Legal Implications of Same-Sex Marriage (Prohibition) Act, 2013 on Customary “Female Husband Marriage” or “Woman-to-Woman Marriage” in Nigeria
Keywords:
Female uusband marriage, woman-to-woman marriage, samesex marriage, customary law, lesbianism, homosexualAbstract
Female husband marriage has been an age-long customary practice in many parts of Nigeria. The practice embedded in the customary law of the people. This study critically examines of legal implications of same-sex marriage (Prohibition) Act, 2013 on customary “female husband marriage” or “woman-to-woman marriage” in Nigeria. It is therefore necessary to give the statutory and judicial considerations of custom and customary law as these terms are relevant to this study. The statutory and judicial considerations together with the provisions of same-sex law form the legal framework of this work. The study observes that customary female husband or woman-to-woman marriage has been documented in many African cultures. The position of this study is that African female-husband and male-daughter practices are different from the woman-to-woman marriages or lesbianism practiced in the Western world. Whereas the African practices are to enable the people who face challenges in child bearing, the lesbianism practiced in the Western world and elsewhere is mainly for sexual satisfaction.
References
Ojubuonu O., “Women and Power in Africa in the Twentieth and Twenty-First Centuries” (2009) Fragrance Publications: Lagos, 87. See also: Same Sex Marriage in the Non-European world; Available at www.politicsforum.org/forum/viewtopic.php?f=10&t=25591 (accessed on 27/01/2015).
See: Gay Marriage Around the World; Available at: www.pewforum.org/2013/12/19/gay-marriagearound-the-world-2013/ (accessed on 27/02/2015).
Ibid
Ibid
Ibid
See: www.ncsl.org/research/human-services/civil-unions-and-domestic-partnership-statutes.aspx
(accessed on 27/02/2015).
See: www.features.pewforum.org/same-sex-marriage-state-by-state (accessed on 27/02/2015).
See: www.washingtonpost.com/wp-dyn/content/article/2006/11/30/AR2006113001370.html accessed on 27/02/2015
Ibid
See: Uganda Anti-Homosexuality Act, 2014. Available at: www.refworld.org/pdfid /530c4bc64.pdf (accessed on 27/02/2015)
See: www.bbc.co.uk/news/world-africa-28605400 & www.voanews.com/content/uganda-court-annulsanti-gay-laws/1969580.html (accessed on 27/02/2015) 12Ojambo F., “Ugandan Lawmakers Plan to Reintroduce Court-Quashed Anti-Gay Law”. Available at:
www.bloomberg.com/news/articles/2014-08-06/ugandan-lawmakers-plan-to-reintroduce-court-quashedanti-law (accessed on 27/02/2015).
It has been reported that leading western countries piled pressure on the Federal Government of Nigeria following President Goodluck Jonathan’s signing of the Same-Sex Prohibition Act 2014. The latest country was the United States of America, whose Ambassador to Nigeria, Mr James Entwistle threatened that the United States would scale down its support for HIV/AIDS and anti-malaria programmes in response to the Federal Government’s position on the gay rights issue. The United States Ambassador to Nigeria said he was worried about “the implications of the anti-same sex marriage law, which according to him, “seems to restrict the fundamental rights of a section of the Nigerian population.” Member countries of the European Union and Canada expressed their objection to the law. However, a former Nigerian Ambassador to US, Dahiru Suleiman, has described homosexuality and lesbianism as “animalistic and degrading to humanity. See: Ndiribe O., Eyoboka S. & Ojeme V., “Gay- Marriage Law: US threatens to Sanction Nigeria” Vanguard Newspaper of 21st January, 2014. Available at: www.vanguardngr.com/2014/01/gay-marriage-law-us-threatens-sactionnigeria/ (accessed on 27/02/2015)
See: Section 5(3) of the Same-sex Marriage (Prohibition) Act, 2013
See. Section 5(1) of the Same-sex Marriage (Prohibition) Act, 2013
See: Section 6 of the Same-sex Marriage (Prohibition) Act, 2013
Odiase-Alegimenlen O. A. and Garuba J. O., “Same Sex Marriage: Nigeria at the Middle of
Western Politics” (2014) Oromia Law Journal, Vol.3, No. 1, p. 284 - 289
Odiase-Alegimenlen O. A. and Garuba J. O., Ibid, 289
Ojubuonu O., Ibid
Cap, E14, LFN, 2011
See: Section 2(1) of Evidence Act, Cap, E14, LFN, 2011
See: Section 42 of the Ekiti State High Court Law, 2010
See: Section 73(2) of Evidence Act, Cap, E14, LFN, 2011
See: Section 16(1) of Evidence Act, Cap, E14, LFN, 2011
See: Section 16(2) of Evidence Act, Cap, E14, LFN, 2011
See: Section 17 of Evidence Act, Cap, E14, LFN, 2011
See: Section 18(1) of Evidence Act, Cap, E14, LFN, 2011
See: Section 18 (2) of Evidence Act, Cap, E14, LFN, 2011. Section 73(1) of the Act states that “When it has to form an opinion as to the existence of any general custom or right, the opinion as to the existence of such custom or right, of persons who would be likely to know of its existence if its existence are admissible.
