Beyond the Gaze of the Law: Why Nigeria Must Recognise the Right to Love Freely-

In every corner of Nigerian society, from the bustling markets of Lagos to the quiet hamlets of Taraba, love, intimacy, and companionship form the invisible thread that binds communities together. Yet, for a significant number of Nigerians, the simple act of loving another adult in a private, consensual relationship is a criminal offence. Under the Same-Sex Marriage (Prohibition) Act of 2014, relationships between persons of the same sex are not merely stigmatised; they are punishable by imprisonment.

This article does not seek to debate religious doctrine or cultural orthodoxy, both of which are legitimate sources of moral reasoning in a pluralistic society. Rather, it contends that as a matter of constitutional law, human dignity, and public health, the Nigerian state has no legitimate interest in criminalising private, adult, consensual relationships. The current legal prohibition of LGBTQ+ relationships is not only unjust but also counterproductive to the very ideals of liberty and security that Nigeria professes to uphold.

The Constitutional Promise vs. Statutory Reality

Section 34 of the 1999 Constitution of the Federal Republic of Nigeria guarantees the right to dignity of every person. Section 37 explicitly provides for the right to private and family life. Yet, the Same-Sex Marriage (Prohibition) Act criminalises any form of cohabitation, union, or even public displays of affection between people of the same sex. The law goes further to criminalise the “registration, operation, and sustenance” of gay clubs, societies, or organisations, as well as any public show of same-sex amorous relationships.

Scholars of jurisprudence have long held that a law which forbids a private, victimless act between consenting adults violates the harm principle first articulated by John Stuart Mill: the only purpose for which power can be rightfully exercised over a member of a civilised community, against his will, is to prevent harm to others. Where is the harm in two adults of the same gender choosing to share a life, a home, and mutual care? The law has not produced evidence of third-party injury; it has instead manufactured a class of citizens who exist in the shadows, fearful of arrest for the mere fact of their identity.

The Myth of ‘Un-African’ Love

Opponents of reform often argue that homosexuality is a Western import, alien to Nigerian tradition. This claim, however, collapses under historical scrutiny. Pre-colonial societies across the African continent, including the Hausa ‘yan daudu, the Kongo, and the Zulu, documented forms of same-sex intimacy and gender nonconformity. What is truly un-African is the wholesale adoption of Victorian-era penal codes, which colonial administrators imposed on Nigeria in the early 20th century. Section 214 of the Nigerian Criminal Code (derived from the colonial statute) is a direct descendant of England’s 1861 Offences Against the Person Act, which criminalised buggery. Thus, the very law that now claims to defend “African values” is a colonial relic.

Public Health and Human Dignity

Beyond the philosophical and historical arguments, there is a stark pragmatic reality. When the state criminalises a population, it drives that population away from public health services. In the context of HIV/AIDS, the criminalisation of same-sex relationships has been proven by bodies such as UNAIDS and the World Health Organisation to worsen epidemic outcomes. People who fear arrest will not seek testing, treatment, or prevention services. The result is not a “homosexual-free” society, but a sicker, more secretive society where disease spreads unchecked. If the Nigerian state is genuinely interested in public health, it cannot simultaneously outlaw the existence of a community and expect that community to cooperate with health authorities.

Equality Before the Law, Not Special Rights

It is important to clarify what is being argued. This is not a demand for religious marriage in churches or mosques that oppose it as religious institutions retain the right to define their own sacraments. Nor is it a call for the state to compel any citizen to personally approve of another’s lifestyle. Rather, it is a demand for what Section 17(2)(a) of the Constitution promises: “every citizen shall have equality of rights, obligations and opportunities before the law.” Criminalising one form of adult, private, consensual relationship while tolerating others, heterosexual cohabitation, for instance, is a violation of that equality.

A Path Forward

Reform need not be radical overnight. The first step is to recognise that decriminalisation is not the same as social endorsement. Many liberal democracies, including the United States until 2003, India until 2018, and Botswana in 2019, overturned similar laws not by erasing traditional values, but by acknowledging that the law has no business in the bedrooms of the nation. The Nigerian Law Reform Commission should initiate a review of the Same-Sex Marriage (Prohibition) Act and Section 214 of the Criminal Code, with a view to repealing the provisions that criminalise private conduct.

Nigeria is a country of immense diversity, over 250 ethnic groups, multiple religions, and countless languages. That diversity is our strength. To add sexual orientation and gender identity to the list of differences the state tolerates rather than punishes is not to abandon morality. It is to embrace the deeper morality of not imprisoning people for loving.

The arc of history may bend toward justice, but it does not do so automatically. It requires Nigerians, lawyers, journalists, doctors, students, and ordinary citizens to say, clearly and without apology that no one should be locked up for love. Until that day, the law will remain not a shield, but a sword aimed at the most private part of human existence. And that, in any civilised society, is a scandal.

Article written By Ifeoma Maryann Egbujor