Africa Activists

Constitutional Recognition of Non-Discrimination on the Basis of Sexual Orientation in Zambia,
Charles Zambia, Guest Writer

 

Introduction:

Human rights treaties do not specifically mention sexual orientation. However, discrimination on the grounds of sexual orientation has been determined to be incompatible with adherence to the the Universal Declaration of Human Rights and reflected in all other universal and regional human rights instruments such as the International Covenant on Civil and Political Rights.[1] The African Charter, and the International Convention on Social Economical and Cultural Rights. In their preambles,the treaties ‘recall that human rights are universal and shall apply to all individuals, and stressing therefore its commitment to guarantee the equal dignity of all human beings and the enjoyment of rights and freedoms of all individuals without discrimination on any ground’ .However, despite being signatories to the treaties ,Many African states retain criminal sanctions for same-sex relationships that are derive from the colonial era; prominent among them, is the Republic of Zambia, were removing of such criminal sanctions from the statute book remains very much an up-hill struggle. The following paper shall seek to shade more light on the country’s current legal status concerning same sex relations, furthermore it shall elucidate the political, religious as well as Social adverse impact discrimination has LGBT person in Zambia.

Legal Issues:

The legal basis for non-discrimination amongst people in Zambia is firmly laid. Article 11 of the Constitution of Zambia of 1991, as amended by Act no. 17 of 1996, establishes that “every person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, color, creed, sex or marital status [2]

Further Article 23(1) [3]states that “no law shall make any provision that is discriminatory either of itself or in its effect”.

The constitutional anti-discrimination clause is set out in Article 23(2) [4]that reads “no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority”.

Article 23(3)[5] defines “discrimination” as any “different treatment to different persons attributable, wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions color or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description”.

This right to non-discrimination is not limited to enumerated grounds. Every international and regional human rights instrument that protects against discrimination includes “other status” or language equivalent thereto. Zambia is a state party of the UN’s International Covenant on Civil and Political Rights (ICCPR) following its accession on April 10, 1984. Article 2(1) of the ICCPR[6]: states “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, Property, birth or other status.” Despite this, and the Zambian Constitution’s strong anti-discrimination Articles, it is deplorable that hatred of the small but significant Lesbian, Gay, Bi-sexual and Transgender (LGBT) community – and the violation of their rights – continues unabated in a country that claims to embrace fundamental human rights principles by ratifying them at both regional and international level.The African Charter for example calls on the individual to act in a spirit of “tolerance, dialogue and consultation”.

in addition Article 2[7] of the Charter promotes “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without Distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status” If this was the case in practice and not just in words, then Zambia would not be a place where bigoted homophobia could thrive.

Equal Protection in International Law

  • · Article 26 of the ICCPR: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[8]
  • · Article 3 of the African Charter: “Every individual shall be equal before the law. Every individual shall be entitled to equal protection of the law.” [9]Although the instruments listed above do not include “sexual orientation” among the enumerated categories, these categories are clearly intended to be illustrative and not exhaustive.
  • The use of the phrase “or other status” means that the list of categories is open-ended. That is why the UN Committee on Economic, Social and Cultural Rights offered a similar explanation of the term “other status:” when it stated ‘The nature of discrimination varies according to context and evolves over time. A flexible approach to the ground of “other status” is thus needed to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognized grounds in Article 2(2) of the (ICESCR) which reads “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” These additional grounds are commonly recognized when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization.[10]

These provisions should be interpreted as prohibiting all forms of discrimination including discrimination based on sexual orientation. The Human Rights Committee[11] followed such an equality-based approach in the case of Toonen v Australia.[12] In this case, the Human Rights Committee decided that the criminalization of sexual relations between persons of the same sex constitutes a violation of the right to non-discrimination in the ICCPR.[13] In its decision, the Human Rights Committee found that the criminalization of sexual acts between persons of the same sex constitutes a violation of Mr Toonen’s rights against discrimination as well as to equal protection before the law.

The most outrageous violation of Lesbian, Gay, Bi-sexual and Transgender (LGBT) rights in Zambia is constituted by the Zambian Penal Code, Act of 1995, Cap 87 of the laws of Zambia that criminalizes same-sex sexual conduct in private between consenting adults – so contravening Articles 2(1), 17 and 26 of the ICCPR, were the Human Rights Committee was of the view that,with ‘the reference to “sex” in articles 2, paragraph 1, and 26 was to be taken as including sexual orientation’.[14]

Section 155 [15]of the Zambian Penal Code, establishes that:

Any person who-

(a) has carnal knowledge of any person against the order of nature; or

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature;

is guilty of a felony and is liable to imprisonment for fourteen years”.

