Reply To Mr. Chukkol On The Two Skeptical Sides Of Homosexuality Under Nigerian Laws

By Muhibudeen Qosim Atanda

On the 20th day of August, 2021, an article written by a
renowned legal writer, Mr. O.G. Chukkol (hereafter “the writer”)
got published and circulated on different social media handles. The
article is titled: “Homosexuality is Lawful under Lagos
Criminal Law but a Crime under Same-Sex Marriage Act: Reconciling
the Conflict”. For ease of reference, the link to the article
is herein provided: [homosexuality-is-lawful-under-lagos-criminal-law-but-a-crime-under-same-sex-marriage-act-reconciling-the-conflict/^[1]].

It is very pertinent to state from the onset that the writer is
a well-reckoned legal writer cum aspirant to the Bar part II, whose
wealth of knowledge is unquantifiable. I must also acknowledge that
the writer is, indeed, a mentor to many and I. However, upon a
rigorous perusal of his said recent article, this writer strongly
finds it difficulty to concede with the legal standpoint of the
writer. Hence, this writer has decided to present, from another
angle, a legal opinion on the subject matter which he believes to
be more correct.

For an effective understanding of the whole gist of this
rejoinder, a summary of the submissions of the writer, in his
article, is hereby given below:

The writer compares and contrasts the provision of
section 261 (although mistakenly written as
“section 259” in his said published article) of
Criminal Law of Lagos State, 2011 (hereafter “CLLS”) and the
provisions of the Same-Sex Marriage (Prohibition) Act, 2014
(hereafter “SSMPA”). The writer, thus, began by raising some
questions as regards the compatibility and effect of SSMPA
provisions and the said section 261 of the CLLS.
The writer stated that there is no provision for the offence of
lesbianism or sodomy in the CLLS, however, the offense of sexual
assault penetration is not left uncovered.

More interestingly, the writer argued on the inclusion of the
phrase “without the consent of the
person” as used in the said section. The writer,
posited that, consent (or the lack thereof), as envisaged in the
provision of the law, forms a basic requirement in proving sexual
assault. Hence, homosexuality, if done with the CONSENT of the
persons involved, is rendered decriminalized and unpunishable.

In his humble submission, the writer further held that the
implication of the said section 261 of the CLLS is
in contravention with the enactment of the National Assembly (i.e.
the SSMPA) because it only provides “CONSENT” as the only clause to
criminalized or decriminalized the act of homosexuality. Thus, the
provision is of no effect and void [with reference made to
section 4(5) of the Nigerian Constitution 1999 (as
amended), Musa v INEC ^[[i]] and
Attorney-General Bendel State v Attorney-General of the
Federation^[[ii]]].

THE REBUTTAL TO THE WRITER SUBMISSION

First and foremost, the writer’s reasoning and submission is
greatly acknowledged. It is trite that where there is a conflict
between the enactment of the National Assembly and that of a state,
in its exercise of provisions under concurrent list as contained in
the organic law, that of National Assembly shall prevail and while
that of the state shall be rendered null and void and
ineffective.

Nevertheless, the writer’s viewpoint is not without flaw or
misdirection which needs to be clarified. Given that, this writer
has distilled two issues from the writer’s submissions:

1. The implication of section 261 of the CLLS, and
2. The conflict which exists between the CLLS and the SSMPA.

These two issues shall be adequately discussed in this
rebuttal.

1. The implication of section 261 of the
   CLLS

It is our humble submission that the writer erroneously
misconstrued the provision of the said section of the CLLS. The
writer has misconstrued the section to imply that such an amorous
relationship between same-sex (i.e. homosexuality) can not
constitute an offence or crime in the Lagos state jurisdiction in
so far the persons involved in such an act so consented. For
clarity, the provision is hereby provided verbatim:

Section 261, Criminal Law of Lagos State:

“Any person who penetrates sexually, the anus, vagina, mouth or
any other opening in the body of another person with a part of his
body or anything else, without the consent of the
person commits a felony and is liable on conviction to
imprisonment for life.” (emphasis added)

With the emphasis made on “without the consent of the person” by
the writer, in his article, while construing the provision as the
yardstick for justifying the criminalization or otherwise of the
act of homosexuality in the state – Lagos state. We, therefore,
argue that going by the literal, clear, and unambiguous wordings of
the provision, the provision should, thus, be construed as
prohibiting and criminalizing any form of sexual assault done
without the CONSENT of the other person with the exclusion of
homosexual related affairs. The provision, therefore, does not
cover or extend to such offences that are homosexual in nature.