See: Section 18(3) of Evidence Act, Cap, E14, LFN, 2011
(1973) LPELR-SC.52/1973 or (1973) 11 S.C. 1
See: Ratio 5
(1990) LPELR-2880 (SC)
See: Ratio 2
See generally the cases of Owoniyin v. Omotosho (1961) 1 All NLR 304 at 309; Bello v. Gov; Kogi State (1997) 9 NWLR (Pt. 521), 496 CA; Osulu v. Osolu (1998) 1 NWLR (Pt. 535) 532 CA; Okene v. Orianwo (1998) 9 NWLR (Pt. 566) 408 CA.
Eghugbaji Eleko v. Government of Nigeria (1931) A.C 662 at 673; Bellow v. Gov. Kogi State (1997) 9 NWLR (Pt. 521) 496 CA.
(1961) NSCC 157 @ 159
(1998) 1 NWLR (Pt. 535) 532 CA.
See: Ratio 1 of Supreme Court judgment in Oyewunmi v. Ogunesan supra
(2014) LPELR-22683(CA). See: Ratios 5, 7 and 8 Per Agube JCA
(1982) LPELR-SC.79/1981
Infra (see footnote 109 on page 18)
(1908) 1 NLR 81
(1976) 1 All NLR 266 or (1979) 3S.C. 23
See: www.libertinethought.blogspot.com/2008/01/20-types-of-marriage.html accessed on 26/ 02/2015
See: www.freedomtomarry.org/pages/marriage-versus-civil-unions-domestic-partnership-etc (accessed on 26/02/2015). 46 Pomeroy S. B., Spartan Woman, (2002) Oxford University Press: Oxford, 46 47 Ibid 48 Henry Fielding, The Female Husband, (published anonymously in 1746). The literature is available at; www.ebooks.adelaide.edu.au/f/fielding/henry/female-husband/ (accessed on 28/ 06/2015)
Mary Hamilton married Mary Price “fraudulently, disguised as a man”. According to Henry Fielding, Mary Hamilton was born somewhere in Somerset; she was daughter of Mary and William Hamilton. She moved to Angus country, Scotland, and at the age of fourteen she left home in her brother’s clothes. She entered a three or four-year apprenticeship as a quack doctor before starting business for herself. In May 1746, she entered Somersetshire from Devonshire. She took quarters in Wells as Dr. Charles Hamilton at the house of Mary Creed, where Mary Price, Mrs. Creed’s nice lived also. On 16 July 1746, she was married to Mary Price by the Reverend Mr. Kingston, Curate of St. Cuthbert’s in Wells, who had published the banns. The couple then traveled around Somersetshire for two months until Mary Hamilton’s arrest at Glastnbury, 13 September 1746, Mary Price of course having discovered the deception. One Anne Johnson said to have been corrupted through Methodism, in turn corrupted Mary Hamilton. The two went to Bristol. Miss Johnson ran off with and married a man named Rogers, also a Methodist. Mary Hamilton then dressed herself as a male Methodist teacher. Mary Hamilton was tried for fraud at Taunton, Somerset, on 7 October 1746. She was convicted of having married a young woman of Wells and lived with her as her Husband. See: Sheridan Baker, Henry Fielding’s The Female Husband; Fact and Fiction. Available at: www.jstor.org/ discovery/10.2307/460583?sid=21105974501123&uid=3738720&uid=4&uid=2 (accessed on 28/ 2015). See also: The Female Husband or the Surprising History of Mrs. Mary alias Mr. George Hamilton. The preview of the book is available at: www.amazon.com/The-female-husbandsuprising-confinement/dp/1140791761 accessed on 28/02/2015 (accessed on 28/2015).
