The Marriage System in Africa's Traditional Milieu

Before colonization, in large parts of Africa marriage was considered to be a sacred union of a man and woman, the purpose of which was the establishment of a family through the production of children.Footnote ⁵ This traditional view of marriage in parts of Africa accords with the common law definition of marriage as the “legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”Footnote ⁶ In other words, marriage has traditionally consisted in what US legal theorist William Eskridge describes as a dimorphous pair of “one man and one woman” that is neither a triad nor a union of the same sex or gender.Footnote ⁷ Thus, while there may be other forms of marriage, the one that has traditionally been celebrated in Africa has been that between a man and a woman.

Paul Kyalo posits that marriage refers to “several normative behavior patterns featuring . . . co-residence, division of labor, sharing of resources, sexual relationship, procreation and cooperation in child bearing and training.”Footnote ⁸ In other words, whereas marriage provides an avenue for the satisfaction of emotional and psychological needs of both men and women, these have been considered by Africans across climes and times not as ends in themselves but means toward the ends of procreation and establishment of familial lineages. Further, since marriage provided the only legal avenue for procreation, premodern Africans, particularly Nigerians, considered children born out of wedlock to be illegitimate. Such children were usually treated as outcasts and were often deprived of the opportunity of benefitting from social and familial privileges and rights that were ordinarily accorded those born by couples with legal unions. The word legal here does not refer to a codified system of law. Until the advent of Islam and later Christianity, in most parts of the continent, there was no written or codified law. In those parts of Africa, the sacralization of marriages often began not based on love or the free choice of a man and a woman as subjects and individuals fully imbued with agency and freedom, but on the basis of pacts or agreements reached among families within given communities. These arranged marriages were contracted by parents for and on behalf of their children and were binding on the children.Footnote ⁹ These marriages were often solemnized in ways based not on any written law but on traditional customs and norms. Such marriages were popular among the Hausas, Ibos, and Yorubas in Nigeria.Footnote ¹⁰ These arranged marriages are still practiced by some Africans today.

Another important feature of the marriage system in premodern period in Nigeria was its polygynous nature. In this period, men not only had a homestead in which they wielded authority and enjoyed patriarchal privileges, but also could be a consort to more than one female. In fact, mention must be made of the Yorubas of southwest Nigeria during that era, whose polygynous practice had economic implications because it afforded the male the opportunity of having extra hands to deploy on the farmland. In other words, in parts of Africa, and particularly in Nigeria where it was practiced, it was believed that “polygyny often produced wealth. Where women are economically active, each additional wife means additional income for the marriage unit. Thus, higher economic status can be both a cause and an effect.”Footnote ¹¹ To be polygamous during that era, meant, archetypally, that the male was the subject most deserving of respect and honor in patriarchal circles.

The movement of Islam and Christianity across Africa, and particularly into the West Africa subregion, from the medieval period into the early nineteenth century complicated notions of marriage among peoples of the area.Footnote ¹² Whereas Christianity sought to affirm the notion that marriage is meant to be a union of two different sexes in wedlock, Islam validated polygyny as a lawful form of marriage that its adherents could practice within strict regulations. Whereas both religions incentivized heterosexual orientation, culture, and practices among West Africans, Islam also granted legal validity to existing polygynous traditions among Africans. Within Islam, marriage of a man to more than one woman at a time ultimately became normative.Footnote ¹³ The existence of polygynous marriage can itself be seen as a practice that opens the door to relationships beyond the standard “one man and one woman” model, albeit with the sanction and blessing of religious law.