The framers of the law (i.e the CLLS) do not intend to extend
the provision as being a yardstick for prosecuting offence of
homosexuality, whether or not the parties consented. As the writer
said in his article, the CLLS makes no provision for the offences
of lesbianism or sodomy. The CLLS, which has been in force in Lagos
state since August, 2011, before the SSMPA became effective in
January, 2014, silent on criminality or otherwise of same-sex
marriage or relationship. Hence, before the birth of the SSMPA,
same-sex marriage or relationship is deemed unrecognized as an
offence or crime, although perceived as immoral act, punishable
under the Nigerian laws. Section 36 (12) of the
Nigerian Constitution 1999 (as amended) states that no action shall
constitute a criminal offence unless it is so codified in a written
law and punishment is therefore provided. The framers of the CLLS,
thereby, leave the matter to the National Assembly to be legislated
on as the power to legislate on marital affairs is exclusive to the
National Assembly.^[[iii][2]^]

However, with the birth of the National Assembly act (i.e. the
SSMPA), which supersedes any other state laws and which is
applicable throughout the Federation, same-sex relationship is now
deemed prohibited, chargeable, and punishable under the Nigerian
system of justice.

It is worthy of note also that, where there exists legislation
of the National Assembly on a subject matter, a state needs not to
re-enact any legislation identical with that of the National
Assembly even if the matter is listed among the concurrent
legislative functions. Otherwise, the National enactment shall
invalidate that of the state not on the ground that it is
inconsistent, but on the basis that that of the National Assembly
has already cover that particular subject matter. See the words of
Fatayi Williams C.J.N., in the case of Attorney-General of Ogun
State v. Attorney-General of the Federation and
others^[[iv]].

Based on the foregoing, we strongly submit that the inclusion of
the phrase “without the consent of the other person” in the section
as a condition for proving sexual assault can not be used to
justify the lawfulness of the criminal act of homosexual otherwise
known as same-sex marriage or relationship within Lagos state
geographical terrain.

1. The conflict which exists between the CLLS and the
   SSMPA.

Is there really a discrepancy between the two sets of law: the
CLLS and SSMPA? As the writer rightly said, the power to legislate
on marriage belongs to the National Assembly^[[v]]. We, therefore, align with this
submission of his. However, the underlying question here still
remain: is there any inconsistency between the CLLS and the
SSMPA?

This writer hereby respectfully submit that the alleged
section 261 of the CLLS is not in disharmony with
the SSMPA provisions. The provisions of the two sets of law are so
clear enough, and thus, attract no ambiguity. Thus, a careful study
of section 261 of the CLLS and the SSMPA is
required.

The SSMPA states the kind of marriage deemed unrecognized and
proscribed under the Nigerian laws. Pursuant to sections 1,
2, 4, and 5 of the SSMPA, any amorous relationship between
the same gender (homosexuality: lesbianism and gay) is deemed
outlawed, criminalized and sanctioned. On the other hand, the said
CLLS  provision regulates any unlawful sexual act arising from
the non-consent of one of the parties involved. Moreover, a
community reading of the said section 261 together
with other sections contained in the whole chapter 25 of the law
(the CLLS) is very paramount. A provision of law is to be read in
whole and not in part. This is in consonance with the words of
Katsina-Alu, JSC, later CJN (Rtd) ,in Action Congress (AC) &
Anor v INEC^[[vi]]. His
lordship states:

“…It is settled principle of interpretation that a provision of
the Constitution or a statute should not be interpreted in
isolation but rather in the context of the Constitution or a
statute as a whole. Therefore, in construing the
provisions of a section of a statute, the whole of the statute must
be read in order to determine, the meaning and effect
of the words being interpreted…” (emphasis added)

Thus, the said provision, when read together with all other
related sections, does not extend to such amorous relationship
between people of same gender, but such offence such as rape,
sexual harassment, sexual assault, etc. between persons of opposite
sex.

