Forks in the road to equality: The path for same-sex attracted individuals in Australia and Nigeria

Abstract

This article will consider the trajectory towards equality for same-sex attracted people in Australia and compare that to the reduction in legal rights in Nigeria over a comparable period. It will set out some of the critical legislative changes in both jurisdictions and consider why these countries are moving in radically different directions in relation to this issue.

The movement for equal rights can be considered a post-Universal Declaration of Human Rights (UDHR) ¹ phenomenon. Following the Declaration, and subsequent adoption of international covenants and treaties on human rights which embrace principles of equality on the basis of sexuality, ² there has been a significant increase in awareness of the day-to-day and systemic/structural discrimination imposed on LGBTIQA+ individuals and the widespread human rights abuses against them. ³ However, there has not been a universal move to enshrine legal equality for LGBTIQA+ individuals. Instead, countries are moving in opposite directions to either eliminate the legal barriers to equality or erect additional legal obstacles on the path to equal rights for the LGBTIQA+ community. ⁴ Two critical examples of this – the legality of lesbian and gay sex, and of marriage equality – will be explored in this article to demonstrate the polarisation of approaches to equality in Australia and Nigeria. The article does not, however, explore issues such as the enforcement of laws, nor the lived experiences of the LGBTIQA+ community.

The idea that people should enjoy freedom to decide who to share a sexual relationship with, regardless of sex or gender, and to marry anyone they want without government interference, is not embraced equally in all jurisdictions. Australia’s move towards marriage equality, and Nigeria’s move away from marriage equality, clearly illustrate different possible trajectories. They also present an interesting case study in post-colonial law reform from two former British colonies, both of which inherited colonial laws prohibiting homosexual activity. This article suggests that, despite their shared colonial history, the post-colonial trajectory in Nigeria and Australia can be understood in part as a reflection of different social/religious attitudes in each jurisdiction, with Australia embracing more liberal principles of equality and Nigeria, instead, enacting religious perspectives into its anti-homosexuality laws. At the same time, sexuality has been politicised in each jurisdiction, with pro-inclusion activism in Australia being contrasted with a political narrative in Nigeria, that homosexuality is a western imperialist imposition which must be resisted. Despite these trajectories, the article concludes that generational change may affect this dynamic in Nigeria, as trends and new attitudes among the younger generation might lead to consequential law reforms.

A shared post-colonial legacy

One explanation for the current variation in laws regulating and punishing homosexual conduct around the world is the legacy of colonisation. ⁵ The argument is that different colonial powers exported different approaches to the regulation of homosexual activity, and that ‘the British Empire was responsible for spreading laws that criminalize homosexual conduct amongst its colonies, whereas other imperialists were not’. ⁶ While this article does not need to interrogate the accuracy of this proposition, it is notable that both Nigeria and Australia are former British colonies and, as part of the British Empire, they inherited laws such as the Buggery Act 1533 criminalising homosexual activity. ⁷ As former British colonies, Australia and Nigeria share experience of the imposition of colonial laws, and a post-independence reform process, with Australia becoming independent in 1901, ⁸ and Nigeria gaining its independence from Britain on 1 October 1960. ⁹ However, it is notable that the social tolerance or lack thereof for LGBTIQA+ individuals at the time of independence (arguably greater in 1960 than 1901) does not seem to have significantly influenced the current laws in either jurisdiction.

An explanation for this may be the substantial differences between Nigeria and Australia, despite their shared colonial history. The relative importance of religion, which is likely to have a particularly strong influence on the legal regulation of the LGBTIQA+ community, is one reason. It might appear that the population of Nigeria is more religious than Australia, and that religion is becoming more important within the community: ‘[r]eligious activities are on the rise by the day in Nigeria; it is not abating’. ¹⁰ A 2015 research report found that 50 per cent of Nigeria’s population identified as Muslim, 48.1 per cent Christian, and 2 per cent identified with other religions. ¹¹ In contrast, Australian data suggests that, while Christianity is still the major religion, the Australian population is increasingly identifying as atheist or having no religion. For example, in the 2021 Australian census, 43.9 per cent of respondents indicated they were Christian, while 38.9 per cent indicated they had no religion. ¹²

While there are other, significant differences between the two countries, the prevalence and strength of religious attitudes towards LGBTIQA+ identities and lifestyles are notable. The impact that this prevalence and strength may have had, and the possibility of appropriation of homophobic sentiment for political reasons in Nigeria, will be further explored below. To contextualise this analysis, the legal status and rights of same-sex attracted individuals and same-sex marriage in each jurisdiction will first be summarised.

