Reply To Mr. Chukkol On The Two Skeptical Sides Of Homosexuality Under Nigerian Laws

By Muhibudeen Qosim Atanda

On the 20th day of August, 2021, an article written by a renowned legal writer, Mr. O.G. Chukkol (hereafter “the writer”) got published and circulated on different social media handles. The article is titled: “Homosexuality is Lawful under Lagos Criminal Law but a Crime under Same-Sex Marriage Act: Reconciling the Conflict”. For ease of reference, the link to the article is herein provided: [https://thenigerialawyer.com/homosexuality-is-lawful-under-lagos-criminal-law-but-a-crime-under-same-sex-marriage-act-reconciling-the-conflict/].

It is very pertinent to state from the onset that the writer is a well-reckoned legal writer cum aspirant to the Bar part II, whose wealth of knowledge is unquantifiable. I must also acknowledge that the writer is, indeed, a mentor to many and I. However, upon a rigorous perusal of his said recent article, this writer strongly finds it difficulty to concede with the legal standpoint of the writer. Hence, this writer has decided to present, from another angle, a legal opinion on the subject matter which he believes to be more correct.

For an effective understanding of the whole gist of this rejoinder, a summary of the submissions of the writer, in his article, is hereby given below:

The writer compares and contrasts the provision of section 261 (although mistakenly written as “section 259” in his said published article) of Criminal Law of Lagos State, 2011 (hereafter “CLLS”) and the provisions of the Same-Sex Marriage (Prohibition) Act, 2014 (hereafter “SSMPA”). The writer, thus, began by raising some questions as regards the compatibility and effect of SSMPA provisions and the said section 261 of the CLLS. The writer stated that there is no provision for the offence of lesbianism or sodomy in the CLLS, however, the offense of sexual assault penetration is not left uncovered.

More interestingly, the writer argued on the inclusion of the phrase “without the consent of the person” as used in the said section. The writer, posited that, consent (or the lack thereof), as envisaged in the provision of the law, forms a basic requirement in proving sexual assault. Hence, homosexuality, if done with the CONSENT of the persons involved, is rendered decriminalized and unpunishable.

In his humble submission, the writer further held that the implication of the said section 261 of the CLLS is in contravention with the enactment of the National Assembly (i.e. the SSMPA) because it only provides “CONSENT” as the only clause to criminalized or decriminalized the act of homosexuality. Thus, the provision is of no effect and void [with reference made to section 4(5) of the Nigerian Constitution 1999 (as amended), Musa v INEC ^[[i]] and Attorney-General Bendel State v Attorney-General of the Federation^[[ii]]].

THE REBUTTAL TO THE WRITER SUBMISSION

First and foremost, the writer’s reasoning and submission is greatly acknowledged. It is trite that where there is a conflict between the enactment of the National Assembly and that of a state, in its exercise of provisions under concurrent list as contained in the organic law, that of National Assembly shall prevail and while that of the state shall be rendered null and void and ineffective.

Nevertheless, the writer’s viewpoint is not without flaw or misdirection which needs to be clarified. Given that, this writer has distilled two issues from the writer’s submissions:

1. The implication of section 261 of the CLLS, and
2. The conflict which exists between the CLLS and the SSMPA.

These two issues shall be adequately discussed in this rebuttal.

1. The implication of section 261 of the CLLS

It is our humble submission that the writer erroneously misconstrued the provision of the said section of the CLLS. The writer has misconstrued the section to imply that such an amorous relationship between same-sex (i.e. homosexuality) can not constitute an offence or crime in the Lagos state jurisdiction in so far the persons involved in such an act so consented. For clarity, the provision is hereby provided verbatim:

Section 261, Criminal Law of Lagos State:

“Any person who penetrates sexually, the anus, vagina, mouth or any other opening in the body of another person with a part of his body or anything else, without the consent of the person commits a felony and is liable on conviction to imprisonment for life.” (emphasis added)

With the emphasis made on “without the consent of the person” by the writer, in his article, while construing the provision as the yardstick for justifying the criminalization or otherwise of the act of homosexuality in the state – Lagos state. We, therefore, argue that going by the literal, clear, and unambiguous wordings of the provision, the provision should, thus, be construed as prohibiting and criminalizing any form of sexual assault done without the CONSENT of the other person with the exclusion of homosexual related affairs. The provision, therefore, does not cover or extend to such offences that are homosexual in nature.