Thus, it is the humble submission of this writer that
homosexuality, which is prohibited and criminalized under SSMPA, is
not in any way decriminalized by the alleged provision of the CLLS.
And as such, we vehemently rebut the legal conclusion of the writer
and thus, adopt ours as more correct.

CONCLUSION

Conclusively, we do not hesitate to align ourselves with the
submission of the writer on the superseding nature of the National
Assembly enactments over that of the state House of Assembly.
Howbeit, we firmly hold and thus, respectfully submit that:

1. The alleged section does not legalize same-sex relationships,
   whether or not persons involved so consented.
2. The argument of the writer on the inconsistency of
   section 261 of the CLLS with the SSMPA holds no
   water. And thus, we firmly hold that the said section is not
   inconsistent with the provisions of the SSMPA.

Muhibudeen Qosim Atanda is a second-year Law Student of
Faculty of Law, Bayero University, Kano. He can be reached
via:

Email: muhibqosim@gmail.com^[3]

Phone/WhatsApp: 09037074761

Website:  https://qosim.sgm.ng/blog.html^[4]

REFERENCES

[i] (2002) LPELR – 11119 (CA)

[ii] (1981) 10 SC

[iii]^[5]
Second Schedule- Legislative Powers, Part I – Exclusive Legislative
List, article 61.

[iv] (1982) 1-2 S.C. 13 at 40 – 41, (1982) 3 NCLR
166

[v] Section 4 (2), (3) & (4)

[vi]  (2007) 12 NWLR (PART 1048) 222 at 259
B-D

By Muhibudeen Qosim Atanda

On the 20th day of August, 2021, an article written by a
renowned legal writer, Mr. O.G. Chukkol (hereafter “the writer”)
got published and circulated on different social media handles. The
article is titled: “Homosexuality is Lawful under Lagos
Criminal Law but a Crime under Same-Sex Marriage Act: Reconciling
the Conflict”. For ease of reference, the link to the article
is herein provided: [homosexuality-is-lawful-under-lagos-criminal-law-but-a-crime-under-same-sex-marriage-act-reconciling-the-conflict/^[1]].

It is very pertinent to state from the onset that the writer is
a well-reckoned legal writer cum aspirant to the Bar part II, whose
wealth of knowledge is unquantifiable. I must also acknowledge that
the writer is, indeed, a mentor to many and I. However, upon a
rigorous perusal of his said recent article, this writer strongly
finds it difficulty to concede with the legal standpoint of the
writer. Hence, this writer has decided to present, from another
angle, a legal opinion on the subject matter which he believes to
be more correct.

For an effective understanding of the whole gist of this
rejoinder, a summary of the submissions of the writer, in his
article, is hereby given below:

The writer compares and contrasts the provision of
section 261 (although mistakenly written as
“section 259” in his said published article) of
Criminal Law of Lagos State, 2011 (hereafter “CLLS”) and the
provisions of the Same-Sex Marriage (Prohibition) Act, 2014
(hereafter “SSMPA”). The writer, thus, began by raising some
questions as regards the compatibility and effect of SSMPA
provisions and the said section 261 of the CLLS.
The writer stated that there is no provision for the offence of
lesbianism or sodomy in the CLLS, however, the offense of sexual
assault penetration is not left uncovered.

More interestingly, the writer argued on the inclusion of the
phrase “without the consent of the
person” as used in the said section. The writer,
posited that, consent (or the lack thereof), as envisaged in the
provision of the law, forms a basic requirement in proving sexual
assault. Hence, homosexuality, if done with the CONSENT of the
persons involved, is rendered decriminalized and unpunishable.

