(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Nigeria’s Federal Criminal Code punishes consensual homosexual conduct with up to 14 years in prison for men and women. Same-sex sexual relations are referred to as ‘against the order of nature’ and ‘acts of gross indecency’.
The Criminal Code Act Chapter 77 states:
- Section 214: '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: 'Any person who attempts to commit any of the offences defined in the last preceding section is guilty of a felony, and is liable to imprisonment for seven years. The offender cannot be arrested without warrant.'
- Section 217: 'Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony, and is liable to imprisonment for three years. The offender cannot be arrested without warrant.'
The Same Sex Marriage Prohibition Act 2013 prohibits public displays of affection, marriage and civil union between persons of the same sex. The same act bans LGBTI organisations in Nigeria.
Section 5 of the Same Sex Marriage Prohibition Act 2013 states:
- Section 5.1: 'A person who enters into a same-sex marriage or contract or civil union commits an offence and is liable on conviction to a term of 14 years imprisonment.'
- Section 5.2: 'A person who registers, operates or participates in gay clubs, societies and organisation [sic], or directly or indirectly makes public show of same sex amorous relationship [sic] in Nigeria commits an offence and is liable on conviction to a term of 10 years imprisonment.'
The High Court in Abuja has dismissed a lawsuit challenging the enactment of the Same Sex Marriage Prohibition Act 2013. The Tribune reports that Judge Abdul Kafarati ruled that the plaintiff, Teriah Ebah, lacked the authority to sue the state and in representing the LGBT Community. The Fundamental Rights (Enforcement Procedure) Rules 2009 that allowed persons to sue on behalf of the public does not give an individual the power to sue on behalf of others. The Tribune also reports that Ebah previously challenged the signing into law of the Same Sex Marriage Prohibition Act by President Goodluck Jonathan in January 2014.
According to Human Rights Watch (2012), in North Nigerian states applying Sharia law consensual homosexual conduct among men is punishable by death and by six months in prison in the case of consensual sex between women. States applying Sharia law include Bauchi (2001), Borno (2000), Gombe (2001), Jigawa (2000), Kaduna (2001), Kano (2000), Katsina (2000), Kebbi (2000), Niger (2000), Sokoto (2000), Yobe (2001) and Zamfara (2000), as stated in this 76crimes article.
The Canadian Federal Court ruled in 2012 that an immigration officer’s judgment of a Nigerian gay applicant’s condition improperly relied on stereotypes and ordered reconsideration of the case. The Canadian Federal Court considered the ‘complete picture’. The issue should not be establishing homosexual identity in Canada to the Officer’s satisfaction, but rather whether the applicant is regarded as a homosexual in Nigeria and whether authorities are looking for him for this reason, thus putting him at risk.
In 2010, the Irish High Court found difficulties in assessing claims of persecution by reason of sexual orientation. UNHCR Guidance Notes and credibility findings are discussed. The Court deemed there to be no great risk if the applicant were to be returned to Nigeria. Excluding the isolated cases in Sharia states in the North, Nigeria is a vast and populous country and no real difficulties may arise for the applicant if he were to keep his homosexual activity private. A well-founded fear of persecution must go beyond a certain threshold and this burden of proof rests on the applicant. The applicant in this case did not provide sufficient evidence. (Note: while the Republic of Ireland is not a part of the Schengen Zone and, therefore, is not subject to immigration-related judgments from the European Union, the majority of the EU and Schengen Zone follows a different line of analysis on the issue of keeping ones sexuality private to avoid persecution. The decision by the Court of Justice of the European Union in the Joined Cases of X, Y and Z, 7 November 2013, ruled that asylum seekers fleeing persecution on the basis of their sexuality should not be expected to restrain their expression or conceal their sexuality on return to their home country to avoid persecution.)
Okoli v. Canada (Minister of Citizenship and Immigration), 2009 FC 332, Canada: Federal Court, 31 March 2009
The Canadian Federal Court granted judicial review in 2009 because of faulty procedure made by the board member assessing the applicant’s credibility.
In 2008 the New Zealand Refugee Status Appeals Authority granted refugee status to the appellant given the country information and the appellant’s own evidence and considering that should he return to Lagos and exercise his right to privacy he would risk losing his employment and experience violence by police and vigilante groups. These consequences go beyond ostracism and shunning. The Authority had also previously held that homosexuals constitute members of a particular social group.
