only be imposed for acts causing harm to other persons.¹⁴⁶ Harms

142 Although attempted suicide is an offence in Nigeria. Sec. 327 of the Criminal Code, as in note 10 above. It provides thus, ‘Any person who attempts to kill himself is guilty of a misdemeanour, and is liable to imprisonment for one year.’

143 Chapter 21 of the Criminal Code, as in note 27 above

144 HART H. L. A., as in note 138 above

145 BENTHAM J., as in note 131 above, p. 19, par. XVI.3

146 Mill J., ‘On Liberty’, in The Philosophy of John Stuart Mill 185, 187-203, 271-319 (M. Cohen ed. 1961).

to self, do not suffice.¹⁴⁷ For a particular conduct to be held immoral and worthy of being sanctioned, the conduct must be directed against another individual or the community at large and who believe in the immorality of the conduct. Where the conduct is directed against one’s self, it is not the community that suffers but the individual perpetrator, so there is no justification for punishing the perpetrator who also doubles as the victim. For instance, in a community where gun-carrying is licensed and legal, a licensed gun-carrier who shot himself on the leg intentionally cannot justifiably be prosecuted for unlawful wounding or any other conceivable offence. Where the shooting was directed against another, the perpetrator would be prosecuted, for by his conduct the community, through the individual has suffered some detriment. Even if no actual injury was caused, the individual could still be prosecuted for the psychological injury he has caused the community, because through his actions, individuals within the community no longer feel safe as such has instilled fear in them.

Now coming back to sodomy, does the ‘immoral’ conduct of sexual exploration against the order of nature really affect the community detrimentally? Most societies are ordered along heterosexual lines. Sexual relations between a man and a woman is accepted to be the natural way in which sexual expressions and explorations ought to be conducted. It should be pointed out at this stage that sexual relation is a private affair which is done and ought to be done in a secluded place. Any couple, whether heterosexuals or homosexuals who engage in public sexual relations offends the sensibilities of the public and constitutes public nuisance and penal sanctions would be justifiable in dealing with such breaches. Again, sexual relations between an adult and a minor is detrimental to the community and should be punished as such given the fact that the minor has not yet attained the legal age of majority or of making certain decisions for him or herself. As such, the State regards such sexual relations with a minor as non-consensual, even if the minor actually consented, as the minor has not yet attained the age of decision-making or giving consents. Non-consensual sexual relations of any type are a violation of the body of the victim which is injurious to the society, and this attracts stiff reprimand from the society in terms of punishment. In the case of sexual relations with a minor, the community or the State has an interest in protecting the minor and making sure the minor transits into adulthood successfully when he or she can then make

147 Richards D., Liberalism, Public Morality, And Constitutional Law: Prolegomenon to a Theory of the Constitutional Right to Privacy,’ in Law and Contemporary Problems (1988)

decisions and determine what is good for him or her. Where however, two consenting adults of the same sex engage in sexual relations in the confines of their homes, without constituting nuisance to the public, the law seems to lack the justification in criminalising their conduct. In the first place, there was no injury done to anybody which will result in a detriment to the community. Secondly, both perpetrators in the act are adults and both consented to it; there is no element of force, coercion or fraud that would make it criminal. Thirdly, it was done in the privacy of their homes so as not to constitute obscene, unpleasant and corrupting sight for the public. Finally, both individual perpetrators did not consider the act to be morally wrong. And since they are entitled to their own perceptions of moral rights and wrongs, it would be an injustice for the society to foist on them what the society feels should be the acceptable standard for their own private morality. Where the society does this, it would be tantamount to denying such individuals their constitutionally guaranteed right to freedom of thought.¹⁴⁸

Notwithstanding the above analysis flowing from Bentham’s division of offences, Austin’s

‘Command Theory of Law’ perfectly supports the Nigerian legal system. Laws are made by the sovereign while the subjects have a duty to obey such laws. The sovereign has the authority to determine what constitutes public morality for purposes of criminalisation and sanctions. In Nigeria, the sovereign, in the exercise of its authority, can legally proscribe LGBT conducts.

However, in doing so, the proscription should not run counter to the provisions of the Nigerian Constitution, as any law which is inconsistent with the Constitution is void.¹⁴⁹ Now, is the provisions of section 214 of the Criminal Code prohibiting sodomy that is under discussion inconsistent with the provisions of the 1999 Constitution?

Most legal systems guarantee individuals the fundamental right to freedom from discrimination.

As already seen above, section 42 of the 1999 Constitution¹⁵⁰ provides for the right to freedom from discrimination. In the case of the LGBT community, the discrimination concerns treating them differently from the heterosexuals by making laws proscribing their sexual orientation. This sort of discrimination on the basis of sex and what could be as a result of circumstance of birth is prohibited under the Constitution. This makes the said anti-sodomy provision under both the Criminal and Penal Codes unconstitutional. Unless the Nigerian Constitution is amended and the

148 Sec 38 CFRN 1999, as in note 7 above

149 Sec. 1 (3) CFRN 1999 as amended

150 CFRN 1999, as in note 7 above

anti-discrimination right removed, any law made that tends to discriminate between or among persons protected under the Constitution shall be void.¹⁵¹

Again, section 37 of the Constitution provides that ‘the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.’ Sexual conducts of citizens are a private affair which ought not to be pried into by the State unless they run counter to the law. Sexual conducts that does not infringe on the rights of another person or offend the law are protected under the Constitutional right to privacy. It is unfortunate that this right to privacy has not received much judicial pronouncements in Nigeria on the scope and extent of the right.¹⁵² The few reported cases on it has to do with the execution of search warrants¹⁵³ in residential premises against the right to privacy guaranteed by the Constitution.¹⁵⁴