By Chitra Nagarajan
Wednesday, July 16, 2014
This law, which seems at first like bait for women's safety activists, fits a recent history of homophobia and criminalizing homosexuality in Nigeria.
ABUJA, Nigeria (WOMENSENEWS)-- When an email with the subject line "Kano: Passage of Rape Prohibition Law" comes into your inbox, it seems like a cause for celebration.
This, after all, is news about a state in Nigeria, where the National Assembly continues to stall on the passage of legislation aimed at tackling the rising incidence of sexual and domestic violence. It's also where a prominent politician, in response to attempted legislation to curb domestic violence, said that the legislature of Rivers State should be "mindful of passing a bill that they will be first offenders."
However, my excitement quickly faded when reading the actual provisions of the new law in the Northwestern State of Kano, where the Boko Haram extremists kidnapped 260 female students (60 have escaped). After stipulating a maximum life sentence for those convicted of rape and an additional fine of about $1,200 and requiring the court to demand compensation for survivors, it goes on to stipulate punishment for "homosexuals and lesbians."
Legislation worldwide on violence against women suffers from poor enforcement; a lot breaks down between the incidence, the reporting, the investigation and the prosecution. Given this and increasing state and popular attacks against queer people in Nigeria, will the provisions of the rape law that are actually enforced be mainly those that criminalize and punish queer people rather than rapists?
This law fits into a history of homophobia and criminalizing homosexuality in Nigeria that is relatively recent. Until a few years ago, the yan daudu of Northern Nigeria (men who act like women) and the practice of women marrying each other in southeast Igboland (although apparently not about same-sex desire) were more or less tolerated in practice. This is in contrast to Nigeria's criminal code which, since 1991, has punished "carnal knowledge against the order of nature" with14 years of imprisonment.
Nigeria is witnessing societal backlash against "the gays" and those who support them, with the popular narrative being that of the need to guard against a Westernized agenda infecting "our people" and destroying "our culture" despite the long history and present activism of queer people in the country. For those of us for whom queer rights is integral to our feminism, this is how a rape prohibition law comes to be a development which to fear, not celebrate.
In Nigeria as a whole, 1-in-3 young women aged 15 to 24 have experienced at least one form of gender-based violence. Half of the girls in the north have been married by their 16th birthday and are expected to have their first child within a year. When I was in Kano in mid-June, women's rights activists also told me about a growing number of reports in recent months of girls aged 2 to 12 being raped. They also said that, despite politicians saying the right things, there was next to no enforcement. Political will and action to tackle violence against women and girls are clearly needed. But where does homosexuality come into it?
The Kano law talks of specifically about the crime of lesbianism , in addition to the by-now familiar punishment of 14 years in prison, which echoes the national law, and a fine of about $300 for anyone who "has carnal intercourse against the order of nature" with any man, woman or animal. The provision is worth quoting in full:
"Any woman who has a feeling of love for another woman or girl, and went ahead to employ the means of satisfying that passion, either through bodily contact or otherwise with or without consent in order to drive sexual pleasure is said to have committed lesbianism, and shall be imprisoned for a term of 14 years and shall be liable to a fine of N50,000." (The fine is equivalent to about $300.)
Where to start with this? The lawyer in me laughs at the breadth and uncertainty of this section. The mind races to think of exactly what all this could include. The very notion that the only reason queer women have sex is to satisfy "a feeling of love" fits into particularly gendered ideas of women, sex and desire. Imprisoning women for acts "with or without consent" seems strange in a rape prohibition act. Surely lack of consent is a cornerstone of the definition of rape? Or are homosexuality and rape now conflated into each other?
From a legal point of view, what does this actually change? After all, this law says nothing new about "carnal knowledge against the order of nature" that wasn't already criminalized in all of Nigeria. The sharia, which applies in 12 northern states including Kano, gives a maximum sentence of death for men and 50 lashes and-or six months imprisonment for women. This was reinforced recently in the Same Sex Marriage (Prohibition) Act, signed into law by President Goodluck Jonathan in January 2014.
The Kano law against rape is the first time the crime of lesbianism has been so explicitly stated in secular law in Nigeria and punishment has increased from six months under sharia to 14 years. However, criminal law comes under federal jurisdiction and so the Criminal Code Act already applied in Kano. And, although it is not explicit, there is a strong argument to be made that the Criminal Code Act applies to women as well as to men, so what do the provisions in the Rape Prohibition Law add?
Not only does it seem redundant from a legal point of view but, according to activists in Kano, there was no concerted push from women's rights activists to enact the law in its present form. We wondered whether putting rape and homosexuality in the same legislation was a way of getting unpopular provisions in. Sadly, anti-queer prohibitions are likely to have much more support than those against rape.
Chitra Nagarajan is an activist who has worked to protect and promote human rights, particularly those of women, in China, the United Kingdom, the United States and various countries in West Africa. She currently lives in Nigeria where she works to build peace. She blogs here and tweets here.
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