Will Gay Sex Ever Stop Being A Crime In Nigeria?

I remember sometime in 2013, when my learned friend and I were exchanging ideas on the possible legal defences open to people who face criminal charges in court for same-sex sexual offences. My colleague’s position back then was that apart from anal sex, all other sexual contacts between persons of the same-sex was no longer illegal in Lagos State. Therefore, any LGBT person charged to court for same-sex sexual offences in Lagos State cannot be convicted, provided he was not accused of having anal sex.

Needless to say, I found his position quite odd and hard to believe. My friend attempted citing the statutory authority he was relying on in support of his assertion, but wasn’t quite sure where or how he came across the statute. So, after listening to his hazy legal argument, I just dismissed his position as mere wishful thinking.

Fast-forward a few years later. I stumbled on a Lagos State legislation which cleverly omitted and then added a few socially sensitive provisions that scaled through the legislative hurdle without attracting any negative social attention.  On 8th August 2011, the then-governor of Lagos State, Mr. Babatunde Raji Fashola (SAN), assented to a new bill which repealed The Criminal Code Law Cap. C-17 Laws of Lagos State of Nigeria 2003 and replaced it with the new Criminal Law of Lagos State 2011. The repealed 2003 Criminal Law of Lagos State had all the usual colonial criminalization of anal sex and all other sexual activities between male persons. The new Criminal Law of Lagos State 2011, on the other hand, decriminalized all sexual activities between two consenting adults of the same-sex as long as they do not carry out any of their sexual activities in public. All the discriminatory provisions in the old law against the LGBT community were omitted in the new law.

It is worthy of note to observe here that this decriminalization happened at the same period when the rest of Nigeria was driving itself mad over same-sex marriage. While many of our national politicians were busy positioning themselves and getting ready to take advantage of the windfall expected to come from the anti-same-sex marriage frenzy, Lagos State was busy doing good, quietly and without affectation.

To underscore the scope of the good work the Lagos State House of Assembly and of course Mr. Babatunde Raji Fashola, did for the LGBT community, allow me to place the relevant provisions of the old law side by side with the relevant provisions of the new law:

CRIMINAL CODE LAW OF LAGOS STATE 2003

Section 214:

UNNATURAL OFFENCES

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:

ATTEMPT TO COMMIT UNNATURAL OFFENCES

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 a warrant.

The Lagos State government took a look at those two provisions and thought they were so bad they just couldn’t be salvaged. So, they consigned both to the dustbin of our legal history.

CRIMINAL CODE LAW OF LAGOS STATE 2003

Section 216:

INDECENT TREATMENT OF BOYS UNDER FOURTEEN

Any person who unlawfully and indecently deals with a boy under the age of fourteen years is guilty of a felony, and is liable to imprisonment for seven years. The term “deal with” includes doing any act which, if done without consent, would constitute an assault as hereinafter defined.

The Lagos State government refined this statute as:

CRIMINAL LAW OF LAGOS STATE 2011

Section 135:

INDECENT TREATMENT OF A CHILD

(1) Any person who unlawfully and indecently deals with a child commits a felony and is liable on conviction to imprisonment for seven (7) years.

(2) The term “deal with” includes doing any act which if done without consent, would constitute an assault.

CRIMINAL CODE LAW OF LAGOS STATE 2003

Section 217:

INDECENT PRACTICES BETWEEN MALES

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.

CRIMINAL LAW OF LAGOS STATE 2011

Section 136:

INDECENT PRACTICES

Any person who commits any act of gross indecency with another person in public or procures another person to commit any act of gross indecency in public with him or another person commits a felony and is liable on conviction to imprisonment for three (3) years.

From the foregoing, it begins to look like the answer to our question appears to be a YES. It also seems to me that even the Sharia States of Northern Nigeria may not be a stumbling block towards this answer. In a previous article, I’d argued that contrary to the general perception among non-Muslims, it appears the anti-gay laws in the North are less stringent than those in the South. The burden of proof under Sharia law is so high that it is nearly impossible to convict anyone charged under it. Even where the convictions are secured, the sentence is almost always not carried out.

The decriminalization of gay sex in Nigeria can therefore happen within the foreseeable future.

Already, the former colonial authorities who imposed their homophobic legal cultures on African countries have not just abandoned those cultures, but are now expressing regret for leaving behind such unhealthy cultures and are subtly mounting pressure on African governments to abandon such a legacy. In her speech at the Commonwealth Heads of Government Meeting in London 2018, Theresa May had this to say about the homophobic laws left behind by Britain in Nigeria:

“As the United Kingdom’s prime minister, I deeply regret both the fact that such laws were introduced and the legacy of discrimination, violence and death that persists today.”

Her tone was markedly different from the tactless and aggressive tone of Western countries in the recent past, which gave the impression that they had a neo-colonialist and imperialist agenda.

Having said all these, the reader still needs to be reminded that it is not yet uhuru in Lagos State; it is not yet “freedom at last”. This is so for the following reasons:

1. The Criminal Code Act is a Federal law deemed to have been made by the National Assembly based on the concurrent legislative list of the 1999 constitution. That law applies to all of Southern Nigeria. It still contains all the anti-LGBT provisions which were replicated in the 2003 Law repealed by Lagos State in 2011.

2. There is an inconsistency between The Lagos State Criminal Law 2011 and the Criminal Code Act. However, the Criminal Code Act has already “covered the field.” The doctrine of covering the field was defined by the Supreme Court in Attorney General of Ogun State & Ors v. Attorney General of the Federation (1982) NSCC (Vol. 13) 1 at 35, when it held that “where a matter legislated upon is in the concurrent list and the Federal Government has enacted a legislation in respect thereof, where the legislation enacted by the state is inconsistent with the legislation of the Federal Government, it is indeed void and of no effect for inconsistency.”

3. A defendant can still be arrested, charged and convicted at a State High Court of Lagos under this Federal Law.

So, what’s the point of all these, the reader may ask.

Well, I too admit that we are looking at a merely symbolic gesture here. But we need to keep hope alive. Firstly, we have now seen that decriminalization all over Nigeria is possible in the near future. Secondly, the reason behind the decriminalization in Lagos could be that Lagos State chose to start engaging the LGBT community in adult conversations. They seem to have chosen not to shut us up as if we were some juvenile delinquents.

What happened on 8th August 2011 in Lagos reminds me of one of history’s famous one-liners from Neil Armstrong as he emerged from the Apollo Lunar Module Eagle and became the first man to step on the surface of the moon on 20th July, 1969:

“That’s one small step for a man, one giant leap for mankind.”

Written by Legal Koboko