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1.1            Background of the study

Definition of Homosexuality 

Homosexuality is the romantic attraction, sexual attraction or sexual behavior between members of the same sex or same sex[1]. As a sexual orientation, homosexuality is “an enduring pattern of emotional, romantic, and/or sexual attractions” to people of the same sex. It also refers to a person's sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions[2].

The phenomenon of homosexuality has long been ignored in many African countries and Nigeria is no exception. Most African countries see this phenomenon as a European concept and thus the rebellion of African states from European oppression to the colonial era, which led them to reject homosexuality. Homosexuality is said to be against the basic institutions and foundations of society and the family respectively and the laws of God, hence the famous saying that “God created Adam and Eve and not Adam and Steve.”[3]Homosexuality is therefore perceived as an evil in society. Conversely, due to the modernization and emergence of the notion of human rights, the Declaration of Rights and other treaties of international law, a different dimension of opinions against homosexuality. The ever-increasing emergence of fundamental human rights has led to acceptance of the conceptualization of homosexuality by many countries, including African countries. Therefore, in many countries, homosexual marriages and other relationships are accepted by state institutions and society. Nigeria remains an exception and homosexuality in Nigeria is not accepted or recognized by the state. This led to the question of whether Nigeria was in breach of its obligations under international law and its constitution in which the Bill of Rights was rooted.

Who is a homosexual?

[4]A homosexual person is romantically or sexually attracted to people of their own gender. Men who are romantically or sexually attracted to other men are called gay.          According to the Lexicon Webster Dictionary[5], a homosexual is one who is characterized by sexual interest in a person of the same sex. The Oxford Dictionary of Current English defines a homosexual in its adjectival form; as a feeling or involving sexual attraction for people of one's own sex.

From the definition above, it is clear that a homosexual is a person who prefers and affects affections, intimately and sexually to persons of the same sex; He is a man who would rather have sex with a man; And a woman who would rather have sex with another woman.It is clear therefore that a homosexual person can either be a man or a woman.  A male homosexual is often referred to as gay, which according to the Oxford Dictionary of Current English (supra), is a homosexual man.  While a female homosexual; is regarded or known as a lesbian (which originates from Lesbos; a Greek Island and homo of Sappho; who expressed her love for woman in her poetry).[6]

The Lexicon Webster Dictionary (supra) defined a lesbian as a female homosexual and lesbianism as homosexual relations between females[7].

          The attitude of society towards homosexuality has varied from age to age; from society to society and from group to group.  Homosexuality has sometimes been extolled (praised enthusiastically); and at other times, it has been condemned as a heinous crime; a classic example is the destruction of Sodom and Gomorrah by God in the Bible[8] Homosexuals vary in personal capabilities and appearances as widely as other groups, many are ordinary men and women (just ordinary people), a few have a made outstanding contributions in artistic and other field; for example, George Michael (Pop Musician), Sir Elton John (Musician)[9].

Criminalising homosexuality dates back to 1553 by the British, though the act was considered a purely moral issue and done within the preserve of the privacy of the practitioners. However, the act later became legal in Britain with no form of punishment attached[10]. Over time, the practitioners gradually fought for recognition first attaining the status of civil partnership, until the wake of the 21 st century when it attained the status of marriage which saw the passage of the gender neutrality in marriage and marriage laws which gave birth to same sex or gender marriage. This has become a policy which is being championed by the United Nations Human Rights Council. The developed nations of the world are daily embracing this phenomenon called same sex marriage[11].

Homosexual practice is not a new phenomenon.1 Homosexual activities either between male or female adults were considered as acts or activities carried out between two consenting adults as purely private affairs in society.2 Different legal systems of the world at one time or the other frowned at it and by legislations criminalized3 it, thereby making it a punishable offence with terms of imprisonment.[12] The concept of same sex marriage was unknown to legal jurisprudence till about the end of the 20th century. It was towards the tail end of the 20th century and the dawn of the 21st century that countries from the different continents of the world predominantly western societies commenced the process of reviewing their legal systems to legalise same-sex union orassociation.[13]These reviews brought about the introduction, acceptance and legal recognition of same-sex union in the form of civil partnership and later marriage between same sex partners.

What is marriage?

