Marriage as an institution has been for ages the image of unity despite differences in culture, religion and civilization, and to some extent, has reflected the belief that neither man nor woman is perfect or complete without the other. This institution of marriage is today under serious attack from many quarters such that any keen observer can discern in the secular mentality of the contemporary world, an effort to undermine its natural and religious meaning. The meaning of Marriage is today being distorted to include same sex relationships. In view of this, a law has been passed in Nigeria to protect marriage as a union of a man and a woman; thus banning, prohibiting and criminalizing all forms of same sex marriages in Nigeria. This research examines the meaning of the concept?Marriage‘ distinguishing it from other types of marriages ?in quote‘ including ?same sex marriage‘ trying to analyze the implication of redefining Marriage as a union of two Persons; analyzing the essential elements / ingredients of these marriages as well as the likely implications if accepted as marriages in Nigeria. In the course of making these analyses, the researcher took cognizance of the challenges likely to impeach the enforcement of the same sex marriage prohibition Act considering the position of the human right activists as well as other human right laws applicable to Nigeria. The researcher thus discovered that there are some lacunas in the Act as it failed to spell out in clear terms the necessary ingredients of what constitutes the offence of same sex, thereby creating opportunity for possible abuse of people‘s rights. Thus the researcher recommends that the Act be amended to fill up the loopholes and that the ban against same sex marriage in Nigeria be more strengthened by reflecting the definition of marriage as a union between a man and a woman in the constitution by amending item 61 of part 1 of the second schedule to the Constitution.

CHAPTER ONE: INTRODUCTION

1.1       Background to the Study
Marriage as an institution has been for centuries the image of unity despite differences in culture, religion and civilization, and to some extent, has reflected the belief that neither man nor woman is perfect or complete without the other. Marriage as an institution1 is established by God the creator in both the holy Bible and holy Quran as a union of a man and a woman. The Bible in Genesis 2:21-24 made us to understand that a woman was created from the rib of a man which explains the reason why man is so attached to his wife2. A similar provision also exists in the holy Quran as we find in Qur'an 4:1: "O humankind! Be conscious of your Lord Who created you from a single soul, and out of it created its mate, and out of the two spread countless men and women. Be conscious of your Lord through Whom you demand your mutual rights and honor the wombs; God always watches over you."3 The marriage institution seems to be the largest institution in the world because of its universal nature. It also contributes to the well being of the rest of other institutions of the country including the Government. This institution is established to ensure the fiscal and legal protection of families.
The institution of marriage is today under serious attack from many quarters such that any keen observer can discern in the secular mentality of the contemporary world, an effort to undermine its natural and religious meaning. The identity of the family as a natural institution based on the valid marriage of a legally qualified man and woman, for the attainment of the universally recognized noble marital ends is today being distorted. Many countries of the world today have either fully legalized same sex marriage or have conceded certain civil rights to them.4
Today in Nigeria, a law has been passed to protect marriage as a union of a man and a woman and a ban has been made against same-sex marriage. There has been a lot of furore especially from the outside of Nigeria since the enactment of the same sex prohibition Law. Nigeria is being severely criticized and threatened by the so-called developed nations and their agents.5
The anti-gay law was, no doubt, enacted in line with the country‘s religious and cultural beliefs. Laws are created to reflect the political, social and economic relationships in a society. Law is not merely the command of the sovereign; it represents the idea of right or wrong based on the prevalent morality of the people. The new law is therefore certain to please most people in Nigeria, where anti-gay sentiment is rife. However, the new anti-gay law has been described in some quarters as discriminatory and incompatible with international human rights laws to which Nigeria is a signatory.6