In 2008 the Federal Circuit Court in the USA denied the petitioner’s claim because the petitioner committed aggravated felonies and was considered not to have provided corroborating evidence of their homosexuality.
The Australian Refugee Review Tribunal held that the federal court erred in 2007 when it did not examine whether the applicant belonged to a particular social group made up of Nigerian “homosexuals” but rather the more specific subgroup “practicing homosexuals”.
The applicant feared he would be singled out and not be provided with the right care in prison as he carried AIDS, Capsis Sarcoma and Valley Fever. Although the applicant’s testimony and documentary evidence regarding intentional torture was not voluminous, the testimony if credible, may be sufficient to sustain the burden of proof without corroboration. The applicant’s petition for review was granted.
PUBLIC ATTITUDES AND/OR STATE'S CAPACITY TO PROTECT
The Guardian published an article by popular Nigerian author Chimamanda Ngozi Adichie and Jackie Kay who have outspokenly compared Nigeria’s anti-gay law to Nazi Germany. Kay, winner of the Guardian fiction prize, said that ‘it is dangerous for any country to legalise a witch-hunt of an already oppressed minority; it will lead to an unprecedented hysterical homophobia that will set the clock back in the fearful past. It is reminiscent of Nazi Germany. It will lead to people fleeing for safety, to informers, to pitting one African citizen against another.’ Nigerian novelist Helon Habila criticised the government: ‘It is clear this is a government which is short of ideas, desperately trying to bring up nonsensical diversions to distract attention from the situation in the country. Just yesterday there was the attack on the boarding school. This government has lost the war on terror. So what they have decided to do is start inventing laws against gays, just to get the support of the people.’
The BBC reports that the Same Sex Marriage Prohibition Act 2013 was adopted by the Senate in 2011 and passed by the lower house of parliament May 2013 and signed by President Goodluck Jonathan in January 2014. In his justification to the associated press, the presidential spokesperson Reuben Abati argued that ‘this is a law that is in line with the people's cultural and religious inclination. So it is a law that is a reflection of the beliefs and orientation of Nigerian people.’ The law would also affect those trying to assist gay people, particularly making an impact on healthcare and the fight against the spread of HIV.
According to The Week, European colonizers set up anti-sodomy laws in Africa in the 19th and 20th centuries. Although rarely enforced, the new laws have been prompted by a resurgence of Evangelism propelled largely by American missionaries. The law’s purpose has been explained as a way of cleansing society of gay people. Michael Kirby's article explores the biblical perspective, explaining that sexual acts were perceived to be associated with procreative functions and sodomy was considered a form of pollution. Sodomy laws travelled from 14th century Britain into its colonies during the British reign. In post-colonial Islamic societies such as Northern Nigeria, there is a 'toxic mix' of British and Islamic influence that explain most of the current criminal prohibitions against consenting same-sex conduct.
In March 2014 a Sharia court in northern Nigeria ordered four men ages 22-28 to pay fines and be flogged with horsewhips in court after being convicted for homosexual activity. The Islamic justice system, of equal standing to state and federal courts, is prevalent in northern states and enforces death by stoning for sodomy if there are four witnesses to the act or voluntary confession. Because the men were not caught in the act, they evaded the death sentence despite the two confessions given by the defendants.
According to this BBC article, in February 2014, gay men in the Northern Nigerian state of Bauchi were hunted down because a newspaper report contained a list of names of those belonging to a ‘homosexual association.’ The Islamic police initially had no success in tracking the men down, so they turned to the general public for help. Pastors were alerted to preach in churches and mosques about this ‘illegal thing’ and parents were asked to keep an eye on their children’s whereabouts. The Hisbah, the Sharia police claim to be proud to serve Allah in their campaign for arresting homosexuals. The community has increasingly become more active in the demands for punishment. During the bail hearing for the accused, a mob had formed and rocks were thrown outside the courtroom. The police fired shots in the air to disperse the crowd.
NON-GOVERNMENTAL ORGANIZATIONS (NGOs)
International Centre For Reproductive Health And Sexual Rights (INCRESE)
INCRESE is a non-profit NGO that seeks to promote sexual reproductive rights, provide health information and services to women, adolescents and sexual minorities and provide support mechanisms for those living with HIV/AIDS, victims of seuxal violence and sexual minorities.
COUNTRY OF ORIGIN EXPERTS
We do not currently have a country of origin expert for LGBTI issues in Nigeria, but would welcome suggestions.
Researched by: Karel Kingsley
Email: karelkingsleyhotmail [dot] com