Nigeria: Situation of homosexuals and their treatment under sharia law (June 2002-July 2004)

This update of NGA39088.E of 17 June 2002 on the treatment of homosexual men in Nigeria, reveals that male homosexuality remains a criminal offence and that attitudes towards homosexuality persist largely unchanged (Religion in the News Fall 2003; SFC 14 Jan. 2004). In spite of this, however, some reports suggest that it is possible to live as a homosexual, though discreetly, and not without some risk to one's safety (AI 11 Feb. 2003; IRIN 7 May 2004; see also UK Apr. 2004; Daily Trust 9 Sept. 2003). Evidence found by the Research Directorate of punishment for male homosexual acts is in fact limited to the Nigerian states that enforce sharia law (HRW Jan. 2004; This Day 28 Feb. 2002).

Still, although Nigeria has at least two active gay rights organizations (IRIN 7 May 2004; SFC 14 Jan. 2004; JAAIDS 7 May 2003; BTM 13 May 2004), disapproval of homosexuality remains strong at the individual level (This Day 30 Mar. 2004; Daily Champion 8 Mar. 2004; Daily Trust 29 Dec. 2003; Religion in the News Fall 2003), within the Christian church and Muslim communities (Toronto Star 1 Feb. 2004; Vanguard 19 Nov. 2003; Weekly Trust 18 Oct. 2003) and within the media (Religion in the News Fall 2003).

Legislation

Homosexuality remains a criminal offence under Nigeria's criminal code and can carry a jail term of 14 years while a sentence of death by stoning is the penalty under sharia law (BTM 13 May 2004; IRIN 7 May 2004; Sodomy Laws 8 May 2004).

Amnesty International's office in Bonn, Federal Republic of Germany, noted that "Nigeria's Criminal Code Act provides for severe penalties in dealing with same-sex acts performed between persons of the male gender," and provided the following excerpt from Chapter 21 of the Act, entitled "'Unnatural Offences'":

214. Any person who

(1) has carnal knowledge of a person against the order of nature; or

(2) has carnal knowledge of an animal; or

(3) permits a male person to have carnal knowledge of him or her against the order of nature; shall be guilty of a felony and shall be punished with 14 years' imprisonment.

215. Every person who attempts to commit one of the offences described in the preceding Section shall be guilty of a felony and shall be punished with seven years' imprisonment.

216. Every person who "deals with" a boy under 14 years of age unlawfully and immorally shall be guilty of a felony and shall be punished with seven years' imprisonment.

The concept of "dealing with" comprises any act which constitutes assault if perpetrated without consent.

217. Any male person who, whether in a public or private domain, commits any act of gross indecency with another male person, or suborns another male person to commit an act of gross indecency with him, or attempts to instruct any other male person to suborn any such act, be it with himself or with a third male person, whether publicly or privately, shall be guilty of a felony and shall be punished with three years' imprisonment (11 Feb. 2003; see also Nigeria 1990).

The international human rights group also provided the definition of the term "'unnatural offences'" that was included in the annotation to the chapter of Nigeria's Criminal Code Act:

'The term "'unnatural offences'" comprises sodomy or anal intercourse (buggery) and bestiality.' Same-sex practices between male persons are thus placed on a level with sexual intercourse with animals (sodomy), which could lead to application of the much more severe Section 214 instead of Section 217 in the event of a conviction for homosexuality practiced between males. What is evidently key in this connection is the interpretation of the term 'unnatural' ('against the order of nature'), and anal intercourse can come under this definition (AI 11 Feb. 2003; see also Nigeria 1990).

In addition to the criminal code (which applies to all of the states of Nigeria), since January 2000, 12 of the country's northern states have introduced sharia law (ACCORD/UNHCR Nov. 2002, 183; IRIN 8 June 2004; UK Apr. 2004), which also penalizes acts of homosexuality (AI 11 Feb. 2003; UK Apr. 2004). For instance, in the federal state of Zamfara, sodomy, which is equated with homosexuality, carries a penalty of stoning, the same punishment carried by the offence of adultery (AI 11 Feb. 2003). According to Amnesty International, states that follow sharia law have been known to hand out sentences of death by stoning as punishment for mere allegations of adultery (a punishment not consistent with federal law and Nigeria's constitution) and therefore, "'living out' a same-sex inclination is possible only if done discreetly, and it may involve risking severe penalties as well as social ostracism" (ibid.).