1.2       Statement of the Problem
Marriage cannot and should not be seen as a creation by government or by the judges, for it is not merely a legal construct. However, because marriage as a meaningful social institution is so intimately related to the generation and the protection of children, the government has always been seen to have a legitimate role in regulating its civil effects. But where does the role of government start or end.
The inability of the same sex marriage prohibition Act to give a satisfactory meaning or definition to what marriage is posses a possible danger in the future. Thus the Act seems to give the impression that marriage is just a legal union or contract between a man and a woman. And there are implications when marriage is viewed from the above perspective. Marriage as an institution is naturally meant to be permanent and should not be seen from the perspective of legal agreement or contract that can easily be done with or changed at will.
This is why the state or government must exercise special care through her laws not to undermine the traditional meaning of marriage by redefining it, for this would amount to
?building a house in a hurricane? and inadvertently institutionalizing and perpetuating a harmful social change capable of imploding and destroying the fabric of the society. Human nature exists and sets limits on what law can accomplish by fiat alone, and so when it comes to marriage, law must respect the reality of the ways in which human biology, human nature and social relationships are intertwined.
Again, the enactment of the same sex marriage (prohibition) Act has defined marriage as a union between a man and a woman. This may be a welcome development to save marriage institution but it may not last without doing more. This is because of the numerous definitions and interpretations of what marriage is all about in various laws in Nigeria. These various understanding can easily be abused by any activists or clever Judge in the future to rubbish the intention of the Act by given a contrary direction to the meaning of marriage as it has happened in America and Europe. There is need to fill this lacuna.
More so, the prohibition of same sex marriage seems to be touching a number of constitutional issues especially as it relates to the fundamental rights as claimed by some human right activists, thereby making the law prone to international attacks. There is need therefore to analyze the law side by side other existing laws in Nigeria especially in the context of what marriage ought to be in order to see its adequacy or inadequacy.
If there is a change to the legal definition of marriage, pressure will be brought to bear on Catholic schools, agencies and other institutions to teach and to accept that this form of sexual union is equal in worth to the committed, monogamous and heterosexual union sealed in marriage. This is an unacceptable infringement of the freedom of association and religious liberty, including not only freedom of worship but also freedom of religious practice?7
Looking at the contents of this law, the question that comes to mind is whether Nigeria would be able to sustain this position in the future considering the international pressure and politics surrounding it. Can one really say that Nigeria has finally nailed the issue of same sex marriage to the board completely looking at the contents of the law or are there some lacunas that must be filled. This is the focus of this research. This research will critically examine the prohibition of same sex marriage in Nigeria from all ramifications.

1.3       Research Questions
1.         Whether the law is in fact adequate to prohibit Same Sex marriage?
2.         Whether or not the law is compatible with other law like the Fundamental Human Right provision in the Constitution and the International human rights instruments?
3.         What are the challenges in the enforcement and application of the law?
4.         Whether woman to woman marriages being practiced under native law and custom in some parts of Nigeria are punishable under the Act?

1.4       Aim and Objectives of the Research
The main aim of this study is to critically analyze the prohibition of same sex marriage under Nigeria laws. This research aims at showing the strengths and weaknesses in the arguments for and against the prohibition of the same sex marriage in Nigeria and the likely implications of such arguments or positions in the face of the present day society and the law. It will also go ahead to analyze some of the position for instance the claim that the prohibition is merely based on sentiments on morality and religion. These will be done from the perspectives of the laws as applicable to statutory, customary and Islamic marriages which constitute the three marriages recognized in Nigeria. The opportunity to do this presented itself due to the amount of pressure in the world today on the recently enacted law in Nigeria prohibiting and criminalizing same sex marriage.
The objectives of the research are:
a)         To analyze the Nigerian same sex marriage (prohibition) Act in the light of existing laws in Nigeria and its implications on the rights of individuals.
b)         To consider the possible loopholes or lacuna in the Act.
c)         To critically examine the implication of the Act in the light of the human rights position on same sex marriage.
d)         To examine the possible challenges same sex marriage will pose to the society or to marriage institution if not prohibited.
e)         To examine whether woman to woman marriages being practiced under native law and custom in some parts of Nigeria amounts to Same Sex marriage punishable under the Act.
f)         To critically analyze the penal provisions of the Act to determine what ingredients are necessary to establish the offence of Same Sex marriage.

1.5       Significance of the Research
In all its intents and purposes, this research is considered worth doing because of some lacuna that needs to be filled in the minds of many concerning the reality about marriage. This research is thus born out of the feeling that there is some kind of imperfection in most of the statutes dealing with the issue of marriage which the current same sex marriage (prohibition) Act did not also address properly. This research will be beneficial to the society in throwing more light on the issue of marriage as an institution as against the idea of marriage as mere contractual arrangements.
This research will not only be of great addition to literary work but it will also be more beneficial to Nigerians as a nation in their effort to resist international pressure and politics on the issue of same sex marriage which the wordings of the Act has not properly captured.

