16/01/2020

‘The Law should be Unbound’

Blog / By Ayọ̀ Adénẹ́

To know whether homosexuality is a matter for the courts, you’d have to look beyond the law itself, to the customs and beliefs of a people. The law will fall or rise to that.

And if the people believe homosexuality is a chargeable offence, a parade in the court is likely a charade. The case has been pre-judged, and the sentencing will confirm that.

It’s an interesting way to use the law, as a rubber stamp for something the majority already believes, rather than a place for examining the grounds, with the possibility that if the grounds don’t stand, the case will fall.
Not here.

Homosexuality is offensive. Why? Religion is an easy answer, but I’ve found the answer to be more deeply existential, about maleness and femaleness, about freedom of thought and conscience, about conformity, consequences and damnation, about love, whatever that means, because in some cultures, love without a functional reason is as unrelatable as a Picasso.

You know, ordinarily, being charged to court for homosexuality, shouldn’t be a totally bad thing. Because, if the courts were working, they’d take the case, scrutinize it, then tear it apart.

If the justice system was working as it should, lawyers and judges would examine the provisions of the Same Sex Marriage Prohibition Act of 2014, and tear through its loopholes.
And the Same Sex Marriage Prohibition Act (SSMPA) is ridden with amateur lacunae.

If Nigeria’s lawyers and judges could be trusted to uphold both law and justice, they’d compare the SSMPA with other extant Nigerian laws, and then with global conventions and state of the art human rights ordinances that Nigeria is signatory to.

In fact, if Nigerian legal education was standing on its two feet and independent of personal sentiment, as all law must be, maybe one smart lawyer or judge would go to town and extenuate the arguments, demonstrating how this case is a building block on the road to Nigeria’s democracy, arguing back and forth the pros and cons, the what ifs, wherefores and ending up with a dossier of new arguments that will go into the history books, and the libraries of the Nigerian Law School, as quotable precedent.

But that is not going to happen.

These men will go into the courtroom with a feeling of being pre-sentenced.

These 47 accused men will go into the courtroom with a feeling of being pre-judged, and pre-sentenced.

It is a terrible thing, that in any country, the courts should serve the bidding of the government, the ruling elite, the churches, the loudest voices, or any other group simply because they have the most dominant voice.

It is a terrible thing.

That is not the purpose of the law. Law was designed to be blind, remember? But I cannot imagine a Nigerian judge that will preside in this situation dispassionately and unsentimentally, without being guided by personal beliefs and social norms that have no place in law.

It worries me, not only in cases where homosexuality is adjudicated upon, but also in other cases, like when an opposition politician is falsely accused of wanting to overthrow the government, and the process and outcome of the allegation depends on what the state security service, or the government wants.

It bothers me, when a serving senator is accused of beating up two female shop owners, and gets a slap on the wrists, and is soon back in the chambers, receiving awards.

It bothers me, when a serving governor is videoed over and over again, stuffing dollars into his cap, but there is no one to interpret how that evidence should impact our practice of democracy. Said governor gets an acquittal, returns to governing, and even passes new laws about the role of gender in how commuters should be seated in public transport.

Or when a church leader, facing serial allegations of sexual abuse of a minor in his care, passes unscathed through the crosshairs of judgement and returns to profiteering and proselytizing in short order.

I could go on and on.

It bothers me because the law is the last resort, and foundational to democracy, but it seems Nigerian legal officers serve at the behest of the executive or their group think, and do not dare to exercise any individual integrity, professional independence or intellectual bombast.

And that there is no separation between law and the low levels of literacy in our cultural environment; or religious fundamentalism. i.e. ‘between Church & State’… or can the Law challenge Norm in Nigeria? Can a judicial officer criticize legislation, or dispel state sanctioned injustice?

Otherwise, in what world do 109 senators and 360 representatives agree unanimously to pass legislation against the human rights of a sexual minority? And in that world, where lawmakers are either deeply indoctrinated or too afraid to buck the trend, why should we expect courtrooms to be any different, or justices and lawyers to operate with independent thought?
It’s the same Nigeria.

The one where a church pastor recently killed an owl for being a witch, and not one member of his congregation could counter him with a restraining argument.
This Nigeria, where we all think the same, and are crippled by conformity, bound by fear.

To put it simply, it seems fear beclouds Nigerian law.
There doesn’t seem to be a Nigerian legal officer notable for their outstanding ideas, their thorough research, their sense of social justice, who are unbound by expectations of what people will say, or what outcomes will or won’t be acceptable to the government.

If the law worked, as it should, serving politicians, the police, preachers, and other big men and women with power wouldn’t oppress the people so much, because there’d be consequences, and consequences would be no respecter of persons.

But the law is not free to work like that. For now, it’s rather muted, non-independent, and answerable to outside influences and other corrupting forces. And all of us, one way or another, suffer from a country where what happens in a courtroom depends on who you are … if cases go to court at all.

And, as our Chief Justice, who should uphold a system that works for all equally, recently declared his preferences for other types of law that bind people to the dogma of a specific religion, it’s a long walk to freedom for the law in Nigeria.

Ayọ̀ Adénẹ́ is a Public Health expert, writer and regular contributor to our magazine. He has also recently joined the Board of ZAM.