The journey to marriage equality in Australia

LGBTIQA+ people in Australia, like those in most countries, have historically suffered persecution. ¹³ The most extreme form was the prohibition of the act of homosexual intercourse, for which conviction at the time could result in a term of imprisonment. Individuals were still being arrested and charged for engaging in intercourse with others of the same legal sex into the 1970s.

The first Australian jurisdiction to repeal laws criminalising gay sex was South Australia (SA). In that state, a socially progressive Labor government wanted to decriminalise homosexuality as far back as the 1960s; however, this attracted more general support after the May 1972 murder in Adelaide of Dr George Duncan. Dr Duncan was a lecturer in law at The University of Adelaide, and a gay man, who was murdered just north of the university campus at a footbridge that now bears his name. His murder was widely regarded as a hate crime against homosexual men, and increased public awareness of the harassment and violence often meted out to those who were same-sex attracted in the South Australian community. ¹⁴ This galvanised community support for the cause of decriminalisation, which was seized upon by then SA Premier, Don Dunstan, to progress reform of the state’s criminal law to fully decriminalise gay sex. ¹⁵

Equivalent law reforms were enacted in the Australian Capital Territory in 1976, Victoria in 1980, the Northern Territory in 1983, New South Wales in 1984, Western Australia in 1989, Queensland in 1990 and Tasmania in 1997. ¹⁶

The decriminalisation of gay sex was, however, not sufficient to ensure equal participation by LGBTIQA+ individuals in our community. LGBTIQA+ people continued to deal with hostility and violence as well as frequent discrimination before the law both as individuals and as same-sex couples. Over time, and with a great deal of advocacy from the LGBTIQA+ community, these issues attracted increasing attention from the community, media and politicians. This inspired a range of legislative reforms in every state and territory, as well as federally, to eliminate legal barriers to equal participation in Australian communities by LGBTIQA+ people. For example, federal legislation in 2008 significantly changed the legal status of same-sex couples, recognising them on an equal footing to de facto couples in areas as diverse as taxation law, social security law, immigration and superannuation. ¹⁷ In addition, the federal Sex Discrimination Act 1984 was amended in 2013 to prohibit discrimination based on sexual orientation, gender identity and intersex status. ¹⁸

However, comprehensive reform was slow, as evidenced by a 2015 law reform project conducted by the South Australian Law Reform Institute (SALRI) into ‘legislative or regulatory discrimination against individuals and families on the grounds of sexual orientation, gender, gender identity, or intersex status’. ¹⁹ The SALRI paper identified more than 140 SA Acts and Regulations that discriminated (or potentially discriminated) against individuals on the basis of their sexual orientation, gender, gender identity or intersex status, ²⁰ and generated substantial reforms in that jurisdiction to remedy many of the discriminatory laws identified. Similarly, the 2007 Human Rights and Equal Opportunity Commission’s report, Same-Sex: Same Entitlements, found that heterosexual couples, including those in de facto relationships, were treated better than same-sex couples in health care, family law, superannuation, veterans’ entitlements, social security and aged care; this also inspired reforms. ²¹

Such reforms across Australia made significant inroads into the legislative exclusion of LGBTIQA+ individuals. However, marriage was excluded from the agenda of equality. Indeed, in 2004 the Marriage Act 1961 (Cth) was amended to define marriage as a union of a man and a woman, and to clarify that same-sex marriages entered into under the law of another country would not be recognised in Australia. ²²

Despite this, calls for same-sex marriage continued to gain strength in the Australian community and various politicians responded by introducing more than 20 marriage equality Bills to federal parliament between 2004 and 2016. ²³ All lapsed or were defeated. Nonetheless, this demonstrated growing public and political acceptance of marriage equality, and significant pro-equality activism. ²⁴ Finally, in 2016, the Liberal Party made an election promise to hold a national plebiscite that would ask Australians: ‘Should the law be changed to allow same-sex couples to marry?’

In 2017 the national vote was held, with 61.6 per cent responding in the affirmative and 38.4 per cent voting No. ²⁵ Following this vote, in December 2017, Australia updated its 1961 Marriage Act to allow for marriage equality by defining marriage as ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life’. ²⁶ By this definition, marriages in Australia can be contracted between same-sex persons. This overwhelming support, and the subsequent amendment of the Marriage Act to enact the national endorsement of marriage equality, could be regarded as a high point in the fight for equality in Australia, as it meant that Australia joined the ranks of nations which have embraced marriage equality. ²⁷

Before considering how and why Australia reached that point, the very different legislative changes in Nigeria will be considered.

