The right to sexual orientation and LGBTIQ+ rights: a case study of Zimbabwe and Nigeria

Abstract

The Constitution of Zimbabwe and the federal Constitution of Nigeria do not protect the right to sexual orientation and LGBTIQ+ rights. In fact, same-sex relationships between consenting adults have been criminalised in both states. This study analyses discrimination on the ground of sexual orientation and examines which human rights are infringed in these states by the sodomy laws. Although sexual orientation is not specifically enumerated as a prohibited grounds of discrimination in the Zimbabwean and Nigerian Constitutions, this study argues that international human rights law is evolving to include sexual orientation as a prohibited ground of discrimination. To support this conclusion, relevant findings of international human rights treaty bodies, such as the Human Rights Committee, and regional instruments including the African Charter are examined. Further support is found in landmark judgments of national courts in other jurisdictions, such as Botswana, and other regional human rights courts, which, although not authoritative in Africa, have persuasive value. This research explores how, and, to what extent, these international human rights law obligations are binding on Zimbabwe and Nigeria. As a consequence of the criminalisation of sodomy laws in Zimbabwe and Nigeria, LGBTIQ+ people face stigmatisation, arrest, imprisonment and violence, and their rights to privacy, human dignity, health, and equality are infringed despite that these rights are guaranteed to everyone. Moreover, homosexual couples do not enjoy the same rights as heterosexual couples regarding marriage, choosing a life partner, adopting children, and forming a family. In answering the research questions, the doctrinal method of legal research is utilised. The study concludes with making recommendations to strengthen the constitutional and legal framework to protect the rights of LGBTIQ+ persons in the two states.