Lesbianism is not included in the Criminal Code Act (BTM n.d.), and no references to the adoption of legislation that would criminalize same-sex relations between women could be found among the sources consulted.

Enforcement of Laws and State Protection

Although Amnesty International's office in Bonn regards Nigeria's Criminal Code Act as providing for "severe" penalties in dealing with homosexual acts between men, it concedes that it is unaware of any cases in which the Act's punitive measures were carried out, or of individuals having been convicted of practising homosexuality (11 Feb. 2003). Amnesty International also said that a variety of sources,

from Germany's Foreign Office to international homosexual organizations, operate on the assumption that voluntary homosexual acts between adults are no longer being punished, but forced homosexual acts and homosexual acts with minors are prosecuted under the criminal law (AI 22 Oct. 2002)

The Toronto Star, reporting on the Nigerian Anglican Church's attitude toward the ordination and acceptance of gays, also suggests that although homosexuality is a criminal offence, sentences are seldom meted out (1 Feb. 2004). Nevertheless, Amnesty International makes clear that the severe penalties of the country's criminal law are a reflection of Nigerian society's attitudes toward homosexuality, especially male homosexuality, which is "still viewed as 'abnormal' in Nigerian society, even in 'more enlightened' circles, and meets with resentment and repudiation on a very large scale" (AI 11 Feb. 2003).

Sharia Law

Although no evidence of the punishment of homosexuality under criminal law was found by the Research Directorate, there are examples of convictions under sharia law (HRW Jan. 2004; This Day 28 Feb. 2002). This Day reported that Judge Alkali Dahiru Muhammad Gusau of the higher sharia court in Kanwuri, Gusau, cited a provision of section 131 of the sharia penal code when he sentenced Abdullahim Abubakar Barkeji in February 2002 to 100 strokes of the cane and one year imprisonment for committing sodomy with a man (28 Feb. 2002). In the January 2004 Human Rights Overview, Nigeria, Human Rights Watch (HRW) reported on the case of Jibrin Babaji who was sentenced to death by stoning for sodomy in Bauchi State in September 2003. HRW noted, however, that although the sharia courts active in twelve of Nigeria's thirty-six states continue to render "cruel, inhuman and degrading" sentences, "the number of such sentences has decreased and there appears to be a reluctance on the part of the authorities to carry them out" (Jan. 2004).

Commenting more generally on the situation of homosexuals, gay rights organizations in Nigeria have complained that sharia law has led to the stoning of male homosexuals, commonly known as "MSMs" or "men who have sex with men" (IRIN 7 May 2004; BTM n.d.). Behind the Mask (BTM), a Website on gay and lesbian affairs in Africa, reported that "[s]ince the introduction of Sharia law in the north of the country there have been accounts of gay men being stoned to death" (n.d.). Oludare Odumuye, the president of Alliance Rights Nigeria (ARN), a gay rights organization in Nigeria that made its first public appearance in May 2004 at a national AIDS conference in Abuja which 50 participants attended (JAAIDS 11 May 2004; IRIN 7 May 2004), was reported to have said in a news story by the Integrated Regional Information Network (IRIN) that, "[r]ecently, some of us have been arrested by the police, thrown into jail and raped in the cells" (7 May 2004). Odumuye added that in the Muslim north, "[b]ecause of the application of the Shari'ah code," men and even young high school boys are killed (IRIN 7 May 2004). "People are expelled, dismissed, arrested" (ibid.).

