Author: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)
Chinelo Okparanta is a Nigerian writer, currently living as a citizen in the United States. She understands the prejudices of her native country, especially against homosexuals. In some parts of Nigeria, a gay individual may be stoned to death under the Shari’a law. Okparanta writes, in her lesbian romance Happiness like Water, ‘yes, our love may be hidden, but it is strong. It can still bring happiness’.
Why must the love between two consenting adults be hidden? Should the State have the power to decide towards whom one may show affection? These disconcerting questions may be answered in terms of global Constitutions.
The most important Brazilian decision which entailed the right to happiness was in 2011. The Supreme Court had to rule on the interpretation to be given to article 1.723 of the Civil Code, which only recognizes a common-law relationship between a man and a woman as a family unit which must be public knowledge, continuous, and long-lasting, and be established for the purpose of building a family. The need for the aforementioned ruling resulted from the fact that government bodies refused to grant these rights to homo-affectionate couples. Therefore, the Court had to decide if this union also covered same-sex couples, even though the provision expressly mentions ‘man and a woman’.
A same-sex union is known to be a sexual relationship between people of the same sex; namely, between two or more males or two or more females. This relationship often described as unnatural and amongst the Christian and Islamic faiths in Nigeria is general not accepted. Without any intentions of making an ideological or philosophical argument on the issue of the morality of this kind of relationship, I would like to explore the human rights implications of passing of the Same-Sex Marriage Prohibition Bill in Nigeria on 31 May 2013.
The new Bill refutes any benefits that may accrue to a marriage and restates that such a marriage will not be recognised, even when contracted outside Nigeria. It further outlaws the gathering of people of the same-sex and provides in very wide terms “directly or indirectly” liability for any person or group that is involved in a same sex relationship. It further stipulates a minimum period of 10 years imprisonment for direct or indirect involvement in issues concerning the rights of people of the same-sex. In enacting the Bill, the House of Assembly of Nigeria propose a $40million internet monitoring project to clamp down on people involved in same-sex unions.