Similar to the Tasmanian statute outlawed by the Human Rights Committee in the Toonen case, section 155 punishes the crime of “unnatural offences”. Section 156[16] punishes with imprisonment for seven years the “attempt to commit unnatural offences”.

Section 157 [17]of the Penal Code explicitly targets same-sex sexual conducts with the provision that criminalizes “indecent practices between males”.

Section 157 reads: “Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years”.

As far as sexual relations between consenting adults of the same sex are concerned, Section 155a and 157 of the Zambian Penal Code bis occasions discrimination against a group of people (LGBT persons) on the basis of their sexual orientation as such. One may thus conclude that an infringement of the principle of non-discrimination based on sexual orientation, as derived from treaties that have constitutional force, constitute a violation of the Constitution of Zambia,which in the case of Christine Muludika and Seven others Vs The Attoney General,[18] the court held “ the Constitution of the Republic of Zambia is the most important law of the land and if any other law is in consistent to it, it shall be held to be repangunt” as was the matter in this case in which Section 5(4) of the Public Order Act Cap 104 contravened Arts. 20 and 21 of the Constitution and was held to be null and void. Thus Section 155a and 157 are inconsistent to Article 23 of the Constitution of the Zambia which must be held to be null and void.

THE SOCIAL ENVIRONMENT OF LGBT PERSONS AND THE PRACTICAL IMPACT OF THESE VIOLATIONS

The retention of the colonial penal provisions (long since repealed in the UK – the former colonial power) that criminalize sexual relationships between same-sex consenting adults has a devastating impact on same-sex practicing people in Zambia. it has been said that[t]he experience of homophobia and heterosexism is inextricably a part of being gay, lesbian or bisexual in this country. To be gay, lesbian or bisexual is to be discriminated against, both by other individuals and by institutions. To be gay or lesbian is to be defined as “other,” “sick,” “deviant,” “abnormal,” “criminal.”[19]

Hiding one, denying one’s reality and lying to society have become, for many, common behaviors. Men who had or wished to have sex with other men live in a world constrained by omnipresent marginalization and denial. “It is impossible to assess what effects such attitudes might have on the psyche, on self-identity, and, to use terms commonly used today and popular in health promotion circles, on well-being and quality of life in general.”[20]

The degree to which homosexual orientation is accepted depends on the perceptions that society has of homosexuality, on people’s own objectivity with respect to such perceptions, and on their relations with the gay community and its social networks. This led “U.N chief Ban Ki-moon on December 16, 2011 to call on countries to abolish laws that discriminate against gays and lesbians. When he said ‘cultural concerns cannot justify discriminating against people because of their sexual orientation’.

Gays, lesbians, and bisexuals in Zambia live in constant fear of detention, discrimination in education, employment, housing, and access to services, and extortion – all buttressed by the existence of sections 155 – 157 of the Penal Code and the lack of specific legal protections for LGBT people under Zambian law.

Zambians who have fought against discrimination related to sexual orientation or gender identity have been systematically silenced. In the current social context, the process of coming out creates discontinuity between “ordinary” social life and homosexual socialization. Coming out makes it possible to free oneself from social constraints. Coming out also demonstrates the limits of this freedom, by confronting the person with the various manifestations of such discrimination. Coming out thus represents an individual and social process

of development of a gay identity[21]. Last year Festus Mugae and Kenneth Kaunda, former Presidents of Botswana and Zambia, are on their HIV Free Generation tour in some African countries. At a news conference in Lilongwe they condemned Malawi’s criminalization of homosexuality as harmful to LGBTI persons and the fight against HIV/AIDS. “We can preach about behavioral change, but as long as we confine gays and lesbians into dark corners because of our inflexibility to accommodate them, the battle on HIV and AIDS can never be won,” On his part, Kaunda urged all African leaders to start recognizing same sex marriage. Said Kaunda: “We are not only condemning African leaders who are criminalizing same sex marriage, but we are urging them to start recognizing these people, for the sake of HIV and AIDS.[22]in addtion Mrs. Elizabeth Mataka, the UN Secretary-General’s special envoy on Aids in Africa, has ‘ the solution is straightforward: when she said “do away with the law against homosexuality.By stopping condoms from getting into prison, for example, we are actually allowing transmission of HIV to go on unabated and losing control of the epidemic ,But the political will is lacking .” The fact that HIV/AIDS has primarily affected gay men and other marginalized populations, governments have been and continue to be less committed to fighting the disease.

