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LGBT AND THE LAW:

PROTECTING THE RIGHTS OF MINORITIES IN NIGERIA

Okuefuna, Silas Obinna (277208)

Masters Degree Thesis

MDP in Economic and Resources Law Law School

University of Eastern Finland Supervisor: Prof. K. Lindroos October, 2016

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ABSTRACT

Lesbians, Gays, Bisexuals, and Transsexuals popularly referred to as the LGBT community lately have been on the news almost on a daily basis all over the world. Most European and Western countries push for its world-wide acceptance while the East and most African countries, on the other hand, oppose same and put up measures to counter the Western onslaught.

Is the Nigerian State justified in criminalising non-heterosexual conducts on morality grounds? Are LGBT conducts a choice process? The research traces the history and root of LGBT conducts in individuals, comparing different LGBT theories and identity models, and found that they could be learned behaviours or inborn traits. The research considered the relationship between law and morality, distinguishing between private and public morality, and found that LGBT conducts fall within the sphere of private morality. Same-sex marriages, however, is an issue that belong to the realm of public morality.

LGBT persons have the same constitutional rights as non-LGBT persons. Laws criminalising conducts that fall within the sphere of private morality breaches the right to privacy as well as the right to freedom from discrimination of the affected individuals. Nigerian laws on LGBT conducts were found to be in breach of the fundamental rights of the LGBT persons and a breach of a host of international obligations binding on Nigeria. A comparison of the Nigerian jurisdiction with that of some select foreign jurisdictions showed that Nigeria is lagging behind in the comity of nations on issues of fundamental rights protection.

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Contents

BIBLIOGRAPHY ...v

Table of Cases ... viii

LIST OF ABBREVIATIONS ... xiv

CHAPTER ONE: INTRODUCTION ...1

1.1 Meaning of LGBT ... 1

1.2 Background to the Study ... 2

1.3 Discrimination against the LGBT community ... 4

1.4 History of LGBT legislations in Nigeria ... 6

1.5 Statement of Problem ... 8

1.6 The Need for Comparative Law ... 9

1.7 Research Methodology ... 11

1.8 Objectives of the study ... 12

1.9 Scope of the study ... 12

1.10 Definition of Terms ... 13

CHAPTER TWO: UNDERSTANDING LGBT ...16

2.1 Overview ... 16

2.2 LGBT Theories ... 16

2.2.1 Psychoanalytic Theory ... 17

2.2.2 Learning Theory ... 18

2.2.3 Psychobiological Theory ... 21

2.2.4 Fraternal Birth-Order Effect Theory ... 22

2.2.5 Transgender Theory ... 24

2.3 LGBT Identity Models... 25

2.3.1 Vivienne Cass’ Homosexuality Identity Model ... 25

2.3.2 Anthony D’Augelli’s Homosexuality Lifespan Development Model ... 27

2.3.3 McCarn-Fassinger’s Lesbian Identity Development Model ... 27

2.3.4 Arlene Istar Lev’s Transgender Emergence Model ... 28

CHAPTER THREE: LGBT IN NIGERIA...30

3.1 Fundamental Rights of LGBT Persons ... 30

3.2 Criminalising LGBT acts ... 31

3.3 Sodomy ... 32

3.3.1 Legality and Constitutionality ... 33

3.3.2 Bentham’s Division of Offences ... 36

3.3.3 From Theory to Law ... 38

3.4 Prohibition of Gay clubs and organisations... 41

3.5 Prohibition of Same-Sex Marriage ... 44

3.6 The need for Nigeria to protect the Human Rights of LGBT persons ... 48

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CHAPTER FOUR: NIGERIA’S INTERNATIONAL OBLIGATIONS ...49

4.1 The African Charter on Human and Peoples’ Rights ... 49

4.2 The United Nations International Covenant on Civil and Political Rights ... 53

CHAPTER FIVE: COMPARATIVE REVIEW ...55

5.1 Call for decriminalisation and Western Cultures ... 55

5.2 LGBT and Africa ... 56

5.3 LGBT in the United Kingdom ... 61

5.4 LGBT in the United States ... 63

CHAPTER SIX: CONCLUSION AND RECOMMENDATIONS ...66

6.1 Conclusion ... 66

6.2 Recommendations ... 67

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BIBLIOGRAPHY

OFFICIAL SOURCES (STATUTES/ INTERNATIONAL INSTRUMENTS)

Australian Statutes

Australian Human Rights (Sexual Conduct) Act (Cwth) No. 174 of 1994 Criminal Code Amendment Act 1997 (Tas), (No. 12 of 1997)

Nigerian Statutes

Interpretation Act, Cap I 23 LFN 2004

The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9 LFN 2004

The Constitution of the Federal Republic of Nigeria, 1999 (as amended) The Criminal Code

The Criminal Code Act, Cap C28 LFN 2004 The Marriage Act, Cap M 6 LFN 2004

The Matrimonial Causes Act, Cap M 7 LFN 2004 The Penal Code

The Penal Code Law, Laws of Northern Region of Nigeria No. 18 of 1959 The Same-Sex Marriage (Prohibition) Act 2014

South African Statute

The Constitution of the Republic of South Africa Act 108 of 1996 United States Statute

The Constitution of United States of America 1789 (rev. 1992) United Kingdom Statutes

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The Buggery Act, 1533 The Buggery Act, 1563

The Civil Partnership Act, 2004

The Criminal Justice (Scotland) Act 1980

The Homosexual Offences (Northern Ireland) Order 1982

The Marriage (Same Sex Couples) Act 2013 for England and Wales The Sexual Offences Act, 1967

International Instruments

The African Charter on Human and Peoples Rights which came into force on 21st October, 1986 The European Convention on Human Rights, adopted in Rome and opened for signature in 1950 but came into force in 1953

The International Covenant on Civil and Political Rights, 1966 of the United Nations which came into force on 23rd March 1976

LEGAL SOURCES Books

AUSTIN J. (1832), The Province of Jurisprudence Determined, in RUMBLE W. (ed.), (Cambridge: Cambridge University Press, 1995)

BENTHAM J., An Introduction to the Principles of Morals and Legislation (Oxford: Clarendon Press, 1907)

CAYNE B. S. (Ed), The New Lexicon Webster’s Dictionary of the English Language, (Lexicon Publishers, 1988

CURZON L. B., Dictionary of Law, 5th Ed (Pitman Publishing, 1998)

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GARNER B. A. (Ed), Black’s Law Dictionary, Deluxe 8th Ed, (USA: West, a Thomson business, 2004)

GOVE P. B. (ed), Webster’s Third New International Dictionary, (Massachusetts: Merriam- Webster Inc., Publishers, 1993)

MERRIAM-WEBSTER, The Merriam-Webster Dictionary, New Ed (Massachusetts: Merriam- Webster Publishers, 2016)

MONATERI P. G. (Ed), Methods of Comparative Law, (Cheltenham, UK: Edward Elgar Publishing, 2012)

