Can the Supreme Court’s Marriage Decision Help the World’s Most Homophobic Country?

The U.S. Supreme Court is not just the final word on the law of the land, but also a bellwether for jurists worldwide as they interpret constitutions, laws, and rights. While courts and lawmakers in places like Russia, Uganda, or the other 77 countries where homosexuality is illegal aren’t expected to quote Justice Anthony Kennedy’s stirring majority opinion in Obergefell v. Hodges — the case that decided that U.S. states can’t ban gay marriage — the decision will surely reverberate into the global discourse. Where rights battles are inching forward, the Supreme Court may provide fuel in the tank for activists and jurists; elsewhere, though, the decision may be fodder for critics who claim gay rights are a Western agenda to be resisted, lest they result in broad social redefinitions that mark a retreat from religious and cultural traditions.

There are few places where new thinking on the rights of lesbian, gay, bisexual, and transgender individuals is more urgently needed than Nigeria. A 2013 Pew Research Center poll ranked Nigeria as the world’s most hostile country to gays — just 1 percent of the population surveyed said that homosexuality ought to be accepted within society. Bucking an almost universal trend toward greater acceptance of gays among younger generations, young Nigerians surveyed were even more likely than those over 50 to reject homosexuality.

In January 2014, the virulent prejudice was made law in the form of the Same Sex Marriage (Prohibition) Act (SSMA), one of the world’s most draconian anti-gay statutes. The SSMA imposes 14-year prison sentences for same-sex couples, 10-year penalties for those who take part in gay clubs and organizations and those who display same-sex relationships in public, and punishments for anyone who abets any of the above. It requires that anyone knowing an LGBT individual report that person to the police. According to a report just released by PEN American Center, the law interferes not only with gay rights (while these are not rights Nigeria recognizes, they have been affirmed by not just the U.S. Supreme Court but also by the United Nations and constitutions in South Africa and elsewhere), but also interferes with a wide range of long-standing, universally recognized civil, political, social, and economic rights.

When then-President Goodluck Jonathan signed the bill into law, he touted it as “in line with the people’s cultural and religious inclination” and as “a reflection of the beliefs and orientation of Nigerian people.” In the month since his inauguration, Nigeria’s new president, Muhammadu Buhari, has yet to comment on the measure.

In the year and a half since it passed, the consequences of the law have been dire. Although a patchwork of laws with both colonial and Islamic roots already criminalized homosexual conduct in Nigeria, the new statute bars virtually any form of LGBT identity or expression and has sanctioned aggressive campaigns of intimidation and harassment by both vigilantes and law enforcement. Within weeks of passage, dozens of LGBT people were arrested in sweeps and charged and sentenced for crimes including membership in gay associations and, in one case, “congregation of homosexuals and initiation of new members into a secret gay cult” during a birthday party, as a report by the Initiative for Equal Rights, a Nigerian NGO, put it. Law enforcement has offered plea deals involving leniency for those willing to identify other targets for prosecution under the law.

The law has also put an imprimatur of lawfulness on hate crimes targeting gays. In February 2014, a mob aiming to “cleanse the community” launched an attack in the Abuja suburb of Gishiri, dragging young men from their homes and beating them with clubs and whips. Targets of the attacks could not return home and, in some cases, ended up banished from their village, cast out from their families, unemployed, and homeless. Similar vigilante acts have been reported throughout the country. Unoma Azuah, a writer and professor, who divides her time between the United States and Nigeria, told PEN, “This law has given people the right to exercise jungle justice, mob attacks. Because the government is behind them, no one puts them on trial, no one tries to stop them.”

The SSMA’s reach has resulted in the severe curtailment of free expression of rights for all Nigerians. LGBT individuals fear not only arrests and attacks, but also social isolation, alienation from their families, and loss of employment if their status is revealed.

Writers interviewed by PEN described being powerless to protest the law for fear of tipping off authorities to their LGBT status. One writer, who spoke anonymously, described how “even with my quote-unquote ‘regular’ writing, I have to review it over and over again to make sure that I’m not indicating that I’m gay.… It’s like a prison. It’s incredibly limiting that I can’t put my identity into my writing, that even when I’m putting together a piece, I have to look heterosexual.” Straight writers, too, reported self-censoring expressions of support for gay rights for fear of being suspected of homosexuality. Fiction featuring gay characters is now considered off-limits by publishers. Author Jude Dibia has noted that the prohibitions on writing mean that for many Nigerians “the only access to writing about LGBTI people is the Bible.”

Media outlets are also subject to the constraints. Dapo Olorunyomi, editor in chief of Nigeria’s Premium Times, an online newspaper, told PEN that the law “imposes a prior restraint on freedom of expression and creates a no-go area in terms of coverage. If you write about or quote anyone who is LGBTI, this law is so broad that charges could be brought against you.”

Over the last 18 months, the outlets for community and mutual support that had emerged to help LGBT Nigerians endure the stigma of being gay in a society where homosexuality is outlawed have nearly evaporated. Gay-themed cultural events and parties no longer occur, and meetings of gay activists have to be convened outside the country. Online forums for LGBT Nigerians have also become perilous. A Nigerian writer told PEN, “If you’re even friends with someone [LGBT] on Facebook, [the authorities] might think you’re one of them.” Many LGBT Nigerians have resorted to anonymity or bifurcated personas online, working hard to ensure that no digital trail revealing their LGBT status is revealed online. According to Dibia, “You find blogs, things like that saying I’m gay, but you don’t find people putting faces and names to their blogs. People are angry, but you don’t find people openly expressing who they are anymore.”

