An issue that sparked a debate on X (formerly Twitter) sometime ago was a tweet about how the queer community want to enjoy more rights and privileges over and above the average citizen. The contention was that LGBTQI persons expect to be treated as a privileged class of persons due to some perceived social advantage. The thread made its way to Instagram in the form of screenshots, and then to Tiktok. Many people took to the digital village square to pour out their discontent, wondering why the rights of some citizens should be greater than the others just because of their gender identity and sexual orientation. This is a common misunderstanding as regards the protection and enforcement of the basic human rights of LGBTQI persons.
In the case of LGBTQI persons, the discourse frequently misinterprets their demands as seeking special privileges, rather than what they are: a fight for the basic human rights afforded to other citizens.
In societies around the world, the struggle for equality and justice often centers on ensuring that all individuals enjoy the same fundamental rights, regardless of their differences. A person’s rights and privileges stop where another person’s rights begin. In the case of LGBTQI persons, the discourse frequently misinterprets their demands as seeking special privileges, rather than what they are: a fight for the basic human rights afforded to other citizens.
Fundamental Rights is a Universal Necessity
The concept of fundamental rights is rooted in the universal principle that all human beings are born free and equal in dignity. These rights, which include the right to life, liberty, and security of person, freedom from discrimination, freedom of expression, and the right to privacy, are not contingent on one’s sexual orientation or gender identity. They are universal.
LGBTQI individuals often face systemic discrimination that impairs their ability to enjoy these basic rights. Discriminatory laws, such as those criminalizing same-sex sexual and romantic relationships, not only violate the right to privacy but also foster an environment of exclusion, violence, and stigma against LGBTQI persons by people who misinterpret these laws to impose their own bigotry.
In Nigeria, the landscape has been notably hostile towards LGBTQI individuals. Existing anti-gay laws, such as sections 214 and 217 of the Criminal Code Act (CCA), section 218 of the Penal Code Act (PCA), and the Same-Sex Marriage (Prohibition) Act of 2014 (SSMPA) all seek to criminalize same-sex sexual conduct, same-sex marriage and LGBTQI people’s right to associate and organize for the purposes of expressing themselves freely or to publicly advocate for their fundamental human rights. Under these laws, LGBTQI individuals can face up to 14 years in prison for violating the provisions of these laws.
Legal Perspectives
There are several case laws that highlight the tension between national laws and Nigeria’s international human rights obligations. While there have not been significant judicial pronouncements that directly advance the fundamental human rights of LGBTQI individuals, the discussion continues in legal circles about the need to reconcile local laws with global human rights standards.
In the case of Mr. Joseph Teriah Ebah v. Federal Republic of Nigeria, the Federal High Court avoided the Applicant’s invitation in that case to make a pronouncement on the constitutionality or otherwise of the SSMPA. Instead, the court held that the Applicant has no legal standing to commence that legal action against the Nigerian Government on the constitutionality of the SSMPA because he is not a homosexual, and also cannot commence legal action on behalf of the “Gay Community in Nigeria” because there is no such body or organization in Nigeria known as “the Gay Community in Nigeria”. This decision was widely criticized for ignoring the Supreme Court decisions over the years since 1987 that admonished lower courts to allow a broader interpretation of the legal standing provisions of the Constitution that allow for public interest litigation. It turned down the Applicant’s invitation to consider Nigeria’s international obligations, such as those under the International Covenant on Civil and Political Rights (ICCPR), which, though not binding on Nigeria, is a persuasive international legal instrument by virtue of Nigeria being a signatory to it.
We understand that there are no special rights and privileges accorded to LGBTQI persons other than the fundamental human rights available to every other person in Nigeria.
The argument here is not for special treatment but for equal treatment under the law. By framing the rights of LGBTQI individuals as fundamental rights, it becomes a question of ensuring that all citizens can exercise their rights fully without discrimination.
The struggle of LGBTQI individuals in Nigeria and around the world is a fight for the basic rights that should be unequivocally available to every person. It is a call to equality, not privileges. Recognising these rights as fundamental — rather than as special rights for a special group — is essential in dismantling the legal and societal barriers that perpetuate inequality. It is not a clamour for more privileges. This is the reason why at Minority Watch, we use the phrase ‘the rights of LGBTQI persons’ rather than ‘LGBTQI rights. We understand that there are no special rights and privileges accorded to LGBTQI persons other than the fundamental human rights available to every other person in Nigeria.
Conclusion
The path forward must be guided by a commitment to uphold the universal principles of equality and justice embedded in both Nigerian, regional and international law. It is not a quest of special privileges but a demand for unconditional equality. By adopting this perspective, the Nigerian society can begin to address the injustices faced by LGBTQI individuals and begin to move closer to realizing a world where every person is valued equally, regardless of their sexual orientation and or gender identity.
Written by Chukwuebuka Alex Ozoani.
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