Nigeria’s same-sex marriage prohibition act: Flying in the faces of constitutional and African charter rights

Abstract

This paper examined the prohibition and criminalisation of same-sex marriage in Nigeria under the Same Sex Marriage (Prohibition) Act 2013 (SSMPA), in spite of the provisions of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, which guarantee Nigerian citizens the right to freedom from discrimination, and every person the right to human dignity. With the aid of the theory of proportionality, the paper examined the constitutionality of the provisions of the SSMPA in their limitation of the constitutional and African Charter rights of citizens and persons at the sub-constitutional level in Nigeria. The paper elucidated that the SSMPA cannot claim legal validity because of the notion of hierarchy, as its precepts take for granted the constitutional values, which require citizens of Nigeria to be treated equally and for persons to enjoy certain absolute fundamental rights. Besides advocating for the repeal of the SSMPA, the paper, more importantly, recommended the adoption of the broad and comprehensive approach to the interpretation of the Constitution. The regrettable alternative is, of course, an amendment to the CFRN 1999 to permit the limitation of the rights to freedom from discrimination and human dignity on the basis of sexual orientation.