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A Critical Assessment of the Validity and Recognition of Same-Sex Marriage under the Nigerian Legal System

Document Cited authorities 5 Cited in Related
Vincent
Published date01 August 2016
Date01 August 2016
DOI10.3366/ajicl.2016.0162
Pages420-438
Author
INTRODUCTION

Marriage is a universal institution which has been embedded in the social life of all cultures for millennia. Although its essential features differ from one culture to the other, its ubiquity in all global cultures is undeniable. It is not specifically a religious institution although all major religions support the institution by providing ritual formalisation of the practice and a theological or religious understanding of it. Hence marriage has been defined as a legally and socially sanctioned union between one or more husbands and one or more wives that accords status to their offspring and is regulated by laws, rules, customs, beliefs or attitudes that prescribe the rights and duties of the partners.1 This definition indicates that the institution of marriage is founded upon a relationship between persons of opposite sex essentially for the procreation and upbringing of children within the context of a unit – the family – which is sanctioned by law and custom.

The English marriage institution grew out of the Christian doctrine of ‘one man, one woman’ and this informed the common law definition of marriage as ‘voluntary union of a man and a woman to the exclusion of all others for life’.2 Under the African customary law systems, marriage is also perceived as the union between a man and a woman or women as the case may be. Thus the institution of marriage under the African customary systems is basically a union of persons of opposite sex.3

In recent times, however, the traditional view of marriage as the union of persons of opposite sex has been seriously challenged. The advocates of non-conventional marriages (such as same-sex marriage, transsexual marriage and other non-marital cohabitations) have argued that ‘marriage’ should be defined in gender-neutral terms. They argued that ‘marriage’ is the union of two consenting adults irrespective of whether they are of opposite sex or not.4 The advocates of this view have confronted the world legal systems demanding they end ‘discriminations’ against non-conventional marriages just the same way they ended racial discrimination and discrimination against inter-racial marriages.5 Thus, there has been gradual attitudinal change in the global societies' traditional perception of marriage as the union of a man and a woman.6

However, the current recognitions of same-sex and other non-conventional marriages in some jurisdictions have created conflict of laws problems in other jurisdictions, especially in Nigeria where such marriages are not legally recognised. If, for instance, Mr A and Mr B (who are French citizens and bisexuals) married in France in a same-sex union, such union is invalid and unknown to the Nigerian marriage laws.7 The implication is that both Mr A and Mr B are entitled to marry any girl of their choice in Nigeria. Let us now assume Mr A marries Miss C while Mr B too marries Miss D, both marriages taking place in Nigeria. These unions (i.e. between Mr A and Miss C on the one hand and Mr B and Miss D on the other) are valid as far as Nigeria is concerned but invalid in France (and other jurisdictions where same-sex unions are allowed) because Mr A and Mr B are still validly married to each other under the French law and both of them lack the capacity to contract another marriage. This scenario depicts some of the challenges posed by the recent recognition of same-sex marriage in some jurisdictions vis-à-vis its non-recognition in other jurisdictions.

 SAME SEX MARRIAGE IN NIGERIA

There is evidence to suggest that certain marriages have been contracted under the Nigerian native laws and customs which, superficially, may be described as the union of two women. Such marriages are usually contracted by barren women as a means of securing their position in their husbands' families. On the surface, such arrangements may be said to contravene the basic precept of marriage as understood in Nigeria as a union of persons of opposite sex. However, the true position in each case is that there is at the background a man in whose name or on behalf of whom the marriage is contracted.