1.6       Scope of the Research
This study is primarily concerned with critically analyzing the prohibition of same sex marriage bringing to limelight its pros and cons especially in the light of the contemporary challenges to the meaning of marriage itself. Basically there are three different types of marriage that a man and a woman can contract in Nigeria. They are:
(a)        Statutory/Church Marriage
(b)        Customary Marriage
(c)        Islamic Marriage
Thus, we shall in this project be analyzing the same sex marriage prohibition Act in the light of laws governing these marriages.

1.7       Research Methodology
The method of research employed in this project is doctrinal and empirical. The primary sources consulted are the Nigerian Same sex marriage (prohibition) Act8, Marriage Act9, Matrimonial Causes Act10, Interpretation Act11 and other relevant civil marriage statutes applicable in Nigeria. The secondary sources consulted are textbooks, journal articles, dictionaries, encyclopedias and articles from the internet. Some oral interviews were equally conducted in the course of the research.

1.8       Literature Review
Nigerian same sex marriage (prohibition) Act is a topical issue, being a new enactment and coming at a time when the meaning of marriage is being challenged across the world.
Marriage from the civil law perspective is generally defined as the legal union of a couple as husband and wife, which has the following essential characteristics for validity: 1) parties legally capable of contracting to marry, 2) mutual consent or agreement, and 3) an actual contracting in the form prescribed by law 12. As good as this definition maybe, it was not able to show the gender of the couple in question, nor was it able to indicate whether such a husband and wife can be of opposite sex or not. In fact, it also sees marriage as a legal contract, thereby not  recognizing the permanent nature of marriage.
In the popular case of Hyde v. Hyde, Sir James Wilde, who is better known to posterity as Lord Penzance, in a judgment he delivered on March 26, 1886 defined marriage as a voluntary union for life of one man and one woman to the exclusion of all others13. This definition was  able to bring out the permanent nature of marriage as against legal contract. However, he was unable to recognize the existence of other types of marriages like the Islamic and Customary marriage which need not be monogamous in nature.
The Nigerian Interpretation Act apparently echoing Lord Penzance defines a monogamous marriage as one which is recognized by the law of the place where it is contracted, as a voluntary union of one man and one woman to the exclusion of all others, during the continuance of the marriage14. This definition also fails because it merely defined monogamous marriage and sees marriage as a contract.
For Nwogugu15, in his book Family law in Nigeria while quoting Lord Penzance, defined monogamous marriage as a voluntary union for life of one man and one woman to the exclusion of all others. While a polygamous marriage for him is a voluntary union for life of one man with one or several wives. On the issue of same sex marriage, Nwogugu recognizes the fact that some customs practice what looks like woman to woman marriages in some part of Nigeria but he went ahead to state that there is always at the background a man in whose name or behalf such marriages are contracted.
Even though, the author was able to define both monogamous and polygamous marriages, however he failed to address the issue of same sex marriage as a possibly challenge to the meaning of marriage today.
The Supreme Court of Nigeria gave the meaning of marriage in the case of AMOBI v. NZEGWU & ORS16 thus: ?Marriage under the Marriage Act generally means the legal union of a couple as spouses. In other words, it is the voluntary union for life of one man and one woman to the exclusion of all others." This definition does not suffice as it deals only with marriage under the Act and has nothing to say on other types of marriages as applicable in Nigeria including the issue of same sex marriages.
The Nigerian Marriage Act made no attempt to define or give any meaning to what marriage is all about but only dealt with the issues such as preliminaries to marriage, consent to marriage, forms for celebration of marriage, registration of marriage17.
Section 114 Matrimonial Causes Act18 which is the interpretation section only tried to explain what a matrimonial cause is in terms of marriage petitions to the court; without any effort to define marriage or to explain the issue of gender of persons who enter into marriage. Considering the fact that marriage is currently under attack, the Witherspoon Institute identified four threats to Marriage, which they described as especially troubling: divorce, illegitimacy, cohabitation and same-sex marriage19. Among these four threats, the issue of same sex seems to be the most controversial as it touches the root of marriage itself. This again failed to define marriage.
It merely made an assumption of what marriage entails and went straight to identify same sex marriage as a threat to marriage.
In Meribe v. Egwu,20 the court defined marriage as a union between man and woman.
And while reacting to the custom of woman to woman marriage it held:
In every system of jurisprudence known to us, one of the essential requirements for a valid marriage is that it must be the union of a man and a woman thereby creating the status of husband and wife. Indeed, the law governing any decent society should abhor and express its indignation of a 'woman to woman' marriage; and where there is proof that a custom permits such an association, the custom must be regarded as repugnant by virtue of the proviso to Section 14(3) of the Evidence Act and ought not to be upheld by the court.
Even though this case tried to define marriage as a union of a man and a woman, it focused mainly on customs which are repugnant in nature. It failed to associate woman to woman marriage as being equal to same sex marriage as envisaged today in the same sex marriage prohibition Act 2013.
In Tulane Journal of International Affair, Lindsay21 while discussing the issue of Same Sex marriage in his article ?Legalizing Same-Sex Marriage: An Obligation Not a Decision‘, wrote extensively on why Same Sex marriage should be legalized irrespective of culture or ethnicity. For him:
International human rights law creates a universal right to marriage that includes gay and lesbian couples, and denying same-sex couples this right is a clear violation. In accordance with both treaty law and international customary law, states are obliged to recognize all individuals‘ fundamental right to marriage. Refusing same-sex couples the right to marry violates the principle of nondiscrimination and the individual‘s right to privacy, marriage, association, and dignity22.
This article despite its significant contribution to the issue of marriage and Same Sex relationship, mainly focused on the rights of individuals to marry as provided by the international law but failed to give any internationally acceptable definition of what constitutes marriage as different from Same Sex marriage.
Margaret Weigel and Leighton Walter Kille23 writing in the ?Journalist‘s Resource Research on today‘s news topics‘ Compared the well-being outcomes of children residing within same-sex and different-sex parent families and concluded that the differences that exist in child well-being are largely due to socioeconomic circumstances and family stability. Although this contribution is quite enriching, it does not answer all necessary questions under review in the Nigeria same sex marriage prohibition Act, as it was purely based on western culture only, neither did it discuss other challenges same sex marriage will pose to the marriage institution if not prohibited.
Again, Nan D. Hunter24 in his article titled ?The Future Impact of Same-Sex Marriage: More Questions Than Answers‘ focused on raising relevant questions on the future impact of same sex marriage where there is federal recognition of such marriages, and the question of a distinctive marital status for couples (gay or straight) who raise children. The author concluded with a call for agnostic empiricism as developments in gay and lesbian family law continue to influence how law regulates all family structures.
The author‘s contributions raised a lot of relevant questions on the issue of same sex marriage, but it did not deal with a situation where same sex marriage is prohibited by law and in fact made a crime as we have in Nigeria.