Legal changes reducing equality in Nigeria

The principles of equality and non-discrimination in Nigeria are anchored on s 42 of the Nigerian Constitution ²⁸ which prohibits discrimination based on ethnicity, place of origin, religion, sex, circumstances of birth or political opinions. Legal instruments are subject to this provision and administrative actions are implemented to give effect to it. However, it has been suggested that, with the exclusion of sexual orientation as a protected attribute under the Nigerian Constitution, there may be no constitutional limit to the enactment of homophobic laws in Nigeria. ²⁹ This view seems to have been operationalised, as laws which discriminate against, or prohibit, homosexual activity have been enacted and have not been subject to successful constitutional challenge.

This can be illustrated by the criminalisation of homosexual activity. Nigeria operates a dual criminal code system – the Criminal Code 1916 which is modelled on the Criminal Code 1899 (Qld) applies to southern Nigeria, while the Penal Code 1960 is modelled on the Sudanese Code that operates in northern Nigeria. ³⁰ Prior to the enactment of the Same Sex Marriage (Prohibition) Act 2013 (SSMPA/the Act), both codes operating in southern and northern Nigeria outlawed same-sex relationships and activities. The Criminal Code in s 214 provides that:

Any person who:

   1) has carnal knowledge of any person against the order of nature; or

   2) has carnal knowledge of an animal; or

   3) permits a male person to have carnal knowledge of him or her against the order of nature;

is guilty of a felony, and is liable to imprisonment for fourteen years.

Section 215 of the Criminal Code further criminalises an attempt to commit any of the offences under s 214 and prescribes a seven-year jail term for offenders. Similarly, s 284 of the Penal Code prescribes a 14-year jail term in addition to payment of a fine as penalty for committing unnatural offences or offences against the order of nature. Nigeria’s Supreme Court in Magaji v Nigerian Army ³¹ has interpreted the offence of sodomy or homosexuality to mean an offence ‘against the order of nature’. Within this context, homosexual activities and same-sex relationships in Nigeria are regarded as unnatural offences punishable by law. Arguably, the country’s criminalisation of sodomy is an attribution of colonialism in its legal system. ³²

It is against the background of these laws that the SSMPA was enacted. Following demonstrations for same-sex marriage during the international conference on HIV/AIDS in 2005, ³³ the Federal Executive Council, under Nigeria’s former President Olusegun Obasanjo, proposed a Same Sex Marriage Prohibition Bill (2006). ³⁴ The expressed rationale for the legislation was both religious and cultural, with President Obasanjo stating: ‘it is un-African to have a [sexual] relationship with the same sex. If you look at the holy books, the Bible and the Koran, it is prohibited’. ³⁵

The Bill was not passed during Obasanjo’s administration but was revived under the succeeding administration. The Bill introduced criminal penalties for marriage ceremonies between persons of the same sex, but also criminalised anyone who ‘witnesses’, ‘aids’ or ‘abets’ such a relationship. The Bill was strongly opposed by human rights groups within Nigeria and more broadly, including United Nations officials and the African Commission on Human and Peoples’ Rights, which predicted the Bill ‘would lead to arbitrary arrests, extortion, and marginalization of the already stigmatised LGBT population’. ³⁶

Despite the international backlash and condemnation, in January 2014 Nigeria’s then President Goodluck Ebele Jonathan passed the Bill into law ³⁷ with his spokesperson marking the passage of the law as an alignment with the cultural and religious beliefs of the majority of Nigerians who oppose same-sex marriages. ³⁸

With this authorisation, Nigeria launched a new era of the reduction of rights for homosexuals. Section 1 of the SSMPA provides that:

A marriage contract or civil union entered into between persons of same sex:

a) is prohibited in Nigeria; and

b) shall not be recognised as entitled to the benefits of a valid marriage.

This provision implies that, in addition to outlawing same-sex marriages in Nigeria, same-sex persons within the definition of civil unions are prohibited from cohabiting as sex partners. Consequently, same-sex partners are deprived of any marital benefits. These consortia of benefits have been summarised to include citizenship rights, inheritance rights, financial benefits and socio-cultural benefits. ³⁹ Additionally, same-sex marriages contracted within or outside Nigeria are not granted legitimacy within the country and parties cannot lay claim to any benefits accruable to heterosexual couples. For instance, a same-sex partner cannot confer citizenship rights on his or her spouse within the purview of s 26 of the Nigerian Constitution which enables men to confer citizenship rights on their foreign wives, but without conferring the same rights on women married to foreigners.

Under the Act, contracting a same-sex marriage or entering into a same-sex civil union attracts 14 years imprisonment while administering, witnessing, abetting or aiding the solemnisation of a same-sex marriage attracts a 10-year jail term.

