CONFLICT OF LAWS ASPECTS OF SAME-SEX RELATIONSHIPS IN AFRICA: A COMPARATIVE STUDY
Same-sex relationships will likely be in violation of the laws of most African countries. In Nigeria, Ghana and Kenya, a same-sex relationship is either explicitly prohibited or there is legislation which can be interpreted to prohibit the union. However, the growing trend of the institutionalization of same-sex marriage around the world means that even countries that do not domestically recognize same-sex relationships may be confronted with the challenge of dealing with it in a conflict of laws context. The discussion shows that the strict application of the rule of non-recognition, where the court gives no legal effect to a foreign same-sex union, is unworkable and lead to arbitrary and unfair results. African courts should use the incident approach to differentiate between cases where the parties seek adversarial court procedures, such as those dividing marital property, from those which seek to legitimize the union.