Judgment is being handed in a week – the Petitioner’s thoughts about the Judge and a message to fellow straight Nigerians
Updated 9/25/2014.: The judgment in the case was postponed today until October 21, 2014.
By Melanie Nathan, September 18, 2014.
On Jan. 7 of this year, Nigeria’s President Goodluck Jonathan signed into law the Same Sex Marriage (Prohibition) Act, referred to as the “jail the gays” bill. Nigeria already had laws against its LGBTI population. However the new law provides for harsh sentencing, and also, in essence, serves to persecute Nigeria’s LGBTI community, through tacitly encouraging “mobs who engage in what amounts to “queer cleansing” — the violent and systematic eradication of any expression of LGBTQ identities and culture.” (Huffington Post)
Joseph Teriah Ebah, a straight Nigerian ally, based in the United Kingdom, filed a claim against the Nigerian Government in the Abuja Division of the Federal High Court, on Constitutional grounds, stating that the Same-Sex Marriage (Prohibition ) Act 2014 a.k.a. Anti Gay Law, is unconstitutional, as it failed to take into consideration the fundamental human rights of the Nigerian LGBT community.
Ebah has asked the court to declare that the provisions of the Act, particularly sections 1 (1) (a) (b), 2 (1) (2) and 3 violate the fundamental rights of Nigerian citizens, as enshrined and protected in section 42 (1) (a) (b) and 2 of the 1999 Constitution, as well as articles of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004. He has asked the court to declare the anti-gay law as unconstitutional, null and void, and also make an order of perpetual injunction restraining the Federal Government “from further enforcing the provisions of the Same Sex Marriage (Prohibition) Act, 2013, particularly sections 1, 2, 3, 4, and 5 of the said Act.”
I communicated with Mr. Ebah, thanking him for his courageous stand, and asked him for his thoughts prior to delivery of the Judgment by Justice Kafarati, which is expected next week.
Here is what Ebah wrote to me:
As for the expected 25/09/14 court decision, I am cautiously optimistic that my quest to make Nigeria more tolerant, understanding and an all inclusive society, through this court action will come to pass.
I am not so much concerned about how I feel about the up coming judgement to be honest but rather I am more concerned about what the judge would use this wonderful opportunity to do to Nigerian as a people. He is in a unique position and has a case that provides him with a wonderful opportunity to make a difference but what type of difference he chooses to make is the billion dollar question that I can’t stop asking myself.
Will he choose to foster tolerance and understanding through his judgement or will he choose to legalise discrimination and persecution of a people? Will he choose to protect a minority group who happen to be born different or will he choose to encourage abuse and attack of a people whose only sin is that they are attracted to someone you wouldn’t be attracted to? Will he choose to say “leave an innocent minority of people alone” or will he say its okay to turn an innocent group of people into criminals just for loving a person you wouldn’t fall in love with? What he chooses will define Nigeria in the eyes of many and I hope recognises that. You lose nothing in fostering tolerance in a society and you gain a lot by giving people a sense of security and so Justice Kafarati has a lot to gain here.
As far as the Nigerian constitution as it relates to human rights is concern, it is obvious that Nigeria’s anti-gay law violates it and so shouldn’t stand but we all know that judges can sometimes hide behind their fingers and make bizarre decisions so who knows. My prayer is that the judge gives our constitution a liberal interpretation and if he does that then we have a good chance.
To all my straight brothers and sisters in Nigeria I say “life is wonderful when you are not at the receiving end of discrimination and abuse”. What goes around comes around they say and so if you accept discrimination and abuse against a people just because you are in the majority then be prepared to accept whole heartedly discrimination and abuse when someday you are at the receiving end. You may not like same sex relationship but you can choose to leave them alone and that is all they ask you for. They don’t stop you from making money or stop you from going to work or take food away from your children. They do nothing wrong but be different from you so why do you find it so difficult to leave them alone. Do you know why? Its because you haven’t tried to. If you decide to leave them alone you will find out very quickly that you lose nothing out of the quality of your life.
As a country and a continent, we have a mountain of issues confronting us and the issue of same sex relationship is the least of them all. For Nigeria and poverty stricken African countries to be trying to solve something that isn’t an issue as if its going to suddenly increase our sense of anti corruption and stop our leaders from stealing from the state is ridiculous . utterly ridiculous.
I guess I am writing too long a story now so I am going to have to stop here. I really hope the judge uses this case to move Nigeria forward and rule in our favour but if that doesn’t happen then we will be off to the court of appeal. Thank you once again for your interest and support.
Ebah holds a BA Degree in Accounting and Finance from University of Derby UK, A Masters Degree in Strategic Financial Management from University of Derby UK, and is a Registered Member, Chartered Institute of Management Accounting of Britain (CIMA), and a happily married man with a Son. He currently working with the Department for Works and Pension under the employment of the British Government.
