UPDATE: Nigeria: Statement of Sexual Minorities against AIDS

To: The Clerk, House Committee on Human Rights, Nigeria.

11th March 2009.

Statement of Sexual Minorities against AIDS in Nigeria, (SMAAN)

Dear Honourables, Chairperson, House of Representative, Committee on Human Rights, Interested Members of the public, All stakeholders, Ladies and Gentlemen of the media.

*Specific points in relation to the proposed Bill "to Prohibit Marriage between Persons of Same Gender, Solemnization of Same and for Other Matters Related Therewith" in Nigeria.*

§ Specific law prohibiting same sex marriage would appear unnecessary as there are other means to achieving the same goal, i.e. through marriage acts that define who can marry, and what are the limitations on marriage (such as "no marriage between close relatives").

Indeed, it is also important to note that same sex relations are already criminalized under Nigerian Law through the /Criminal Code Act/ of Nigeria (1990) sections 214, 215 and 217, as well as under Shari'a law in several states. For example under the Shari'a Penal Code Law, 2000 (entered into operation on 27th day of January, 2000) Chapter 8, sections131, 134 and 135 (see annex for details).

Therefore the passing of the Bill will not create anything new under the Nigerian Legal Order.

§ SMAAN is concerned that a law prohibiting same sex marriage, as well as the serious criminal penalties and fines imposed on individuals associated with a marriage ceremony between people of the same sex, serves only to vilify gay and lesbians. Such stigmatization drives social exclusion, and is a barrier to accessing necessary HIV prevention, treatment, care and support, as well as other health and social services.

§ SMAAN is furthermore concerned that the broad definition of "same sex marriage" (which includes "coming together of persons .for the purpose of leaving together as husband and wife" and "for other purposes of same sexual relationship") may open this act to misapplication (i.e. for harassment of people in same sex _relationships_).

§ The International Guidelines on HIV/AIDS and Human Rights, published jointly by UNAIDS and the Office of the UN High Commissioner for Human Rights, state that "Anti-discrimination and protective laws should be enacted to _reduce human rights violations against men having sex with men_, including in the context of HIV, in order, inter alia, to reduce the vulnerability of men who have sex with men to infection by HIV and to the impact of HIV and AIDS. These measures should include providing penalties for vilification of people who engage in same-sex relationships, giving legal recognition to same-sex marriages and/or relationships and governing such relationships with consistent property, divorce and inheritance provisions [.]" (Guideline 5). This Act seeks to do the direct opposite.

How this Bill when passed will dramatically increase vulnerability to HIV infection of people practicing same-sex sex:

§ Criminal laws prohibiting specific sexual activity between consenting adults in private, such as adultery, sodomy, fornication or acts 'against the order of nature' or against the social order or morality severely limit the ability of people engaging in these forms of sex to access HIV prevention information, commodities and treatment and care.

§ Faced with legal or social sanctions, individuals who engage in same-sex sex are either excluded from, or exclude themselves from, accessing sexual health information and services because they fear stigma, discrimination and/or criminal prosecution.

§ NGOs that provide services to men who have sex with men may also be prevented from disseminating information dealing with public health issues, such as HIV prevention, and from distributing commodities necessary for safer sex.

§ Ultimately, the enforcement of these criminal statutes leads to stigma, social exclusion and the infringement of the human rights of people who engage in same-sex sex, such as the rights to information, nondiscrimination, privacy and protection from violence.

* *

Why leadership and action to address HIV among men who have sex with men and lesbians and bisexuals are so important:

§ In all regions of the world, men who have sex with men and bisexuals are severely affected by HIV, but their needs are often inadequately addressed or ignored.**

§ The stigma, discrimination and violence faced by men who have sex with men and lesbians is compounded by the denial, in some places, that these groups exist; that they, like all people, have human rights; that governments have human rights obligations to protect them; and that the international community (including the UN) has duties to ensure that their rights are protected, including their right to the highest attainable standard of health. **

§ In many instances, men who have sex with men, also have sex with women. Neglecting their HIV prevention needs can also result in the transmission of HIV to women.

§ Responses to HIV that do not ensure that these groups receive HIV prevention and treatment services are not effective.

§ Although the main mode of HIV transmission in Nigeria is unprotected heterosexual sex, sex between men is also a significant factor in the HIV epidemic.

In the context of the response to HIV and AIDS, protecting human rights both safeguards *human dignity* and promotes *public health* because it helps to:

1. Increases access to the HIV services and commodities necessary to avoid HIV infection for all people who need it, including men who have sex with men and lesbians, and enables and supports them to avoid risky behavior by promoting laws and policies that protect them from discrimination

2. Provides all people living with HIV, including members of these groups, a supportive environment that protects them from discrimination and links them to treatment, care and support.

Human rights of men who have sex with men and lesbians that is particularly relevant to HIV:

Discrimination on the grounds of sexual orientation has been held to constitute a violation of human rights (see, for example the decision of the Human Rights Committee in /Toonen v Australia/ (1994) where laws criminalizing homosexuality were held to violate the right to privacy in Article 17 of the /International Covenant on Civil and Political Rights/. In General Comment 14 on the Right to Health issued in 2000, the Committee on Economic, Social and Cultural Rights cited sexual orientation as a prohibited ground of discrimination.

The /International Guidelines on HIV/AIDS and Human Rights/ contain relevant guidance for States on the implementation of human rights in the context of HIV.

§ *On criminal law and correctional systems*, /Guideline 4/ states that: "States should review and reform criminal laws and correctional systems to ensure that they are consistent with international human rights obligations and are not misused in the context of HIV/AIDS or targeted at vulnerable groups."

