The right of every nation state to make internal legislation without interference from others is recognised under international law. This right defines the relationship that exists between international law and domestic legal systems and, more specifically, determining which law has priority.
With particular reference to the Anti-Same Sex legislation recently signed into law by the Nigeria’s President, H. E. Dr. Goodluck Jonathan, which as been widely condemned by the western nations, I cannot deny my personal anguish, because it sets two legal disciplines to which I am subjugated – both setting one against the other and to which both disciplines offer contradictory answers in contention.
On one hand, the more I chose to sympathise with the position that assigns priority to international law in view of my present interest in constitutional law, I am also inclined on the other hand to respect the priority of a national constitution in any legal system and to recognise international law as superior to all laws except the constitution of which the Constitution of Federal Republic of Nigeria is one.
I must admit that neither of these opposed theories seems conclusively superior to the other. Empirical observation is conclusive of the fact which tend to suggests that national judicial systems resist harmonious subordination within an international legal framework and for this reason it is not surprising that Charles Rousseau recognises the fact that it is difficult to find in international practice anything to confirm either the supremacy of international law or that of the domestic juridical order .
For the most part of the centuries, constitutional law scholars have ignore these conflicts and focused more on the domestic juridical system and have persistently opined on the proposition that the constitution holds primacy over all existing law . In few instances that they have scrutinised this relationship , they clearly assign priority to domestic laws .
With the establishment of supremacy in laws into the significance and depth of the controversy surrounding Anti-Same Sex legislation in Nigeria, certain facts of importance call for legal clarification in other to justify this legislation:
1. Same Sex As A Separate Claim To Exercise Of A Right In Fundamental Human Right: The United States Human Right Law And U.S. Abortion Law In Perspective.
Save and except the supremacy of domestic laws in support ,then a violation of same sex right must come under the ambit of fundamental human right laws which already has international protection in the area of discrimination and association.
Same Sex cannot legally be a right to be entrenched in fundamental human right because it is not all encompassing to qualify as a right on its own but wrongs committed against Same Sex may accrue to them some legal remedy which are subject to exercise of a domestic law.
For example in the United States, the government made possible the requisite ratifications for the human rights.
The Convention to enforce it then did not ratify it. One of the principal reasons for the failure to ratify it was the conflict between the Convention and the statutes of several states of the United States.
Article 4(1) of the Convention protects the right to life, and adds that “[t]his right shall be protected by law, and, in general, from the Moment of conception. ”
The situation then just like the Same Sex legislation in Nigeria which now conflicts with America’s that has established a woman’s right to an abortion without medical or legal justification in clear and outright violation of the fundamental human right to life.
The right to an abortion is presently a very controversial subject in the United States and to which none is involved in their domestic law which should be reciprocal. The arguments on both sides are couched in strong religious terms just like the gay issue in Nigeria and the only way to resolve this is a Federal Law like the position that’s now taken by the Nigeria Government.
Like in the United States , the frailty of attempts to give priority to international law when confronted by an immediate reality of internal legal controversies is akin to the same situation faced in the Nigeria situation that necessitated the recently-passed Anti-Same Sex law based on domestic circumstances and free from interference of others.
Compared with the United States situation of abortion and the human right preservation of life ,the Anti-Same Sex legislation in Nigeria and America’s condemnation of the Nigerian Government, I cannot do less than to conclude by recalling the words of Konrad Lorenz who, after extensive study of animals, was able to develop a number of profound observations on mankind that if – “man is not by nature as bad as the Book of Genesis affirms. . . he is not as good as our modern life demands. ’’
Whether a nation state that is a signatory to international accepted principles can make legislation that may tend to violate those principles in my view will be conflicting and raises serious grounds of questioning. In my opinion, the ratification of the Convention implies acceptance of the obligation to guarantee the exercise of all the rights recognised by it. By accepting this obligation, the state assumes the duty to harmonise its domestic legislation with the norms of that Convention.
2. Same Sex As An Aspect Of Morality Or Fundamental Human Right – The Conflict Of Fact Or Of Law?
Same Sex parse is an agitation just like the women’s rights agitated under feminism based on claims of certain attributes which the law never took cognisance of in order to make informed decisions like this present law that is not informed because it failed to take into account those attributes of gay people brought about by variance in their hormones.
However this may be true, the question now will be to what extent or relevance are this claim to a justification by most criminals who are punished for crimes as a result of the imbalance in their hormones to justify their crimes?
Personal Opinion And Recommendation
The balance here as well as what is the solution would have been a law in form of regulations of Same Sex activities in public domain.
A. Regulations
Regulation in the form of forbidding the exhibition of such act in public glare in order not to contaminate others whom due to their religious belief or other sentiments it may be offending. This was the case in Europe over restriction placed on the smoking of cigarette in public places as against a total ban. Akin to this is the issue of having sex in public glare which is prohibited as it may be offending to others.
B. Penalty For Violating Regulations
Penalty for violation of same may be an on-the-spot fine to culprits or a charge to court to offer an explanation to the judge for breaking the law which in most cases may incur a fine in court or an order for imprisonment depending on the merits of each case.
4. Legal Implication Of Same Sex Legislation In Nigeria
As a safety tip against flouting international law on human rights to which Nigeria is a signatory, a similar situation should have been envisaged as the balance to be legislated in adherence to fundamental human rights that is now being subjected to international condemnation by the same people whose domestic laws on abortion contradicts the right to life.
The unreasonableness of Same Sex law in Nigeria is only traceable to its conflict with domestic laws of other countries condemning same and not that such law is internationally entrenched as part of human rights is itself condemnable.
Save and except the position is changed and made to reflect the present reality as advised above in the balance by way of regulation, then every gay must continue to challenge every violation in Nigeria under the international human rights law or face the consequences of the law.
5. Sampled Opinion From Nigerians On Gay Legislation
On a random censorship of 5,000 people questioned by Egalitarian Mission Africa:
4778 – Are in support
216 – Are indifference
6 – Are against
On a balance of scale or in line with taking censor, the balance of vote count in favour of the majority of those against as against those in support.
The only condemnation of the legislation is in the area of being biased and one-sided because for its failure to sample opinions from different quarters and more so that in arriving at their conclusion, gays are not invited to participate in deliberation in order for the law to have a wider acceptance, the law were deliberated, voted and passed by those who themselves are not gay or those objecting to gay or those whose opinion may have been formed out of their religious beliefs without having consideration as to other reasons of importance.
The issue of Same Sex is for me a form of sickness as well as lifestyle. One doesn’t have to agree with it to accept it as normal as it is between individuals and for those that are standing either on the right or left of this issue are all right and wrong at the same time.
There is the need for a full understanding of the phenomenon and the need to protect the generality of the public that can’t stand it. The same way the anti-smoking law is promulgated but limited to the private walls.
It is therefore a necessary deliberation, research and consultations I have taken to stand in the middle, neutral and devoid of eminent controversy except to defend the Constitution of the Federal Republic of Nigeria to wit as well to urge that there should be no celebration of it as the western world is doing or provocation about it as African Governments are doing now.
Written By Kayode Ajulo is the
Chairman, Egalitarian Mission Africa
Abuja, Nigeria.
[email protected]
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