REIMANN M. and ZIMMERMANN R., The Oxford Handbook of Comparative Law (Oxford:

Oxford University Press, 2006)

WATSON A., Legal Concepts: An Approach to Comparative Law (University of Georgia Press, 1974)

WATSON A., Legal Transplant (2nd Edition, 1993)

Journals/Thesis/Reports/Papers/Manuals

GORDLEY J.,’ The Functional Method’, in MONATERI P. G. (Ed), Methods of Comparative Law, (Cheltenham, UK: Edward Elgar Publishing, 2012)

HART H. L. A., Positivism and the Separation of Law and Morals, 4 (71) Harvard Law Review (1958), p. 608,

HOLBROOK T. R., The Expressive Impact of Patents, 84 Wash. U. L. Rev. 573 (2006)

KIRBY M., ‘The sodomy offence: England’s Least Lovely Criminal Law Export?,’ In LENNOX C. & WAITES M. (eds.) Human Rights, Sexual Orientation and Gender Identity in The Commonwealth: Struggles for Decriminalisation and Change (London: School of Advanced Study, University of London, 2013),

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MICHAELS R., The Functional Method of Comparative Law, in REIMANN M. and ZIMMERMANN R. (Eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006),

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

NWAUCHE S. E., The Right to Privacy in Nigeria, 1 (1) CALS Review of p. 64

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

Report of the Departmental Committee on Homosexual Offences and Prostitution, 1957 SIMPSON P., Aristotle on Natural Justice, 3 Studia Gilsoniana (2014), pp. 367–376

SMITH J. M., Comparative Law and its Influence on National Legal Systems, in REIMANN M.

and ZIMMERMANN R. (Eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006)

SOLACE BROTHERS FOUNDATION et al, Human Rights Violations Against Lesbian, Gay, Bisexual and Transgender People in Ghana: A Shadow Report (Submitted for consideration at the 115th Session of the Human Rights Committee October 2015, Geneva)

Table of Cases

A.D.T v The United Kingdom [2000] Application No. 35765/97 A.G. Ondo State v A.G. Federation [2002] 9 NWLR (pt 772);

Abacha v Fawehinmi [2000] 6 NWLR (Pt. 600) 228

Anton Piller KG v Manufacturing Process Ltd [1976] Ch 55 B. B v United Kingdom [2004] Application No. 53760/00 Bowers v Harwick [1986] 106 S. C. 2841 at p. 2844

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Dudgeon v United Kingdom [1981] ECHR 2

Eric Gitari v Non- Governmental Organisations Co-ordination Board & 4 others [2015] eKLR Ezekiel Adekunle v The State [1989] 5 NWLR (pt. 123) p. 5052

Ferodo Bros v Unibros [1980] FSR 489; Sony Kahushiki Kaisha v Hahani & Co Ltd (FHC/L/31/81)

FRN v Tomoluju Okunomo (2010) LPELR -4154 (CA) Hyde v Hyde and Woodmansee, [1866] LR 1 P&D 130

L. and V. v Austria and S. L v Austria [2003], Application Nos 39392/98, 39829/98, and 45330/99,

Lawrence v Texas [2003] 539 US 559, 123 S. Ct. 2472 Modinos v Cyprus [1993] Application No. 15070/89

Moses Oghenerume Taiga v Nneka Mercy Moses-Taiga [2012] 10 NWLR (Pt 1308)

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998)

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 (2 December 1999) Norris v Ireland [1988] 10581/83

Obergefell v Hodges, 576 U. S [2015]

Okey Jibulu & Anor v FRN, LER [2015] CA/L/635/2013 Okogie v A.G. Lagos State [1981] NCLR 2187

The People v Paul Kasonkomona, CR No. 9/04/13

Thuto Rammoge & 19 ors v A. G Botswana, in Suit No. MAHGB 000175-13

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Toonen v Australia [1994] 1 International Human Rights Reports 97 (No.3) UAC v McFoy [1962) AC 152

NON-LEGAL SOURCES Books

COLAPINTO J., As Nature Made Him: The Boy who was Raised as a Girl (New York:

HarperCollins, 2000);

CHURCHILL W., Homosexual Behaviour among Males: A cross-cultural and Cross Species Investigation, (Westerleight, UK: Hawthorn Books, 1967)

EPSTEIN J. & STRAUB K. (Eds), Body Guards: The Cultural Politics of Gender Ambiguity, (New York: Routledge, 1991)

FREUD S., Three essays on the theory of sexuality, (New York: Basic Books, 1905/1975) HERDT G. H., Guardians of the flutes: Idioms of Masculinity, (New York: McGraw-Hill, 1981) LENNOX C. & WAITES M. (eds.) Human Rights, Sexual Orientation and Gender Identity in The Commonwealth: Struggles for Decriminalisation and Change (London: School of Advanced Study, University of London, 2013)

LEV A. I., Transgender Emergence: Therapeutic guidelines for working with gender-variant people and their families (New York: Haworth Press, 2004);

LEVAY S., Gay, Straight and the Reason Why (New York, Oxford University Press, 2011) MONEY J., & EHRHARDT A. E., Man and Woman, Boy and Girl: The Differentiation and Dimorphism of Gender Identity from Conception to Maturity, (Baltimore: Johns Hopkins University Press, 1971);

NWANKWOALA C., A letter to my Countrymen (AuthorHouseUk, 2013) SOYINKA W., The Man Died (New York: Harper & Row, 1972)

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STRACHEY J. (Ed.), The standard edition of the complete works of Sigmund Freud, (London:

Hogarth, vol. 18, 1920/1975)

Journals/Thesis/Reports/Papers/Manuals

ASBY D. J., ARLT W., & HANLEY N. A., The Adrenal Cortex and Sexual Differentiation during Early Human Development, 10 Rev Endocr Metab Disord (2009),

BOGAERT A. F., Biological Versus Nonbiological Older Brothers and Men’s Sexual Orientation, 28 (103) PNAS (2006), p. 10771

CASS V. C., Homosexual Identity Formation: A Theoretical Model, 4 Journal of Homosexuality, (1979), pp. 219 – 235

DIAMOND M., & SIGMUNDSON H. K., Sex Reassignment at Birth. Long-term Review and Clinical Implications, 151 Arch Pediatr Adolesc Med. (1997),

D’AUGELLI A. R., ‘Identity development and sexual orientation: Toward a model of lesbian, gay, and bisexual development,’ in TRICKETT E. J. et al (Eds), Human diversity: Perspectives on people in context, xxii (486) The Jossey-Bass social and behavioral science series, (1994),

FREUD S., 'The psychogenesis of a case of homosexuality in a woman,’ In: J. Strachey (Ed.), The standard edition of the complete works of Sigmund Freud, (London: Hogarth, vol. 18, 1920/1975), HAUSMAN B. L., Recent Transgender Theory, 27 Feminist Studies (2001), pp.465-490