In his humble submission, the writer further held that the
implication of the said section 261 of the CLLS is
in contravention with the enactment of the National Assembly (i.e.
the SSMPA) because it only provides “CONSENT” as the only clause to
criminalized or decriminalized the act of homosexuality. Thus, the
provision is of no effect and void [with reference made to
section 4(5) of the Nigerian Constitution 1999 (as
amended), Musa v INEC ^[[i]] and
Attorney-General Bendel State v Attorney-General of the
Federation^[[ii]]].

THE REBUTTAL TO THE WRITER SUBMISSION

First and foremost, the writer’s reasoning and submission is
greatly acknowledged. It is trite that where there is a conflict
between the enactment of the National Assembly and that of a state,
in its exercise of provisions under concurrent list as contained in
the organic law, that of National Assembly shall prevail and while
that of the state shall be rendered null and void and
ineffective.

Nevertheless, the writer’s viewpoint is not without flaw or
misdirection which needs to be clarified. Given that, this writer
has distilled two issues from the writer’s submissions:

1. The implication of section 261 of the CLLS, and
2. The conflict which exists between the CLLS and the SSMPA.

These two issues shall be adequately discussed in this
rebuttal.

1. The implication of section 261 of the
   CLLS

It is our humble submission that the writer erroneously
misconstrued the provision of the said section of the CLLS. The
writer has misconstrued the section to imply that such an amorous
relationship between same-sex (i.e. homosexuality) can not
constitute an offence or crime in the Lagos state jurisdiction in
so far the persons involved in such an act so consented. For
clarity, the provision is hereby provided verbatim:

Section 261, Criminal Law of Lagos State:

“Any person who penetrates sexually, the anus, vagina, mouth or
any other opening in the body of another person with a part of his
body or anything else, without the consent of the
person commits a felony and is liable on conviction to
imprisonment for life.” (emphasis added)

With the emphasis made on “without the consent of the person” by
the writer, in his article, while construing the provision as the
yardstick for justifying the criminalization or otherwise of the
act of homosexuality in the state – Lagos state. We, therefore,
argue that going by the literal, clear, and unambiguous wordings of
the provision, the provision should, thus, be construed as
prohibiting and criminalizing any form of sexual assault done
without the CONSENT of the other person with the exclusion of
homosexual related affairs. The provision, therefore, does not
cover or extend to such offences that are homosexual in nature.

The framers of the law (i.e the CLLS) do not intend to extend
the provision as being a yardstick for prosecuting offence of
homosexuality, whether or not the parties consented. As the writer
said in his article, the CLLS makes no provision for the offences
of lesbianism or sodomy. The CLLS, which has been in force in Lagos
state since August, 2011, before the SSMPA became effective in
January, 2014, silent on criminality or otherwise of same-sex
marriage or relationship. Hence, before the birth of the SSMPA,
same-sex marriage or relationship is deemed unrecognized as an
offence or crime, although perceived as immoral act, punishable
under the Nigerian laws. Section 36 (12) of the
Nigerian Constitution 1999 (as amended) states that no action shall
constitute a criminal offence unless it is so codified in a written
law and punishment is therefore provided. The framers of the CLLS,
thereby, leave the matter to the National Assembly to be legislated
on as the power to legislate on marital affairs is exclusive to the
National Assembly.^[[iii][2]^]

However, with the birth of the National Assembly act (i.e. the
SSMPA), which supersedes any other state laws and which is
applicable throughout the Federation, same-sex relationship is now
deemed prohibited, chargeable, and punishable under the Nigerian
system of justice.

It is worthy of note also that, where there exists legislation
of the National Assembly on a subject matter, a state needs not to
re-enact any legislation identical with that of the National
Assembly even if the matter is listed among the concurrent
legislative functions. Otherwise, the National enactment shall
invalidate that of the state not on the ground that it is
inconsistent, but on the basis that that of the National Assembly
has already cover that particular subject matter. See the words of
Fatayi Williams C.J.N., in the case of Attorney-General of Ogun
State v. Attorney-General of the Federation and
others^[[iv]].

