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“THIS MAN IS MY WIFE”: THE SAME-SEX MARRIAGE PROHIBITION ACT OF 2014 IN NIGERIA

Published online by Cambridge University Press:  30 April 2021

Habibat Oladosu-Uthman*
Affiliation:
Senior Lecturer, Department of Arabic and Islamic Studies, University of Ibadan

Abstract

The increased visibility of same-sex relationships and the call for same-sex marriages have been particular challenges to the traditional marriage system in Africa in the contemporary period. While some critics have argued, erroneously, that same-sex relationships were completely unknown to the African continent until the advent of Western modernity, others have suggested that the practices speak to a greater malaise confronting African societies. Nigeria is not an exception in this case. In light of these trends, this article examines the Same-Sex Marriage Prohibition Act, which was promulgated by the Nigerian government in 2014 and has since led to infractions upon the human rights of citizens in same-sex relationships. The article examines these developments around same-sex relationships in the context of wider social and economic challenges to the traditional marriage institution in Nigeria.

Type
Article Symposium
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the Center for the Study of Law and Religion at Emory University

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References

1 Same Sex Marriage (Prohibition) Act, 2014 (accessed in an online version at (https://laws.lawnigeria.com/2020/01/10/same-sex-marriage-prohibition-act-2014/). Hereafter cited as SSMPA.

2 SSMPA, §§ 1–7.

3 Sadgrove, Joanna et al. , “Morality Plays and Money Matters: Politics of Homosexuality in Uganda,” Journal of Modern African Studies 50, no. 1 (2012): 103–29, at 104CrossRefGoogle Scholar.

4 See, for example, Noah Rayman, “4 Men Publicly Whipped in Nigeria for Having Gay Sex,” Time, March 6, 2014, https://time.com/14155/nigeria-gay-sex-whipped/.

5 Abraham, William, “Sources of African Identity,” in Africa and the Problem of Its Identity, ed. Diemer, Alwin (Frankfurt: Peter Lang, 1987), 2042Google Scholar, at 22.

6 Black's Law Dictionary, s.v. “Marriage,” 11th ed. (St. Paul: Thomson Reuters, 2019), 972 (emphasis added); Shambie Singer and Norman J. Singer, Sutherland Statutes and Statutory Construction, vol. 3A, 8th ed. (Eagan: Thomson Reuters, 2019), § 69:2; American Jurisprudence 2d, s.v. “Marriage,” vol. 52 (Eagan: Thomson Reuters, 2011), 144–45.

7 Eskridge, William N. Jr., “A History of Same-Sex Marriage,” Virginia Law Review 79, no. 7 (1993): 1419–513CrossRefGoogle Scholar, at 1420, 1457.

8 Kyalo, Paul, “A Reflection on the African Traditional Values of Marriage and Sexuality,” International Journal of Academic Research in Progressive Education and Development 1, no. 2 (2012): 211–18Google Scholar. See also Eskridge, “A History of Same-Sex Marriage.”

9 Sam, Monibo A., “Arranged Marriage: Change or Persistence? Illustrative Cases of Nigerians in the USA,” Journal of Comparative Family Studies 40, no. 5 (2009): 739–57CrossRefGoogle Scholar, at 747–50.

10 Otite, Onigu, “Marriage and Family Systems in Nigeria,” International Journal of Sociology of the Family 21, no. 2 (1991): 1554Google ScholarPubMed.

11 Brown, Judith E., “Polygyny and Family Planning in Sub-Saharan Africa,” Studies in Family Planning 12, nos. 8/9 (1981): 322–26CrossRefGoogle ScholarPubMed.

12 Historians agree that Islam made its inroads into the West African region at the closing decades of the tenth century to the eleventh century. See ‘Abdurrahman I. Doi, Islam in Nigeria (Zaria: Gaskiya Corporation, 1984): 15.

