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LEGALISATION OF SAME SEX MARRIAGE, ADULTERY AND INCEST – A THREAT TO SECULAR HUMANISM?

Dr T. C. Osanakpo, SAN, FCIArb (UK)

AS A Speaker during the 2015 Nigerian Bar Association (NBA) Annual General Conference on the 24th August 2015 at Aso Hall, International Conference Centre (ICC) Abuja.

 

 

 

LEGALISATION OF SAME SEX MARRIAGE, ADULTERY AND INCEST – A THREAT TO SECULAR HUMANISM?

  1. PREAMBLE

1.1    I received an e-mail sometime last week from the Programme Director of the NBA to speak today the 24th August 2015 on “Legalisation of Same Sex Marriage, Adultery and Incest – A threat to Secular Humanism?”

 

1.2    On receipt of the invitation, I gave my consent to be part of today’s exercise notwithstanding the fact that notice to speak was rather short. The selected topic at this evening session of our Annual General Conference is one that tends to generate public interest perhaps because it is perceived as topical, contemporary and global in nature. Therefore the question that needs to be resolved at this preliminary stage of this discourse is – “what is same sex marriage?”

1.3    The response to the posed question is simply thus:

  • Same Sex Marriage is also known as gay marriage. Succinctly put, it is a marriage of people of the same sex either in a secular civil ceremony or in a religious setting[1]. In other words, same sex marriage is the union of two individuals of the same sex in a marital relationship with full legal rights and responsibilities.

(b)    “Same Sex Marriage is statutorily defined in Nigeria as the coming together of persons of the same sex with the purpose of living together as husband and wife or for other purposes of same sexual relationship.”[2]

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  1. JURISDICTIONS THAT HAVE LEGALISED SAME SEX MARRIAGE

2.1    Jurisdiction in this context is essentially the countries in the world that have enactment or legislation on the topic under focus. The question that may possibly agitate the minds of this distinguished audience is – “what is construed as legalized same sex marriage or what is legalization of same sex marriage?”

2.2    The questions raised in the alternative are basically the same. Therefore legalization of same sex marriage simply means the act of making same sex marriage lawful and legitimate in a jurisdiction. Thus by so doing, persons of same sex have the authorization and legal backing to publicly and without fear of sanction and stigmatization, profess and exchange their marital vows in celebration of the marital union. Furthermore, for the purpose of basic information the countries that have legalized same sex marriage as at June 2015 are namely:

  • Argentina
  • Belgium
  • Brazil
  • Canada
  • Denmark
  • England and Wales (UK)
  • Finland
  • France
  • Iceland
  • Luxembourg
  • The Netherlands
  • New Zealand
  • Norway
  • Portugal
  • Scotland (UK)
  • South Africa
  • Spain
  • Sweden
  • United States
  • Uruguay

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2.3    The point that needs to be made at this juncture in broad terms is,  that the jurisdictions that have legalized same sex marriage tend to affirmatively endorse personal liberty, equality of treatment whenever same sex marriage issue is subject of judicial scrutiny. This fact is exemplified in the landmark case of OBERGEFELL v HUDGES[3] where the United States of America Supreme Court in

June 2015 upheld same sex marriage and adjudged its general application in the entire United States of America. In Nigeria the jurisdiction to exercise judicial power on the vexed issue of same sex marriage is conferred on the High Court of a State or the Federal Capital Territory3.

  1. APPLICABILITY OR OTHERWISE OF SAME SEX MARRIAGE LEGISLATION IN NIGERIA

3.1    Undoubtedly there is no existing law in Nigeria that allows same sex marriage. This assertion is premised on Same Sex Marriage (Prohibition) Act 2014[4]. This piece of legislation was enacted by the National Assembly and came into force on the 7th day of January 2014. It prohibits all forms of marriage with persons of the same sex. In other words, the Same Sex Marriage (Prohibition) Act 2014 prohibits:

  • Marriage between two males; and
  • Marriage between two females.

3.2    Having aptly stated the applicable law that prohibits same sex marriage in Nigeria, the questions that possibly need answers at this juncture are essentially the following namely:

(i)     “what forms of marriages are permissible in Nigerian Jurisprudence?

(ii)    is there sanction imposed on any person or persons by way of imprisonment that violates the Marriage Prohibition Act of 2014?

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(iii)    apart from imprisonment of offenders of the Marriage Prohibition Act of 2014, are they other contemplated legal consequences on any person or persons that infringe the stipulations of the Act?”

 

(iv)   is prohibition of same sex marriage in Nigeria an infringement of Fundamental Human Rights enshrined in the Constitution of Federal Republic of Nigeria 1999 as Amended.

3.3    Based on the commended questions, my responses are thus –

(a)    as regards the first posed question, I submit that the permissible marriages in Nigerian jurisprudence are only  legal union entered into between persons of opposite sex in accordance with the Marriage Act, Islamic law or Customary law[5];

(b)    on the second posed question, sanctions are clearly provided in the Act. The legislation makes it a criminal offence punishable by 14 (fourteen) years imprisonment for those involved in same sex marriage. Furthermore, the Act imposes 10 (Ten) years imprisonment for those aiding and abetting and commission of same sex marriage. It is noteworthy to state that Same Sex Marriage (Prohibition) Act 2014 has no stipulation of option of fine on conviction of person(s) who commit same sex marriage, aid or bet its commission.

