27 January, 2014
Open Letter To Chairperson, National Human Rights Commission (NHRC)
Dear Dr. Chidi Odinkalu,
It is with deep concern that I write this open letter to you to register my dismay at the continued silence of your office on the recently signed Same Sex Marriage (Prohibition) Act. It is surprising that as Chairperson of the Governing body of National Human Rights Commission, a lawyer and a human right activist of note, you have not deemed it fit to issue a public statement weeks after a section of Nigerian populace was criminalized and stripped of their fundamental human rights via a stroke of President Goodluck Jonathan‘s pen. The most you have said in your official capacity, albeit in private, is that you are still studying the new law.
Dr Chidi Odinkalu, how long would it take your office to study this legislation? The content of the law has been known to you and most Nigerians since 2011 when the bill was first approved by the Senate. The harmonized version of the bill that was signed did not change much. In your official capacity, you must have received a copy of the Act as it is part of your official duty to advise the President on the human rights implication of bills tabled before him.
As a lawyer and a human right activist of note, you cannot claim to be unaware of the human rights violations inherent in this new legislation. Therefore, I wonder how you could turn a blind eye to such blatant violation of fundamental human rights. Is this about protecting your appointment as Chairperson of National Human Rights Commission? I hasten to remind you, comrade, that in the course of your human right activism, you actively opposed human rights violations by draconian military regimes. As a dedicated human right activist, you campaigned and fought for Freedom of Expression, Freedom of Association, Freedom from Torture and Freedom from Discrimination. Whatever happened to that passion and commitment to justice?
No doubt your reputation as a human right activist was a major contributing factor to your appointment as the Chairperson, National Human Rights Commission. What happened to these noble ideals? Why have you decided to keep quiet in the face of such blatant injustice perpetrated against Nigerian lesbians, gays, bisexuals and transsexuals (LGBT)? Is it because Nigerian Lesbian, Gays, Bisexuals and Transsexuals are a minority? Don’t minorities deserve to have their constitutional and fundamental human rights protected against the tyranny of the majority? Is it that you cannot afford to get on the wrong side of the President and lawmakers for the sake of ‘unimportant’ sexual minorities? Are we not worth defending because you value keeping your job more than performing the duty your job demands?
I sincerely hope that the above are not the reasons for your silence but every second of your continued silence on this important subject matter diminishes any hope of a progressive response from the National Human Rights Commission.
Dr. Chidi Odinkalu, I am a Nigerian bisexual woman, lawyer, human rights activist and a former National student union leader who has now been forced into exile by this draconian law. Some of us, as affected and concerned Nigerian LGBTs, have discussed the implications of this draconian bill with you at meetings which you preferred to be kept private. We are not illegal. As bonafide citizens of Nigeria, we are part of the constituents your office is supposed to protect and defend.
From the discussions with you on the then proposed bill, I appreciate that you understand the human rights violations inherent in the Same Sex Marriage (Prohibition) Act. As a human right activist and lawyer, you personally expressed your frustration at such a bill. However, as Chairperson of the Governing body of National Human Rights Commission, you have kept mute on this serious matter. I do understand your predicament but in all honesty, I do not think it is such a predicament. Your role and duty as Chairman of the National human right commission is clear enough. I, as a Nigerian citizen expect that you would defend my human rights no matter whose ox is gored. It is a duty you accepted and a job you are paid to do, with tax payers’ money, if I might add.
The Nigerian Human Rights Commission is the largest human rights commission in the world. It has the largest numbers of board and staff members. One must then wonder why this big entity has not really been able to pull its weight. Nigeria is a haven of human right violations, yet we have the biggest national human rights commission in the world. Big for nothing entities seem to be the bane of Nigerian society.
I suspect you have enough staff members to dissect the Same Sex Marriage (Prohibition) Act. However since it is taking so long to look at the bill from your end, below is a cursory summary of the new legislation’s blatant violations of human rights and how it contradicts the 1999 Constitution of the Federal Republic of Nigeria.
1- Title of the bill– First and foremost, you and I know that the name of the bill is just a mere camouflage. The implication and contents of the bill stretches far beyond Same Sex Marriage or Civil Union. And to crown it all, Section 7 of the bill made it clear that:
“same sex marriage” means the coming together of persons of the same sex with the purpose of living together as husband and wife or for other purposes of same sexual relationship”
Please note “…or for other purposes of same sexual relationship”
It further stated that civil union means “any arrangement between persons of the same sex to live together as sex partners”
Therefore, every time the word “Same Sex Marriage” or “Civil Union” appears in the Act, it refers not just to marriage but also any same sex, caring, emotional and/or sexual relationship with or without marriage.