Based on the foregoing, we strongly submit that the inclusion of
the phrase “without the consent of the other person” in the section
as a condition for proving sexual assault can not be used to
justify the lawfulness of the criminal act of homosexual otherwise
known as same-sex marriage or relationship within Lagos state
geographical terrain.

1. The conflict which exists between the CLLS and the
   SSMPA.

Is there really a discrepancy between the two sets of law: the
CLLS and SSMPA? As the writer rightly said, the power to legislate
on marriage belongs to the National Assembly^[[v]]. We, therefore, align with this submission
of his. However, the underlying question here still remain: is
there any inconsistency between the CLLS and the SSMPA?

This writer hereby respectfully submit that the alleged
section 261 of the CLLS is not in disharmony with
the SSMPA provisions. The provisions of the two sets of law are so
clear enough, and thus, attract no ambiguity. Thus, a careful study
of section 261 of the CLLS and the SSMPA is
required.

The SSMPA states the kind of marriage deemed unrecognized and
proscribed under the Nigerian laws. Pursuant to sections 1,
2, 4, and 5 of the SSMPA, any amorous relationship between
the same gender (homosexuality: lesbianism and gay) is deemed
outlawed, criminalized and sanctioned. On the other hand, the said
CLLS  provision regulates any unlawful sexual act arising from
the non-consent of one of the parties involved. Moreover, a
community reading of the said section 261 together
with other sections contained in the whole chapter 25 of the law
(the CLLS) is very paramount. A provision of law is to be read in
whole and not in part. This is in consonance with the words of
Katsina-Alu, JSC, later CJN (Rtd) ,in Action Congress (AC) &
Anor v INEC^[[vi]]. His
lordship states:

“…It is settled principle of interpretation that a provision of
the Constitution or a statute should not be interpreted in
isolation but rather in the context of the Constitution or a
statute as a whole. Therefore, in construing the
provisions of a section of a statute, the whole of the statute must
be read in order to determine, the meaning and effect
of the words being interpreted…” (emphasis added)

Thus, the said provision, when read together with all other
related sections, does not extend to such amorous relationship
between people of same gender, but such offence such as rape,
sexual harassment, sexual assault, etc. between persons of opposite
sex.

Thus, it is the humble submission of this writer that
homosexuality, which is prohibited and criminalized under SSMPA, is
not in any way decriminalized by the alleged provision of the CLLS.
And as such, we vehemently rebut the legal conclusion of the writer
and thus, adopt ours as more correct.

CONCLUSION

Conclusively, we do not hesitate to align ourselves with the
submission of the writer on the superseding nature of the National
Assembly enactments over that of the state House of Assembly.
Howbeit, we firmly hold and thus, respectfully submit that:

1. The alleged section does not legalize same-sex relationships,
   whether or not persons involved so consented.
2. The argument of the writer on the inconsistency of
   section 261 of the CLLS with the SSMPA holds no
   water. And thus, we firmly hold that the said section is not
   inconsistent with the provisions of the SSMPA.

Muhibudeen Qosim Atanda is a second-year Law Student of
Faculty of Law, Bayero University, Kano. He can be reached
via:

Email: muhibqosim@gmail.com^[3]

Phone/WhatsApp: 09037074761

Website:  https://qosim.sgm.ng/blog.html^[4]

REFERENCES

[i] (2002) LPELR – 11119 (CA)

[ii] (1981) 10 SC

[iii]^[5]
Second Schedule- Legislative Powers, Part I – Exclusive Legislative
List, article 61.

[iv] (1982) 1-2 S.C. 13 at 40 – 41, (1982) 3
NCLR 166

[v] Section 4 (2), (3) & (4)

[vi]  (2007) 12 NWLR (PART 1048) 222 at
259 B-D