The commentary elaborates as follows: "Criminal law prohibiting sexual acts (including adultery, sodomy, fornication and commercial sexual encounters) between consenting adults in private should be reviewed, with the aim of repeal. In any event, they should not be allowed to impede the provision of HIV/AIDS prevention and care services."

§ *On women, children and other vulnerable groups*, /Guideline 8 /states that: "States should, in collaboration with and through the community, promote a supportive and enabling environment for women, children and other vulnerable groups by addressing underlying prejudices and inequalities through community dialogue, specially designed social and health services and support to community groups."

The commentary notes that: "States should support the implementation of specially designed prevention and care programmes for those who have less access to mainstream programmes due to social or legal marginalization, including men who have sex with men."

§ *On non-discrimination*, see excerpt from /Guideline 5/ above.

Thus, men who have sex with men, transgender identities, bisexuals and lesbians should have equal access to available HIV prevention information, education, and commodities and to HIV care, support and treatment; and should benefit from all human rights, including:

§ Non-discrimination/equality before the law: same access as others to available services

§ Rights to education and health: same access to available HIV prevention education and information, and health care services, including STI and TB services and condoms

§ Liberty, security of person and freedom from cruel, inhuman and degrading treatment: freedom from sexual violence and coerced sex; freedom from arbitrary arrest and detention and violence

§ Right to participate in public life, including participation in the formulation and implementation of HIV policy and programmes.

* *

What National Assembly should do?

In 2001 Members States of the United Nations committed to "_enact legislation, regulations and other measures to eliminate all forms of discrimination against and ensure the full enjoyment of all human rights .by members of vulnerable groups_" by 2003. (United Nations General Assembly Special Session on HIV/AIDS, /Declaration of Commitment/, 2001).

As set out in the /Handbook for Parliamentarians - Taking Action against HIV: http://data.unaids.org/pub/Manual/2007/20071128_ipu_handbook_en.pdf published by UNAIDS, UNDP and the Inter-Parliamentary Union (which Nigeria is a member of) Parliamentarians should:**

§ Remove policy and legal barriers to prevention and care for men who have sex with men, including repealing laws that criminalize same-sex acts between consenting adults in private and providing for penalties for the vilification of people who engage in same-sex relationships. **

§ Review laws, law enforcement and police practices relating to assaults against men who have sex with men to ensure that adequate protection is provided.**

§ Support prevention measures for men who have sex with men within the broader framework of providing universal access to prevention, care, treatment and support by 2010 (as promised in the /2006/ /Political Declaration)/;**

§ Support community action of men who have sex with men.**

§ Demonstrate public commitment for non-discriminatory treatment of men who have sex with men.**

Conclusion:

The problem with the Bill is that it will not create anything new under the Nigerian Legal Order, but it harbours a great potential for human rights violations; and it may hinder an effective response to HIV in Nigeria. For these reasons, and because of the obligations of Nigeria and the Nigerian Parliament under the various human rights charters, declarations and position of the Inter-Parliamentary Union which Nigeria is a member of, we join the Human Rights Council of the United Nations in recommending that _"the President of Nigeria and National Assembly do not approve the Same Gender Marriage Bill and eliminate all existing legislation that discriminate based on gender and sexual orientation."[1]

*Annex 1. Existing Laws that Criminalize Same Sex Relations in Nigeria*[2]*

/Criminal Code Act, Chapter 77, Laws of the Federation of Nigeria 1990/

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."

Note that several Northern Nigerian states have adopted Islamic Sharia laws, criminalising sexual activities between persons of the same sex.

The maximum penalty for such acts between men is death penalty, while the maximum penalty for such acts between women is a whipping and/or imprisonment. These laws differ from the federal law, as most of these prohibit also sexual relations between women. The states which have instated such laws are: 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).

Here is an example of one of these Penal Codes:

/Zamfara State of Nigeria - Shari'a Penal Code Law,/ /2000 (entered into operation on 27th day of January, 2000)/

CHAPTER VIII

Sodomy (Liwat)

Section 130: Sodomy defined

"Whoever has carnal intercourse against the order of nature with any man or woman is said to commit the offence of sodomy: Provided that whoever is compelled by the use of force or threats or without his consent to commit the act of sodomy upon the person of another or be the subject of the act of sodomy, shall not be deemed to have committed the offence."

Section 131: Punishment for Sodomy

"Whoever commits the offence of sodomy shall be punished:-

(a) with caning of one hundred lashes if unmarried, and shall also be liable to imprisonment for the term of one year; or

(b) if married with stoning to death (rajm).

EXPLANATION: Mere penetration is sufficient to constitute carnal intercourse necessary to the offence of sodomy."

Lesbianism (Sihaq)

Section 134. Lesbianism defined

"Whoever being a woman engages another woman in carnal intercourse through her sexual organ or by means of stimulation or sexual excitement of one another has committed the offence of Lesbianism."

Section 135. Punishment for Lesbianism

"Whoever commits the offence of lesbianism shall be punished with caning which may extend to fifty lashes and in addition be sentenced to a term of imprisonment which may extend to six months.

EXPLANATION: The offence is committed by the unnatural fusion of the female sexual organs and or by the use of natural or artificial means to stimulate or attain sexual satisfaction or excitement."

Signed:

Sexual Minorities against AIDS in Nigeria (SMAAN)

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[1] This recommendation was issued on 9 February 2009 by the Human Rights Council's Universal Periodic Review Working Group following the analysis of the report of Nigeria. See OHCHR, Information note, 9 February 2009. Available at www.ohchr.org/EN/HRBodies/UPR/Pages/Highlights9February2009pm.aspx.

[2] D Ottosson, /State-sponsored homophobia: A world survey of laws prohibiting same sex activities between consenting adults/, May 2008, pp 28-30. Available at www.ilga.org/statehomophobia/ILGA_State_Sponsored_Homophobia_2008.pdf