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JURISPRUDENTIAL ANALYSIS OF HOMOSEXUALITY AND SAME SEX MARRIAGES: SUPPORTING THE NIGERIAN PERSPECTIVE

JURISPRUDENTIAL ANALYSIS OF HOMOSEXUALITY AND SAME SEX MARRIAGES:  SUPPORTING THE NIGERIAN PERSPECTIVE

 

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INTRODUCTION

 

  • Background of the study

Definition of Homosexuality 

Homosexuality is the romantic attraction, sexual attraction or sexual behavior between members of the same sex or same sex[1]. As a sexual orientation, homosexuality is “an enduring pattern of emotional, romantic, and/or sexual attractions” to people of the same sex. It also refers to a person’s sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions[2].

The phenomenon of homosexuality has long been ignored in many African countries and Nigeria is no exception. Most African countries see this phenomenon as a European concept and thus the rebellion of African states from European oppression to the colonial era, which led them to reject homosexuality. Homosexuality is said to be against the basic institutions and foundations of society and the family respectively and the laws of God, hence the famous saying that “God created Adam and Eve and not Adam and Steve.” [3]Homosexuality is therefore perceived as an evil in society. Conversely, due to the modernization and emergence of the notion of human rights, the Declaration of Rights and other treaties of international law, a different dimension of opinions against homosexuality. The ever-increasing emergence of fundamental human rights has led to acceptance of the conceptualization of homosexuality by many countries, including African countries. Therefore, in many countries, homosexual marriages and other relationships are accepted by state institutions and society. Nigeria remains an exception and homosexuality in Nigeria is not accepted or recognized by the state. This led to the question of whether Nigeria was in breach of its obligations under international law and its constitution in which the Bill of Rights was rooted. 

Who is a homosexual?

[4]A homosexual person is romantically or sexually attracted to people of their own gender. Men who are romantically or sexually attracted to other men are called gay.          According to the Lexicon Webster Dictionary[5], a homosexual is one who is characterized by sexual interest in a person of the same sex. The Oxford Dictionary of Current English defines a homosexual in its adjectival form; as a feeling or involving sexual attraction for people of one’s own sex.

From the definition above, it is clear that a homosexual is a person who prefers and affects affections, intimately and sexually to persons of the same sex; He is a man who would rather have sex with a man; And a woman who would rather have sex with another woman. It is clear therefore that a homosexual person can either be a man or a woman.  A male homosexual is often referred to as gay, which according to the Oxford Dictionary of Current English (supra), is a homosexual man.  While a female homosexual; is regarded or known as a lesbian (which originates from Lesbos; a Greek Island and homo of Sappho; who expressed her love for woman in her poetry).[6]

The Lexicon Webster Dictionary (supra) defined a lesbian as a female homosexual and lesbianism as homosexual relations between females[7].

The attitude of society towards homosexuality has varied from age to age; from society to society and from group to group.  Homosexuality has sometimes been extolled (praised enthusiastically); and at other times, it has been condemned as a heinous crime; a classic example is the destruction of Sodom and Gomorrah by God in the Bible[8]          Homosexuals vary in personal capabilities and appearances as widely as other groups, many are ordinary men and women (just ordinary people), a few have a made outstanding contributions in artistic and other field; for example, George Michael (Pop Musician), Sir Elton John (Musician)[9].

Criminalising homosexuality dates back to 1553 by the British, though the act was considered a purely moral issue and done within the preserve of the privacy of the practitioners. However, the act later became legal in Britain with no form of punishment attached[10]. Over time, the practitioners gradually fought for recognition first attaining the status of civil partnership, until the wake of the 21 st century when it attained the status of marriage which saw the passage of the gender neutrality in marriage and marriage laws which gave birth to same sex or gender marriage. This has become a policy which is being championed by the United Nations Human Rights Council. The developed nations of the world are daily embracing this phenomenon called same sex marriage[11].

Homosexual practice is not a new phenomenon.1 Homosexual activities either between male or female adults were considered as acts or activities carried out between two consenting adults as purely private affairs in society.2 Different legal systems of the world at one time or the other frowned at it and by legislations criminalized3 it, thereby making it a punishable offence with terms of imprisonment.[12] The concept of same sex marriage was unknown to legal jurisprudence till about the end of the 20th century. It was towards the tail end of the 20th century and the dawn of the 21st century that countries from the different continents of the world predominantly western societies commenced the process of reviewing their legal systems to legalise same-sex union or association. [13]These reviews brought about the introduction, acceptance and legal recognition of same-sex union in the form of civil partnership and later marriage between same sex partners.