The Act defines marriage as a ‘legal union entered into between persons of opposite sex in accordance with the Marriage Act, Islamic Law or Customary Law’ while s 3 emphasises that only marriages contracted between a man and a woman shall be recognised as valid in Nigeria. This means that all valid forms of marriage practised in Nigeria are recognised, however the ascription of validity to marriages contracted between a man and a woman may create potential challenges in the enforcement of the law where a party to the marriage contract has undergone gender reassignment. While there is no capacity to change the sex assigned at birth in Nigeria, a participant in a Nigerian marriage could have sought a legal change of sex or gender identity in another country which faciltates such change. ⁴⁰

The SSMPA under s 4 further prohibits ‘the registration of gay clubs, societies and organisations; their sustenance, processions and meetings’, and it has been opined that this provision seeks to restrict LGBTIQA+ movement in Nigeria. ⁴¹ The import of this section is that any club or society, of which the majority of its members are gay or its objectives are largely for the promotion of gay activities, cannot be registered in Nigeria. This position has been given judicial imprimatur in Pamela Adie v Corporate Affairs Commission (CAC) ⁴² where the petitioner sought an order of court declaring CAC’s refusal to register her organisation, ‘Lesbian Equality and Empowerment Initiative’ an infringement of her constitutional right to freedom of association. The Court in dismissing her suit held that CAC’s refusal to register the organisation was not a violation of the petitioner’s right to association as the right is delimited by s 45 of the Constitution and the purported registration conflicts with the provisions of the SSMPA. One is compelled to agree with the Court in Pamela Adie v CAC that, with the continued retention of the SSMPA, cases seeking to grant recognition to same-sex activities will fail.

It is noteworthy that, since the Act came into force, there has been no conviction under the SSMPA despite recurring raids and arrests conducted by law enforcement agents in the country. ⁴³ This calls into question the utility of the Act and justification for its continued retention in terms of its contribution to equality and its jurisprudential value. The rather restrictive approach adopted by Nigerian Courts in addressing matters related to the SSMPA diminishes its jurisprudential value. In Teriah Joseph Ebah v Federal Republic of Nigeria, ⁴⁴ the Nigerian Federal High Court dismissed a suit filed by a Nigerian citizen residing outside the country who contended that certain provisions of the Act prohibiting same-sex marriages violated the fundamental rights of citizens under the Constitution and the African Charter on Human and Peoples’ Rights. The Court dismissed the suit on the grounds that the petitioner lacked the required locus standi to present the claim on behalf of other Nigerians because he had not suffered from the action of the federal government under the Act. The position enunciated in a number of cases ⁴⁵ is that a plaintiff is clothed with the standing to sue if such plaintiff discloses a special right or if the plaintiff shows that he has sufficient or special interest in the performance of the duty he seeks to enforce. Locus standi remains a vexed issue within Nigeria’s legal system because what constitutes sufficient interest is discretionary and the exercise of this discretion can present a defeatist ground for cases with potential to transform the legal landscape. Upturning what largely constitutes the status quo will require an audacious and purposive consideration of facts and law by Nigerian Courts, particularly where a reasonable cause of action has been disclosed.

Nigeria and Australia compared

The question here is why two countries which share historical features – both former colonies of Great Britain, both with consequentially similar legal structures, and both of which are federations – would have such different approaches to same-sex relationships and marriage equality?

In Australia, the struggle for equality has progressed in part due to advocacy from the LGBTIQA+ community and its supporters, which has increased legal and public acknowledgment of the community. It may be that this process is self-perpetuating, with greater social recognition of LGBTIQA+ issues creating cultural space for people to identify a non-binary sex/gender identity. In turn, this contributes to more cultural visibility and further increases the space for LGBTIQA+ identification. At the same time there has been a steady decline in the proportion of Australians who reported an affiliation with Christianity (down from 52.1 per cent in 2016 to 43.9 per cent in 2021) and an inverse increase in the percentage of the Australian population who state they have no religion (from 3.5 per cent in 1996 to 10 per cent in 2021). ⁴⁶ These factors have contributed to an increase in the percentage of the population identifying as LGBTIQA+. While precise figures are difficult to find, studies suggest increasing numbers of individuals identify as belonging to a sexual minority population in Australia. ⁴⁷ Estimates in Australia and elsewhere consistently report 3 to 4 per cent of the adult population identify as gay, lesbian or bisexual, with higher percentages in younger people. For example, 4 per cent of Australian males under 25 in Australia identify as gay or bisexual, and 7 per cent of Australian females under 25 identify as lesbian or bisexual. ⁴⁸