Among the social media groups that do still exist, new members are viewed with suspicion. The PEN report includes accounts of suspected police infiltration of social media circles for the purposes of tracking and arresting members, fueling paranoia that can poison online communities. Websites with LGBT material can no longer be housed on servers under the jurisdiction of the Nigerian Communications Commission, meaning that they must be hosted and maintained outside the country.

If someone’s sexuality is discovered, they’re then exposed to bribery and extortion. LGBT individuals reported to PEN instances of extortion from landlords, neighbors, and friends demanding payment or sexual favors in return for promises not to report the target’s status to the police. Clandestine dating and social sites can be treacherous territory too, open to predators who schedule meetings or dates with LGBT individuals and then demand payment in return for keeping their status a secret. Even the police are in on the action. As Nigerian author and businessman Kehinde Bademosi put it in an interview with PEN, “The police know you don’t want to be out, and they want their cut. They get a lot of money from it.”

Beyond street-level violence, Nigeria’s anti-gay repression may well have life-and-death consequences on the national level. Nigeria has the world’s second-largest population of people living with HIV, topping 3.2 million in 2013 — the most recent year of data — according to the Joint United Nations Programme on HIV/AIDS.

Despite a provision of Nigeria’s 1999 Constitution that requires the government to ensure “adequate medical and health facilities for all persons,” last year’s anti-gay law has dealt a heavy blow to HIV and AIDS prevention, detection, and treatment. Within months of passage of the law, a program officer with the International Center for Advocacy on Rights to Health, an HIV intervention organization based in Abuja, told a Mother Jones reporter he witnessed a 50 percent drop off in patients after the passage of the law. If that weren’t bad enough, one writer told PEN that the law is making unsafe sex more common, noting, “This culture of silence and shaming is propagating more HIV infections. I got it in the first place because I was in the closet. When you have to meet people in a hurried, rushed, secretive way, no one’s going to stop long enough to talk about condoms.” HIV education and outreach groups have had to curtail their work for fear of arrest.

LGBT Nigerians cannot tell doctors about their sexual orientation without confessing to a criminal act and exposing practitioners to possible criminal liability if they do not report their patients to the police, a condition that further deters them from seeking necessary medical help. 

While the far-reaching consequences of the law have ignited serious concern from constituencies ranging from newspaper editors to HIV/AIDS medical practitioners, their capacity to mobilize is limited. The anti-gay law is essentially impossible to contest — any open or organized opposition to it is illegal, and even discussion of the law can be dangerous. Fear of violating its broad parameters chills even everyday conversations. As writer Adejoke Tugbiyele commented, “It bars discussion of topics that would ordinarily be discussed, because people think, oh, there’s this law there, if I’m not careful I will commit a criminal act.”

Despite the dangers, Nigeria’s LGBT community is continuing to agitate for their rights and find ways to disseminate LGBT stories and ideas; some told PEN about plans for an anthology of Nigerian LGBT writing. The Initiative for Equal Rights, a Lagos-based NGO, recently launched the website Where Love is a Crime, which provides resources for LGBT individuals and human rights advocates in Nigeria. Leading Nigerian writers including Wole Soyinka and Chimamanda Ngozi Adichie have issued stirring public critiques of the law, demanding that Nigeria fulfill the responsibility of a democracy to protect its most vulnerable citizens. PEN Nigeria’s Secretary-General Ropo Ewenla encapsulated the determination of activists to refuse to capitulate: “We will continue to exercise our freedom of expression in support for our LGBTI colleagues, including through the written word. And if we can’t write, we’ll sing, and if we can’t sing, we’ll hum, and if we can’t hum, we’ll stamp our feet.”

The target of the foot-stamping, President Buhari, has mostly avoided tipping his hand on the anti-gay law. During the campaign he was accused of having cut a deal with Western governments to promise to abolish the statute in return for international support for his presidency. He denied the charges through a spokesman who announced that Buhari would not pursue repeal of the law. On July 20, Buhari is scheduled to visit Washington where — while they will almost certainly take a backseat to discussions of collaboration against Boko Haram — LGBT rights abuses are sure to be raised.

Given the virulently anti-gay attitudes in Nigeria, a sharp reversal in approach by Buhari seems unlikely. Ramped up Western pressure may even stiffen Buhari’s public support for the law in order to prove he is not beholden to outside influence. The U.S. Supreme Court’s most recent decision may play into the hands of gay rights opponents who argue that any easing of pressure on LGBT individuals will begin a slippery slide toward gay marriage and a full societal embrace of homosexuality. While international opinion can offer an essential moral and practical lifeline for persons persecuted under Nigerian law, for the time being it won’t be decisive in bringing about change. The best near-term hope for LGBT Nigerians is that President Buhari examine for himself the far-reaching harm and injustice wrought by the anti-gay law and allow himself to be led neither by the international community nor by Nigerian popular opinion, but by his own conscience.

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