Picture: THINKSTOCK
Picture: THINKSTOCK

EARLIER this month, Nigeria’s president signed into law the draconian Same Sex Marriage (Prohibition) Act, despite strong opposition from the international community. Adding to criminal laws that already prohibit consensual sex between same-sex partners, the act in effect seeks to eradicate sexual minorities in Nigeria.

Ostensibly, the act focuses on criminalising people who enter into same-sex marriages, prescribing a penalty of 14 years in jail for such conduct. It also prescribes 10 years in jail for any person who “administers, witnesses, abets or aids” such a marriage. It is hard to see what point such provisions have, given that same-sex marriage is not recognised in Nigeria and there has hardly been a spate of religious same-sex weddings there.

The aims of the act are, however, much more sinister. Ten years in jail await any person who “registers, operates (supports) or participates in gay clubs, societies and organisations”, and the same penalty awaits anyone who “directly or indirectly makes a public show of (a) same-sex amorous relationship”. In sum, Nigeria has closed off all avenues of expression and association for lesbians and gays. There is little, or no, legal space left for lesbian and gay people to promote themselves, form relationships and express themselves sexually.

This law is deeply cruel and oppressive, inflicting serious emotional and psychological harm on lesbian and gay people and their families, and, ultimately, seeks to suppress diversity of sexual orientation in Nigeria. The breathtaking scope and horror of this law needs public condemnation. We cannot therefore accept the South African government’s decision not to comment on or criticise the severe human rights violations contained therein.

There are three reasons our government has a duty to speak out.

First, the apartheid government argued that the international community should not interfere in South Africa’s affairs. Anti-apartheid forces consistently rejected this argument, building strong international pressure that played a role in ending apartheid. It is therefore strange to hear the post-apartheid government echo apartheid-like sentiments in respect of Nigeria’s antigay laws. It should be recognised that the Nigerian legal regime is not a minor rights violation: it systematically attempts to subjugate and harm a significant minority.

Second, South Africa’s constitution requires that all government action, including its foreign policy, must comply with the values and fundamental freedoms entrenched in our founding document. The bill of rights requires the state to “respect, protect, fulfil and promote” equal rights. In the face of such a clear violation of so many elements of our own basic law, the government should speak out clearly for what we, as South Africans, believe in.

Finally, there is a growing opinion that state-authored persecution on grounds of sexual orientation constitutes an international crime. A crime against humanity is defined in international law as involving any widespread or systematic attack that includes imprisonment in violation of fundamental rules in international law; the persecution of any group that is universally recognised in international law as a group that may not be persecuted; or inhumane acts causing serious injury to mental or physical health.

Laws incarcerating people in the breathtaking manner of this law surely meet these requirements. Nigeria now shares many aspects of the oppression of gays and lesbians in Nazi Germany. Indeed, last year, in a groundbreaking case, a US court ruled that widespread, systematic persecution of lesbian, gay, bisexual, transgender and intersex (LGBTI) people constitutes a crime against humanity. The court reasoned that “the history and current existence of discrimination against LGBTI people is precisely what qualifies them as a distinct targeted group eligible for protection under international law. The fact that a group continues to be vulnerable to widespread, systematic persecution in some parts of the world simply cannot shield one who commits a crime against humanity from liability.”

Silence fuels gross human rights violations. These antigay laws have taken away Nigerians’ voice. It is therefore imperative for the international community, including South Africa, to speak up.

Bilchitz is a professor at the University of Johannesburg and director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, where Dafel is a researcher.