Nigerian Weekly Trust reporter Nasir Dambatta, in a lengthy article on the gay movement in Nigeria, also claims that there are "cases of prosecuted homosexuals in many parts of the country, including [the sharia law states] of Kebbi and Kano ... and most recently, Bauchi State, where a sharia court declared sentence by stoning" (18 Oct. 2003). Dambatta asserts that if the gay rights movement is to advance it will be only in the non-sharia states of Nigeria, or areas where there is little influence from Christian evangelicals (Weekly Trust 18 Oct. 2003). As evidence of religious disdain for homosexuality, Dambatta cites Dr. Hakeem Baba Ahmed, the Secretary-General of the Supreme Council for Sharia in Nigeria, who, describing lesbian and gay acts as "twin evils," expressed his hope that the Nigerian government will take a "tougher stance" against them (ibid.). In a separate news article, the chairman of the Kano State Sharia Commission, Shiek Ibrahim Umar Kabo, recently avowed that the Commission would uphold Islamic Law in all areas of the state (Vanguard 3 May 2004). Expressing "disgust" over the activities of gays and lesbians, Kabo declared that the "commission is working out modalities to wage war against the perpetrators of the ungodly acts in the state" (ibid.).

Societal Attitudes

Nigerian society has a "long-standing intolerance" of homosexuality, particularly among religious communities (SFC 14 Jan. 2004; see also Religion in the News Fall 2003). For example, a division within the Anglican Church between Nigeria and North America has emerged over the issue of gay bishops and gay marriages (Atlantic Monthly Nov. 2003). Archbishop Peter Akinola, head of Nigeria's 17 million-member Anglican church, the largest Anglican community in the world, recently added his voice to the opposition to gays in the church, condemning the consecration of the Reverend Gene Robinson as bishop of New Hampshire's Anglican diocese in the United States (ibid.; SFC 14 Jan. 2004; AP 14 Oct. 2003). Calling the move a "'Satanic attack on the church of God'" (SFC 14 Jan. 2004; AP 14 Oct. 2003; Atlantic Monthly Nov. 2003), he severed ties with his church's American counterpart (Vanguard 19 Nov. 2003).

Akinola's views are regularly quoted in the Guardian, which, according to Matthews A. Ojo of the Department of Religious Studies at Obafemi Awolowo University in Ife, Nigeria (Harvard Law School 19 Apr. 2002), serves as Akinola's mouthpiece (Religion in the News Fall 2003). Indeed, on the subject of homosexuality, the Lagos-based paper (which is owned by Alex Ibru, a prominent Anglican layman) supports the position of the Nigerian Anglican church (ibid.). While The Punch attempts to appear neutral on the issue, "none of the Nigerian papers ever considered the pro-homosexual positions" (ibid).

Two opinion pieces on the issue of homosexuality, which were published in local Nigerian newspapers, show that the disapproval of homosexuality is not limited to church authorities (This Day 30 Mar. 2004; Daily Champion 8 Mar. 2004). In the first piece, a lawyer, based in Lagos, claims that "homosexuality is still regarded as ... anathema in [Nigeria's] social-cultural setting ... [and that] we by and large abhor homosexuality" (This Day 30 Mar. 2004). In the second piece, an editorial on the issue of gay marriage, the Daily Champion wrote that it "assaults the basic values of humans and human societies ... there is everything repugnant and profane in this development" (8 Mar. 2004). In a news story on capital punishment, yet another lawyer, this one based in Abuja, advised the National Assembly to maintain its support of capital punishment in Nigeria's laws for acts including homosexuality, terrorism, adultery and murder (Daily Trust 29 Dec. 2003).

Although the prevailing view in Nigeria is one that regards homosexuality as "an abuse of traditional values" and as the work of occultism (AGW 14 Oct. 2003), within the Hausa ethnic group, male homosexual prostitutes (known as Dan Daudu meaning "men who are wives of men") are common among the elite classes and often frequent hotels in major northern cities (Sunday Times 9 Nov. 2003; SFC 14 Jan. 2004). Moreover, reports from a variety of sources have even suggested that gays and lesbians are "quietly tolerated" and "widely ignored" in Nigeria (IRIN 8 June 2004; SFC 14 Jan. 2004; see also UK Apr. 2004).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.

References

A Globe of Witnesses (AGW). 14 October 2003. Rowland Jide Macaulay. "Homosexuality Does Exist in Nigeria." [Accessed 7 June 2004]

Amnesty International (AI). 11 Feb. 2003. Correspondence with the Administrative Court of Oldenburg, in German. Translated by the Translation Bureau, Multilingual Translation Directorate, Public Works and Government Services Canada.

