Why Nigeria Doubled Down on its Anti-Gay Legislation

It has been a very bad year for gay rights in Africa. In February, Uganadan President Yoweri Museveni signed into law a bill making “aggravated homosexuality” punishable with life in prison.  A month earlier in Nigeria, the Same-Sex Marriage Prohibition Act was quietly signed into law by President Goodluck Jonathan. In a country where consensual sex between men already attracted criminal penalties, the new bill increases penalties for gay sex to 14 years in prison, it makes same-sex marriage illegal, and also bans gay support and gay rights groups and makes same-sex public affection illegal with penalties of ten years in prison. Dr. Obiora Chinedu Okafor, a tenured professor at Osgoode Hall School, York University, Toronto, Canada, discusses the signing of the act, the motives for its passage, and potential responses from the international community to the law. The interview was carried out by Josh Scheinert, a lawyer focusing on international law in Toronto.

Josh Scheinert: The Same-Sex Marriage Prohibition Act was passed by Nigeria’s Senate in 2011 and by the Lower House of Parliament in May 2013. Why did President Goodluck Jonathan sign it now?

Dr. Okafor: That’s a good question. All politics is local, as you know. But, to tie it into your question, I’m not sure it was signed quietly and I think you have to tie it into a particular configuration of the country and the role that religion has historically played in Nigerian politics. Although this is often not emphasized enough.

Instead, what you see emphasized is ethnicity despite this not being a good indicator of religion. Indeed, the Yorubas in the West are as Christian as they are Muslim. In most countries, the population is either majority Christian or the majority are Muslim. If you look at the electoral map that led to the election of current President Goodluck Jonathan, you will find that his constituents are historically and largely Christian. This is in some senses an oversimplification but on the broad level is the case. Obviously, he did not do well in the vast majority Muslim areas. 

Now that alone doesn’t explain the passing of the law because actually on this issue it turns out that 90 percent of religious leaders in the country agreed that the law was appropriate. Subsequently, we can view the law as one of the tactics or the President to mobilize popular support in the wake of repeated fragmentations in his ruling coalition.

Do Nigerians appreciate that these laws, which are now used to proclaim or defend African or Nigerian values, actually come from colonial societies?

No, no. In the same way that we don’t look at Christianity or Islam as stemming from a colonial ruler. It seems counterintuitive, but they don’t. Islam, of course, was there for much longer than Christianity, but there is a sense in which Nigerians own their religion—however we practice it. So wherever it came from, we own it now. Indeed, it’s we, it is us, it is our identity. We can kill each other based on it, we can do whatever based on it. So in my own view I don’t think that the critique of its “foreignness” works to discredit the law.

Okay. Is this a Nigerian issue? Anti-gay laws are enforced in 38 African nations. Is this an African issue? And how should we distinguish, if at all, between states that enforce laws more often like Nigeria and Cameroon versus states that don’t appear to enforce them at all? And that given the fact that, as we will soon come to in the questions, international law holds that the mere existence of these laws is a human rights violation?

Five, six, seven years ago Nigeria would have been in the position of these other countries that you mention.

That don’t enforce it?

Yes. Most people didn’t even know there were such laws. It wasn’t really debated, it wasn’t a public issue. I think it’s slightly different than Uganda. I think that in Uganda, you can clearly map a trajectory where particular preachers increasingly raised the issue of same-sex marriage. I don’t think that’s what happened in Nigeria, which is why I’m still at a loss as to how exactly the bill came to fruition.

So do you think the Nigerian case is particular to Nigeria or is this part of a trend that we are starting to see?

I think that if the person were caught in most African states, I think the result would be fairly similar in that it would be ignored. Nobody goes on the streets thinking, ‘let me go attack the homosexual guy next door.’ That is not what concerns people. People are struggling to even find food to eat. It’s not really an issue.

Okay. This builds off the last question. How should the West react to the passage of these laws? So not in terms of how should the West react to gay rights in Nigeria or gay rights in Africa, but once the laws are passed?

There needs to be a carefully calibrated response for each country. I think that the particular countries reacting, or the West as you put it, may need to calculate very carefully in terms of can you have effect. Unfortunately, the church serves as the primary source of political endorsement in Nigeria so any intervention would lack considerable leverage.

So how do you create buy in on an issue where you are trying to get politicians to do something that is inherently unpopular?

I think you first need to get to a point where you can actually have a real contestation in terms of the number of people in favour and the population against. I think it is a struggle for hearts and minds, first and foremost. You have to get to that point. I am not saying you have to wait to convince 90%, but you have to get a critical mass first.

Should we be funding organizations that work towards gay rights?

Of course I think you should, but I am not sure you should advertise that.

So you have to do it quietly?

Oh yes. I think you should definitely do it quietly. Who is going to fund them otherwise, right? My advice in my book for NGOs is that they should seek more local funding. At the same time, however, I recognize that there are cases where foreign funding is inevitable.

Okay. This can’t be seen as an ‘us’ versus ‘them’ confrontation?

No, I don’t think so. I think the battle is lost if it’s framed that way. Indeed, supporters of the bill want it to be that because that drives a wedge in the population and they win hands down in those circumstances.

Does this bill question Nigeria’s commitment to international human rights law? Or to ask the question differently, does Nigeria care how this bill might affect its standing vis-a-vis international human rights law?

There are undoubtedly those in the foreign policy establishment that care about the perception of Nigeria abroad. But while I’m sure they care, the bill is also something that they feel strongly about. Domestically, again, this is one issue that can’t go wrong. If all the imams in Nigeria know the context and the bishops agree on everything, when they agree on almost nothing, there is a feeling that ‘okay, check. We are on solid ground here.’

So what would be the ramifications if the UN Human Rights Committee or another group, like the Working Group on Arbitrary Detention, both of which have found that these laws and arrests under these laws constitute breaches of international law, issued a decision concerning the Nigerian law?

I don’t think Nigeria is in a position to do much about it in terms of reacting to those committees. And while they will accept it, they won’t necessarily implement the decisions of any extrajudicial bodies.

So Nigeria would be confident to ignore the recommendations to change the law?

Yes, changing the law is not likely over the short-term.

Even if the UN Human Rights Committee…

Condemns it?

Yes.

I don’t think they will change the law because the UN Human Rights Committee condemns it.

How does that make you feel as one of their [the UN Human Rights Committee] advisors?

I think that this is one of the daily calculations of the average politicians who are the ones that make the decision to bring the bill to the table and/or pass it. If the Nigerian courts took a different view to the legislature, that situation would be different.

Okay. I guess now we’re in a catch-22 because the law bans organizations working towards gay rights. So anyone who would bring the case then gets arrested and goes to prison.

Not necessarily, not necessarily. For example you could get the National Human Rights Commission to bring a case. It doesn’t have to be an NGO. It bans organizations or an individual, but not a government watchdog. There are still ways around or framing it that might not necessarily break the law.

Since this law was signed there have been reports of increases in the number of men that have been arrested in Nigeria. On March 6, 2014, 20 men in the northern city Bauchi were lashed after they were convicted of gay sex. Is this trend going to continue?

I do not have all the data, but my sense is that it is possible for these types of scenarios to continue—particularly in parts of northern Nigeria. I am not trying to say that north is less tolerant of homosexuality than the south. But I struggle to answer the question of why most of the arrests have been in the north.

This interview has been edited for length and clarity.