2- Sections 1-3 of the bill prohibit same sex marriage and civil unions. Dr. Chidi Odinkalu, you are likely familiar with the horrors Nigerian lesbians, gays, bisexuals and transsexuals face on a daily basis, even before the signing of this draconian bill into an oppressive law. Nigerian LGBT community has never demanded for the right to marry, the most we have done is try not to be stoned to death or lynched on the streets of Lagos, Abuja, Imo, Sokoto or Kaduna. Nigerian LGBTs have been trying desperately to keep their sexual orientation private not because they are ashamed but because they understand that the ignorance and hate in the highly homophobic Nigerian society could lead to the lost of livelihood, stigmatization and isolation. If they flaunt their same sex love life, they stand the risk of paying with their lives.
It is therefore surprising that amidst all the problems bedeviling Nigeria including but not limited to corruption, poor healthcare, unstable power supply, bad roads, high unemployment rate, lack of security and lack of any significant economic growth, Nigerian Lawmakers decided to waste tax payers’ money to dream up this bill and actually gave the law such a mischievous title. What a useless and time wasting venture!
However, let us be clear on this, the right to found a family is a fundamental human right and if and when Nigerian LGBTs feel they want to challenge the restriction on their right to marry, they have every right to do so. I maintain that every Nigerian deserves the same right every other Nigerian enjoys. If an adult heterosexual Nigerian enjoys the right to marry an adult of opposite sex, so must an adult homosexual, bisexual or transsexual Nigerian also have the right to marry their adult same sex partner, if they so wish. Denying LGBTs this right is a direct stigmatization and criminalization of their sexual orientation.
It is obvious from the provided interpretation in the Act that what the law prohibits is not just marriage but any same sex adult relationship, whether they are in a marriage or not. According to the new legislation, if they are in a caring, emotional and/or sexual relationship, they have fallen foul of section1-3 of this law and therefore face a 14 year imprisonment. Dr. Chidi Odinkalu, how could this blatant violation and discrimination be overlooked by your office?
3- Section 4(1) of the Act states-“The Registration of gay clubs, societies and organisations, their sustenance, processions and meetings is prohibited.” Dr. Chidi Odinkalu, this is a blatant violation of basic tenets of democracy including the much cherished Freedom of Association, Freedom of Expression and Freedom of Thought and Conscience. This part of the Act not only criminalized Nigerian gays, lesbians, bisexuals and transsexuals, it also criminalizes every Nigerian. I am aghast that any self-respecting Nigerian human right activist would overlook such blatant human right violation.
As human rights activists, during the draconian military regime, we fought hard to kick the military out of power and usher in a democracy. As human rights activists, we condemned the military for its clampdown on Freedom of Expression and Freedom of Association. So, why are we now allowing these violations under a democracy we fought so hard to get? Why compromise this democracy for which many of us inhaled teargas, were dragged into detention centers, imprisoned and even lost some of our cherished comrades? Why are we giving away our hard fought for Freedom of Expression and Freedom of Association?
Dr. Chidi Odinkalu, it is pertinent to draw your attention and that of other Nigerian human rights activists to the fact that this new law can be used against anyone including human right activists, political organizations or just about anyone who opposes the government in power. Human rights and political meetings could be invaded under a trumped up charge of ‘promoting LGBT rights’. Activists could find themselves facing a 10 year imprisonment just for organizing meetings to oppose government policies. This bill even goes as far as criminalizing freedom of thought and conscience! Why is this not causing outrage within the human rights community and your office as Chairperson of National Human Rights Commission?
4- Section 4 (2) of the ACT States- “The public show of same sex amorous relationship directly or indirectly is prohibited.” This directly criminalizes homosexuality and bisexuality. Dr. Chidi Odinakalu, as a lawyer and Chairperson of National Human Rights Commission, you are no doubt aware that Nigeria’s constitution frowns against discrimination.
5- Section 5 makes it an offense to register organizations that advocates for LGBT rights. How could banning Freedom of Association, Freedom of Expression and Freedom of Thought be legal? Chairperson, what is your honorable office doing to challenge this blatant discrimination?
6- Section 5(3) of the Act criminalizes anyone who witnesses, aids or abets a same sex marriage. It is important to bear in mind that ‘Same Sex Marriage’ is interpreted in the Act as including “same sex adult independent relationships”, “caring, same sex relationships”, “stable unions” etc. This means anyone who witnesses, aids or abets homosexual relationship without reporting it to the appropriate authority faces 10 years imprisonment. By this interpretation:
- A father or mother has the duty to report their homosexual/bisexual son or daughter to security or face 10 years imprisonment.
