Legislating Morality – The Nigerian National Assembly and Gay Rights

“The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.” - The US Supreme Court ruling in Lawrence Vs Texas
The gay rights debate has triggered so many questions, trailed by a Babel of answers, most of which are mired in socio cultural biases, religious postulations, socially embarrassing realities, apparent physiological inconsistencies, intolerance and ignorance. Fundamentally, over the years and across cultures, the questions have remained the same. “Is gay rights part of our inalienable human rights?” “Is Homosexuality against the order of nature?” “Is homosexuality morally wrong?”
In his dissenting opinion in the celebrated United States Supreme Court decision in Bowers Vs Hardwick (1986), Justice Stevens came to these conclusions: “Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 
Despite Justice Stevens’ opinion, the Supreme Court, in a 5-4 ruling, upheld the constitutionality of a Georgia sodomy law criminalizing oral and anal sex (between consenting adults when applied to homosexuals) in private. That was the United State’s first landmark legal salvo on the legality of homosexuality.
Back home to Nigeria, I have opted to focus on our “Sodomy laws” as against the recently promulgated law that criminalizes Same-Sex marriages. Going by our existing Laws, the maximum punishment for Sodomy in the twelve Northern states that have adopted Shari'a Law is death by stoning and applies to all Muslims and to those who have voluntarily consented to application of the Shari'a courts. In Southern Nigeria and under the secular criminal laws of Northern Nigeria, the maximum punishment for Same-Sex sexual activity is 14 years' imprisonment. In my layman’s understanding of the law, I had earlier assumed that passing a law that criminalizes same sex marriages despite the fact that the laws of the country already criminalized sodomy is tantamount to the hypothetical example of criminalizing boxing as a sport...then passing another law to criminalize seeking a boxing license and forming a boxing association. Fortunately my lawyer friend and brother, Emeka Akabogu, has since explained (with the caveat that this position is an attempt to embark on an exploratory voyage into the minds of our politicians) that what our House of Representatives did was to “go beyond the already criminalized private act of sodomy to the public glorification of same....for marriage presupposes a stamp of societal approval to a union” He also assumed that “they (the Representatives) wanted to lay the markers very clearly as far as that subject is concerned by covering the field”. He went further to opine that “Indeed it is very possible that a same-sex union or marriage may exist without consummation (in this case, the act of sodomy), in which event the partners would not have committed a crime under pre-existing laws”.
Personally, I honestly do not see how we can address the issue of Same-Sex Marriages without first addressing our existing Sodomy laws...tracing its etymology from a historical and legal perspective.
Legal History of “Sodomy Laws”
Beginning in colonial times there were prohibitions of sodomy derived from the English Criminal Laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. Nineteenth-century commentators similarly read American sodomy, buggery, and crime against-nature statutes as criminalizing certain relations between men and women and between men and men. “Instead of targeting relations between consenting adults in private, 19th century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals”. 
Without equivocation our sodomy criminal laws where inherited from the British Colonials so the English and American societies, at some point in their history, abhorred homosexuality with about the same passion as a number of Nigerians do today. So rather than the often heard Nigerian opinion on Homosexuality of “Oyibo people should not force their culture on us”, the question we should ask ourselves is why these societies made a volte-face on the issue of homosexuality. Especially given that the laws and religions that we mostly premise our abhorrence of homosexuality on where inherited from these Western cultures.
Shortly after its opening, London’s Cadogan Hotel became infamous for the arrest (in room No. 118) of the celebrated playwright and poet, Oscar Wilde on the 6th of April 1895. Mr. Wilde was charged with "committing acts of gross indecency with other male persons" (a euphemism for any sex between males) under Section 11 of the Criminal Law Amendment Act 1885. Wilde was tried, found guilty and served a two years (hard labour) sentence. The events at Cadogan Hotel on that day was immortalized by one of my favorite poets, John Betjeman, in his tragic poem “The Arrest of Oscar Wilde at the Cadogan Hotel” (I can still visualize one of my Lecturers, Dr. Babalola, intoning, while gazing into space and deliriously licking his lips);
“Mr. Woilde, we ‘ave come for tew take yew 
Where felons and criminals dwell:
We must ask yew tew leave with us quoietly
For this is the Cadogan Hotel.” 
That is how much homosexuals (regardless of their status in society) where hunted in the English society of that time. So, once again I ask, what changed in these societies? Why is Homosexuality now acceptable in several environments that hitherto considered it deviant behavior punishable under criminal laws?
As earlier alluded to at the beginning of this treatise, we will have to reexamine our understanding of homosexuality, and by extension our Sodomy laws, in the context of “Human Rights”, “Acts Against the Order of Nature” (Contra Naturam) and our “Religious / Cultural Beliefs”.
Homosexuality as Inalienable Human Rights
The kernel question before the United States Supreme Court in the celebrated 2003 verdict in Lawrence Vs Texas (that overturned the earlier referenced Bowers Vs Hardwick - 1986), was the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. In their seminal ruling, the learned Justices opined as follows;
“Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions”. 
The court further ruled that “The condemnation (of homosexuality) has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.”
This position essentially supports Justice Stevens’ earlier referenced dissenting opinion and overturned Bowers Vs Hardwick thereby abrogating Sodomy laws in 14 States of the United States of America.
Homosexuality as Contra Naturam, an “Act Against the Order of Nature
One of the arguments used in support of anti-gay legislations is that homosexuality is ‘peccatum contra naturam’, against the order of nature….this position was premised on the existing scientific data at the time. However we all know that the entire edifice of science is based on the idea of continued, incremental improvement and oftentimes acknowledging monumental continuous failures / misrepresentations of the past. The current scientific data of Homosexuality in animals was cited in the earlier referenced United States Supreme Court's decision in Lawrence v. Texas and helped set aside the contra naturam argument
So what does the current scientific evidence show?