This term is coined to distinguish the formal marriage between a man and woman from the
woman-to-woman marriage or female husband institution, which is the main focus of this
study.
See: Meribe v. Egwu, infra (see footnote 106 on page 16)
(1972) LPELR-SC.295/1969
Uwogugu E. I., Family Law in Nigeria, (3rd Edition), (1990), Heinemann: Ibadan, 67
Staples J. A., “Dowry and Bride Price are not the same thing”. Available at: www.jasonstaples.com/ sociology/dowry-and-bride-price-are-not-the-same-thing/ (accessed on 26/02/2015)
Ibid. See also: Deuteronomy 22: 28-29. I take the view expressed in this article.
(1972) 2 UILR 466
Nwogugu E. I., ibid, 73
Nwogugu E. I., ibid, 71
(1932) 1 NLR 47
Uwogugu E. I., Ibid, 58
(1943) 17 NLR 59; also Ikedionwu v. Okafor (1966-67) 10 ENLR 178.
Yeboa K. Y., “Formal and Essential Validity of Akan and Ghanaian Customary Marriages” (1993- 1995)University of Ghana Law Journal, Vol. XIX, 140
Supra
Supra
Carrier J. M. and Murray S. O., “Woman-Woman Marriage in Africa,” in Murray S.O and Roscoe W. (eds.) Boy-wives and Female Husbands: Studies of African Homosexualities, (1998) St. Martin’s Press: New York, p.255.
Ibid.
Ibid
Nwoko K. C., “Female Husband in Igbo Land: Southeast Nigeria”, (2012) Journal of Pan Africa Studies, Vol. 5, No. 1, 72
Nwoko K. C., ibid, 73
Nwoko K. C., ibid, 73 (“Marriages in Igbo land were not restricted to adult males and females alone. To large extent, marriages were contracted between two females and between underage children until they grow up. For the latter, it was for various reasons, to ensure the continued friendship ties of their families, and to protect especially the girl bride from any future suitor. Child marriage was “the most common way of acquiring rights in women.”)
Nwoko K. C., ibid, 74 72 Nwogugu E. I., ibid, 79 73 Nwogugu E. I., ibid, 79 74 Nwogugu E. I., ibid, 79 -80 75 Nwoko K. C., ibid, 74
Okon B. A., Ekpe E. L. and Ansa S. A., “Documenting the Significance of Ibibio Traditional Marriage Gift Items: A Comparative Approach”, (2014) International Journal of Language and Linguistics, Vol. 2, No. 3, 182.
Tradition of Same Gender Marriage in Igboland, Nigeria; (this Article is available at: www.blackagendarreport.com/? q=content/tradition-same-gender-marriage-igboland-nigeria) (accessed on 26/02/2015)
The custom is known as Arewa or Arhewa in Ishan custom and in Ibo custom. See: Bradbury R. E. and Lloyd P. C., “The Benin Kingdom and the Edo-Speaking peoples of South-Western Nigeria and Itsekiri” (1957) International African Institute: London, Ethnographic Survey of Africa, Western Africa, Part XIII, 80. See also: Thomas N. W., “The Edo-Speaking Peoples of Southern Nigeria” (1970) Journal of the Royal African Society, Vol. 10, 7-8; Rowling C. W., “Notes on Land Tenure in Benin, Kukuruku, Ishan and Asaba Divisions of Benin Province” (1948) Government Printer: Lagos, 99. 79 Visit: www.scribd.com/doc/164393675/unpf0063 (accessed on 26/02/2015). 80 See: Ephesians 5:31 that says, “A man leaves his father and mother and is joint to his wife, and the two shall be one flesh”.