- Any doctor who treats patients who are engaged in same sex relationship faces 10 years imprisonment.
- Landlords who rent their properties to same sex couples face 10 years imprisonment.
- Employers who do not report homosexuals in their employment are guilty of aiding and abetting and could face up to 10 years imprisonment
- Friends and work colleagues, who aid and abet homosexuals, face 10 years imprisonment.
How much more outrageous could this get? Families now turn against each other, landlords now have the perfect excuse to maltreat tenants and unscrupulous people have more excuses to blackmail vulnerable, innocent people. Is this the African family value we are so proud of?
Nigeria is a country known for its lack of security and blatant abuse of human rights. This law has given an express legal permission to hunt down innocent citizens. Already, there are reports of people victimized, arrested, blackmailed, lashed in public and charged to court since the new law was signed. It is not only gays, lesbians and bisexuals that would fall victims of this horrific law, every Nigerian is a potential victim.
7- Section 5(3) goes further to criminalize and stipulates a 10 year imprisonment for “A person or group of persons who … supports the operation and sustenance of gay clubs, societies, organisations”
Dr. Chidi Odinkalu, as you are most likely aware, LGBT organizations get their sustenance (funding) from national and international organizations that promote sexual health and the prevention of HIV/AIDS. National Agency for the control of AIDS (NACA) gets funds from international Aids organizations like UNAIDS, UNFPA, WHO, Oxfam international, Family Health International (FHI) and ActionAid. Parts of these funds are meant to be used to sustain Nigerian LGBT organizations that work on AIDS prevention amongst men who sleep with men (MSM).
Going by this section of the law, organizations like NACA, USAID and UNAIDS face a ban in Nigeria if they continue to provide sustenance to LGBT organizations that works with men who have sex with men (MSM). The obvious implication of this section of the Same Sex Marriage (Prohibition) Act is that MSM who are HIV positive or have AIDS can no longer access healthcare in Nigeria. This would no doubt have a negative effect on tackling the problem of HIV/AIDS in Nigeria.
Why is National Human Rights Commission silent in the face of this horrendous human right violation? Denying anyone access to lifesaving medication and accessible healthcare is draconian, inhumane and should be thoroughly condemned by every decent human being. More so, as chairperson of the National Human Rights Commission, you have a duty to not only condemn this malady, but also legally challenge it.
8- Section 6 of this Act states that: “The High Court of a State or of the Federal Capital Territory shall have jurisdiction to entertain matters arising from the breach of the provisions of this Act.” Nigeria’s National Human Rights Commission has the same jurisdiction has the High court. You are the Chairperson of the National Human Rights Commission and the Commission has jurisdiction to decide on this Act. You have the largest staff of any Human rights commission in the world, so what excuse could there be for the deafening silence and inaction?
The Same Sex Marriage (Prohibition) Act contradicts fundamental human rights under Nigeria’s 1999 Constitution, international and regional human rights law and standards. For example:
Section 42 of the 1999 Constitution of Federal Republic of Nigeria prohibits discrimination against any person on the basis of sex or membership of a group.
Section 34 guarantees the right to the dignity of the human person. It states- “Every individual is entitled to respect for the dignity of his person, and accordingly no person shall be subjected to torture or to inhuman or degrading treatment”
The African Charter on Human and Peoples’ Rights– This regional law which Nigeria is a signatory to, affirms the equality of all people. Article 2 of the law states: “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.”
Article 26 of the law prescribes that “Every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.”
International Covenant on Civil and Political Rights (ICCPR) – Article 2 and 26 affirm the equality of all people before the law and the right to Freedom from discrimination. Articles 18 and 19 protect the rights to Freedom of Expression and Conscience. Also Articles 21 and 22 protect Freedom of Assembly and Freedom of Association.
United Nations Declaration on Human Rights Defenders– Article 5 of this declaration affirms that: “Everyone has the right, individually and in association with others, at the national and international levels: a) to meet or assemble peacefully b) to form, join and participate in non-governmental organizations, associations or groups.”
Article 7 also states that “Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance.”
Dr. Chidi Odinkalu, I besiege you to understand that silence in the face of oppression is acquiescence to oppression. As Archbishop Desmond Tutu said, “If you are neutral in situations of injustice, you have chosen the side of the oppressor.” As committed defenders of human rights, we must remember that an injury to one is an injury to all.
I am aware that some Nigerians in support of the law usually argue that:
- Homosexuality is unnatural
- Even animals don’t engage in homosexuality
- Homosexuality is not part of our culture
- Homosexuality is a slippery slope to rape, pedophilia or bestiality.
