Legal Perspectives On The SAMOA Agreement, By Gbemiga Ogunleye

Since the Daily Trust newspaper’s lead story a few days ago, which alleged that the provisions of the SAMOA Agreement that the Federal Government signed requires Nigeria to accept or recognise LGBTQ or gay rights, as a pre-condition for a loan of $150 billion (one hundred and fifty billion dollars), the country has been on the edge.

The SAMOA Agreement, is a broad legal framework between the European Union and some members of the Organisation of African, Caribbean and Pacific States (OACPS). The agreement, signed in Brussels on 28 June, was named after the Pacific Island nation of SAMOA, in recognition of the fact that it was the first country to sign it in 2023, and also to honour SAMOA’s leadership and commitment to the partnership.

The African Regional Protocol on the agreement says it is a framework for cooperation that includes inclusive and sustainable economic growth, environmental and human rights protection, among others.

But not a few Nigerians, including members of the National Assembly, have condemned the country’s signing of the agreement. Indeed, the House of Representatives, in a “motion of urgent public importance,” urged the Federal Government to suspend the agreement over the alleged LGBTQ clause.

The Federal Government has denied the claim, reminding critics that the country already has an existing law against same-sex marriage. NBA President, Yakubu Mikyau, lent his weighty voice to that of the Federal Government, pointing out that “no provision in the SAMOA Agreement requires Nigeria to accept LGBTQ rights.”

Perhaps the interpretation of Article 2(5), which states that “the parties shall systematically promote “gender perspective” and ensure that gender equality is mainstreamed across all policies,” has been the most contentious and controversial.

The “consensus” seems to be that the article under reference is a clever ploy by the European Union towards ensuring that Nigeria becomes a member of the LGBTQ community. Given developments in Europe and America, one must admit that the fear is genuine.

But does it have a legal basis?

Back to the controversial article 2(5) of the agreement. As earlier stated, members of the European Union, some of who have an elastic definition of gender, are part of this agreement. And it is to safeguard their interests, bearing in mind that some of these countries have already embraced the LGBTQ way of life. Cultures differ and societal mores are not the same.

Agreements of such nature recognise the local laws of participating countries and also their Constitutions. If that is the case, I submit that there is no cause for alarm. Indeed, Maikyau had confirmed this.

And Nigeria’s Same-sex Marriage Prohibition Act of 2013 forbids and penalises any marriage or civil union between individuals of the same gender and the celebration of such unions. The Act goes further to make it illegal to register gay clubs, societies, organisations, and prohibits their existence, activities and gatherings.

The Act only recognises a union contracted between a man and a woman. It further provides that any person who enters into a same-sex marriage is liable upon conviction to 14 years imprisonment. Penalties are also prescribed for priests who conduct such a ceremony.

Back to the controversial article 2(5) of the agreement. As earlier stated, members of the European Union, some of who have an elastic definition of gender, are part of this agreement. And it is to safeguard their interests, bearing in mind that some of these countries have already embraced the LGBTQ way of life. Cultures differ and societal mores are not the same. The “gender perspective” and “gender equality” clauses are safeguards of their interests, rather than a ploy to railroad other countries into the LGBTQ community.

Besides, Section 12(1) of the 1999 Constitution (as amended) is explicit in its provision that: “No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly.”

Though the SAMOA Agreement is not a treaty but the reality is that both terms are used interchangeably, also by seasoned diplomats. Even legal scholars will struggle to point out very distinct differences between the two terms. Treaties are formal written agreements, whereas agreements can be formal or informal. Treaties are intended to be legally binding, whereas an international agreement, like SAMOA, may or may not be binding.

The Geneva and the Vienna Conventions are treaties, while the Universal Declaration of Human Rights and the African Charter on Human and People’s Rights are agreements. The question may be asked: How will our courts interpret the Treaty or agreement if brought before them for adjudication?

The truth is that such matters have been placed before our courts in the past. In Oshevire V. British Caledonian Airways (1990) 7 NWLR Pt. 163, the Court of Appeal had the opportunity to pronounce on the status of a treaty vis-a-vis the local law.

The court added that: “The Constitution is the supreme law of the land. It is the grundnorm. Its supremacy has never been called to question in ordinary circumstances. Thus, a Treaty enacted into law in Nigeria by virtue of section 12 (1) of the 1999 constitution is circumscribed in its operational scope and extent as may be prescribed by the legislature.”

According to the court: “An international treaty, like the Warsaw Convention in the instant case, is an expression of agreed, compromised principles by the contracting states and is generally autonomous of the municipal laws of contracting states as regards its application and construction.”

As Justice Ogundare put it: “It is useful to appreciate that an International agreement embodied in a Convention or Treaty is autonomous as the high contracting parties have submitted themselves to be bound by its provisions which are therefore above domestic legislation. Thus any domestic legislation in conflict with the Convention is void.” Six years later, in 1996 to be precise, the Court of Appeal in UAC (Nig) Ltd V Global Transporte S. A (1996), 5 NWLR, Pt. 448, reiterated its 1990 position.

The Court held that: “an International agreement embodied in a convention such as the Haque Rules is autonomous and above domestic legislation of the subscribing countries and the provisions of such conventions cannot be suspended or interrupted even by the agreement of the parties.”

Perhaps the locus classicus on the status of a treaty or an international agreement vis-a-vis its applicability in the country is the position of the Supreme Court in Abacha V. Fawehinmi (2000) 6 NWLR Pt. 660. The position of the court is that if an International agreement has not been incorporated into the body of our municipal laws, it does not have the force of law.

In this case, the court applied the constitutional provision and decided in favour of the cross-appellant, who relied on the African Charter on Human and Peoples Rights 1990, an international law which has been enacted as one of our local laws in Nigeria.

The Supreme Court held that: “An international treaty entered into by the Government of Nigeria does not become binding until enacted into law by the National Assembly. Before its enactment into law by the National Assembly, it has no such force of law as to make its provisions justifiable in our courts. This was the tenor of section 12 (1) of the 1979 constitution now re-enacted in section 12 (1) of the 1999 constitution.”

The court added that: “The Constitution is the supreme law of the land. It is the grundnorm. Its supremacy has never been called to question in ordinary circumstances. Thus, a Treaty enacted into law in Nigeria by virtue of section 12 (1) of the 1999 constitution is circumscribed in its operational scope and extent as may be prescribed by the legislature.”

My position is that based on the Supreme Court Judgment referenced above. Nigerians have nothing to worry about, concerning the SAMOA agreement. For it to be binding and have the force of law, the National Assembly has to enact it into the body of our municipal laws.

Gbemiga Ogunleye, a legal practitioner, is the principal partner at EbunOluwa Chambers.