Nigeria’s Same Sex Marriage Prohibition Act: Flying in the faces of constitutional and African Charter Rights

Abstract

This paper examines the prohibition 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 1999 (CFRN 1999) and the African Charter Act, both of which guarantee every citizen and person rights to freedom from discrimination and human dignity. With the aid of the theory of proportionality, this paper assesses the constitutionality of the provisions of the SSMPA in their limitation of the constitutional and African Charter Act rights of citizens and persons at the sub-constitutional level in Nigeria. It elucidates that the claim of legal validity cannot be made for the SSMPA because of its inconsistency with the legal/hierarchical order, as its precepts take for granted the constitutional values—and are not derived from the basic norms—which require citizens to be treated equally and for persons to enjoy certain absolute fundamental rights. Aside from advocating for the repeal of the SSMPA, this paper recommends the adoption of the broad and comprehensive approach in the interpretation of the provisions of sections 34(1) and 42(1)(a) & (b) of the CFRN 1999. The alternative, however, is for the alteration of the relevant provisions of the CFRN 1999 and African Chater to explicitly allow the derogation of the rights to freedom from discrimination and human dignity on the basis of sexual orientation.