Challenges Confronting the Marriage System in Africa

Polygyny is just one of the contemporary challenges confronting the institution of marriage in sub-Saharan Africa, especially Nigeria. While it is true that the practice offers some semblance of solution to existing social problems confronting Africans, including that of economic support for women lacking spouses, a practice that Augustine Nwoye refers to as “interventive polygamy,”Footnote ¹⁴ it has nonetheless continued to generate concerns in regard to spousal welfare, gender equity, and the upbringing of children. In some parts of sub-Saharan Africa, many of the men who engage in polygyny are unable to provide for the children of the union. For many polygamous families, homes become places where the marital relationships are characterized by spousal conflicts and disharmony, rivalry, hatred, and violence.Footnote ¹⁵

But perhaps more fundamental is the seeming decline in the popularity of marriage as a tradition among young Africans and the increase in cohabitation among unmarried young people. There are two groups of marriageable but unmarried Africans: marriageable adults, male and female, who are single by choice; and marriageable adults who are single not by choice. The first group includes those who may have freely reached the decision not to get married; the second includes those who might desire a partner but are unable to find one. While these groups are both loci of concern with reference to the challenges confronting the marriage system in Nigeria, the circumstances of those who desire to get married, suffer no inhibitive medical conditions, and still cannot find love have become the greatest source of concern for critics and observers of the marriage system in contemporary Nigeria. Of the many reasons that can be adduced for this trend, a primary one is the harsh economic conditions in which most Africans find themselves.Footnote ¹⁶ Consequently, young men and women have been unable to establish homes.

In the West Africa subregion, the increase in the number of unmarried young adults, men and women included, has been traced to unemployment or underemployment of young able-bodied men who are no longer able to finance spousal responsibilities.Footnote ¹⁷ Conversely, there is the increased economic freedom of women, who, unlike in earlier periods when women were dependent on men for survival, can now live independently of men's financial support.Footnote ¹⁸ In other words, the increase in access to the labor market for women has led to such unintended outcomes as marriage instability, spousal separation, and alteration of marital roles and responsibilities. Thus, the traditional notions of the family in Africa are undergoing fundamental reconstruction—husbands are becoming wives and vice versa.

Observers of the continuities and change in the marriage system across Africa have also identified the rapid and severe HIV epidemic as a factor that has had a negative impact on the positive outlook of the marriage system across the continent.Footnote ¹⁹ In a country such as Nigeria, which is still greatly challenged by an inadequate health care delivery system, the outbreak of sexually transmitted diseasesFootnote ²⁰ has increased among unmarried young people, even as the number of men and women who are single by circumstance continues to increase.

One radical instrument being deployed by Nigerians to remedy the above situation is the organization of mass weddings. Two types of mass weddings have taken place in Nigeria over the last decade: state-sponsored mass weddings and privately sponsored mass weddings. An example of the latter took place in Nigeria in December 2017, when Sokoto State–based philanthropist Alhaji Umaru Kwabbo sponsored a mass wedding for at least a hundred couples at a special ceremony in Sokoto, the state capital. Initially viewed by most Nigerians with incredulity, Kwabbo argued that the action proceeded out of his genuine desire to ensure a drastic reduction in the number of unmarried men and women in the state. He further argued, “Many of our mature people are in need of such urgent assistance, but due to certain reasons and other responsibilities associated with marriage in our society, they remain without spouses.”Footnote ²¹ On Sunday, May 13, 2017, no fewer than two hundred Nigerians entered into matrimonial contracts with their spouses in a big ceremony that took place at the Abu-Huraira Jumu'at mosque in Sokoto. The newly wedded had been chosen from a pool of application totaling more than a thousand from marriageable men and women from within the northern state alone.Footnote ²²

But while there appears to be a consensus across Nigeria on the necessity to facilitate access to marriage for young marriageable people, the recent increase in numbers of same-sex relationships, largely considered to be “un-African”Footnote ²³ across much of the continent, has elicited at least two responses from African governments: outright denial or rejection of homosexuality as a foreign cultural import and the promulgation of legislation to curb same-sex relationships. Before I explore these responses, I provide a brief insight into the history of same-sex relationships in Africa.