13 In the contemporary period, polygyny appears to be experiencing a downward patronage among West Africans. Judith Brown summarizes: “The United Nations Demographic Handbook for Africa showed 17–30 percent of married men are to be polygynous in 13 sub-Saharan African nations. In most countries, less than 25 percent of the polygynous men had more than two wives. A survey in Cameroon found that 20–30 percent of married men were polygynous.” Brown, “Polygyny and Family Planning,” 322 (citing United Nations Economic Commission for Africa, Demographic Handbook for Africa (New York: United Nations, 1978), 85). What this points to is that polygynous practice is fast losing its appeal among Africans. In fact, it has become the subject of various legislation in parts of North Africa, all of which are designed to rein in various infractions that have become common with the practice, including abuse of women and violence.

14 Augustine Nwoye, “The Practice of Interventive Polygamy in Two Regions of Africa: Background, Theory and Techniques,” Dialectical Anthropology 31, no. 4 (2007): 383–421, at 384–86. See also M. A. O. Aluko and J. O. Aransiola, “Peoples’ Perception of Polygyny in Contemporary Times in Nigeria,” The Anthropologist 5, no. 3 (2017): 179–84.

15 For more on the engaging discussions on the practice of polygamy or polygyny in parts of Africa, see Abdulrazaq O. Kilani, introduction to Beyond The Veil: Muslim Women in Sub-Saharan Africa, ed. Abdulrazaq O. Kilani (Lagos: Global Da'wah Communications, 2010), 1–9, at 4–5; Amira Mashhour, “Islamic Law and Gender Equality: Could There Be a Common Ground? A Study of Divorce and Polygamy in Sharia Law and Contemporary Legislation in Tunisia and Egypt,” Human Rights Quarterly 27, no. 2 (2005): 562–96; Christina Murray, “Legal Eye: Is Polygamy Wrong?,” Agenda: Empowering Women for Gender Equity, no. 22 (1994): 37–41.

16 For example, in South Africa, lack of participation in marriage by young South African adults has been linked “directly or indirectly to the oppressive social and political structures and processes created during the apartheid era” and particularly the way in which the labor migration system instituted in that era has had “profound force of instability and change in South African family life.” Victoria Hosegood, Nuala McGrath, and Tom Moultrie, “Dispensing with Marriage: Marital and Partnership Trends in Rural KwaZulu-Natal South Africa 2000–2006,” Demographic Research 20 (2009): 279–312, at 281.

17 See, for example, Anne E. Calvès's recent study of Burkina Faso, “‘No Money, No Honey’? Poverty and Young Men's Unmarried Relationships in Urban Burkina Faso,” Revue Quetelet/Quetelet Journal 7, no. 1 (2019): 7–26, https://doi.org/10.14428/rqj2019.07.01.01. Calvès also cites a number of earlier studies finding similar results. For a comparison of changing marriage patterns from South Asia, see Keera Allendor, “Schemas of Marital Change: From Arranged Marriages to Eloping for Love,” Journal of Marriage and Family 75, no. 2 (2013): 453–69, especially 465–66.

18 Karen Oppenheim Mason, “The Impact of Women's Social Position on Fertility in Developing Countries,” special issue, Sociological Forum 2, no. 4 (1987): 718–45; Mary M. Kritz and Douglas T. Gurak, “Women's Status, Education and Family Formation in Sub-Saharan Africa,” International Family Planning Perspectives 15, no. 3 (1989): 100–05, at 100–01; compare Allendor, “Schemas of Marital Change.”

19 While reliable data on the impact of HIV infections on the delay of marriage is not currently available, multiple studies have indicated that HIV infection leads to higher rates of divorce and difficulty in remarrying. The data on remarriage suggests that HIV may also impact decisions on first marriages. See Victoria Hosegood, “The Demographic Impact of HIV and AIDS across the Family and Household Life-Cycle: Implications for Efforts to Strengthen Families in Sub-Saharan Africa,” AIDS Care: Psychological and Socio-medical Aspects of AIDS/HIV 21, supplement 1 (2009): 13–21; Philip Anglewicz and Georges Reniers, “HIV Status, Gender, and Marriage Dynamics among Adults in Rural Malawi,” Studies in Family Planning 45, no. 4 (2014): 415–28.

