SAME SEX MARRIAGE, CONSTITUTIONALISM AND THE IMPERATIVE OF PUBLIC MORALITY

Abstract

The enactment of Nigeria’s Same-Sex Marriage (Prohibition) Act (SSMPA), 2013 which criminalized various forms of same sex unions and public display of amorous relationships by people of the same sex was greeted with cross-currents of commendation and condemnation respectively, by stakeholders in Nigeria and the international human rights landscape. Since then, the debate as to the propriety or otherwise of that instrument has continued to reverberate in global human rights discourse. This paper examines the contrary impulses of the protagonists and antagonists of same sex practices in the context of Nigeria’s Constitution and extant human rights instruments to which the country is a signatory. Using the tools of historical and conceptual analysis as its methodological point of departure, the paper situates the prohibition of same sex relationships in Nigeria within the ambits of constitutionalism and the socio-cultural and religious sensibilities of the people. The paper contends that taking cognizance of the contours of Nigeria’s grundnorm, marriage and human rights legislation, the prohibition of same-sex relations is not coterminous with the abrogation of the fundamental rights of lesbians and homosexuals having regard to the imperatives of public morality. The paper recommends, among others, the filling of the definitional lacuna in Nigeria’s marriage legislation to obviate further misunderstanding as to the configuration of marriage in Nigeria.