MCCARN S. R., and FASSINGER R. E., Revisioning Sexual Minority Identity Formation: A New Model of Lesbian Identity and its Implications for Counseling and Research, 508 (24) The Counseling Psychologist (1996), DOI: 10.1177/0011000096243011)

MONEY J., HAMPSON J. G., & HAMPSON J. L., Imprinting and the Establishment of Gender Role, 77 Arch Neurol Psychiatry (1957)

MONEY J., & RUSSO A. J., Homosexual Outcome of Discordant Gender Identity/Role:

Longitudinal Follow-up, 4 J Pediatr Psychol. (1979)

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NAGOSHI J. L. and BRZUZY S., Transgender Theory: Embodying Research and Practice, 4 (25) Affilia: Journal of Women and Social Work (DOI: 10.1177/0886109910384068, 2010)

PHOENIX C. H., GOY R. W., GERALL A. A., & YOUNG W. C., Organizing action of prenatally administered testosterone propionate on the tissues mediating mating behaviour in the female guinea pig, 65 Endocrinology (1959) pp. 369–382

REINER W. G., & GEARHART J. P., Discordant Sexual Identity in some Genetic Males with Cloacal Exstrophy Assigned to Female Sex at Birth, 350 N Engl J Med. (2004),

TOMEO M. E., TEMPLER D. I., ANDERSON S., & KOTLER D., Comparative Data of Childhood and Adolescence Molestation in Heterosexual and Homosexual Persons, 30 Arch Sex Behav. (2001),

WILSON H. W., & WIDOM C. S., Does physical abuse, sexual abuse, or neglect in childhood Increase the likelihood of same-sex sexual relationships and cohabitation? A prospective 30–year follow-up, 39 Arch Sex Behav. (2009)

Internet Sources

https://en.wiktionary.org/wiki/non-cisgender,

http://www.dictionary.com/browse/gender-fluid?s=t,

https://www.naij.com/763127-shocking-gay-man-beaten-death-ondo-state-photo.html

http://www.bellanaija.com/2014/02/horrific-2-gay-nigerian-men-beaten-to-death-as-policemen- passersby-watch/

https://psychotherapypapers.wordpress.com/2008/11/12/kirby1/,

http://www.econlib.org/library/Bentham/bnthPML1.html

http://www.umiacs.umd.edu/~horty/courses/readings/hart-1958-positivism-separation.pdf,

http://www.afrilegstud.com/calsreview/PDF/privacyinnigeria.pdf

http://apcentral.collegeboard.com/apc/public/repository/ap05_comp_govpol_nige_42255.pdf

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http://www.pewglobal.org/2013/06/04/the-global-divide-on-homosexuality/, http://news.bbc.co.uk/2/hi/africa/542154.stm

https://76crimes.com/2015/05/21/nigeria-no-court-challenge-vs-alleged-police-misconduct/,

http://foreignpolicy.com/2015/06/29/supreme-court-gay-same-sex-marriage-decision-worlds- most-homophobic-country-nigeria/,

http://kenyalaw.org/caselaw/cases/view/108412/,

http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2014/03/Kasonkomona- Ruling.pdf,

https://www.hrw.org/news/2015/08/05/africa-rulings-move-lgbt-rights-forward,

http://www.jurist.org/hotline/2015/08/meerkotter-reid-no-fault.php

http://www.southernafricalitigationcentre.org/1/wp-content/uploads/2014/11/LEGABIBO- judgment-low-resolution.pdf,

http://sas-space.sas.ac.uk/4824/20/02Kirby_TheSodomyOffence.pdf, http://hudoc.echr.coe.int/eng?i=001-57547,

http://hudoc.echr.coe.int/eng?i=001-57834,

http://hudoc.echr.coe.int/eng-press?i=003-68197-68665,

http://hudoc.echr.coe.int/eng-press?i=003-673810-681021#{%22itemid%22:[%22003-673810- 681021%22]},

http://hudoc.echr.coe.int/eng?i=001-61627,

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LIST OF ABBREVIATIONS AC: APPEAL CASES

AG: Attorney-General

Arch Neurol Psychiatry: Archives of Neurology and Psychiatry

Arch Pediatr Adolesc Med: Archives of Paediatrics and Adolescent Medicine Arch Sex Behav: Archives of Sexual Behaviour

BCLR: Butterworths Constitutional Law Report CA: Court of Appeal

CALS: Centre for African Legal Studies CC: Criminal Code

CCT: Constitutional Court

CFRN: Constitution of the Federal Republic of Nigeria Cap: Chapter

Cwth: Common Wealth

ECHR: European Convention on Human rights ECtHR: European Court of Human Rights Ed: Edition/ Editor

FHC: Federal High Court

J Pediatr Psychol: Journal of Paediatrics Psychology LER: Legalpedia Electronic Report

LFN: Laws of the Federation of Nigeria

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LGBT: Lesbian, Gay, Bisexual, and Transgender LPELR: Law Pavilion Electronic Law Report N Engl J Med: New England Journal of Medicine NCLR: Nigerian Constitutional Law Report NGO: Non-Governmental Organisation NWLR: Nigerian Weekly Law Report No.: Number(s)

Ors: Others P: Page(s) PC: Penal Code

Rev Endocr Metab Disord: Reviews in Endocrine and Metabolic Disorders Rev: Revised

S/ Secs: Section(s) SA: South Africa SC: Supreme Court Tas: Tasmania

UK: United Kingdom US: United States

Wash U. L. Rev: Washington University Law Review ZACC: South African Constitutional Court

eKLR: Electronic Kenyan Law Repo

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The man dies in all who keep silent in the face of oppression

~Wole Soyinka1

1 SOYINKA W., The Man Died (New York: Harper & Row, 1972) p. 13.

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CHAPTER ONE: INTRODUCTION

1.1 Meaning of LGBT

LGBT is an acronym which simply means Lesbian, Gay, Bisexual, and Transgender. It is an acronym which has gained popularity overtime among internet users and it is used to refer to anyone whose sexual orientation is non-heterosexual or non-cisgender and not exclusively to people who are lesbian, gay, bisexual, or transgender. LGBT(Q) as an acronym was developed in the 1990s and replaced what was formerly known as “the gay community” and it is used to refer to a community of people whose sexual identities can create shared political and social concerns.