20 Sheila A. Bishop, Hilary I. Okagbue, and Victor O. Adoghe, “Determining the Level of Sexually Transmitted Diseases (STDs) Awareness in Ota, Nigeria,” Journal of Public Health: From Theory to Practice (2019) (published ahead of print, Aug. 2, 2019), https://doi.org/10.1007/s10389-019-01128-7. While HIV rates are decreasing in Nigeria, the large population means that the threat of the virus remains significant even as transmissions decline. UNAIDS, “New Survey Results Indicate that Nigeria has an HIV Prevalence of 1.4%,” press release, March 14, 2019.

21 Mohammed Amino, “APC Chieftain to Sponsor Mass Wedding of 100 Couples in Sokoto,” This Day, December 28, 2017, https://www.thisdaylive.com/index.php/2017/12/28/apc-chieftain-to-sponsor-mass-wedding-of-100-couples-in-sokoto/.

22 In previous years, the governors of northern Nigerian states had organized similar mass weddings with the sole purpose of reducing what has been described as a “marriage deficit” in the area. See “Kano, Sokoto, Others Conduct Mass Weddings for 3,000,” PM News Nigeria, April 16, 2016, https://www.pmnewsnigeria.com/2015/04/16/kano-sokoto-others-conduct-mass-weddings-for-3000/.

23 Janet Bujra, “Targeting Men for a Change: AIDS Discourse and Activism in Africa,” Agenda: Empowering Women for Gender Equity 16, no. 44 (2000): 6–23. See also Vasu Reddy, “Homophobia, Human Rights, and Gay and Lesbian Equality in Africa,” Agenda: Empowering Women for Gender Equity, African Feminisms One 16, no. 50 (2001): 83–87.

24 R. B. Parkinson, “Homosexual Desire and Middle Kingdom Literature,” Journal of Egyptian Archaeology 81, no. 1 (1995): 57–76, at 60; Jackton B. Ojwang and Emily Nyiva Kinama, “Woman-to-Woman Marriage: A Cultural Paradox in Contemporary Africa's Constitutional Profile,” Verfassung und Recht in Übersee/Law and Politics in Africa, Asia and Latin America 47, no. 4 (2014): 412–33, at 414.

25 Deborah Amory and Mark Gevisser, “Homosexuality in Africa,” in Africana: The Encyclopedia of the African and African American Experience, ed. Kwame Anthony Appiah and Henry Louis Gates, Jr., 2nd ed., vol. 3 (Oxford: Oxford University Press, 2005), 227–31 (accessed online).

26 See Edwin W. Smith and Andrew Murray Dale, The Ila-Speaking Peoples of Northern Rhodesia, vol. 2 (1920; repr. Whitefish: Kessinger Publishing, 2010).

27 Will Roscoe and Stephen O. Murray, Boy-Wives and Female Husbands: Studies in African Homosexualities (London: Palgrave Macmillan, 2001), 173–86, at 176.

28 This refers to the period between 1382–1517 CE, when parts of what is known as Africa today belonged to the wider world of Islam. For more on sexual practice during this period, see Philip K. Hitti, History of the Arabs, 10th ed. (London: Macmillan Publishers, 2002), 715–16.

29 Amory and Gevisser, “Homosexuality in Africa,” 227.

30 Amory and Gevisser, 227.

31 Amory and Gevisser, 228.

32 Amory and Gevisser, 228.

33 Amory and Gevisser, 228.

34 Eskridge, “A History of Same-Sex Marriage,” 1419–20.

35 Ojwang and Kinama, “Woman-to-Woman Marriage.”

36 Ojwang and Kinama, 416.

37 Rodney Needham, Right and Left: Essays on Dual Symbol Classification (Chicago: University of Chicago Press, 1973), 27.

38 Amory and Gevisser, “Homosexuality in Africa,” 229.

39 Norman Fairclough, “Intertextuality and Assumptions,” in Analysing Discourse: Textual Analysis for Social Research (London: Routledge, 2003), 39–61, at 40.

40 Patrick Awondo, Peter Geschiere, and Graeme Reid, “Homophobic Africa? Toward a More Nuanced View,” African Studies Review 55, no. 3 (2012): 145–68, at 147.