Marriage is the process by which two people make their relationship public, official, and permanent. It is the joining of two people in a bond that putatively lasts until death, but in practice is increasingly cut short by divorce.Marriage also is a universal institution which is recognized and respected all over the world.  As a social institution, marriage is founded on, and governed by the social and religious norms of society[14].  Consequently, the sanctity of marriage is a well-accepted principle in the world community. Marriage is the root of the family and of society.

Marriage is the world’s oldest institution. In Christendom, it is believed that it was instituted by God himself, [15] and it is as old as man’s creation.[16] Marriage therefore, is believed to be a sacred union that exists between a man and a woman.    The  term  marriage  has  been  described  elsewhere  as  “a  socially  sanctioned union, typically of one man and one woman, in this connection called husband and wife. Typically they form a family, socially, through forming a household, which is often subsequently extended biologically, through children. It is found in all societies, but in widely varying forms.”[17]In Islam,  marriage  has  been  defined  as  “a  contract  that  results  in  the  man  and  woman living with each other and supporting each other within the limits of what  has  been  laid  down  for  them  in  terms  of  rights  and  obligations.”[18] Furthermore, “it is a mutual contract between a man and a woman whose goal is for each to enjoy the other, become a pious family and sound society.

The common law definition of marriage is credited to Lord Bughley wherein he refers to it as, “the voluntary union for life of one man and one woman to the exclusion of all others.”[19] The existing marriage law in Nigeria, the Marriage Act, made no attempt to define marriage. However, recourse can be had to the Interpretation Act, which again did not define marriage. According to the Act, “monogamous marriage to mean a marriage which is recognised by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage.”[20] Marriage has been further defined as “a legal union entered into between persons of opposite sex in accordance with the Marriage Act, Islamic and Customary Laws.” In Islam, the function of marriage has been stated thus:

Marriage acts as an outlet for sexual needs and regulates it so one does not become a slave to his/her desires. It is a social necessity because through marriage, families are established and the family is the fundamental unit of every society…Marriage is the only legitimate way to indulge in intimacy between a man and a woman[21].

          It is universally accepted that marriage, being a union of man and woman, involves two persons of opposite sex.  Consequently, sex constitutes an essential determination of marriage relationship[22].  In order, therefore, to establish the existence of a valid marriage, it must be proved that the persons involved are man and woman.  Ordinarily, this seems a straightforward question.  However, the issue has been complicated by the existence of hermaphrodites and pseudo-hermaphrodites and advances in medical science which has made sex-change operation feasible.  In the light of this important development, the legal question has arisen as to the sex of personswho had undergone sex-change operations and whether such person can be regarded as “man” or “woman” for the purposes of contracting a valid marriage.  This question has been considered in different jurisdictions[23].

In the English cases of Corbett v Corbett[24], the petitioner and the respondent went through a ceremony of marriage in September, 1963.  The petitioner knew that the respondent had been registered at birth as a male and had in 1960 undergone an operation for the removal of the testicles, most of the scrotum and the construction of an artificial vagina.  Since that operation, the respondent had lived as a woman.  In December, 1963, the petitioner filed a petition for a declaration that the marriage was null and void because the respondent was a person of the male sex or alternatively, for a decree of nullity on the ground of either incapacity or willful refusal to consummate.  [25]The respondent in the answer prayed for a decree of nullity on the ground of either the petitioner’s incapacity or hiswillful refusal to consummate the marriage.  Furthermore, she pleaded that the petitioner was stopped from alleging that the marriage was void. Ormrod, J. held that the respondent had remained at all times a biological male and that, accordingly, the so-called marriage was void.  The learned judge observed.

The question then becomes, what is meant by the word ‘woman’ in the context of a marriage, for I am not concerned to determine the ‘legal sex’ of the respondent at large.  Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormones which can exist in a person with male chromosomes, male gonads and male genital cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.  In order words, the law should adopt in the first place, the first three of the doctor’s criteria, i.e. the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly and ignore any operative intervention.  The real difficulties of course will occur if these three criteria are not congruent… My conclusion, therefore, is that the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth[26].

The decision in Corbett’s case was adopted by Bell, J.  In the Marriage of C and D (falsefy called C) a case heard at the Family Court of Austria at Brisbane in 1979.