Health And Social Impacts Of Criminalisation Of LGBT Persons In Zambia

Ø All forms of homophobia are destructive, not just for people living openly as LGBT, but for society as a whole, the impact of discrimination of (LGBT)People has caused many of them to modifies their daily activities because of fear of prejudice and discrimination. It is no wonder that this has an impact on the health and wellbeing of gay and lesbian people resulting in there being a large increase in suicide mortality rates.

Ø The stigmatization of lesbian and gay sexuality and relationships undermined the ability of gay communities to respond effectively during the early years of the HIV epidemic. Governments did not want to acknowledge that the problem existed, much less discuss activities such as anal intercourse, which they viewed as shameful. The stigma surrounding same-sex sexual practices and gay identity represented an enormous obstacle in any efforts to reach and inform gay men about HIV.

Ø The lack of awareness on the dangers of involving into acts of unprotected sex amongst gays, lesbians, bisexuals and transgender has contributed to high transmission of the HIV/AIDS virus because many young gay men underestimate likely they are to be exposed to sexually transmitted diseases, and in some places where they are otherwise well informed about HIV and STI‘s, the young people often don’t think they are vulnerable to contracting them .

Ø While prevention strategies have often not taken the needs of gay men into account, many still see HIV/AIDS as fundamentally a gay disease. This perception has hampered the efforts of non-gay communities to generate their own effective responses to the epidemic. A consequence of HIV/AIDS related stigma has been to link the disease in the public’s mind “to the populations most affected by it, rather than to the specific risk behaviors that transmit it.”[23] HIV/AIDS-related stigma instills a false perception of one’s being less at risk when one is not a member of one of the disease’s “officially recognized risk groups or at-risk populations.”[24]

Extortion and Blackmail

Extortion of gay men and women remains a major problem, and is often conducted with police participation who remain actively involved in approximately half of these circumstances either in collaboration with the extortionist or on their own account .Friends of Rainka ,a Zambian organization that is concerned with the well fair of LGBTI rights can provide updated instances of the practical impact of the violation of LGBT rights .

What makes these attempts at extortion particularly difficult to challenge is the fact that they involve intimate sexual relationships that are against the law and their unacceptability is being constantly and publicly reiterated. Regardless of whether the allegations leveled against him are false or not, the victim accused of a homosexual act is therefore discredited from the beginning and invariably has to start from a position where his guilt is presumed.[25] But the burden of all the baggage that such an accusation carries goes beyond the lack of a presumption of innocence to undermine the victim’s credibility in general. Prosecutions for either extortion or for homosexual sex frequently rely on the conflicting testimony of the parties involved, and thus often come down to the question of which witness is the most credible in a scenario where the truth has no place; the truth will invariably be contrary to the needs of all those involved – blackmailer, victim, and profiteering police officer – ensuring that it is excluded from all accounts. In many cases, the extortionist claims to be a heterosexual who was propositioned or seduced by a homosexual.[26] Such a claim automatically invests the extortionist with the innocence of a victim whose “normal” life is interrupted by the predatory homosexual, who in turn is positioned as both interfering stranger and “offender”: “The sexual stranger is feared as the potential perpetrator of unimaginable crimes… but the hatred generated by this fear means that it is the same ‘stranger’ who ultimately becomes the victim of discrimination, abuse and violence… because he/she is unknown, unknowable, and, hence, dangerous.”[27]Homosexuality is thus construed as good justification for extortion, and while the courts might eventually dismiss the charges for lack of evidence the procedures leading up to trial present individual police officers, prosecutors, and the initial extortionists with plenty of opportunities to intimidate the target and relieve him or her of money or goods.

Zambia: A “Christian” Nation

In some contexts, Discrimination has been reinforced by religious leaders and organizations, which have used their power to maintain the status quo rather than to challenge negative attitudes toward marginalized groups. St Francis of Assisi is recorded as saying “While you are proclaiming peace with your lips, be careful to have it more fully in your heart”. Zambia is a Christian nation, were majority of the Christian faith follow the teachings of Christ which are purely based on love. A common element of Zambian cultural life centres on belonging to a community of people and in our inherent ability to embrace and uphold diversity . However Representatives of religious institutions have been among the most outspoken opponents of LGBT rights both in Zambia and abroad, by condemning them as‘a people doomed or eternal damnation’ using Bibilical principals and passages, really. “The anointed” are wolves in sheep’s clothing, isolating and condemning out-groups such as the LGBT persons who in the main, feel very strongly that the church is their enemy. It ACTS like the enemy and in fact has so alienated the majority of these people (including children born and raised in the church who are frequently thrown out of their own homes and churches).