Same-Sex Relationships in Africa: A History

One way that scholars have sought to engage the history of same-sex relationships in Africa is to attempt to situate it within the larger context of the African continent. The following can best represent how homosexuality has from time to time been part of lived experiences of African people.

A careful review of African history shows that contrary to the notion that same-sex relations are “un-African,” the practice has been known on the continent, as in other cultures and civilizations, since the ancient periods. For instance, in ancient Egypt, there was a known case of two high officials of the state, Nyankh-Khnum and Khnum-hotep, who lived and served the state around the fifth dynasty. Though both men were said to have wives and children, they were nonetheless regarded as homosexual because “they embraced each other and touched their faces nose to nose, an act that was regarded as foreplay in male same-sex relationships at the time.”Footnote ²⁴ Evidence has also been found in two-thousand-year-old rock paintings in southern Africa that depict men having sex with other men.Footnote ²⁵ Edwin Smith and Andrew Dale have also suggested that among the Ila-speaking people in the Republic of Zambia and Bantu subdivision of Africans, there was a man who was known for dressing as a woman, did women's work, and lived and slept among women, but not with them in a sexual sense.Footnote ²⁶ This denotes that same-sex relations among men and boys were common among the Ilas despite the risk involved “that the boy in question may become pregnant.”Footnote ²⁷ Man-boy relationships were known, practiced, and documented in the northern parts of the continent, particularly during the Mamluk period in Egypt.Footnote ²⁸ The city of Cairo played host to khawal—men who dressed like women and entertained audiences in the palace with song and dance but also engaged in sexual relationships with younger men and boys.Footnote ²⁹

In the West Africa subregion, historical records show that countries such as Ghana, Burkina Faso, and Niger have histories of homosexuality.Footnote ³⁰ During the eighteenth and nineteenth centuries, Asante courts (in modern-day Ghana) hosted male slaves who served as concubines to princes and the notables.Footnote ³¹ These were popular subjects who were easily distinguishable by their feminine dresses and were known to perform women's duties. In Dahomey Kingdom (now the Republic of Benin), eunuchs were known as royal wives. The eunuchs played important roles in the royal courts. Homosexuals also occupied important positions in the sociocultural life of the Dagaaba in Burkina Faso.Footnote ³² They were believed to have the capacity to mediate between the spirit and the human worlds.Footnote ³³ There are, for example, eras of Africa's cultural history in which women-to-women relationships have been documented. Such is the case of Ifeyinwa Olinke, who lived in the nineteenth century in what is now known as Eastern Nigeria. Ifeyinwa Olinke was described by Eskridge as follows: “She was an industrious woman in a community where most of the entrepreneurial opportunities were seized by women, who thereby came to control much of the Igbo tribe's wealth. Ifeyinwa socially overshadowed her less prosperous male husband. As a sign of her prosperity and social standing, Ifeyinwa became a female husband to other women. Her epithet ‘Olinke’ referred to the fact that she had nine wives.”Footnote ³⁴

The story of Olinke is reinforced by what Jackton Ojwang and Emily Kinama refer to as “woman-to-woman marriage” in Kenya.Footnote ³⁵ This is a “traditionally recognized union between two women, one of whom pays the dowry in order to marry the other woman. . . . It is usually a union aimed at promoting the social or economic status of the women who participate in it . . . [and ensuring] the continuation of the family line and the enjoyment of family life.”Footnote ³⁶ However, the stories of Olinke in Nigeria and the tradition of woman-to-woman marriage in Kenya do not suggest a broad presence of same-sex relations between women across African cultures. In fact, since it is evident that in neither of the two instances cited is it suggested that the women engage in same-sex relations, it then means we must look beyond these two stories in order to account for the emergence of same-sex relationships in continental Africa.