Individually, the persons falling under the term LGBT are identified with the respective sexual orientation they exhibit but are collectively grouped together under the umbrella of LGBT which is a form of a community or association that serves as a pressure group advancing the cause of its members and persons who fall under either of the terms that make up the LGBT. The acronym LGBT in this sense is used to refer to the sexual orientations of people who are not heterosexual, and does not necessarily cover the actual doing of a non-heterosexual sexual act, as some persons may identify as LGBT but nonetheless does not indulge in non-heterosexual sexual acts or conducts. In this Thesis, the research would be limited to only LGBT and would not include a consideration of persons who identify as ‘Questioning’ or ‘queer’. This is because, the rights of such persons are not much affected under the present laws in Nigeria as those questioning their sexual orientations or identity still retain or identify with the sexual orientations or identities they already have but are questioning same due to some reasons known to them. Queer or questioning is not outlawed in Nigeria as freedom of thought is guaranteed to everyone under the Nigerian 1999 Constitution and other International Instruments which Nigeria is a signatory to and which are binding on the country. Again, given the fact that it will be difficult to identify the sexual orientation of those who identify as Questioning or Queer, even if it were to be outlawed, it may be extremely impossible to identify anybody as questioning for purposes of prosecution or conviction, unless such a person voluntarily comes forward stating his or her sexual orientation as being Questioning or Queer.

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1.2 Background to the Study

On 17th February, 2016 one Akinnifesi Olumide Olubunmi was beaten to death in Ondo State, Nigeria following allegations that he was caught with another man engaging in a homosexual act.

While his alleged accomplice escaped, Akinnifesi was not as lucky as he was clubbed and beaten severely which led to his death the following day due to complications arising from the beating.2 There is also another instance of jungle justice against gays recorded somewhere in Nigeria in December 2013, although unverified, wherein 2 alleged gay men who were said to have been caught in a homosexual act were beaten to death3 in the presence of some security officials,4 who instead of stopping the dastardly act and arresting the culprits merely watched as if it was a soap opera and walked away when one of their fellow spectators, in reference to one of the victims declared in Yoruba language “o ti ku.”5 In the researcher’s hometown, Nteje,6 people perceived to be gay or lesbians are rounded up by local vigilantes and humiliated in the public by clubbing and flogging them and making them walk round the streets naked. These happenings could be termed mob justice since the victims were not afforded a proper trial, neither were they given fair hearing nor the opportunity to defend themselves.

Mob Justice means the unlawful conducts of a group of people who take the laws into their own hands, thereby assuming the position of a judge, jury, and executioner, and meting out punishments to persons accused of allegedly committing certain offences. In most mob justice scenarios, the victims of the mob justice are usually stripped naked, clubbed, inflicted with severe bodily injury, and in extreme cases beaten or burnt to death. All these happens without any proper trial or conviction of the victim for the alleged offence. Section 36 (4)7 provides that “whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.” Even where a person stands accused of a criminal offence, the constitution still affords him the right to respect for the dignity

2 https://www.naij.com/763127-shocking-gay-man-beaten-death-ondo-state-photo.html accessed on 15.03.2016 at 17:06

3http://www.bellanaija.com/2014/02/horrific-2-gay-nigerian-men-beaten-to-death-as-policemen-passersby-watch/

accessed on 15.03.2016 at 17:33

4 Men of the Nigeria Police Force

5 Which means ‘he is dead’. Yoruba is a language spoken by the Yoruba race which is one of the 3 largest ethnic groups in Nigeria.

6 A town in Anambra State, Nigeria.

7 Constitution of the Federal Republic of Nigeria 1999 as amended hereinafter referred to as ‘CFRN 1999 as amended’

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of his person and prohibits subjecting such a person, or any other person for that matter, to inhuman or degrading treatment.8 And finally, all accused persons, and all persons in general, is guaranteed a right to life.9 Akinnifesi Olumide Olubunmi10 and others like him were denied this right to fair hearing, right to the dignity of their persons, and in extreme cases their right to life. Life was snuffed out of Akinnifesi in contravention of his right to life,11 which can only be curtailed save in the execution of a court order. Mob justice is a crime under the Nigerian law.12 But it’s unfortunate that nobody till date has been arrested nor charged to court for the murder of Akinnifesi despite the fact that the dastardly act was carried out in broad day light in the full glare of the whole world. There is the need to afford persons accused of LGBT offences fair trial which is a constitutional requirement and not allow or seem to condone the meting out of jungle justice on LGBT persons without any opportunity to defend themselves. And where any instance of jungle justice is established, the culprits should be apprehended and made to face the full wrath of the law.

The 2014 Act13 seems to have ‘put an imprimatur of lawfulness on hate crimes targeting gays’14 in the Nigerian society. The late Akinnifesi may even be innocent of the ‘homosexual’ tag. He was not afforded any opportunity of defending himself before a proper law court against the obnoxious anti-gay legislations. The two men that were murdered, in the presence of some Nigerian policemen who did nothing to come to their rescue nor arrest their assailants on account of their supposedly gayness, met their untimely death because some sections of the society assume that the law had empowered them as vigilantes of the society to hunt down homosexuals and clean up the society. None of the assailants in both cases and numerous other instances had been brought to book, and this sends a wrong signal to other persons who may want to turn to homosexual bounty

8 Sec 34 CFRN 1999, as in note 7 above

9 Sec 33 CFRN 1999, as in note 7 above. It provides that ‘every person has a right to life and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.’

10 As in note 2 above

11 Section 33 CFRN 1999, as in note 7 above

12 Wounding, assault, inflicting grievous bodily injury, and murder are the usual constituting conducts in a mob justice, all of which are criminal conducts in Nigeria. See the case of Ezekiel Adekunle v The State [1989] 5 NWLR (pt. 123) p. 5052

13 Same-Sex Marriage (Prohibition) Act, 2013, hereinafter referred to as the SSMPA 2013

14 NOSSEL S., NOSSEL S., Can the Supreme Court’s Marriage Decision Help the World’s Most Homophobic Country?, accessed from http://foreignpolicy.com/2015/06/29/supreme-court-gay-same-sex-marriage-decision- worlds-most-homophobic-country-nigeria/, on 15.04.2016 at 20:00

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hunters in future, that the law supports whatever mob action that is taken against such homosexual persons.

1.3 Discrimination against the LGBT community

The enactment of the 2013 Same-sex Marriage (Prohibition) Act serves as a catalyst to so many otherwise latent discriminatory practices against persons who identify as an LGBT in the Nigerian society. The purport of section 5 (3) of the Act is to the effect that rendering assistance to any person suspected of being an LGBT person could land one into trouble as the police seems to have derived unlimited powers from the said provisions and could arrest, detain, and charge to court any person suspected to have offered assistance to an LGBT person in any manner. As is usual with the Nigerian law enforcements, suspicion of a crime leads to arrest before investigation, and in other occasions, a person could be charged to court upon un-investigated allegations and remanded in prison by the magistrate pending the completion of investigation by the police after which the case file would be forwarded to the Director of Public Prosecutions. The import of this is that one could be arrested on flimsy excuses and held on trumped up charges by overzealous law enforcement agents. As a result, players in the service sector are wary in the nature of services provided to customers, especially to persons who seem to be same-sex couples. A hotelier could turn away two male friends who came into a city and needed a place to spend the night. The hotelier may do this for fear that they might be homosexuals, as this may attract police raid on the hotel, closure of the hotel, and the possible detention and prosecution of the hotelier for the offence of supporting the operation of gay meetings by renting a hotel room to possible gays. In a piece by Collin Stewart titled “Nigeria: No court challenge vs. alleged police misconduct,”15 as reported by The Initiative for Equal Rights,16 21 young men were, in May 2015, arrested in Ibadan, Nigeria for engaging in “secret gay cult” based on the fact that they were organising an all-male party, and the fact that about 118 condoms were found in the room in which they were. The alleged gay party, as reported in the piece happened to be a birthday party. All the suspects were remanded in detention until some amounts of money were paid on each and every one of them to the police in

