Beyond Morality and Empire: Rethinking The Criminalisation of Same-Sex Relations in Nigeria

Abstract

Nigeria criminalises consensual same-sex intimacy through four overlapping regimes: the Criminal Code, the Penal Code, the Sharia Penal Codes of twelve northern States, and the Same Sex Marriage (Prohibition) Act 2013. The public defence of these laws rests much on the claim that they express indigenous values. This article tests that claim and finds it historically incomplete. The secular offences in the Criminal Code and the Penal Code are colonial transplants traceable to Queensland and India. The Sharia codes, by contrast, revive a pre-colonial Islamic jurisprudence which was confined to part of the country and bound by exacting rules of proof, while southern societies regulated sex and gender mainly through kinship and taboo rather than imprisonment. The article then argues that the case for reform does not depend on winning the historical debate. Measured against sections 34, 36(12), 37, 39, 40 and 42 of the Constitution, the African Charter on Human and Peoples’ Rights, and the requirement in section 45 that restrictions be reasonably justifiable in a democratic society, the criminalisation of association, expression and vaguely defined “amorous” conduct may not be sustained. Drawing on Nigerian authority and on comparative decisions from Botswana, Kenya, Mauritius, India, South Africa and Europe, while confronting contrary decisions from Kenya and Uganda, the article proposes a calibrated reform: the State may continue to decline recognition of same-sex marriage while withdrawing criminal sanctions from private consensual conduct between adults, peaceful association and expression.