What is marriage?

Marriage is the process by which two people make their relationship public, official, and permanent. It is the joining of two people in a bond that putatively lasts until death, but in practice is increasingly cut short by divorce. Marriage also is a universal institution which is recognized and respected all over the world.  As a social institution, marriage is founded on, and governed by the social and religious norms of society[14].  Consequently, the sanctity of marriage is a well-accepted principle in the world community. Marriage is the root of the family and of society.

Marriage is the world’s oldest institution. In Christendom, it is believed that it was instituted by God himself, [15] and it is as old as man’s creation.[16] Marriage therefore, is believed to be a sacred union that exists between a man and a woman.    The  term  marriage  has  been  described  elsewhere  as  “a  socially  sanctioned union, typically of one man and one woman, in this connection called husband and wife. Typically they form a family, socially, through forming a household, which is often subsequently extended biologically, through children. It is found in all societies, but in widely varying forms.”[17]In Islam,  marriage  has  been  defined  as  “a  contract  that  results  in  the  man  and  woman living with each other and supporting each other within the limits of what  has  been  laid  down  for  them  in  terms  of  rights  and  obligations.”[18] Furthermore, “it is a mutual contract between a man and a woman whose goal is for each to enjoy the other, become a pious family and sound society.

The common law definition of marriage is credited to Lord Bughley wherein he refers to it as, “the voluntary union for life of one man and one woman to the exclusion of all others.”[19] The existing marriage law in Nigeria, the Marriage Act, made no attempt to define marriage. However, recourse can be had to the Interpretation Act, which again did not define marriage. According to the Act, “monogamous marriage to mean a marriage which is recognised by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage.”[20] Marriage has been further defined as “a legal union entered into between persons of opposite sex in accordance with the Marriage Act, Islamic and Customary Laws.” In Islam, the function of marriage has been stated thus:

Marriage acts as an outlet for sexual needs and regulates it so one does not become a slave to his/her desires. It is a social necessity because through marriage, families are established and the family is the fundamental unit of every society…Marriage is the only legitimate way to indulge in intimacy between a man and a woman[21].

It is universally accepted that marriage, being a union of man and woman, involves two persons of opposite sex.  Consequently, sex constitutes an essential determination of marriage relationship[22].  In order, therefore, to establish the existence of a valid marriage, it must be proved that the persons involved are man and woman.  Ordinarily, this seems a straightforward question.  However, the issue has been complicated by the existence of hermaphrodites and pseudo-hermaphrodites and advances in medical science which has made sex-change operation feasible.  In the light of this important development, the legal question has arisen as to the sex of persons who had undergone sex-change operations and whether such person can be regarded as “man” or “woman” for the purposes of contracting a valid marriage.  This question has been considered in different jurisdictions[23].

In the English cases of Corbett v Corbett[24], the petitioner and the respondent went through a ceremony of marriage in September, 1963.  The petitioner knew that the respondent had been registered at birth as a male and had in 1960 undergone an operation for the removal of the testicles, most of the scrotum and the construction of an artificial vagina.  Since that operation, the respondent had lived as a woman.  In December, 1963, the petitioner filed a petition for a declaration that the marriage was null and void because the respondent was a person of the male sex or alternatively, for a decree of nullity on the ground of either incapacity or willful refusal to consummate.  [25]The respondent in the answer prayed for a decree of nullity on the ground of either the petitioner’s incapacity or his willful refusal to consummate the marriage.  Furthermore, she pleaded that the petitioner was stopped from alleging that the marriage was void. Ormrod, J. held that the respondent had remained at all times a biological male and that, accordingly, the so-called marriage was void.  The learned judge observed.

[1] Case No. S147999 in the Supreme Court of the State of California, In re Marriage Cases Judicial Council Coordination Proceeding No. 4365(…) – APA California Amicus Brief — As Filed” p. 30. Retrieved 21 December 2010

[2] Sexual orientation, homosexuality and bisexuality”. American Psychological Association. Archived from the original on 8 August 2013. Retrieved August 10, 2013.