15 https://76crimes.com/2015/05/21/nigeria-no-court-challenge-vs-alleged-police-misconduct/, accessed on 15.04.2016 at 16:20

16 A Nigerian Non-Governmental Organisation (NGO)

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order to secure their bail. This is usually the case in most Nigerian police stations although, almost all Police Stations in Nigeria inscribe on their wall, ‘Bail is Free.’ Till date, there has been no known conviction for sodomy or offences in the new 2014 Act, as in most cases the prosecution’s cases lack merit and are either dismissed or struck out by the courts for want of diligent prosecution. In other situations, the accused persons may prefer to settle the matter out of court by paying some money to the police so that the police prosecutor will compound the offence, due to the fear of the negative publicity and social disapproval such homosexual prosecution may bring to the accused persons or to their families.

Section 17(3) (d) 1999 Constitution17 provides that the State, as part of its social objectives, shall direct its policy towards ensuring that there are adequate medical and health facilities for all persons. As already pointed out earlier, matters falling under Fundamental Objectives and Directive Principles of State Policy have been declared not to be a justiciable right.18 This notwithstanding, the social right of LGBT persons to adequate medical and health facilities is being limited by the effects of the new anti-gay law as the number of persons going for HIV treatment has reduced drastically.19 Hospital patients may find it difficult disclosing their sexual orientation to doctors for fear of putting the doctors in awkward positions of reporting the sexual orientations that constituted prohibited acts to the police. This is due to the fact that rendering help or services to LGBT persons has been made criminal under the new Act.20 As a result, LGBT sick persons do not receive the best medical care they need for fear of the repercussions of the new law.

The above situations and many unreported others informed the decision of the researcher to embark on this research and determine the state of laws with regards to the LGBT in Nigeria and make recommendations, where necessary, so as to protect the fundamental rights of people resident in Nigeria and who identify as an LGBT.

17 As in note 7 above

18 A.G. Ondo State v A.G. Federation, supra as in note 167 above

19 NOSSEL S., as in note 14 above

20 SSMPA 2013, as in note 13 above

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1.4 History of LGBT legislations in Nigeria

Culturally, LGBT conducts are regarded as a taboo which ought not to be legalised.21 The issue under consideration is the issue of fundamental rights and not whether certain conducts constitute a taboo in the society. Human rights is universal; it is not circumscribed to any one particular locality or continent. What amounts to human rights in London is same in Nigeria, and will remain the same in the United States of America. There is no Africanness in human rights. For instance, giving birth to twins used to be a taboo and Un-African in Igboland of Nigeria as twins were considered to be evil and portend bad omen to the family where they were born into. All twins born during that era were killed. This practice of ‘Un-African twins’ continued to hold sway until Mary Slessor, a Scottish missionary brought her influence to bear on the locals and helped stop the killing of twins.22 Africanness gives way for human rights, and the former cannot be used to justify practices that infringe the latter. Decriminalising anti-sodomy conducts is different from legalising same-sex marriages. Sexual orientation is regulated by private morality while marriage comes within the purview of public morality. In matters of private morality, the State has ought not to have a stake in looking beyond the home curtains to enquire what takes place between two consenting adults in the privacy of their home.

Same sex relations have been illegal in Nigeria since the colonial era when the Criminal Code was adapted from Tasmania’s Code. Traditionally, persons caught engaging in LGBT conducts risk banishment from the community, payment of fines, performance of rituals of expiation in order to appease the gods of the land, or being publicly shamed. The public shaming is done by making the alleged offenders go round the community or the village or market square naked while renouncing the offending acts allegedly committed by them. For those who go to church in Nigeria, they argue that the Christian Bible forbids same-sex relations and the Bible stipulates that anybody caught in such an act shall be put to death.23 Most Nigerian Christians abhor same-sex relations but they don’t go to the extent of advocating death for the perpetrators like the Bible prescribed. For the Moslems in Nigeria, the Quran too condemned sexual relations between persons of the same sex

21 SOLACE BROTHERS FOUNDATION et al, Human Rights Violations Against Lesbian, Gay, Bisexual and Transgender People in Ghana: A Shadow Report (Submitted for consideration at the 115th Session of the Human Rights Committee October 2015, Geneva)

22 NWANKWOALA C., A letter to my Countrymen (AuthorHouseUk, 2013), p. 38

23 See Leviticus 20:13

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and demanded that they be put to death through stoning.24 Notwithstanding these religious and cultural stipulations, Nigeria is a secular State.25 The Constitution provides that ‘the Government of the Federation or of a State shall not adopt any religion as State Religion.’ It has no State religion and the dictates of the Bible and Quran starts and ends in Churches and Mosques. Should there be a conflict between moral codes as enunciated in the Bible, Quran, or cultural teachings and the Nigerian Constitution, the Constitution prevails. This is because, the Nigerian Constitution is the highest law of the land and any law which is inconsistent with it shall to the extent of its inconsistency be void.26

Historically, Nigeria inherited most of its laws from Britain which ruled Nigeria until 1960 when Nigeria gained its independence. The Criminal Code (CC)27 which governs the southern part of Nigeria criminalised same sex relations and stipulated 14 years’ jail term as punishment for offenders.28 The Penal Code (PC)29 governing the northern part of Nigeria provided for death penalty for defaulters. In 2006, the Federal Executive Council proposed a bill titled ‘Same-Sex Marriage (Prohibition) Bill’ to the National Assembly for passage into law. The 5th National Assembly was unable to consider the Bill before its tenure elapsed due to the political permutations at the time surrounding the alleged 3rd term bid of former President Olusegun Obasanjo for the Presidency. The 6th Senate however passed the Bill in 2011 and the House of Representatives did same in 2013 before the Clerk of the National Assembly forwarded the Bill to the then President

24 Quran 7:80-84

25 Sec. 10 CFRN 1999 as amended.

26 Sec. 1 (3) CFRN 1999 as amended

27 The Criminal Code Act, Cap C28 LFN 2011. The criminal code was modelled after the Tasmanian Criminal Code of Australia, which itself was previously governed by the British. The Criminal Code Act, although a Federal enactment for the States in southern Nigeria, have been re-enacted into Criminal Code Laws by almost all the States Houses of Assembly in the South East, South South, and South West of Nigeria.