Here is Teriah Ebah’s Affidavit:
“That I am the Applicant herein and as such I am familiar with the facts leading to this case as well as the facts of this case.
“That I hold a BA Degree in Accounting and Finance from University of Derby UK, A Masters Degree in Strategic Financial Management from University of Derby UK, a Registered Member, Chartered Institute of Management Accounting of Britain (CIMA), and a happily married man with a Son.
“That I am currently working with the Department for Works and Pension under the employment of the British Government.
“That only recently, particularly on December 17, 2013, both houses of the National Assembly, the Senate and House of Representatives, passed an act titled “Same Sex Marriage (Prohibition) Act, 2013.
“That I am aware that on the December 30, 2013, the Clark of the National Assembly also signed the said act before transmitting it to the President and Commander- in-Chief of the Armed Forces of the Federal Republic of Nigeria, Dr. Goodluck Ebele Jonathan who assented to the act, Same Sex Marriage (Prohibition) Act, 2013, on January 7, 2014.
“That over the years I have maintained and continue to maintain close relationship with relatives, Nigeria Citizens schooling, working and doing businesses both in the UK and in Nigeria which inevitably gives me insight into worrisome plight and predicament, the recently enacted Same Sex Marriage (Prohibition) Act, 2013, has brought to bear on these citizens.
“That I know as a fact that these Nigerians who are schooling, working and doing businesses in every part of the world including the UK and Nigeria, are entrepreneurs, people in sport, philanthropists, artisans, politicians, doctors, lawyers, Clergymen and the down trodden, who work hard day and night to improve their lot, that of their dependants and their country.
“That I know as a fact that a citizen of Nigeria, who happens to be gay, lesbian, bisexual or transgender is not a sudden creature living amongst the populace.
“That I know as a fact that sometime in the history of this country, the killing of twins was an acceptable culture and practice before it was abolished.
“That I know as a fact that sometime also in the history of this country, the killing of albino was generally acceptable by a majority before it was abolished.
“That I know as fact that the majority of people in some parts of this country still accept the marriage of a minor to an adult.
“That I am aware that sometime in the history of the world, dealings in slavery or slave trade was generally acceptable by a majority of people in certain parts of the world before it was abolished.
“That I am aware that these Nigerians are tax payers, voters and people recognized and protected by the constitution as Nigeria Citizens.
“I am also aware that these category of Nigerians, by natural design, come in different sexes to include Male, Female, Neuter, Hermaphrodite, Gay, Lesbian, Transgender etc.
“That I am aware that these Nigerians, particularly those whose sex is Gay, Lesbian, bisexual or transgender are, by natural design, biologically and physiologically, without any fault of theirs, share unique sexual orientation.
“That I know as a fact that these Nigerians mentioned above, have closely netted community of common interest that has no effect on the social, moral, economical and religious lives of other Nigerians.
“I know as a fact that there is a constitutional provision in Nigeria which forbids discrimination against any Nigerian on the basis of their sex, community and/or circumstances of their birth.
“That I know as a fact that the recently assented Same Sex Marriage (Prohibition) Act, 2013, by the President Jonathan violates the Nigerian Constitution which forbids discrimination against any Nigerian by virtue of their sex, community and/or circumstances of their birth.
“That I am aware that the Same Sex Marriage (Prohibition) Act, 2013, criminalizes marriages and associations between and amongst Nigerians whose sex are gay, lesbian and transgender.
“That I am also aware that Same Sex Marriage (Prohibition) Act, 2013, prohibits and criminalizes the operation of associations and/or the assembly of people who support the operation and functions of associations or organizations formulated by Nigerians with the interest of those who belong to the lesbians, gay, bisexual and transgender (LGBT) community at heart.
“That I know as a fact that by virtue of the promulgation of the Same Sex Marriage (prohibition) Act, 2013, I or any Nigeria Citizen cannot register an association to protect the interest of Nigerian Citizens who are lesbians, gay, bisexual or transgender.
“That I am not aware of any Act of law that prohibits a Citizen of Nigeria from registering an association or organization to protect or fight for the interest of animals in Nigeria.
“That I am also aware that this law prohibits public speaking for the interest of these Nigeria Citizens who are lesbians, gay, bisexual or transgender and who belong to the lesbian, gay, bisexual and transgender (LGBT) community.
“That I am aware that since the inception of Same Sex Marriage (Prohibition) Act, 2013, an estimated number of about Thirty Eight (38) Nigerians have been arrested in about four (4) states of the federation on the basis of their sexual orientation.
