Nigerian High Court avoided constitutional scrutiny of anti-gay laws

Many thanks to Ovye Affi, an LL.M student of Sexual and Reproductive Rights in Africa, in the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa. He kindly contributed a 6-page case summary to the updated edition of Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts., online here. We are pleased to circulate a few excerpts about this “first suit in a Nigerian court which specifically sought the protection of the rights of homosexuals.”

Cite as: Ovye Affi, “Nigerian High Court avoided constitutional scrutiny of anti-gay laws : Mr. Teriah Joseph Ebah v. Federal Republic of Nigeria (2014),” Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, Reprohealthlaw Blog, Dec. 10, 2019 Decision online6-page Case Comment by Ovye Affi.

“Court Holding: The Court held that the Applicant in this case has no legal standing to bring an action against the Nigerian Government on the constitutionality of the prohibition of same-sex conduct, marriages and associations, because the Applicant did not claim to be a homosexual. Furthermore, the Court held that the Applicant, who claims to have instituted the suit on behalf of the ‘Gay Community in Nigeria’, had no legal standing to so institute the action because there is no such body or organization in Nigeria.

“Summary of Facts: Statutes in Nigeria have long criminalised ‘offences against the order of nature,’ which were interpreted to include same-sex conduct. In 2013, the Federal Republic of Nigeria, in an attempt to further clamp down on actual or perceived homosexuals, enacted the Same Sex Marriage (Prohibition) Act (SSMPA), which confirms the criminalization of homosexual activities by expressly criminalizing marriages between homosexuals, as well as support for homosexuals or homosexual associations. The Applicant instituted this suit at the Federal High Court, Abuja Division, seeking answers as to whether the provisions of the SSMPA infringe the constitutionally guaranteed rights of members of the LGBT+ community to [1] freedom from discrimination on grounds of sex; [2] liberty; [3] freedom of association; [4] dignity; and [5] privacy and whether the provisions of the SSMPA are null and void to the extent of their inconsistency with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (The Constitution).”

“Court’s Analysis: In determining the preliminary objection, the Court observed that, according to Section 46(1) of the Constitution, an applicant in a fundamental rights action must establish that his rights had been contravened or threatened. The Court conceded that it is aware of the fact that the Preamble to the Fundamental Rights Enforcement (Procedure) Rules, 2009 (FREP Rules) provide that ‘no human rights case may be dismissed or struck out for want of locus standi [legal standing]’. However, the Court concluded that this Preamble to the FREP Rules, which was written by the Chief Justice of Nigeria pursuant to Section 46(3) of the Constitution, is contrary to Section 46(1) of the Constitution and consequently void.

“The Court upheld the preliminary objection of the Respondent and held that since the Applicant failed to show that he is a homosexual, the Applicant lacks legal standing under Section 46(1) of the Constitution. The Court also held that the Applicant cannot be heard to claim that he represents the LGBT+ community because there is no person or association known to law in Nigeria as the LGBT+ community. Consequently, the Court made an order striking out the Applicant’s suit, without considering the merits of the suit.

Significance: As Ovye Affi explains, flaws in the Court’s ruling on legal standing suggest that the Court “was influenced by the moral and cultural sentiments against homosexuals in Nigeria. . . . Since 1987, the Supreme Court of Nigeria had noted that courts need to allow a broader interpretation of the legal standing provisions of the Constitution in order to allow for public interest litigation. In a 2018 decision, the Court of Appeal of Nigeria upheld the Preamble to the FREP Rules and held that courts should allow individuals or organizations to institute fundamental rights enforcement actions on behalf of others.”

The entire case-comment, including endnotes and cited cases, is online here. As Ovye Affi demonstrates, future challenges to Nigeria’s anti-gay laws could ensure legal standing, and invoke not only the Constitution, but international human rights treaties. These include the African Charter of Human and Peoples’ Rights, and, more recently, the African Commission’s Resolution 275* of 2014, which he considers”a good starting point for the recognition and protection of the rights of LGBT+ persons by the apex human rights body in Africa. It could help ensure a progressive recognition and protection of the rights of homosexuals in Africa.”

RELATED RESOURCES
Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts (Pretoria: PULP, 2017) Printed edition PDF. Updated edition online.

African Commission on Human and Peoples’ Rights, Resolution 275 on protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity adopted at the 55th Ordinary Session held in Luanda, Angola, from 28th April to 12th May 2014. 12-page resolution.

See also: “RESOLUTION 275 – What it means for state and non-state actors in Africa,” (Pretoria: Centre for Human Rights, University of Pretoria and AmSHER, [2018]) 12-page interpretation.
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Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   See Program website for our PublicationsInformation resources, and Reprohealthlaw Commentaries Series.
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