East African societies have also witnessed active participation of homosexuals in the sociocultural and, indeed, the religious lives of the people. This is true with particular reference to the Meru and the Kikuyu of Kenya: the mugawe, men whose clothing and hairstyles are exactly like those of womenFootnote ³⁷ and were formally married to men. It is equally true of the ikihindu among the Hutu and Tutsi in Rwanda and Burundi. A similar role is reported to have been played by some men among the Swahili-speaking Mashoga, who often bear women's names and cook and clean for their supposed male husbands.Footnote ³⁸

Thus, the argument that homosexuality is “un-African” lacks historical credence and validity. A more valid account would be that homosexual practices had long been in existence among peoples inhabiting what later came to be known as Africa. What is different today is that unlike earlier eras, when homosexual discourses and practices were muted and largely restricted to the “unsaid” or the “unstated,” as described by critical discourse theorist Norman Fairclough,Footnote ³⁹ there has been an unprecedented increase in same-sex relationships among different sections of African societies. Today, LGBTQ people feel greater freedom to express and manifest their sexuality openly. One reason for this is the increased availability of funding to combat AIDS, particularly among gay men. Further, new networks and new forms of organizing among people who identify themselves as LGBTQ have emerged.Footnote ⁴⁰

Yet even with the emergence of these new freedoms and communities among LGBTQ people, the clampdown on same-sex relationships has had the effect of increasing awareness of their existence, even if they remain legally forbidden. In other words, unlike before, when same-sex relationships were largely underground, they are now being practiced more openly in African societies. The increased visibility of LGBTQ people in African public space has led to increased homophobia in most African countries. Two domains of responses are discernible. These are rhetoric of denials or rejection of homosexuality by African leaders and the increased promulgation of legislation with the intent to extricate the practice from the African space.

The Political Delegitimization of Same-Sex Relations in Africa

Rhetoric of denial, rejection, and dismissal of homosexuality as a non-African phenomenon have been more strident and vociferous from a section of African leaders who have striven to label the practice as “un-African.” To this group of leaders, same-sex relations have nothing to do with human rights, but instead are viewed as a noxious campaign to destroy the fabric of the marriage system in Africa as the first step toward the destruction of the African society. For example, the former president of Namibia, Sam Nujoma, criticized the movement in support of LGBTQ rights as quoted in the Mail and Guardian:

Evident in Nujoma's criticism is the popular notion in Africa that the LGBTQ rights movement is nothing but a metaphor for imperialism and that same-sex marriage is a threat to “institutions of power, such as the family and the state that assume that heterosexuality is a natural, as opposed to a cultural, phenomenon.”Footnote ⁴² Frederick Chiluba, the former president of Zambia, later amplified Sam Nujoma's position, saying,

Similarly, the former Kenyan president Daniel arap Moi made the following statement: “Kenyans should guard against ‘dangerous practices’ such as homosexuality: ‘It is not right that a man should go with another man or a woman with another woman. It is against African tradition and Biblical teachings’ . . . ‘I will not shy away from warning Kenyans against the dangers of the scourge’.”Footnote ⁴⁴ The above statements indicate a consensus among African leaders and appeared not to allow same-sex relations and LGBTQ rights in their countries.

While the above could be referred to as the rhetoric of negation and declamation of homosexuality in Africa, there has been a counter-rhetoric from Western powers in support of same-sex relationships in parts of the continent. At the Commonwealth Heads of Government Meeting about a decade ago, then UK prime minister David Cameron expressed the disapproval of the Commonwealth on the clampdown on LGBTQ rights across the continent: “Speaking to representatives of fifty-four nations, Cameron noted that ‘more strings’ would be attached to British aid to the developing countries and that ‘those expecting to benefit from such aid should adhere to “proper human rights” and decriminalize homosexuality’.”Footnote ⁴⁵