          But a different view was held by the Superior Court of New Jersey (Appellate Division) in M.T. v. J.T.  The facts were similar to Corbett’s case.  The wife filed a complaint for support and maintenance.  The husband pleaded in defence that the wife was a male and that their marriage was, therefore, void.  They disagreed with the conclusion reached in Corbett’s case.  Explaining the basis of its objection the court observed that:

Our departure from Corbett thesis is not a matter of semantics.  It stems from a fundamentally different understanding of what is meant by ‘sex’ for marital purposes.  The English court apparently felt that sex and gender were disparate phenomena.  In a given case there may, of course be such difference.  A pre-operative transsexual is an example of that kind ofdisharmony, and most experts would be satisfied that the individual should be classified according to biological criteria.  The evidence and authority which we have examined, however, show that a person’s sex or sexuality embraces an individual’s gender, emotional sense of sexual identity and character.  Indeed, it has been observed that the ‘psychological sex of an individual’, while not serviceable for all purposes, is ‘practical, realistic and humane, it went on to emphasize that:[27]

The English court believed, we feel incorrectly, that an anatomical change of genitalia in the case of a transsexual cannot ‘affect her true sex’.  Its conclusion was rooted in the premise that ‘true sex’ was required to be ascertained even for marital purposes by biological criteria.  In the case of a transsexual following surgery, however, according to expert testimony presented here, the dual tests of anatomy and gender are more significant.  On this evidential demonstration, therefore, we are impelled to the conclusion that for marital purposes of the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche orpsychological sex, and then identity by sex must be governed by the congruence of these standards[28].

          The differences of opinion between the English and American courts illustrate the depth of the problem of determining, in some cases whether a marriage has been celebrated between persons of the opposite sex. Unlike most European countries, two systems of marriage are recognized in Nigeria – the monogamous and polygamous systems. These two differ fundamentally in character and incidents.  It is important to keep this dualism in view in every consideration of the marriage laws in Nigeria, in order to avoid any confusion.  In every case concerning marriage, the lawyer in Nigeria has in the first instance to determine the type of marriage involved in order to enable him apply the appropriate law or determine the incidents[29].

It has further been canvassed that:

Marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces. It is based on the anthropological truth that men and women are different and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children need both a mother and a father[30].

Marriage is purely a private affair, a practice within the private realm of the individuals or parties who come into it. Marriage exists by agreement of the parties who have decided to come into the union to live as husband and wife. The question is if marriage is a private affair between the parties thereto, that is man and woman, what then is the role of the state or government in the marriage institution? In all facets of human endeavors, government formulates the legal framework to govern and regulate such activities; and marriage is not an exception to such arrangement. This position has been maintained elsewhere in the following words:

Government recognizes marriage because it is an institution that benefits society in a way that no other relationship does. Marriage is society’s least restrictive means of ensuring the well-being of children. State recognition of marriage protects children by encouraging men and women to commit to eachother and take responsibility for their children. While respecting everyone’s liberty, governmentrightly recognizes, protects marriage as the ideal institution for childbearing and childrearing.[31]

          The relevance of marriage to the society has necessitated the need for its regulation by State apparatus through legislation or regulation. This view has been expressed elsewhere thus:

Marriage is more than a personal relation between a man and woman. It is a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the state. Marriage, as created the most important relationship in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. This body prescribes the age at which parties may marry the procedure or form essential to the marriage, the duties and obligations it creates, its effects on the property rights of both parties, present and future, and Acts which may constitute grounds for marriage dissolution[32].

In stressing the importance of marriage and family life it has been stated elsewhere that:

Marriage is a uniquely comprehensive union. It involves a union of hearts and minds, but also and distinctively a bodily union made possible by sexual complementarity. As the act by which a husband and wife make marital love also makes new life, so marriage itself is inherently extended and enriched by family life and calls for all-encompassing commitment that is permanent and exclusive. In short, marriage unites a man and a woman holistically emotionally and bodily, in acts of conjugal love and in the children such love brings forth for the role of life[33].

Forms of same sex marriages

          [34]Same-sex “marriage” (also called sodomite “marriage”, homosexual “marriage” or “gay 'marriage”) is a liberal attempt to advance the homosexual agenda and force the public to pay benefits for relationships that are not procreative and typically are not even monogamous.Legally defined marriage of homosexual couples is limited to a minority of jurisdictions at this time; more common is a “civil union,” which includes many of the all-important legal trappings, without the title "marriage" and the religious overtones some think are implied by the word

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