The framers of the law (i.e the CLLS) do not intend to extend the provision as being a yardstick for prosecuting offence of homosexuality, whether or not the parties consented. As the writer said in his article, the CLLS makes no provision for the offences of lesbianism or sodomy. The CLLS, which has been in force in Lagos state since August, 2011, before the SSMPA became effective in January, 2014, silent on criminality or otherwise of same-sex marriage or relationship. Hence, before the birth of the SSMPA, same-sex marriage or relationship is deemed unrecognized as an offence or crime, although perceived as immoral act, punishable under the Nigerian laws. Section 36 (12) of the Nigerian Constitution 1999 (as amended) states that no action shall constitute a criminal offence unless it is so codified in a written law and punishment is therefore provided. The framers of the CLLS, thereby, leave the matter to the National Assembly to be legislated on as the power to legislate on marital affairs is exclusive to the National Assembly.^[[iii]]

However, with the birth of the National Assembly act (i.e. the SSMPA), which supersedes any other state laws and which is applicable throughout the Federation, same-sex relationship is now deemed prohibited, chargeable, and punishable under the Nigerian system of justice.

It is worthy of note also that, where there exists legislation of the National Assembly on a subject matter, a state needs not to re-enact any legislation identical with that of the National Assembly even if the matter is listed among the concurrent legislative functions. Otherwise, the National enactment shall invalidate that of the state not on the ground that it is inconsistent, but on the basis that that of the National Assembly has already cover that particular subject matter. See the words of Fatayi Williams C.J.N., in the case of Attorney-General of Ogun State v. Attorney-General of the Federation and others^[[iv]].

Based on the foregoing, we strongly submit that the inclusion of the phrase “without the consent of the other person” in the section as a condition for proving sexual assault can not be used to justify the lawfulness of the criminal act of homosexual otherwise known as same-sex marriage or relationship within Lagos state geographical terrain.

1. The conflict which exists between the CLLS and the SSMPA.

Is there really a discrepancy between the two sets of law: the CLLS and SSMPA? As the writer rightly said, the power to legislate on marriage belongs to the National Assembly^[[v]]. We, therefore, align with this submission of his. However, the underlying question here still remain: is there any inconsistency between the CLLS and the SSMPA?

This writer hereby respectfully submit that the alleged section 261 of the CLLS is not in disharmony with the SSMPA provisions. The provisions of the two sets of law are so clear enough, and thus, attract no ambiguity. Thus, a careful study of section 261 of the CLLS and the SSMPA is required.

The SSMPA states the kind of marriage deemed unrecognized and proscribed under the Nigerian laws. Pursuant to sections 1, 2, 4, and 5 of the SSMPA, any amorous relationship between the same gender (homosexuality: lesbianism and gay) is deemed outlawed, criminalized and sanctioned. On the other hand, the said CLLS  provision regulates any unlawful sexual act arising from the non-consent of one of the parties involved. Moreover, a community reading of the said section 261 together with other sections contained in the whole chapter 25 of the law (the CLLS) is very paramount. A provision of law is to be read in whole and not in part. This is in consonance with the words of Katsina-Alu, JSC, later CJN (Rtd) ,in Action Congress (AC) & Anor v INEC^[[vi]]. His lordship states:

“…It is settled principle of interpretation that a provision of the Constitution or a statute should not be interpreted in isolation but rather in the context of the Constitution or a statute as a whole. Therefore, in construing the provisions of a section of a statute, the whole of the statute must be read in order to determine, the meaning and effect of the words being interpreted…” (emphasis added)

Thus, the said provision, when read together with all other related sections, does not extend to such amorous relationship between people of same gender, but such offence such as rape, sexual harassment, sexual assault, etc. between persons of opposite sex.

Thus, it is the humble submission of this writer that homosexuality, which is prohibited and criminalized under SSMPA, is not in any way decriminalized by the alleged provision of the CLLS. And as such, we vehemently rebut the legal conclusion of the writer and thus, adopt ours as more correct.

CONCLUSION

Conclusively, we do not hesitate to align ourselves with the submission of the writer on the superseding nature of the National Assembly enactments over that of the state House of Assembly. Howbeit, we firmly hold and thus, respectfully submit that:

1. The alleged section does not legalize same-sex relationships, whether or not persons involved so consented.
2. The argument of the writer on the inconsistency of section 261 of the CLLS with the SSMPA holds no water. And thus, we firmly hold that the said section is not inconsistent with the provisions of the SSMPA.

Muhibudeen Qosim Atanda is a second-year Law Student of Faculty of Law, Bayero University, Kano. He can be reached via:

Email: muhibqosim@gmail.com

Phone/WhatsApp: 09037074761

Website:  https://qosim.sgm.ng/blog.html

REFERENCES

[i] (2002) LPELR – 11119 (CA)

[ii] (1981) 10 SC

[iii] Second Schedule- Legislative Powers, Part I – Exclusive Legislative List, article 61.

[iv] (1982) 1-2 S.C. 13 at 40 – 41, (1982) 3 NCLR 166

[v] Section 4 (2), (3) & (4)

[vi]  (2007) 12 NWLR (PART 1048) 222 at 259 B-D