28 Section 214 CC The offence is tagged “unnatural offences” which means the offence of having carnal knowledge of a person or permitting anyone to have carnal knowledge of oneself against the order of nature. The order of nature referred to in the section means the penile penetration of the vagina as anything other than this brings such an act within the purview of unnatural offences and thereby sodomy. Implicit in this is the fact that both oral and anal penetration as well as penetration of the vagina using objects or other body parts other than penis is criminal and liable on conviction to a maximum term of 14 years imprisonment. Section 217 CC specifically provided for homosexuality and made it a felony with 3 years imprisonment. The difficulty here, however is as regards to what constitutes unnatural offences. Homosexual acts were also covered under Section 214 CC and a prosecutor may decide to charge an offender under the more severe section 214 as against section 217 CC which explicitly provided for it.

29 The Penal Code Law, Laws of Northern Region of Nigeria No. 18 of 1959. The penal code was modelled after Sudan’s Penal Code

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Goodluck Ebele Jonathan for his Assent. The Bill was signed into law by the President on the 7th day of January, 2014.

1.5 Statement of Problem

Is the Nigerian State legally justified in criminalising non-heterosexual conducts on morality grounds? Are LGBT conducts a choice process? The prohibition of LGBT conducts, same-sex relations and marriages by penal sanctions seem to be inconsistent with the Constitution as they are discriminatory against the fundamental rights of the affected LGBT individuals. The Constitution provides that

a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:- (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject…’30

The above provision further stated that ‘no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.’31 Juxtaposing the above Constitutional right against discrimination with the anti-LGBT criminal legislations, it is apparent that the said legislations seem discriminatory. It is the purpose of this research to show that indeed such criminalisations are discriminatory against the LGBT persons by showing that biology plays a vital role in the evolution and formation of LGBT conducts. The effects of biology on LGBT conducts and trait formation makes them ‘a circumstance of birth’, which the Constitution explicitly prohibited discriminations flowing from such circumstances.32

30 Sec. 42 (1) (a) CFRN 1999 as amended, as in note 7 above

31 Sec. 42 (2) CFRN 1999 as amended, as in note 7 above

32 Sec. 42 (2) CFRN 1999 as amended, as in note 7 above

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Again, as will be shown in the course of this research, some African countries sharing the same constitutional values on human rights with Nigeria33 have started moving away from the discriminatory anti-gay stance towards an inclusive fundamental rights protection for all their citizens. Cases from Botswana and Kenya point a glimmer of hope in this direction.

The Nigerian Criminal Code is an adaptation of the Tasmanian Criminal Code. Today LGBT conducts are no longer criminalised under the Tasmanian Code because the criminalisation run counter to Australia’s Constitution and the country’s international law commitments.34 Same International Covenant is binding on Nigeria. If sodomy law had become bad law in Tasmania from which Nigeria borrowed its criminal law, this presupposes that same sodomy law ought to be bad law too in Nigeria, being the recipient country. The situation of things in the United States of America35 and the United Kingdom36 would also be explored to show the changing times and how LGBT rights protection have come to evolve in those countries. Nigeria shares a lot in common with both the USA and the UK and these would be explored in chapter 4 of this work on comparative analysis.

Finally, this research will seek to make a distinction between State sovereignty to make laws for its citizens and the core of fundamental rights which is a global phenomenon and not restricted to any particular country or region.

1.6 The Need for Comparative Law

Comparative law as a discipline is aimed at the study of different jurisdictions or institutions, finding the functional equivalence, similarities and differences between them as well as an evaluation of the better jurisdiction or institution. The modern trend in comparative law is to study foreign laws so as to improve national legislations.37 In terms of legal development, no country is isolated as the borrowing of laws and ideas among countries and legal systems is ‘the most fertile

33 Nigeria, together with some other African countries are signatories to the African Charter on Human and People’s Rights, which came into force on 21.10.1986

34 The criminalisation was held to be a breach by Australia of its commitments under the United Nations’ International Covenant on Civil and Political Rights, 1966

35 The USA

36 The UK

37 SMITH J. M., Comparative Law and its Influence on National Legal Systems, in REIMANN M. and ZIMMERMANN R. (Eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006), p.

515

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source of development.’38 By development here, Watson refers to legal development and the impact legal transplant has on the borrowing countries. For instance, the French Civil Code was imported into many European and South American countries which served as a model for their respective civil codes. The Swiss civil code was transplanted to Turkey, and the draft of the German civil code served as the basis for the Japanese code.39 In Nigeria, the criminal code was modelled after the Tasmanian Criminal Code while the Penal Code followed that of the Sudanese Penal Code. Majority of Nigerian legislations were imported as a result of the beauty of comparative law, an exception being the Same-Sex Marriage (Prohibition) Act 2014 which was wholly an indigenous legislation traceable to no transplanting activity or any other country.

Comparative law in a legal system usually takes place at law making and adjudication stage. In law making, law borrowing is common among legislatures. It could take place in the form of the transplantation of a whole statute book or through the borrowing of just a rule from the statute book. In the case of national courts deciding cases, a lot of reasons have been advanced on the need why courts in certain situations ought to make a comparative analysis of the rule of law as applied in other jurisdictions. For instance, where a given issue has international dimension, restricting the interpretation and application of the rule alone to the national provision without making a comparative analysis may seem to be awkward. This is usually the situation where the national law is based on an international treaty.40 Again, where a national law is transplanted from another jurisdiction, it is only reasonable that reference as to how certain provisions of the rules of the transplanted law are interpreted, ought to be made to the original jurisdiction and see how such issues were decided. Finally, on the democratic front and issues of human rights, it will be anachronistic not to take into account how other jurisdictions interpret certain provisions of the constitutionally guaranteed fundamental rights to individuals given the fact that issues of human rights have a universal application.

In this work, a comparative study of the protection of fundamental rights of LGBT persons in Nigeria and some select foreign jurisdictions would be carried out in order to determine whether LGBT persons are adequately protected under the Nigerian laws. It should however be noted here that whatever recourse that is made to a foreign jurisdiction is merely of persuasive nature rather

38 WATSON A., Legal Transplant (2nd Edition, 1993) p. 95

39 SMITH J. M., as in note 37 above, p. 516

40 SMITH J. M., as in note 37 above, p. 519

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than a binding argument. Being a common law country that makes judicial precedent the bedrock of its adjudication, Nigerian courts can only apply precedents from higher national courts, whatever recourse to foreign logic is made on the basis of elucidation and persuasion only.