As expected, Cameron's speech employing the rhetoric of affirmation in support of homosexuality in Africa elicited strong reactions across the continent. These included, among many other press releases and statements, a press release from a “coalition of more than fifty nongovernmental organizations working in African countries in support of LGBTQ rights” and governments from all around Africa. For example, the coalition “expressed concerns over attempts by Western governments to use the power of the purse to promote equality for LGBTQ individuals.”Footnote ⁴⁶ Such interventions were said to “disregard the agency of African civil society movements and political leadership. They also tend, as has been evidenced in Malawi, to exacerbate the environment of intolerance in which the political leadership scapegoat LGBTI people for donor sanctions in an attempt to retain and reinforce national state sovereignty.”Footnote ⁴⁷ The press release said further that, “the sanctions sustain the divide between the LGBTI and the broader civil society movement. In a context of general human rights violations, where women are almost as vulnerable as LGBTI people, or where health and food security are not guaranteed for anyone, singling out LGBTI issues emphasizes the idea that LGBTI rights are special rights and hierarchically more important than other rights. It also supports the commonly held notion that homosexuality is ‘unAfrican’ and a western-sponsored ‘idea’ and that countries like the UK will only act when ‘their interests’ have been threatened.”Footnote ⁴⁸

A careful assessment of the situation in parts of the continent shows that both the rhetoric of denial and negation and the counter-rhetoric from the West in affirmation and support for LGBTQ rights have largely increased incidences of violent attacks on LGBTQ people across the continent. They have fueled anti-gay violence and discrimination and have exposed the political, rather than cultural nature of the backlash.Footnote ⁴⁹ It has also led to the strengthening of or the promulgation of legislations that criminalize or recriminalize homosexuality. The Nigerian setting provides an ideal example.

The Legal Delegitimization of Same-Sex Relations in Nigeria

President Goodluck Jonathan's signing of the SSMPA into law in 2014 changed the outlook for same-sex relationships in Nigeria. However, same-sex relationships had been known in parts of the country long before. The Hausa communities of the northern part of the country, without prejudice to their affiliation to Islam and their awareness of the strict Islamic prescriptions against the practice, had been aware of men who seek sexual pleasures not in women but in men.Footnote ⁵⁰ What changed since earlier political periods has been the breaking of the culture of silence within which LGBTQ communities had previously conducted their lives. The promulgation of the SSMPA therefore occurred in response to the new vigor, visibility, and support that the LGBTQ communities had started to enjoy from international agencies, international human rights law, and local nonprofit agencies working on sexual minority rights. The SSMPA was therefore promulgated based on the premise that the Nigerian socio-cultural atmosphere is antithetical to homosexuality. The Nigerian state derives support in driving same-sex practices underground from mainstream religious communities of Muslims and Christians, all of whom consider LGBTQ practices as a perversion of divine sexual prescriptions for humanity.

The SSMPA, which had spent years in the parliament before it was passed and presented to the president for his approval, expressly “prohibits a marriage contract or civil union entered into between persons of same sex, and provides penalties for the solemnization and witnessing of same thereof.”Footnote ⁵¹ The Act, which contravenes international conventions to which Nigeria is a signatory,Footnote ⁵² equally voids such unions that are entered into outside Nigeria for the purpose of consummation in the country. It specifies: “A marriage contract or civil union entered into between persons of same sex by virtue of a certificate issued by a foreign country is void in Nigeria, and any benefit accruing therefrom by virtue of the certificate shall not be enforced by any court of law.”Footnote ⁵³ Probably out of the desire of its enactors to allow no lacuna in regard to what constitutes marriage as far as the Nigerian constitution is concerned, the Act provides as follows: “Only a marriage contracted between a man and a woman shall be recognized as valid in Nigeria.”Footnote ⁵⁴ Section 5 of the Act provides punishment for any infraction of the law as follows:

1. (1) A person who enters into a same sex marriage contract or civil union commits an offence and is liable on conviction to a term of 14 years imprisonment.

2. (2) A person who registers, operates or participates in gay clubs, societies and organization, or directly or indirectly makes public show of same sex amorous relationship in Nigeria commits an offence and is liable on conviction to a term of 10 years imprisonment.