In Meribe v. Egwu,8 the Supreme Court was called upon to pronounce on the validity of one such marriage.9 The facts of the case are as follows: the land in dispute belonged to one Nwanyiakoli who, because she was barren, married Nwanyiocha (the plaintiff's mother). Nwanyiakoli paid the bride price and bore other incidental costs of the celebration of the marriage. Although Nwanyiocha was, for all intents and purposes, meant to be Chief Egwu's second wife (Chief Egwu being Nwanyiakoli's husband), the children born by Nwanyiocha would be regarded as the children of Nwanyiakoli since she was the one that ‘married’ Nwanyiocha. Chief Egwu died in 1935 and, two years later, Nwanyiakoli also died. The defendant, who was the grandson of Chief Egwu through yet another woman argued that woman-to-woman marriage is contrary to public policy and good conscience and since the claim of the plaintiff to the land in dispute is through an alleged marriage between his mother (Nwanyiocha) and the original owner of the property (Nwanyiakoli), such claim should not stand. The trial court gave judgment in favour of the plaintiff and on appeal the Supreme Court, in dismissing the appeal, stated that:

We … do not think that on a close examination of the facts of this case, there was a ‘woman to woman’ marriage between Nwanyiakoli and Nwanyiocha. The true nature of the arrangement was appreciated by the learned trial judge when he, rightly in our view, made the following observations:

The facts disclosed in evidence did not show that Nwanyiakoli married Nwanyiocha for herself, a fact naturally impossible – but that she married in that context is merely colloquial, the proper thing to say being that she procured Nwanyiocha for Chief Egwu to marry her. There was no suggestion in evidence that there was anything immoral in the transaction. (Emphasis mine)

As stated earlier, such marriages are superficially same-sex and could therefore not be compared to the actual practice of same-sex marriages as understood today

On the other hand, neither the Marriage Act10 nor the Matrimonial Causes Act11 defines what ‘marriage’ is. This therefore explains the usual recourse of our courts to the common law definition of marriage as the voluntary union of a man and a woman to the exclusion of all others.12 However, section 18 of the Interpretation Act13 defines ‘monogamous marriage’ as a marriage which is recognised by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage.14

From the above definition, it seems two requirements must be fulfilled before a union would be treated as monogamous (and therefore statutory) marriage in Nigeria. These requirements are:

 •such a marriage must be recognised by the law of the place where it is contracted; and

 •it must be a union of a male and a female (and not persons of the same sex).

 Section 214 of the Criminal Code15 provides that any person who has carnal knowledge of another person against the other of nature or 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 14 years. By virtue of section 215, an attempt to commit the above offence is itself an offence punishable with imprisonment for seven years. The above statutory provisions, though male-oriented, apply to both sexes as gay practices and lesbianism involve ‘carnal knowledge against the order of nature’

In the northern part of the country where Islamic Sharia Law is practised, sexual activities between persons of the same sex is criminalised. The maximum penalty for such act, if between men, is death while the maximum for women ranges between whipping in public and imprisonment.16

Most importantly, the Nigerian legislature passed a law (Same Sex Marriage (Prohibition) Act) in 2013 which was assented to by the President on 7 January 2014. This law not only defines marriage as a legal union entered into between persons of opposite sex,17 it also proscribes marriages between persons of the same sex as it prescribes heavy punishment for persons who engage in same sex union or who partake or aid its celebration. Specifically, the Act provides in its section 1 that:

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

Is prohibited in Nigeria;

Shall not be recognised as entitled to the benefits of a valid marriage.

 By virtue of the provision of sections 3 and 5 of the Act, only a marriage contracted between a man and a woman shall be recognised as valid in Nigeria and therefore a person who enters into a same-sex marriage contract or civil union commits an offence and is liable on conviction to a term of 14 years' imprisonment. Similarly, a person or group of persons who administers, witnesses, abets or aids the solemnisation of same-sex marriage or civil union in Nigeria commits an offence and is liable on conviction to a term of ten years' imprisonment. Based on the above statutory provisions, one can submit (without fear of any serious argument to the contrary) that same-sex marriage cannot be legally celebrated in Nigeria

However, there have been arguments that refusal on the part of some national governments (including Nigeria) to recognise same sex marriages is a violation of the rights and freedoms of homosexuals under the relevant international instruments as well as the constitutions of such countries. It has also been argued that such refusal by the governments is an indirect discrimination against them.

Most of the arguments in favour of same-sex marriage in Nigeria are predicated on the grounds of ‘non-discrimination’,18 ‘right to privacy and family life’19 and ‘freedom of association’20 as contained in the Constitution of the Federal Republic of Nigeria 1999...

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