1.7 Research Methodology

This is a comparative research on the fundamental rights protection of LGBT persons within the Nigerian jurisdiction and some select foreign jurisdictions. The basic method of all comparative law is that of functionality,41 discovering the function a particular rule serves or the purpose for such rule. Michaels argued that comparative law is not evaluative because it gives no guidelines with which to gauge or discover which of the compared legal solutions is the better one.42 However, by adopting a functional method in a comparative research, the identified purpose in a given particular rule is expected to serve as the standpoint or the standard by which to evaluate the compared jurisdictions.43 Other methods of comparative studies, apart from functional method, that one may adopt include comparative legal history, the study of legal transplants, and the comparative study of legal cultures.44 According to him, there are some notable elements which proponents of functionalist comparative law agree that could be found in functionalist approach to comparative law. First, functionalism is factual as it focuses on effects of rules rather than on the rules themselves. Again, it combines its factual approach with the theory that its objects must be understood in the light of their functional relation to the society. Functionalism serves the third function of tertium comparationis to the effect that institutions, both legal and non-legal, are comparable if they are functionally equivalent. Finally, although not all are agreed on this, functionalism serves an evaluative function in a comparative study as it is used to determine which law serves its function or purpose better.45

41 Gordley J.,’ The Functional Method’, in Monateri P. G. (Ed), Methods of Comparative Law, (Cheltenham, UK:

Edward Elgar Publishing, 2012), p. 107

42 Michaels R., ‘The Functional Method of Comparative Law,’ in REIMANN M. and ZIMMERMANN R. (Eds), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006), p. 347

43 Gordley J., as in note 41 above, p. 109

44 Michaels R., as in note 42 above, p. 341

45 Michaels R., as in note 42 above, p. 342

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The above listed elements of functionalist approach to comparative law mirrors the objectives of this research and the purpose it aims to achieve. This research will adopt the functional method of comparative research as it suits better the purpose of this research which is to show that the criminalisation of LGBT conducts was unconstitutional and against the tenets of the core of fundamental rights freedoms. A functional comparison of Nigeria’s treatment of LGBT issues with some select foreign jurisdictions will be carried out and some recommendations would be made at the end on ways to end the discrimination suffered by LGBT persons in Nigeria.

1.8 Objectives of the study

This study is aimed at the critical evaluation of the Same-Sex Marriage (Prohibition) Act 2014, the Criminal Code, Penal Code of Nigeria, and other relevant legislations with a view to ascertaining whether they in fact did violate the fundamental rights of persons within the LGBT community as enshrined under the 1999 constitution (as amended). Some recommendations would be made, where necessary, after a comparative analysis of the laws as they are in some select foreign jurisdictions.

1.9 Scope of the study

This work will examine the concept of LGBT conducts, sexual orientations and identities, and same-sex relations with particular emphasis on the need for the protection of the fundamental rights of persons within the LGBT community. The work will review the Same-Sex Marriage (Prohibition) Act 2014, the marriage laws, and the penal laws of both the northern and southern Nigeria and compare them with what is obtainable in some select jurisdictions. Some recommendations would be made at the end of the research towards ensuring that the fundamental rights of LGBT persons resident in Nigeria and which the 1999 Constitution (as amended) protects are not trampled upon.

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1.10 Definition of Terms

Words may mean so many things to different people and a word may have more than one dictionary meaning, but for the purposes of this research, the under listed and defined words assume the definition ascribed to them therein for a proper understanding of the research.

Bisexual: Bisexual means an individual who is sexually and romantically attracted to both men and women. Such an individual is neither homosexual nor heterosexual but combines the attributes of both extremes.

Gay: Gay means a homosexual, usually male.46 For the purposes of this research, the meaning of gay is limited to, and taken to mean an individual who identifies as a man but who is predominantly romantically and sexually attracted to other men.

Gender: Gender is defined as the state of being male or female. It is the behavioural, cultural, or psychological traits typically associated with one sex47 and which distinguishes that particular sex from the other.

Gender Fluid: This means noting or relating to a person whose gender identity or gender expression is not fixed and shifts over time or depending on the situation.48 For instance, a person who was born male but whose sense of gender alternates between the male and female gender like a mood swing, and who in certain situations feels that he or she is a male, and at other times feels that he or she if a female. The person’s gender or the sense of gender is not fixed but fluid and changes as the mood of the person changes. Gender fluidity is different from Transgender given the fact that a transgender prefers the other gender other than the one he or she had at birth while in gender fluid, the individual prefers both male and female genders at different occasions and according to his or her mood. In such a case, the individual could identify as a male today, tomorrow he or she may identify as a female.

46 Cayne B. S. (Ed), The New Lexicon Webster’s Dictionary of the English Language, Encyclopedia Ed, (Lexicon Publishers, 1988), p. 394

47 Merriam-Webster, The Merriam-Webster Dictionary, New Ed (Massachusetts: Merriam-Webster Inc. Publishers, 2016)

48 Dictionary Thesaurus, http://www.dictionary.com/browse/gender-fluid?s=t, accessed on 18.04.2016 at 20:30

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Gender Identity: For the purposes of this research, gender identity is taking to mean a person's internal sense of being male, female, some combination of male and female, or neither male or female.49

Heterosexuality: Heterosexuality means the manifestation of sexual desire toward a member of the opposite sex.50 This simply means sexual relations between persons of opposite sexes.

Heterosexuality is the opposite of homosexuality which refers to sexual relations between persons of the same sex.

Homosexuality: Homosexuality means atypical sexuality characterized by manifestation of sexual desire toward a member of one’s own sex or erotic activity with a member of one’s own sex.51 Lesbian: This means a woman who is predominantly sexually and romantically attracted to other women. Lesbianism simply means female homosexuality.52

Non-cisgender: This is used to refer to people who do not have the same sex and gender but do not identify as transgender.53

Pansexual: This means exhibiting or implying many forms of sexual expression.54 It is used to refer to a person who has many sexual orientations and cannot be properly identified as being only homosexual, heterosexual, bisexual, or transsexual. This is different from being a bisexual as bisexual is limited to only the combination of homosexual and heterosexual preferences. Pansexual is multiple.

Sex: This is the sum of the peculiarities of structure and function that distinguish a male from a female organism.55 It means a designation of male or female based on biological characteristics, and could also mean the act of having sexual intercourse.

49 Merriam-Webster, as in note 47 above

50 Gove P. B. (ed), Webster’s Third New International Dictionary, (Massachusetts: Merriam-Webster Inc., Publishers, 1993), p. 1063

51 Gove P. B. (ed), as in note 50 above, p. 1085

52 Curzon L. B., Dictionary of Law, 5th Ed (Pitman Publishing, 1998), p. 220

53 Accessed from https://en.wiktionary.org/wiki/non-cisgender, on 23.03.2016 at 19:04

54 Merriam-Webster, as in note 47 above

55 Garner B. A. (Ed), Black’s Law Dictionary, Deluxe 8th Ed, (USA: West, a Thomson business, 2004), p. 1406

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Sexual Orientation: This is defined as a person’s predisposition or inclination toward a particular type of sexual activity or behaviour.56 It is a person's sexual preference or identity as bisexual, heterosexual, or homosexual.57 Differently put, it is a label used to designate an individual’s desire for intimate, emotional and or sexual relationships with people of the same sex, another sex, or multiple sexes.