[3] PhD, Associate Professor, Ag. Head of Department, Department of Jurisprudence and

International Law, Faculty of Law, University of Benin, Nigeria. Email:

obehiale@yahoo.co.uk

[4] Wong, Curtis (21 August 2014). “LGBT Customers Sound Off On Their Experiences With Anti-Gay Discrimination At Restaurants, Businesses”. HuffPost Queer Voices. Retrieved 17 March 2016.

[5] Delvin Patrick (1985).  Easing the Passing.  The Browley Law, p. 207.

[6] Bearman, Peter; Brückner, Hannah (2002). “Opposite-sex twins and adolescent same-sex attraction” 107. American Journal of Sociology. pp. 1179–1205.

[7] Delvin Patrick (1985).  Easing the Passing.  The Browley Law, p. 207.

[8] Esteven, Epstein (1987).  Gay Politics, Ethnics Identity:  The Limits of Social Constructionisms, Socialist Review, Nos. 93, 94.

[9] Bem, Daryl (11 Oct 2008). “Is There a Causal Link Between Childhood Gender Nonconformity and Adult Homosexuality?”. Journal of Gay & Lesbian Mental Health 12 (1-2): 61–79. doi:10.1300/J529v12n01_05. Retrieved 10 February 2017.

[10] PhD, Associate Professor, Ag. Head of Department, Department of Jurisprudence and International Law, Faculty of Law, University of Benin, Nigeria. Email: obehiale@yahoo.co.uk

[11] LL.B., B.L., Assistant Lecturer, Department of Private and Property Law, Faculty of Law, University of Benin, Nigeria. Email: osamagiagiemwen.garuba@uniben.edu and Jacob.garuba@gmail.com 08023553099

[12] Criminal Code Act C38/2010, section 216. See also Criminal Law Amendment Act 1885, section 1885 which provides “any male person who, in public or private, commits, or is a  party to the commission of, or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years. Available at www.swarb.co.uk/acts/1885/ Criminal_Law_AmendmentActs.html, accessed on Feb. 22, 2014).

[13] The Netherlands Same Sex Law 2001, Belgium Same Sex Marriage Law 2003

[14] Haviland, William A.; Prins, Harald E. L.; McBride, Bunny; Walrath, Dana (2011). Cultural Anthropology: The Human Challenge (13th ed.). Cengage Learning. ISBN 978-0-495-81178-7. “A nonethnocentric definition of marriage is a culturally sanctioned union between two or more people that establishes certain rights and obligations between the people, between them and their children, and between them and their in-laws.

[15] Genesis 2:18 King James Version.

[16] “The institution of marriage dates from the time of man’s original creation”. Available at www.bible.dictionary.org/marriage, accessed on Aug. 3, 2013).

[17] Ibrahim B. Syed Same Sex Marriage and Marriage in Islam. http:/www.irfi.org/articles/articles_151_200/same_sex_marriage_and_marriage_i.htm,

accessed on February 22, 2017.

[18] Id.

[19] These were the wise words of William Cecil, also known as Lord Bughley, for decades the Minister of Finance to Queen Elizabeth I and later, King James. He wrote these words to his son in approximately 1600 and one should replace the word ‘wife” with spouse to give it contemporary spice. Marriage Definition: Available at www.duhaime.org/legaldictionary/ M.Marriage.aspx, accessed on February 3, 2017).

[20] Same Sex Marriage (Prohibition) Act, 2013, section 7. This is a recent legislation, at the time of the writing of this paper, it has not come to our knowledge that it has been published.

[21] Concept of Marriage in Islam. Available at www.islamawareness.net/Marriage/marriage _article001.html, accessed on Aug. 10, 2013).

[22] Bell, Duran (1997). “Defining Marriage and Legitimacy” (PDF). Current Anthropology. 38 (2): 237–54. doi:10.1086/204606.

[23] Lemmola, Francesca and Camperio Ciani, Andrea (2009).  “New Evidence of Genetic Factors Influencing Sexual Orientation in Men:  Female Fecundity Increase in the Maternal Line”.  Archives of Sexual Behaviour (Springer Netherlands) 38.

[24] Mitchum, Robert (2007).  “Study of gay brothers may find clues about sexuality”.  http://archieves.chicagotribune.com2007/aug/12/nes.chi-gaygene_bd12aug12). Chicago Tribune.

[25] Vucheva, Elitsa. (30 July 2013) / Social Affairs / Europeans marry older, less often. Euobserver.com. Retrieved on 5 September 2013.

 

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