- Homosexuality will lead to dearth in population
- Homosexuality is a sin.
Dr. Chidi Odinkalu, as an educated person, you would appreciate that in this age of information, ignorance is nothing to be proud of. One of the duties of National Human Rights Commission is to provide avenues for public enlightenment, research and dialogue in order to raise awareness on human rights issues. I hope you can use your office to educate Nigerians about the basic facts.
1- The very first thing we need to understand is that homosexuality, bisexuality, asexuality are all as natural as heterosexuality. Our sexual orientation differs; we are born with an innate ability to be emotionally/sexually attracted to same sex or opposite sex. Or in the case of asexuals, not be sexually attracted to same sex or opposite sex.
2- Research has shown that Homosexuality is not unnatural as more than 1,500 animal species engage in same sex relationships. There is nothing unnatural about this very natural act.
3- Sexual orientation is a biological fact and not a matter of culture. Some people are born gay just as some are born left handed. Homosexuality is not a disease or an abnormality. Since sexual orientation is part of every human biological makeup, Homosexuality alongside Heterosexuality, Bisexuality and Asexuality has been in existence from time immemorial. Africa is the home of humankind; therefore it suffices to conclude that homosexuality originated from Africa. Homosexuality is not Un-African.
Even if homosexuality was (is) considered taboo in some parts of African societies, we should understand that many things were considered taboo that are now accepted behavior and norms. In Calabar, our forefathers killed twins because they thought twins were evil. In many parts of Africa, it was considered a taboo for women to inherit land. Also, female genital mutilation was celebrated as part of our culture. However, due to information and progress, these practices have been outlawed.
Culture or ‘Taboo’ is not a reason to deprive any human being of their fundamental human rights. Discrimination in the name of culture or under the cover of ‘Taboo’ is barbaric, ignorant, bigoted and inhuman.
4- Homosexuality is not a slippery slope to rape, pedophilia or bestiality. There is no justifiable reason to compare a violent, non consensual act that inflicts harm on its victim to consensual same-sex adult relationships. Rape is the act of forcing someone into having sex without consent; it is a sexual assault, in most cases a violent act. Pedophilia is the act of having sexual intercourse with a child, an underage cannot give consent. Bestiality is the practice of sex between humans and non-human animals; it is inter-species, also animals cannot give consent. Same sex relationships on the other hand are emotional, sexual relationships between consenting adults of the same-sex.
A homosexual or bisexual who is attracted to same sex does not cause harm to anyone or the society. Same sex lovers do not harm anyone with their relationship so far it is consensual adult relationship. Non-harmful lifestyle of adults should not be criminalized. Criminalizing a person for their sexual orientation is basically the same as criminalizing a person for their skin colour, sex, or for being left-handed.
5- The world has a growing 7 billion human population, the human race will not suddenly go extinct just because Homosexuals are not criminalized or because same sex adults are allowed to marry. Not all marriages are entered into for the purpose of procreation. Some couples are content to marry just for love and companionship. The fact that my parents gave birth to me does not mean I owe the world a responsibility to also give birth to a child. There are many unwanted, unplanned for children abandoned by heterosexuals in orphanages and on the streets looking for a loving home. Surely, same sex couples who open their hearts and homes to unwanted children should be celebrated not criminalized.
6- For those who claim that homosexuality is a sin, please understand that ‘Sin’ is a religious concept. Religion is a personal matter and not every Nigerian is religious. Kindly understand that the Bible, Quran or whatever religious book we subscribe to is not the Constitution of the Federal Republic of Nigeria. Nigeria is a secular democracy. Religious believers, even when in position of authority, should not make laws or policies for Nigerians based on their personal religious beliefs. Quoting bible or Islamic verses to impose laws on all Nigerians is a blatant imposition of personal religious beliefs on others. BTW, speaking of things that are Un-African, Christianity and Islam are Un-African. These religions are foreign imports. While no one is advocating that we prohibit these ‘Un-African’ foreign religions, we should understand that Freedom of religion includes Freedom to be free from religion.
The National Human Rights Commission (NHRC) Amendment Act, signed into law on 26 February 2011, confers on the Commission the power to investigate human rights violations. It also made the NHRC independent so that it can work without fear or favour to improve human rights situation in Nigeria. Unless supporters of this appalling law can prove that lesbians, gays, bisexuals and transsexuals are not human beings, there is no justifiable reason to deny us our fundamental human rights. LGBT rights are Human rights. Dr. Chidi Odinkalu, as Chairperson of National Human Rights Commission, it is your duty to condemn and legally challenge this atrocious law. Please speak out against this injustice, kindly act now!