(c)    on the third raised question, the other contemplated legal consequences of any person or persons that infringe on the stipulations of the Act are –

(i)      such person or persons shall not be recognized as entitled to the benefits of a valid marriage recognized under the Nigerian legal system[6];

(ii)     a marriage contract or civil union entered into between Nigerian persons of same sex by virtue of a certificate issued by a foreign country is void in Nigeria, and any benefit accruing therefrom by virtue of the certificate shall not be enforced by any court of law[7] in Nigeria;

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(iii)    churches, mosques or any other place of worship is

prohibited from performance of solemnization of same sex[8];

(iv)  registration of gay clubs, societies and organizations, their sustenance, processions and meetings in Nigeria are prohibited[9];

(v)    prohibition of public show of same sex amorous relationship  in Nigeria conducted directly or indirectly[10];

(d)    with respect to the fourth question, the proponents of human rights may likely canvass that prohibition of same sex marriage is an infringement of fundamental human rights enshrined in Chapter 4 of the Constitution of Federal Republic of Nigeria 1999 as Amended. Non-Proponents  are most likely to canvass the opposite on the profound premise that fundamental human rights are not absolute by virtue of Section 45 of the Constitution of Federal Republic of Nigeria 1999 as Amended, and more so on the ground that fundamental human rights of any individual can be abridged on the strength of public morality, public policy, public security and public health.

  1. BASIC DEFINITIVE FEATURES OF SOME IMMORAL CONDUCTS

IN NIGERIA

4.1    In general terms immoral conducts are actions of human beings that are anti socio –traditional norms, religious beliefs and indeed inimical or at variance with public morality of a given society. Immoral conducts are undoubtedly broad. However for  the purpose of this discourse it will be limited to the following –

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(i)     Homosexuality: It is construed as “any male person who whether in public or private commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, attempts to procure the commission of any such act by any male person into himself or with another male person, whether in public or private is guilty of felony, and is liable to imprisonment for three years[11].

(ii)    Incest:  This simply means sexual relationship between male and female who are closely related by blood or affinity. It is construed as a crime of sexual relations or marriage taking place between a male and female who are closely linked by blood or affinity.”[12]

(iii)    Adultery: It is a “voluntary sexual relation between an individual who is married and someone who is not the individual spouse[13]. It is indeed sex between a married person and someone who is not that person’s wife or husband[14].

  1. SECULAR HUMMANISM

5.1    In order to effectively discharge the mandate of this assignment, it is imperative at this juncture to pause and ask, “what is a secular humanism?”

5.2    The response to the raised question is that secular humanism is synonymous to liberalism. It is indeed a set of beliefs that emphasize the importance of reason and of people rather than religion[15]. It dates back to 18th Century period of enlightenment and

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19th Century era of freethinking[16]. It is viewed as a system of values and beliefs that are opposed and antagonistic to the values and beliefs of traditional religion[17].

5.3    I am mindful of the question raised in the topic of this session. I posit that legalization of same sex marriage, adultery and incest will encourage the promotion of immoral conducts that have the potentials and capacity to increasingly get worse with time.

  1. CONCLUDING REMARKS

6.1    Nigerians are generally perceived as very religious people. However, the country is filled with persons of diverse religious inclinations rooted in Christianity, Islamic and traditional beliefs. Besides, they are Nigerians who manifest liberalism anchored in free thinking and not subject to any form of religious beliefs or persuasion.

6.2    In view of the highlighted premise that Nigerians are perceived to be highly religious in disposition, a plausible argument may be sustained in this discourse that many Nigerians are likely to abhor same sex marriage hence the enactment of Same Sex Marriage (Prohibition) Act of 2014. Therefore the legalization of the subject of discourse in Nigeria does not arise.

6.3    Notwithstanding the assertion canvassed in the preceding paragraph, legalizing same sex marriage, adultery and incest will most likely be a threat to secular humanism.

 

Thank you!

[1] Wikipedia online encyclopaedia

[2] See Section 7 of Marriage (Prohibition) Act, 2014.

 

  1. See Section 6 Same Sex Marriage (Prohibition) Act 2014

[4] See Section  1(i) (a)(b)  Same Sex Marriage (Prohibition) Act 2014.

 

 

[5] See Section 7, Marriage Prohibition Act of 2014

[6] See Section 1(b) of Same Sex Marriage (Prohibition) Act 2014

[7] See Section 1(2) of ibid

[8] See Section 2 of ibid

[9] See Section 4(1) of ibid

[10] See Section 4(2) of ibid

[11] See Section 217 Criminal Code Act, Cap C38 Laws of Federation of Nigeria 2010.

[12] See Oxford Dictionary.

[13]  See online free legal dictionary

[14] See Miriam Webster Dictionary.

[15] See Cambridge Advance Learners Dictionary

[16] See Got questions.com

[17] See American Humanist Association by Fred Edwards.

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