NEW YORK, Jan. 26, 2009 - A bill before Nigeria's National Assembly to ban "same gender marriage" would expand Nigeria's already draconian punishments for homosexual conduct and threaten all Nigerians' rights to privacy, free expression, and association, Human Rights Watch said today.
In a letter to President Umaru Yar'Adua, leaders of the House of Representatives and Senate, the Nigerian National Human Rights Commission, and other national, regional, and international bodies, the group urged legislators and the president to reject the bill. The letter urged the country's leaders to combat an environment of stigma and violence against lesbian, gay, bisexual, and transgender (LGBT) Nigerians.
On January 15, 2009, the Nigerian House of Representatives voted favorably on the second reading of a bill "to prohibit marriage between persons of same gender." The bill would punish people of the same sex who live together "as husband and wife or for other purposes of same sexual relationship" with up to three years of imprisonment. Anyone who "witnesses, abet[s] and aids" such a relationship could be imprisoned for up to five years.
"This bill masquerades as a law on marriage, but in fact it violates the privacy of anyone even suspected of an intimate relationship with a person of the same sex," said Georgette Gagnon, Africa director at Human Rights Watch. "It also threatens basic freedoms by punishing human rights defenders who speak out for unpopular causes."
The House of Representatives referred the bill to its committees on Human Rights, Justice, and Women Affairs, which will hold a joint public hearing on it. If the House approves the bill on a third reading, it must then be approved by the Senate and President Yar'Adua.
Members of the House of Representatives reportedly justified the bill by citing links between "sodomy" and HIV and AIDS, making clear that they see the marriage ban as a deterrent to homosexual conduct, though research shows that HIV is most-often spread through heterosexual conduct in Nigeria. Article 214 of the Nigerian Criminal Code Act already provides up to 14 years of imprisonment for anyone who "has carnal knowledge of any person against the order of nature." As Human Rights Watch documented in a December 2008 report, this law is a Victorian-era provision that remained after the end of British colonial rule.
The proposed law contravenes several provisions of regional and international human rights standards. Article 2 of the African Charter on Human and Peoples' Rights promises every individual equal entitlement to rights and freedoms without distinction of any kind; article 3 of the charter guarantees all individuals equality before the law; and article 26 states that: "Every individual shall have the duty to respect and consider his fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance."
The United Nations Human Rights Committee, which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR) and evaluates states' compliance with its provisions, found in the 1994 case of Toonen v. Australia that laws criminalizing consensual, adult homosexual conduct violate the covenant's protections for privacy and against discrimination. Nigeria acceded to the covenant without reservations in 1993.
In its letter, Human Rights Watch pointed to grave human rights issues raised by the proposed law:
* The evident intent of the new bill is to extend the already-existing penalties for homosexual conduct.
* Criminalizing "living together as husband and wife" further expands these punishments. They would no longer be limited to sexual acts between people of the same sex, but would potentially include mere cohabitation or any suspected "intimate relationship" between members of the same sex. Far less evidence would be needed for conviction, and prejudice and suspicion would be a basis for arrests. This threatens all Nigerians' right to private life.
* The proposed five-year sentence for those who "abet" a same-sex relationship is greater than the punishment stipulated in the bill for those who enter into a "same gender marriage." This provision could be used to punish anyone who gives any help or advice to a suspected "same gender" couple - anyone who rents them an apartment, tells them their rights, or approves of their relationships. Advocates, civil society organizations, and human rights defenders would be ready targets.
* Under the bill's provisions, anyone - whether Nigerian or foreign - who enters into a "same gender marriage," or simply has a "same gender relationship" in another country and wishes to continue it in Nigeria, could be subject to criminal penalties when they set foot on Nigerian soil. This provides the state with even broader powers to invade people's privacy.
Similar concerns were raised in a joint public statement issued by the Nigerian Bar Association Human Rights Institute, Nigerian nongovernmental organizations, and Amnesty International.
In 2006, Nigeria's minister of justice proposed a similar bill, seeking to criminalize not only same-sex unions but also public advocacy and associations supporting the rights of lesbian and gay people. Sixteen human rights groups - from Nigeria, across Africa, and around the world - had condemned the bill for violating the freedoms of expression, association, and assembly guaranteed by international law as well as the African Charter on Human and Peoples' Rights, and for further jeopardizing the fight against the HIV and AIDS epidemic in the country. That legislation failed to come to a vote in the National Assembly.
Nigeria has the world's third-largest population of people living with AIDS. Data collected by international health organizations suggests that 80 percent of HIV infections in Nigeria result from heterosexual sex, which discredits the equation between "sodomy" and AIDS as drawn by the members of the House of Representatives. The proposed bill would further hinder HIV and AIDS education and prevention efforts in the country by driving some groups affected by the epidemic further underground for fear of violence. In July 2008, the UNAIDS (Joint United Nations Programme on HIV/AIDS) country report on Nigeria recognized that criminalization of vulnerable populations, including men who have sex with men, makes HIV and AIDS prevention and treatment efforts less accessible to these populations.
Violence against LGBT people is frequent in Nigeria. In September 2008, several national newspapers published articles criticizing a Christian church in Lagos that ministers to LGBT people: the articles included names, addresses, and photographs of members of the congregation and the church's pastor. Police harassment and threats forced the church to shut down and the pastor to flee the country. Some members of the congregation lost their jobs and homes and had to go into hiding, and several of them continue to be under threat of physical harm and harassment.
"This legislation would allow the state to invade people's homes and bedrooms and investigate their private lives, and it would criminalize the work of human rights defenders," said Gagnon. "It is not a ban on marriage, but an assault on basic rights."
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