November 13, 2020

Trial Observation Report: Mass Trial in Nigeria

From November 2019 to October 2020, the American Bar Association (ABA) Center for Human Rights monitored criminal proceedings against 47 individuals in Nigeria as part of the Clooney Foundation for Justice’s Trial Watch initiative. The accused were prosecuted for public displays of same sex affection under Nigeria’s Same Sex Marriage Prohibition Act (SSMPA) - the first prosecution under the SSMPA. While the case against the accused was ultimately struck out by the Federal High Court in Lagos, the proceedings breached international and regional human rights standards. In particular, the arrest, detention, and prosecution of the accused violated the right to non-discrimination and equality before the law, which encompasses discrimination based on actual or perceived sexual orientation. Meanwhile, several defendants reported in sworn affidavits that they had been physically abused by the authorities while in custody: the conduct alleged amounted to torture, in violation of the prohibition on torture. The prosecution also engaged in severe misconduct by pursuing the case without sufficient evidence and refusing to disclose key materials to the defense. The termination of the case notwithstanding, the accused have suffered significant harm as a result of the proceedings, including but not limited to trauma, loss of employment, loss of jobs, and severance of familial ties. 

On August 26, 2018, police officers raided the Kelly Ann Hotel in Lagos, Nigeria based on an alleged tip-off that patrons were engaging in same sex activity. 57 men were arrested. On August 27, the Lagos State Police Commissioner presented the men to the media as part of a press conference on the arrests, after which videos purportedly “outing” the men went viral. The group was held in custody at various detention facilities for two days. On August 28, they were released on bail. That same day, the men were formally charged with offenses relating to participation in an unlawful society under the laws of Lagos State as well as with violating the SSMPA provision on same sex displays of affection. 

In September 2019, after the Lagos State Attorney General declined to pursue charges, the police (as permitted by Nigerian law) filed the same charge under the SSMPA at the federal level. The trial of 47 men (10 accused were removed from the case for absconding) began in December 2019, comprising six hearings. The prosecution presented two witnesses - neither of whom connected any individual accused to the alleged offense - and repeatedly requested adjournments. The proceedings, which were halted in March due to the onset of the coronavirus pandemic, concluded in October with the Federal High Court in Lagos striking out the case. 

At the pretrial stage, the authorities’ arrest of the 57 accused violated the right to liberty enshrined in the International Covenant on Civil and Political Rights (ICCPR) and African Charter. Under both treaties, arrests must be lawful: in compliance with domestic laws and procedures. Applicable Nigerian legislation permits the authorities to conduct arrests without warrants where there is reasonable suspicion that an offense has been perpetrated. In the present case, the accused reported that the police simply rounded up individuals at the Kelly Ann Hotel: drivers sitting in the parking lot, hotel guests emerging from their rooms because of the commotion, and visitors drinking at the bar. In falling afoul of domestic procedure, the arrest likewise fell afoul of lawfulness requirement of the ICCPR and African Charter. 

Further, the arrests and ensuing detention of the men were arbitrary because they violated the right to non-discrimination. Under the ICCPR and African Charter, arrests and detention based on discriminatory grounds are arbitrary. The United Nations Human Rights Committee, charged with interpreting the ICCPR, has established that discrimination encompasses targeting on the grounds of sexual orientation. The African Commission, charged with interpreting the African Charter, has likewise indicated as much. In the present case, the hotel was raided due to an alleged tip-off that patrons were engaging in “same sex act[s].” The accused were subsequently prosecuted for having allegedly engaged in same sex displays of affection under the SSMPA. As such, their arrests and detention were discriminatory and, correspondingly, arbitrary. 

While in police custody, a number of the accused were subjected to torture and ill-treatment. In sworn affidavits, several defendants alleged that the police had abused them, seemingly in order to obtain confessions. One man, for example, recounted being “brutalized” into signing a statement while two others recounted the police throwing tear gas canisters into their cell shortly prior to interrogating them. The conduct alleged, consistent with broader reports on the pervasiveness of torture in Nigerian detention facilities, violates the prohibition on torture and cruel, inhuman, or degrading treatment set forth in the ICCPR, African Charter, and Convention against Torture. The inaction of the authorities in investigating the accused’s allegations contravenes Nigeria’s obligations under these same treaties. 

Once the trial began, violations persisted. The prosecution refused to disclose key documents to the defense, such as the investigation report compiled by the police, information on the alleged tip-off that motivated the raid, the list of prosecution witnesses, and descriptions of evidence that the prosecution planned to introduce at trial. Under the African Charter and ICCPR, the authorities are obligated to share such materials as part of the accused’s right to adequate facilities to prepare a defense. In the present case, the prosecution flouted repeated court orders that it conduct the requisite disclosure. 

The accused’s ability to prepare a defense was further undermined by the vagueness of the charge sheet. The ICCPR and African Charter require that accused persons be informed of the nature of the charges against them, including the general facts alleged by the prosecution. The document charging the 47 accused, however, contained no details or individualized information as to the accused’s alleged violation of the SSMPA, instead charging the 47 en masse and providing just their names and the SSMPA provision at issue. 

The prosecution’s conduct, described above, constituted a grave violation of prosecutorial ethics. In accordance with prosecutorial guidelines, prosecutors must decline to pursue a case when it becomes apparent that the evidence does not support the charges. In the present case, that the Lagos State Attorney General declined to pursue charges, that the prosecutor’s office was unable to present witnesses linking the accused to any criminal offense, that the prosecutor’s office refused disclosure, and that the prosecutor’s office continually requested adjournments indicates that the prosecution lacked the necessary proof to proceed with the case. Indeed, in October 2020 the Federal High Court in Lagos struck out the case for want of diligent prosecution. 

The authorities additionally mistreated the accused by parading them before the media soon after their arrests, in what amounted to a forcible “outing”. Regardless of whether the defendants actually identify as LGBTQ, the authorities’ conduct in making public the defendants’ intimate lives violated their right to privacy. Under ICCPR standards, interference with privacy is only permissible where such intrusion both pursues a legitimate aim and is necessary and proportionate. In the present case, the authorities’ aim appears to have been to shame the accused. In any event, the havoc wreaked on the accused’s lives is far greater than any possible law enforcement gains. 

More broadly, the SSMPA violates the right to non-discrimination and equality before the law, as enshrined in the ICCPR and African Charter. In criminalizing displays of same sex affection as well as same sex marriage, the Act discriminates on the basis of sexual orientation. The UN Human Rights Committee has found the SSMPA to be in violation of the ICCPR for this very reason. The SSMPA further violates the ICCPR and African Charter because of its vagueness. The Act’s proscription of “public show[s] of same sex amorous relationship directly or indirectly” is unclear, failing to explain what would constitute a “public show of same sex amorous relationship” or what would qualify as indirect and direct methods of such. This contravenes ICCPR and African Charter requirements that grounds for criminal liability be delineated with precision, so as to enable individuals to regulate their conduct accordingly. 

While the charges have been struck out, the proceedings have severely impacted the lives of the men and their loved ones. The case aptly demonstrates how damaging the institution of criminal proceedings can be - even where proceedings end in dismissal. To ensure against future such harms and to comply with its international and regional obligations, Nigeria should repeal the SSMPA.

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