28th October, 2020
By Akin Kuponiyi/Lagos
Justice Rilwan Aikawa of the Federal High Court has struck out a case against 47 men charged with homosexuality by the Nigerian police.
The men were arrested in a police raid on a Lagos hotel in Egbeda, a suburb of Lagos in 2018.
Police claimed the men were being initiated into a gay club, but the defendants said they were attending a birthday party.
The case had suffered several adjournments, when the police prosecutors failed to present some of their witnesses.
Police prosecutors also failed to attend many hearings, including Tuesday’s, making the judge to strike out the case.
The judge noted that police counsel, J.I. Ebhoremen, was, for the umpteenth time, absent from court and gave no reasonable explanation.
The defence counsel, Israel Usman, said it was the ninth time that Ebhoremen failed to show up in court since the case started in 2019.
Usman referred Justice Aikawa to Section 356(5) of the Administration of Criminal Justice Act, 2015 which provides a maximum of five adjournments at the instance of the prosecution in a criminal trial.
Justice Aikawa ruled: “I agree entirely with the defendants’ counsel that the prosecution’s attitude to this case is not satisfactory. In my view, this should not be. If the prosecution has a cogent reason not to be in court, he should have communicated in writing to the court and copy the defence counsel.
“For whatever reason, the prosecution is no more capable or willing to prosecute this case. Consequently, this case is struck out due to lack of diligent prosecution.”
The specific charge the men faced, relating to public displays of affection, carries a 10-year prison sentence.
Outside the court, many of the men smiled and cheered, including dancer James Brown who, smiling, said: “I am free. It means a lot of good things.”
Under Nigerian law, defendants in a case that is struck out can be re-arrested and arraigned again on the same charge, whereas that is not possible in cases that have been dismissed.
Taxi driver Onyeka Oguaghamba, a father-of-four who said he merely drove people to the party, said he was happy the case had been struck out but disappointed that it was not dismissed entirely.
“I am not happy, because I’m looking for the matter to end in a way that people will see me and believe what I have been saying from the beginning,” he said, adding that the decision meant he could be charged again.
Oguaghamba and others said they had been stigmatized as a result of the raid and a televised news conference held by police in which they were identified the day after their arrest.
Chris Agiriga, another of the men, said the striking out of the case would not help him to be reconciled with his family who had rejected him over the matter.
“Since the past two years, this has caused a lot of damage in my life,” he said.
Emmanuel Sadi, a program officer with rights group the Initiative for Equal Rights (TIERS), said the outcome of the case raised questions about the law used to charge the men.
“You can’t even build a case around it,” he said. “I hope they (the government) realize how redundant it is as a law, and they are open to removing or repealing it,” he said.
Homosexuality is outlawed in many socially conservative African societies where some religious groups brand it a corrupting Western import.
Gay sex is a crime in countries across the continent, with punishments ranging from imprisonment to death.
*With reports by Reuters