41 “Nujoma and Swapo Join Mugabe's Gay-Bashing,” Mail and Guardian, February 14, 1997, https://mg.co.za/article/1997-02-14-nujoma-and-swapo-join-mugabes-gay/.

42 Joseph Bristow, “Homophobia,” in A Dictionary of Cultural and Critical Theory, ed. Michael Payne and Jessica Rae Barbera (Oxford: Blackwell, 1996), 335–44, at 335.

43 As quoted by Rachel Solomon, Past Present History Project (blog), accessed January 28, 2021, citing Times of Zambia, October 19, 1998.

44 Quoted in Reddy, “Homophobia, Human Rights,” 85.

45 David W. Austin, “Sexual Orientation and Gender Identity,” International Lawyer 46, no. 1 (2012): 447–62, at 449–50. See also Nigel Morris, “Commonwealth Nations to Have Aid Cut for Gay Rights Abuses,” The Independent, October 31, 2011, https://www.independent.co.uk/news/world/politics/commonwealth-nations-have-aid-cut-gay-rights-abuses-6255009.html. For reactions from African leaders, see “Ghana Refuses to Grant Gays’ Rights Despite Aid Threat,” BBC News, November 2, 2011, https://www.bbc.com/news/world-africa-15558769.

46 Austin, “Sexual Orientation and Gender Identity,” 450.

47 Press Release, Statement of African Social Justice Activists on the Threats of the British Government to “Cut Aid” to African Countries That Violate the Rights of LGBTI People in Africa, Pambazuka News (Oct. 27, 2011), https://www.pambazuka.org/activism/statement-british-aid-cut-threats-african-countries-violate-lbgti-rights, as quoted by Austin, “Sexual Orientation and Gender Identity,” 450. Austin quotes from an alternative version of the press release that is no longer available online.

48 Press Release, Statement of African Social Justice Activists, quoted by Austin, “Sexual Orientation and Gender Identity,” 450.

49 Omar G. Encarnación, “Global Backlash against Gay Rights: How Homophobia Became a Political Tool,” Foreign Affairs, May 2, 2017, https://www.foreignaffairs.com/articles/2017-05-02/global-backlash-against-gay-rights.

50 Gaudio, Rudolph, “Unreal Women and the Men Who Love Them: Gay Gender Roles in Hausa Muslim Society,” Socialist Review 95, no. 2 (1995): 121–36Google Scholar. See also Rudolph Gaudio, “Men Who Talk Like Women: Language, Gender and Sexuality in Hausa Muslim Society” (PhD diss., Stanford University, 1996).

51 SSMPA, explanatory memorandum.

52 Some of these conventions include the Universal Declaration of Human Rights. For example, Article 2 of the Declaration provides as follows: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or status. Furthermore, no distinction shall be made on the basis of political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any limitation of sovereignty.” UN General Assembly, Resolution 217 A, Universal Declaration of Human Rights (Dec. 10, 1948). See Durham, W. Cole and Scharffs, Brett G., Law and Religion: National, International and Comparative Perspectives (New York: Aspen Publishers, 2010), 79Google Scholar.

53 SSMPA § 1(2).

54 SSMPA § 3.

55 SSMPA § 5.

56 Wendy Isaack, “‘Tell Me Where I Can Be Safe’: The Impact of Nigeria's Same Sex Marriage (Prohibition) Act,” Human Rights Watch, October, 2016, https://www.hrw.org/report/2016/10/20/tell-me-where-i-can-be-safe/impact-nigerias-same-sex-marriage-prohibition-act.

57 Isaack, epigraph to “‘Tell Me Where I Can Be Safe’” (quoting a comment from an executive director of an Abuja nongovernmental organization made October 2015).

58 Isaack, “‘Tell Me Where I Can Be Safe.’”

59 Isaack.

60 Isaack.

61 Laurie Shrage, “Reforming Marriage: A Comparative Approach,” Journal of Applied Philosophy 30, no. 2 (2013): 107–21.

62 Bristow, “Homophobia,” 335.

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