3. (3) A person or group of persons who administers, witnesses, abets, or aids the solemnization of a same sex marriage or civil union, or supports the registration, operation and sustenance of gay clubs, societies, organizations, processions or meetings in Nigeria commits an offence and is liable on conviction to a term of 10 years imprisonment.Footnote ⁵⁵

Given these structures, it is clear that not only will LGBTQ people face the wrath of the law in Nigeria, but so will acquaintances and allies who show sympathy to LGBTQ people in their various communities.

Impacts of the SSMPA on Same-Sex Relations in Nigeria

Human Rights Watch has detailed some of the negative impacts of the SSMPA on LGBTQ people across the Nigerian nation. Through its report “‘Tell Me Where I Can Be Safe,’”Footnote ⁵⁶ compiled from interviews and interactions with a group of LGBTQ people across the country, widespread cases of human rights abuses and outright deprivation of same were revealed. According to the executive director of a nongovernmental organization with interest in minority rights based in Minna, Niger State, gay men, in particular, have become easy victims in the hands of the state security services, particularly the police. Whenever the police receive information about the gathering of groups of men anywhere in the state “they just head over to make arrests.”Footnote ⁵⁷

It must be noted that before the promulgation of the SSMPA, the objection or aversion for same-sex relations by the Nigerian populace was based mainly on their religious teachings and existing notion of what constitutes Africa's cultural values and tradition. With the promulgation of this law, many Nigerians now consider it their civic duty to report homosexual gatherings to the security agents. For example, the police carried out a raid of a birthday party in Ibadan. The raid, it was suspected, must have been based on reports received by the police from members of the public that some homosexuals were gathered in a hotel. On their arrival, the police found a bag of condoms belonging to a HIV peer educator. They consequently arrested everybody at the party. The men were held in police custody for four days and eventually released, with no charges brought, but only after paying bribes to the police to avoid prison terms of up to fourteen years. The men said they had never been subjected to questioning, arrest, or detention prior to the enactment of the SSMPA.Footnote ⁵⁸

The state of insecurity within which LGBTQ people subsist has also become exacerbated by the activities of the non-state through the officially recognized security apparatus, popularly known as vigilante groups. In addition to their assignment to assist the police in maintaining law, security, and order in the cities, vigilante groups have added monitoring homosexuality.Footnote ⁵⁹ The groups have taken it upon themselves not only to monitor people's compliance with the law but also to mete out punishment to those they perceive as having committed infractions of same. In the hands of these groups, LGBTQ people have continued to suffer extrajudicial attacks and violence, including mob attacks, rape, arbitrary detention, and other human rights abuses.

Faced with conditions in which same-sex relationships have become anathema, LGBTQ people in Nigeria have devised ingenious means to self-preservation. These include self-censoring through conscious alteration of their gender identities in order to avoid suspicion and consequent arrest or attacks. It also includes avoidance of LGBTQ gatherings. In an environment where sexual minority rights enjoy little or no support, some LGBTQ people have also conformed to heterosexual practices, having children and adhering to socially prescribed gender norms.

One unexpected aftermath of the SSMPA is that it has “impede[d] sustainable national responses to HIV.”Footnote ⁶⁰ The SSMPA has engendered a climate of fear in which carriers of the disease, fearing prison or detention, choose to remain silent. Gays and others whose sexual orientations do not conform to the general sexual norms in the society consequently become unwilling and unprepared to seek and adhere to HIV prevention, treatment, care, and other support services provided by government and nongovernmental agencies. In other words, the SSMPA appears to have achieved its desired result of running same-sex relationships underground in Nigeria and in establishing an atmosphere where government is not only in control of the outer rooms of life but also firmly in control of the “bedrooms,”Footnote ⁶¹ but the challenges confronting the marriage system in Nigeria, and by extension other African nations, remain as acute as ever before. These are challenges that the SSMPA is probably designed not to overcome.