1.9       Organizational Outline
Chapter one introduces the research, states the problems and outlines the aims and objectives of the research. Here also, the researcher formulates the research questions, discusses the method to be applied in answering the questions while also reviewing authors that has written on the topic or other related topics. The researcher concludes this chapter by discussing the Justification and organizational layout of the research.
Chapter two focuses on the conceptual discourse on marriage. Here, the research examines the meaning of the concept ?marriage‘ as well as types of marriages, especially as applicable under Nigeria laws considering the prerequisites of these marriages. Again, the researcher discusses the various obligations applicable to parties under marriage relationship, as well as other vital elements that are common to all marriages in Nigeria.
Chapter Three discussed the issue of same sex marriage analyzing the meaning and the implication of Redefining Marriage as a Union of Two Persons. The researcher also delved into the issue of the causes and solution to same sex relationship. The study finally looked into same sex marriage prohibition Act 2013 vis a vis other laws especially as it relates to woman to woman marriages applicable in many parts of Nigeria taking cognizance of Nigeria case laws as well as the issue of repugnancy test.
Chapter four focuses on the challenges likely to impeach the enforcement of the same sex marriage prohibition Act. Here, the issue of human right and chapter four of Nigerian constitution is discussed as well as international law provisions as it relates to individual freedom and rights. Then, the position of Law, Morality and Culture in the light of these human right arguments is considered vis a vis rights of children and other members of the society. Finally, the possibilities of abuses by the enforcement agencies are also highlighted.
Chapter five discusses the future of the of the Same Sex Marriage (Prohibition) Act and makes comments on the present agitation over it. It also provides the best possible recommendations on the substance of the subject matter in thoughtful and well considered conclusions on the subject matter.