Associated Press (AP). 14 October 2003. "Nigeria Leads Anti-Gay Protest." [Accessed 7 June 2004]

Atlantic Monthly [Boston]. November 2003. Philip Jenkins. "Defender of the Faith." [Accessed 12 July 2004]

Austrian Centre for Country of Origin and Asylum Research and Documentation/United Nations High Commissioner for Refugees (ACCORD/UNHCR). 28 November 2002. "Nigeria. Country Report." Final Report on the 8th European Country of Origin Information Seminar, 28-29 June 2002, Vienna.

Behind the Mask (BTM). 13 May 2004. Victor Mkhize. "In a Spin." [Accessed 6 June 2004]

___. n.d. "Nigeria." [Accessed 8 June 2004]

Daily Champion [Lagos]. 8 March 2004. "Advent of Mr. and Mr. (Mrs)." (allAfrica.com) [Accessed 6 June 2004]

Daily Trust [Abuja]. 29 December 2003. "Don't Abolish Capital Punishment-Lawyer." [Accessed 8 June 2004]

_____. 9 September 2003. "10,000 Homosexuals Exist in Nigeria." (Dialog)

Harvard Law School. 19 April 2002. Conference Program: "Nigeria: From Crisis to Sustainable Development [Accessed 12 July 2004]

Human Rights Watch (HRW). January 2004. "Nigeria." [Accessed 7 July 2004]

Integrated Regional Information Networks (IRIN). 7 May 2004. "Nigeria: Persecuted Gay Community Cautiously Seeks a Voice." [Accessed 8 June 2004]

Journalists Against AIDS (JAAIDS) [Lagos]. 11 May 2004. "HIV + Gay Nigerians Step Up Call for Acceptance." [Accessed 7 June 2004]

_____. 7 May 2003. Oludare Odumuye. "Convention of Alliance Rights Nigeria." [Accessed 7 July 2004]

Nigeria. 1990. Criminal Code Act. Part III, Chapter 21. "Offenses Against Morality." Sections 214-217. (International Centre for Nigerian Law) [Accessed 7 July 2004]

Religion in the News [Hartford]. Fall 2003. Vol. 6, No. 3. Matthews A. Ojo. "The View From Lagos." (Leonard E. Greenberg Center for the Study of Religion in Public Life, Trinity College). [Accessed 7 June 2004]

San Francisco Chronicle (SFC). 14 January 2004. Elizabeth Bryant. "No Gay Tolerance in Africa's Anglican Church." [Accessed 8 June 2004]

Sodomy Laws. 8 May 2004. "Nigeria." [Accessed 6 July 2004]

Sunday Times [Pretoria]. 9 November 2003. Festus Eriye. "Archbishop's Stance Draws Nigerian Approval." [Accessed 9 July 2004]

This Day [Lagos]. 30 March 2004. Kingsley Onwukwe. "Homosexuality and the Law." (allAfrica.com) [Accessed 8 June 2004]

_____. 28 February 2002. Isha Ibrahim Maru. "Man Gets 100 Strokes, One-Year Jail for Sodomy. [Accessed 8 July 2004]

Toronto Star. 1 February 2004. Elizabeth Bryant. "Nigerian Anglicans Leading Resistance to Gays in Church." (Sodomy Laws Website) [Accessed 7 June 2004]

United Kingdom. April 2004. Immigration and Nationality Directorate (IND), Home Office. "Nigeria Country Report." [Accessed 8 July 2004]

Vanguard [Lagos]. 3 May 2004. Tina Anthony. "Sharia: No Part of Kano is Exempted-Kabo." (allAfrica.com) [Accessed 8 June 2004]

_____. 19 November 2003. Sam Eyoboka. "Gay Bishop: Severance of Ties With US Anglicans Final-Akinola." (allAfrica.com) [Accessed 7 July 2004]

Weekly Trust [Kaduna]. 18 October 2003. Nasir Dambatta. "Gay Movement in Nigeria: Finally in the Open." (allAfrica.com) [Accessed 8 June 2004]

Additional Sources Consulted

Alliance Rights Nigeria was unable to provide information on the above-mentioned topic.

Internet sites, including: allAfrica.com; BBC Africa; European Country of Origin Information Network; GayLawNet; International Gay and Lesbian Human Rights Commission.

News services: Dialog