“That I am aware that in Bauchi alone, an estimated number of about 12 Nigerians were arrested and subjected to prosecution on the basis of their sexual orientation.
“That I verily believe that this arrest, persecution and prosecution of these Nigerians is an attempt at genetic genocide meant to exterminate these Nigerians.
“That I know as a fact that in Nigeria, citizens whose sex is Male or female, exercises their straight sexual orientation openly without fear and same has not been criminalized.
“That I am also aware that sometime in the history of the world, the black race was seen as an inferior race by a majority of races and is still seen as an inferior human being to this day by a majority of people in certain parts of the world,
“That I Know as a fact that history has it that in many states of the United States of America, a majority of people supported laws forbidding marriage between a black man and a white woman or white woman and a black man, before they were repealed in most states of the United States of America.
“That I know as a fact that a majority of people in Nazi Germany supported Adolf Hitler’s laws, pronouncements and actions before and during the Second World War. Laws, pronouncements and actions that led to the death of Millions of innocent people in Europe and around the world.
“That I know as a fact that Individuals do not choose their sexual orientation, be you straight, gay, lesbian or bisexual. It is not a matter of choice. You are who you are. By circumstance of our Birth, we are born straight, gay, lesbian, bisexual or transgender.
“That I know as a fact that the sexual orientation of a citizen of Nigeria does not impair upon his or her ability to participate fully in all economic and social activities and/or institutions in Nigeria or elsewhere in the world.
“That I know as a fact that a citizen of Nigeria, who is gay, lesbian, bisexual or transgender is not mentally deficient.
“That I know as a fact that the protection from discrimination of these Nigerians on the basis of sex, community or circumstance of their birth has always been in the constitution of Nigeria.
“That I verily believe that the Same Sex Marriage (Prohibition) Act, 2013 is the legalization of discrimination against Nigerians on the basis of their sex and sexual orientation, the community they belong to and circumstance of their birth.
“That I verily believe that unless these reliefs sought herein are granted, the Federal Government and all its agencies will continue to haunt down, detain, torture, prosecute and discriminate against Nigerians on the basis of their sex, community and circumstance of their birth.
“That I verily believe that it will be in the interest of justice to grant this application”, he added.
We must remember that making certain rulings considering constitutionality may render a Judge controversial in Nigeria. And yes the Courts are considered independent:
Case in point is this earlier case where the Judge was considered controversial:
With the sustained pressure on the National Judicial Council to investigate Justice Abdul Kafarati of the Federal High Court over his controversial rulings, this may not be the best of times for the High Court judge, writes Davidson Iriekpen
The ripples generated by the judgment delivered by Justice Abdul Kafarati of the Federal High Court in Abuja last week is yet to subside, both in the judicial and political circles. The judge had ordered the sack of the National Chairman of the All Progressives Grand Alliance (APGA), Chief Victor Umeh and the party’s National Secretary, Sani Shinkafi from office. The judgment was sequel to the suit filed by a chieftain of the party, Chief Maxi Okwu, who dragged the duo and the Independent National Electoral Commission (INEC) before the court, challenging their stay in office beyond what the constitution of the party provides for.
In the judgment, Kafarati declared that Umeh, who had been in office for over 10 years, could not validly continue in office 10 years after he was first elected. He cited Article 18(2) of the constitution of the party, which provides that any official of the party can only stay in officefor a maximum of two terms of four years.
He further held that Umeh and Shinkafi, having been voted into office by voice votes rather than secret ballots as stipulated by Article 18(3) of the Constitution of APGA were not validly elected. In the circumstance, the judge ordered both men to vacate their respective offices READ MORE
Nigeria is a Federal Republic modeled after the United States, with executive power exercised by the president. The government of Nigeria is also influenced by the Westminster System model in the composition and management of the upper and lower houses of a bicameral legislature. However, the President of Nigeria is the head of state, head of government, and head of a multi-party system. Nigerian politics takes place within a framework of a federal, presidential, representative democratic republic, in which executive power is exercised by the government. Legislative power is held by the government and the two chambers of the legislature: the House of Representatives and the Senate. Together, the two chambers make up the law-making body in Nigeria, called the National Assembly, which serves as a check on the executive arm of government. The highest judiciary arm of government in Nigeria is the Supreme Court of Nigeria. Nigeria also practices Baron de Montesquieu’s theory of the separation of powers.
Nigerian LGBT Defenders Await Court Decision on Anti-Gay Law
By Melanie Nathan, September 17, 2014.
Courageous Nigerian human rights defenders and the Nigerian LGBT community, in Nigeria and exile, anxiously await the outcome of Justice Abdu Kafarati ‘s ruling in the claim filed against the Federal Government in the Abuja High Court from earlier this year. The ruling will be handed down on September 25th. READ MORE