Homosexuality has been observed and documented in well over 1,500 species. In fact no species (with the exception of species that never have sex at all such as sea urchins and aphis) has been found in which homosexual behavior has not been shown to exist. Actually, a part of the animal kingdom (including man) is hermaphroditic, truly bi-sexual. An estimated 1% of the entire human population, across all religions, races and creeds are hermaphrodites, so for them homosexuality is also not an issue (a number of female hermaphrodites are usually unaware of their condition till they are unable to bear children or they discover that they have un-descended testes). Modern Medicine has also shown that some humans have both X and Y Chromosomes (not to be confused with the normal XY Chromosome of males), having both testicular and ovarian tissue, and having ambiguous-looking external genitalia. Some women, especially those with Congenital Adrenal Hyperplasia (CAH) have penis like clitoris and develop masculine tendencies. During childhood and adolescence, girls with CAH prefer masculine activities and male playmates to a much greater extent than girls not exposed to these amounts of androgen.
The most well known homosexual animal is the dwarf chimpanzee, one of humanity’s closest relatives. The entire specie is bisexual. Sex plays a conspicuous role in all their activities and takes the focus away from violence which is the most typical method of solving conflicts among primates and many other animals. 
Lions are also homosexual. Male lions often bond together with their brothers to lead the pride and to ensure loyalty they strengthen the bond by often having sex with each other. Other homosexual animals include Dolphins, Killer Whales, Rams, and Giraffes (incidentally 9 out of every 10 pairings amongst Giraffes occur between males).
So if homosexuality occurs among animals, does that necessarily mean that it is natural for humans too? This raises another familiar question: “if homosexuality is not a choice, but a result of natural forces that cannot be controlled, can it be immoral?”
Religion and the Morality of Homosexuality
Religious and cultural objections to homosexuality are mostly premised on teachings of the Abrahamic faiths: Judaism, Christianity and Islam, three faiths to which I had, in the past, devoted considerable time to their study. Religious books of the aforementioned faiths tell us the story of the people of Lot, Sodom and Gomorrah, a rallying cry for homophobia. Today gay opponents follow a literal approach to the Bible when they cite Old Testament passages that declare, "You shall not lie with a male as with a woman; it is an abomination" (Lev. 18:22) and simply ignore other aspects of Leviticus that says not to eat shellfish (Lev. 11: 9-12), not to use mixed seed or fabrics (Lev. 19:19), not to harvest the corners of fields (Lev. 19:9), not to eat fat from ox, sheep or goat (Lev. 7:23), and that when a woman gives birth and bears a male child she shall be unclean for seven days (Lev. 12:2). 
The important thing to note here is that human interpretations of the holy books have historically proven not to be infallible. Man and the Church have made several wrong calls in the past; Galileo went against the Church’s teachings of Geo-centricity, the Bible and biased / falsified science was used to justify slavery...they asked, who could question the word of God when it says, "slaves, obey your earthly masters with fear and trembling" (Ephesians 6:5), or "tell slaves to be submissive to their masters and to give satisfaction in every respect" (Titus 2:9)’. Modern Christian Identity groups have claimed that several passages in the Bible (for example the stories of Phinehas and of the so-called "Curse of Ham") should be understood as referring to Miscegenation, i.e. Cohabitation, sexual relations, marriage, or interbreeding involving persons of different races, and that certain verses expressly forbid it. This same misconceptions were used in the past to justify the African slave trade. Religious bigots where ever ready to quote Genesis 9:25 where Noah condemned Ham and his descendents to perpetual servitude: "Cursed be Canaan! The lowest of slaves will he be to his brothers". Since Christians and even some Muslims eventually identified Ham's descendents as black Africans" the morbid, and at the time politically and religiously correct argument was that the Christian God sanctioned the trade in African slaves.
Miscegenation, until a couple of decades ago was a crime in the US, Europe and until 1985 or so, in South Africa! You then understand why in his dissenting opinion in Bowers Vs Hardwick, Justice Stevens’ specifically stated that “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack”.
Homosexuality in Nigerian Cultures and Societies
As for the argument that homosexuality is against Nigerian culture, my question is in which one of our cultures is it socially acceptable to discuss what is considered deviant sexual orientation? Even discussing deviant physiological features are a no-no in most of our cultures. For instance how many of our over 371 different ethnic extractions and cultures acknowledges the existence of hermaphrodites? How many of our cultures will accept that some women have CAH induced penis like clitoris? Yet we know that they exist...that hermaphrodites statistically constitute 1% of the human population and that Non-classic CAH may occur in up to 1 in every 100 people (though less common in African and Asian people), happening more often in people of Yupik Eskimo, Ashkenazi Jewish, Hispanic, Slavic and Italian background. (classic manifestation is more common in the Yupik Eskimos; about 1 in 300 babies). 
Fortunately at least one culture in Nigeria, the Hausa society, openly admits the existence of ‘Yan Dauda’, a strictly distinctive social category of males, who have adapted feminine mannerism, speech and dress. Some of the ‘Yan Daudu’ do have same-sex sexual relations with other men, consider themselves as women (rejecting totally their male identity) though the society struggles not to classify them as homosexual.
So in conclusion is gay rights part of our inalienable human rights? Is homosexuality against the order of nature? Is homosexuality morally wrong? I leave you to judge based on the facts presented, not emotions, religious or cultural sentiments.




Jekwu Ozoemene