In direct contrast to Australia, Nigeria’s aversion to marriage equality and LGBTIQA+ rights is closely linked to the religious beliefs and acclaimed cultural values of many Nigerians. The country is predominantly occupied by Christians and Muslims, where both religions have texts and teachings expressly forbidding homosexuality. However, while Christian and Islamic religious teachings may influence peoples’ attitudes, subsequent behaviour and laws regarding the LGBTIQA+ community, the distinctive legal approach in different jurisdictions makes it clear this is not the only relevant factor. For example, the West African nation of Mali, where approximately 95 per cent of the population identify as Muslim, does not prohibit homosexual activity. ⁴⁹ And in a variety of majority Christian nations in Africa, consensual same-sex sexual acts are also legal. ⁵⁰ The extreme laws in Nigeria have been explained on the basis that homosexuality is alien to African culture ⁵¹ and anti-gay activists use this theory to crack down on LGBTIQA+ individuals. However, research refutes this claim and argues that homosexuality is deeply rooted in some Nigerian cultures – in northern Nigeria, effeminate men who sleep with other men are culturally recognised ⁵² and in southern Nigeria (Yoruba tribe) there is an indigenous age-long-term describing homosexuals in use. ⁵³

An alternative theory has been posited, which is that anti-homosexual laws in Nigeria can be understood, in part, as an outcome of the political process. Amusan et al argue that:

[s]tate-induced homophobia was employed as a strategy for creating cohesion among Nigerians amidst the pervading tension that enveloped the political space as a result of former President Jonathan’s ambition to seek a second term as allowed under the constitution. ⁵⁴

They also posit that there is an international dimension to the enactment of the Nigerian laws, as Nigerian politicians seek to distance themselves from international norms which are perceived to be ‘western’. ⁵⁵ The passage of the SSMPA amid international backlash, and its continued retention despite pressure from domestic and international groups, can be framed as part of a political narrative that homosexuality is a western imperialist imposition that must be resisted by Africans. ⁵⁶

However, it may be that these factors will not continue to influence Nigeria’s laws. A social perception survey published by The Initiative for Equal Rights (TIERs) reveals that support for the SSMPA is gradually declining. In 2015, 77 per cent of respondents supported the SSMPA, but this dropped to 57 per cent in the 2019 survey and down to 48 per cent in 2022. ⁵⁷ A progressive reduction in the number of Nigerians who support the Act could be a sign that perhaps the legislative future in Nigeria may take a different path, possibly closer to the progress to equality seen in Australia. ⁵⁸

Conclusion

The current legal landscape in Nigeria portends dire consequences for members of the LGBTIQA+ community who do not hide their sexuality. There is evidence that the enactment of the SSMPA heightened the climate of fear and censorship for LGBTIQA+ individuals and further exposed them to increased risk of violence and human rights abuses from the public and law enforcement. ⁵⁹ In addition, while there is limited research on how the SSMPA impacts access to HIV/AIDS care for gay Nigerian men, studies reveal that the Act deters them from coming forward for HIV testing and treatment. ⁶⁰ It is worth noting that this unintended consequence of the SSMPA could have debilitating effects on the public health administration of a country with the highest HIV burden in west Africa. ⁶¹

Perhaps then, we can hope that generational and social change, in addition to public health priorities, may provide the impetus needed for Nigeria’s legislature to change the nation’s trajectory and increase equality for the Nigerian LGBTIQA+ community. If this was to occur, perhaps Australia’s laws could be a model for Nigeria to follow? In such a case, Nigeria’s Marriage Act 1990 would need to be amended to redefine marriage as a civil union of two persons to remove the restrictions on same-sex persons. ⁶² Alternatively, Nigeria could take a different route to achieve marriage equality; amending s 42 of the 1999 Constitution of Nigeria to add the term ‘sexual orientation’ to the list of attributes protected from discrimination would open up discourse on marriage equality. This would be similar to the situation which occurred in South Africa, where the 1996 Constitution includes a prohibition against discrimination on a variety of grounds including sexual orientation. ⁶³ South Africa is, notably, the only African country which currently enshrines marriage equality.

It should also be noted that Australia’s move to marriage equality does not mean that LGBTIQA+ individuals in the country enjoy nationwide acceptance or protection from human rights abuses. It is, rather, reflective of Australia’s legal commitment towards a more equitable and balanced society. Nigeria’s stance on marriage equality serves as a reminder of the challenges that persist in societies bound by traditional and religious norms but this is perhaps not the limit of the problems.

This article considers the intricate nature of the pursuit of equality in different countries and emphasises the need for continued dialogue, legal reforms and cultural shifts to foster a more inclusive and equitable world. It also serves to remind us that religious norms, international and domestic political issues, and local activism, all play a part in law reform.