Sexuality: Sexuality means the sexual habits and desires of a person.58In this research, sexuality is taken to mean a person’s exploration of sexual acts, sexual orientation, sexual pleasure, sexual preference, and sexual desire.

Transgender: This means a person who identifies with or expresses a gender identity that differs from the one which corresponds to the person's sex at birth.59 Transgender and Transsexual are usually used interchangeably, the only difference being that Transsexual most times is used to refer to a Transgender who underwent a sex-reassignment surgery to the particular sex he or she wants to be identified with.

Transsexual: Another name for transsexual is transgender. This is an individual who identifies as the opposite sex from the sexual genitalia that he or she was born with. This, such a person does, by dressing like the opposite sex and wanting to be addressed and referred to as belonging to that opposite sex. In certain situations, such a person may undergo surgical operations in order to have a sex-change or sex reassignment60 in order to bring her or him properly within the class of the sex which he or she desires and identifies with.

56 Garner B. A. (Ed), as in note 55 above, p. 1407

57 Merriam-Webster, as in note 47 above

58 Merriam-Webster, as in note 47 above

59 Merriam-Webster, as in note 47 above

60 Garner B. A. (Ed), as in note 55 above, p. 1537

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CHAPTER TWO: UNDERSTANDING LGBT

2.1 Overview

The purpose of this chapter is to determine whether the development of LGBT traits and conducts are a choice process or whether they are inborn traits that manifests over time in an individual. The determination of this is crucial to the resolution of the main research question on whether the Nigerian State is legally justified to criminalise LGBT conducts on morality grounds. This is so because, for an act or omission to amount to an offence in Nigeria, it must be willed61 unless such an act or omission falls within the class of negligent conducts expressly provided and exempted from the provisions of section 24 of the Criminal Code. If LGBT conducts are found to be a choice process, then they fall within the category of willed acts. Where however, they are found to be inborn traits, serious doubt is raised as to whether such acts ought to be criminalised considering the fact that LGBT persons did not choose to be born that way. Some LGBT theories and models will be considered in order to find out the actual role biology plays in the formation of LGBT traits.

2.2 LGBT Theories

A theory is an idea or set of ideas that is intended to explain facts or events.62 So many theories have been propounded in order to explain same-sex sexual attraction in people. A lot of people believe that same-sex sexual attraction is a matter of choice made by the individual involved, some view it as a learned behaviour weighed in the scale of nature-nurture dynamics, while others think of it as something which can only be explained by making reference to biology and the chemical components of a human body. These views have crystallized into so many theories put up by different writers in order to explain same sex sexual attraction in people. In this work, the

61 Sec 24 CC. The section provides that ‘Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident….’

62 Merriam-Webster, as in note 47 above

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researcher will consider only about 4 of such theories which include Psychoanalytic Theory, Learning Theory, Psychobiological Theory, and Transgender Theory.

2.2.1 Psychoanalytic Theory

This theory was propounded by Sigmund Freud63 who in his works; Three Essays on the Theories of Sexuality (1905)64, The Psychogenesis of a Case of Homosexuality in a Woman (1920)65, and Certain Neurotic Mechanisms in Jealousy, Paranoia, and Homosexuality (1922) expressed the view that all humans at birth were bisexual. By this he meant that at birth a child has the potential of exhibiting erotic dispositions to both male and female and that heterosexuality or homosexuality developed from this initial bisexual disposition. He believed homosexuality to be a variation of the sexual function produced by arrest of sexual development, and attributed homoeroticism to insufficient repression of the original bisexual disposition.66 According to his claim, a child’s sexual instinct, which he called libido is already active at birth and goes through radical changes during the course of the infant’s childhood. In proof of this assertion, he stated that an infant’s libido at birth is on the mouth which is satisfied by suckling at the mother’s breast from which it moves to the anus, and this too would be satisfied through defecation.

At the age of 2, the infant’s libido moves from the anus to the phallus67 and the libido could easily be satisfied through masturbation. It is not uncommon seeing little male infants sometimes fondling with their penis. The infant’s libido at the time it moves to the phallus at the age of 2 also begins to be directed externally towards other people. In males, this is directed towards other males because they too have penis, and according to Freud, this is the homosexual phase and it is likely that all adult males, whether homosexual or heterosexual, experienced this and may have repressed its memory.68 At the age of 3, the boy’s libido is transferred to his mother and for about 2 or 3 years he would have the sexual attraction to his mother. This, Freud referred to as the Oedipal

63 1856-1939

64 FREUD S., Three essays on the theory of sexuality, (New York: Basic Books, 1905/1975)

65 FREUD S., 'The psychogenesis of a case of homosexuality in a woman,’ In: J. Strachey (Ed.), The standard edition of the complete works of Sigmund Freud, (London: Hogarth, vol. 18, 1920/1975), pp. 147– 172

66 KIRBY A., ‘Freud on Homosexuality,’ https://psychotherapypapers.wordpress.com/2008/11/12/kirby1/, accessed on 20.03.2016 at 23:55

67 Phallus is a Latin word gotten from the Greek word “phallus” which refers to a penis.

68 FREUD S., as in note 64 above

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phase, named after the Greek mythology Oedipus, who unknowingly killed his father and married his mother. As this sexual fixation on his mother begins to wean out with the passage of time, the boy’s libido enters into a latency phase in which it is generally inactive. The latency period, which usually starts from the infant’s 5th or 6th year, lasts until puberty when the libido manifests itself again in the form of adult heterosexuality, a situation which Freud considered to be the normal developmental process of a human being.

The above described Freudian developmental process leads to adult heterosexuality. A disruption of the process midway results in homosexuality. According to him, this is the case when during the homosexual phase which is experienced at the age of 2, the libido gets stuck for a life time at the homosexual phase and fails to enter the oedipal phase. Where however, the libido did enter the oedipal phase, homosexuality also results from it where the libido gets stuck on the phase and the infant continues to be sexually fixated on the mother.

To rationalise lesbianism in women, Freud stated that a girl at the oedipal phase also have erotic fixations on the mother but which is redirected towards the father when she finds out that her mother lacks a penis. This redirection of affection creates some sort of rivalry in the mind of the little girl and she sees herself as being in competition with her mother for the love of her father. A situation may however happen, like the birth of a child by the mother whom she sees as her rival, which will make the girl resent the father and in turn, turn away from men altogether and would rather seek love from fellow females.

2.2.2 Learning Theory

Learning theory suggests that all human behaviours, including sexual orientations are learned and are not as a result of any inborn trait or any arrested development of the human brain. The proponents believe that a person’s sexual orientation is determined by the innumerable “carrots”

and “sticks” that have shaped his or her sexual feelings during childhood and adolescence.69 Learning theory is subdivided into 2; behaviour-learning theory and gender-learning theory.

69 LEVAY S., Gay, Straight and the Reason Why (New York, Oxford University Press, 2011) p. 34

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