By Olumide Babalola
Introduction
When sometime in 2022, I read the South African decision in Tumelo Mapodile v The Minister of Correctional Services (2016) ZAGPJHC 174, it dawned on me that, sooner than later, the Nigerian Correctional facilities would have a similar issue on their hands. That day has come!
It is no longer news that on the 12th day of April 2024, the Nigerian cross-dresser, Idris Okuneye (Bobrisky) was sentenced to 6-months imprisonment for abusing the Nigerian currency. His sentence has been discussed from many perspectives but the part that caught my attention was the news report attributed to the Nigerian Correctional Service (NCS) that they will hold Bobrisky in a male correctional facility and “protect him from sexual predators”. In other words, the NCS has undertaken to protect Bobrisky’s privacy (bodily integrity) while in their custody. I will come back to this.
Facts of Mapodile’s case
Tumelo, a gay South African, was convicted and imprisoned in a male correctional centre. His fellow inmates considered him a female and repeatedly harassed him sexually. When he consequently wrote a letter to the prison authorities to put him in a solitary cell or together with people of similar sexual orientation, but his request was not acceded to, he approached the court for redress. In granting his application, the South African High Court (Gauteng division) per Mabesele, J held that:
“Gays who are in custody are part of the community of prisoners which include categories of prisoners mentioned in regulations (2) (f, h and i) and whose right to dignity, to privacy and to health care are protected due to their peculiar status. It is beyond debate that gays, too, have their own peculiar status. Therefore they are entitled to the same protection which is afforded to the categories of prisoners mentioned above. Such protection should not be limited to dignity and privacy but should include equality. The prison authorities are obliged to protect these rights and must not create an impression to the prison community and to gay people in particular, as in the present case, that elevating gays to the same level with the categories of prisoners mentioned in regulation (2) and accommodating them in separate cells is a favour. For these reasons, I granted order dated 06 April 2016.”
The decision above must however be understood, distinguished or (un)appreciated in the light of South Africa’s pro-homosexuality laws and jurisprudence. For context, in other decisions, the South African courts have peculiarly recognised gay rights and decriminalised homosexuality in deference to the right to privacy. (See National Coalition for Gay and Lesbian v Minister of Home Affairs and Others (1999) ZACC 17; National Coalition for Gay Lesbians Equality v Minister of Justice (1998) ZACC 15; Muri v Mutual and Federal Pension Fund (2002) 9 BPLR 3864; Satchwell v President of Republic of South Africa and Another [2002] ZACC 18; Du Toit and Another v The Minister of Welfare and Population Development [2002] ZACC 20; J and B v Home Affairs [2003] ZACC 3.)
Bobrisky’s case and the privacy angle
In Nigeria’s case, homosexuality remains a crime the last time I checked but that is not the crux of my intervention especially since Bobrisky was reported to have confirmed to the court that, he is male. Perhaps, the court and NCS were concerned for his sexual safety, hence the confirmation that he would be protected from sexual predators while in custody.
First, it is beyond doubt that a convicted person or a prisoner does not automatically lose his/her entitlement to the enjoyment of other fundamental rights apart from personal liberty, freedom of movement etc. As far as a prisoner’s privacy is concerned, even though it is extremely curtailed, it is not entirely eroded. Even though it is superficially contradictory for a prisoner to claim privacy, it is only when one views the right to privacy from a narrow prism that one concludes that prisoners lose the entirety of their privacy upon detention. For context, despite the terse jurisprudence on privacy in Nigeria, the Supreme Court has defined the right to privacy to imply “a right to protect … one’s body from unauthorised invasion”. (see M.D.P.D.T. v. Okonkwo (2001) 7 NWLR (Pt. 711) 206).
During his six-month’s term, Bobrisky still retains the right to protect his body from unauthorised sexual invasion which may await him from some sex-starved male prisoners if he is not protected by the authorities given his contradictory antecedents on social media depicting himself as a woman. While the State can validly intrude on prisoners’ privacy, the latter should enjoy a reasonable measure of bodily privacy from their fellow inmates, and they ought to be able to control how they are perceived by others – this is an interest protected by the right to privacy. Sebastian Hon, SAN notes that private life includes “The physical integrity of a person” and “the right to establish one’s details of identity as an individual human being” (see page 536-537 of S.T. Hon’s Constitutional and Migration Law in Nigeria published in 2016). Bobrisky has openly identified as a man in court, for the sanctity of his bodily privacy, the NCS’s decision to protect him from sexual predators is commendable and aligns with the constitutional provision that guarantees the privacy of citizens.
Conclusion
Imprisonment does not entirely extinguish all forms of the right to privacy. The Court of Appeal in Nwali v EBSIEC (2014) LPELR–23682(CA) interpreted ‘privacy of citizens’ to include: “citizens’ body… (including his plans and choices)… health…activities etc”. Hence, since Bobrisky is a Nigerian citizen, the respect for his privacy guaranteed under section 37 of the Constitution includes the protection of his body from sexual predators especially since he is more vulnerable as a result of his choices on social media and in life.