Amadiume I., Male Daughters, Female Husbands: Gender and Sex in an African Society, (1987) Atlantic Highlands: London, 188-189
Okon B. A., Ekpe E. L. and Ansa S. A, Ibid
Okon B. A., Ekpe E. L. and Ansa S. A, Ibid
Okon B. A., Ekpe E. L. and Ansa S. A, Ibid
Nwoko K. C., ibid, 75
Nwoko K. C., ibid, 75
Nwoko K. C., ibid, 76. See also: Emefiene I. R., “The History of Ubulu People with Special Searchlight on Ubulu-Uno (2006) Floreat Systems: Benin City, 218
Nwoko K. C., ibid, 76
This is a cultural practice in Igbo land reserved only for men
Nwoko K. C., ibid, 76
This is not peculiar to Africa alone; the practice was also recognized in the ancient Israel communities. In ancient Israel, a childless woman could call herself a mother by giving her maid-servant to her husband as a second wife (assuming, of course, the maid-servant did indeed produce a child).
Williamson K., “Changes in the Marriage System of Okrika Ijo” (1962) Cambridge Journals (International African Institute) Vol. 32, Iss. 1, 53 93 Nwogugu E. I., ibid, 79. See also: Aina O. I., Aransiola J. A., And Osezua C., “Sexual Health And Sexual Rights Within Marriage” (2006) Africa Regional Sexuality Resource Centre, 4. (The Article is available at: www.arsrc.org/downloads/uhss/aina.pdf [accessed on 28/02/2015])
See: www.justice.gov%2Feoir%2Fvll%2Fcountry%2Fcanada_coi%2Fnigeria%2FNGA101045.E.pdf (accessed on 01/03/2015)
See: www.justice.gov%2Feoir%2Fvll%2Fcountry%2Fcanada_coi%2Fnigeria%2FNGA101045.E.pdf (accessed on 01/03/2015)
Zande people are located in Southwestern part of Sudan, Northeastern part of Congo and the Central African Republic.
Murray S. O. and Roscoe W. (ed), “Boy-wives and Female Husbands”: Studies of African Homosexualities, 27. (The book is available at: www.arcados.ch/wp-content/uploads/2012/06/ MURRAY-ROSCO-BOY-WIVIES-FEMALE-HUSBANDS-98.pdf [Accessed on 01/03/2015]) 98 Nwogugu E. I., ibid, 81 99 Nwogugu E. I., ibid, 81 100 Nwogugu E. I., ibid, 81 101 Otekpor N., “A Woman who is Husband and Father: An Essay in Customary Law” (2008) Review of Nigerian Law & Practice, Vol. 2, 72 102 Otekpor N., ibid, 103 Otekpor N., ibid, See also: Customary Court Edict 1978, Section 22(a) 104 Otekpor N., ibid
Helen Odigie V. Iyere Aika (1985) NBCL 51.
(1976) LPELR-1861 (SC)
Ibid
Ibid. Section 14(3) the Evidence Act cited in the judgment is now section 18(3) in the current Evidence Act (2011) which states, “In any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy or is not in accordance
with natural justice, equity and good conscience.”
(1994) 9 NWLR (PT. 368) 391. See also the decision of Court of Appeal, Enugu Division in the case of Emmanuel Ebele V. Augustine Ebele (2013) LPELR-21207(CA), is on all fours with Meribe v. Egwu
Supra
Okonkwo v. Okagbue, supra
Ibid , p. 318 -319
Ibid, p. 305-306
Supra
Supra (see: foot note 39 on page 5)
See: Ratio 10 of the judgment in Ojukwu v. Agupusi supra
See: Ratio 9, ibid
Supra
See: Ratio 7 of the judgment in Ojukwu v. Agupusi supra
Supra
Ibid
See: Ratio 5 of the judgment in Ojukwu v. Agupusi supra
See: Ratio 8 of the judgment in Ojukwu v. Agupusi supra
Supra
See: Per AGUBE, J.C.A. (P. 42, Paras. D-G) of the judgment in Ojukwu v. Agupusi supra
(2008) 7 NWLR (Pt. 1087)
(2008) 7 NWLR (Pt. 1087) p. 107
See: Meribe v. Egwu, supra
See: Ojukwu v. Agupusi, supra