The church should instead be taking an active role in bringing the LGBT community to an understanding that they are loved and valued by Christ. Unfortunately it fails to see that these are individual children, individual people, who struggle within themselves between impossible alternatives–deny who they are and the sexual make-up and attractions they were born with, pretending to be heterosexual when they are not–accept that they are homosexual and live in a way that is comfortable and normal for them, facing rejection daily–or try the middle path of knowing they are gay and attempting to be celibate for life, something that very few homo- or heterosexual people would be able to manage, and even then still experiencing rejection from many people unless they keep this part of themselves a secret.

The issue of homosexuality is one of the many controversial matters that arise in relation to Christianity. What the church needs to do is accept that this is a very sticky, difficult, highly emotional, no-clear-answers sort of question with which the body of Christ must wrestle. People are created this way–what then must be done? As of now the church is so in the wrong as far as being judgmental, hateful, uncaring, unempathetic and so forth, that they are disobeying far more biblical principles and commandments than there are statements about homosexuality. And those references to homosexuality need to be studied objectively so that they really know what they mean. For example in I Cor 6:9 the KJV[28] used the word “effeminate” until 1958 when the word “homosexual” was substituted.

Conclusion

Section 155(a) of the Zambian Penal Code which penalizes sexual relations between consenting adults in Zambia, constitutes a flagrant violation of numerous rights guaranteed by the Constitution of Zambia. In particular, it poses an infringement of the right to equality and non-discrimination, privacy, health, as well as the guarantee against cruel, inhuman or degrading treatment. The abolition Section 155(a ) by Zambia would be in line with its international treaty obligations, the importance of which is highlighted by Zambia’s membership to ICCPR,ICESCR and ACHR treaties of which it is a signatory . Section 155(a) does not constitute a justifiable limitation of rights, as its aims or objectives (namely to give effect to the morality of the majority, to ‘African values’, and as a measure to combat the spread of HIV) are not reasonable and necessary limitations to the rights mentioned above.

The decriminalization of sexual relations between consenting adults in private is indispensible to the rule of law in our country. The overriding question that arises is not whether homosexuality, as such, is acceptable, but rather whether tolerance for diversity of all minorities, one of the values pronounced under Zambian law, actually exists in our society. The ideal of achieving this tolerance inspires some associations like ‘Friend of Reinka” to engage in a vigorous campaign to advocate for the decriminalization of homosexuality. The African Charter emphasizes this aspect when it declares that every individual has the duty to ‘consider his fellow beings without discriminationand to safeguard and reinforce ‘mutual respect and tolerance’.

To ensure a Zambia where everyone feels secure and without being marginalized ,Section 155(a) of the Penal Code should be abolished through our collective courage.

Written by  Charles Zambia


[1]Tim Robinson and Jon Lunn. Issues facing LGBT people in sub-Saharan Africa: suggested reading. Standard Note: SN/IA/6043

29 July 2011

[2] Article 11 of the Constitution of Zambia of 1991, as amended by Act no. 17 of 1996

[3] Article 23(1) Constitution of Zambia of 1991, as amended by Act no. 17 of 1996

[4]Article 23(2) Constitution of Zambia of 1991, as amended by Act no. 17 of 1996

[5] Article 23(3) Constitution of Zambia of 1991, as amended by Act no. 17 of 1996

[6] Article 2(1) of the ICCPR

[7] Article 2 of the African Charter

[8] Article 26 of the ICCPR

[9] Article 3 of the African Charter

[10] General Comment No. 20, Committee on Economic, Social and Cultural Rights, 10 June

2009, at para. 27.

[11] The Human Rights Committee has been set up to interpret and monitor state compliance with the rights in the ICCPR through the examination of state reports and individual communications.

[12] Nicholas Toonen v Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994).

[13] Ibid

[14] Ibid

[15] Section 155 of the Zambian Penal Code, Act of 1995, Cap 87 of the laws of Zambia

[16] Section 156 of the Zambian Penal Code, Act of 1995, Cap 87 of the laws of Zambia

[17] Section 157 of the Zambian Penal Code, Act of 1995, Cap 87 of the laws of Zambia

[18] christine mulundika and 7 others v the people (1995)

[19] Homophobia, Heterosexism and AIDS, supra, note 2

[20] DF Morrow. Social work with gay and lesbian adolescents. Social Work 1993; 38(6): 655-660.

[21] For a detailed analysis of the various models of the coming-out process, see Y Jalbert. Perception du risque face au VIH/sida et son impact sur l’utilisation des services de santé chez les jeunes homes homosexuels âgés de 16 à 20 ans de Montréal. Doctoral dissertation, Department of Social and Preventive Medicine, University of Montréal.

[22] www.africanveil .com /festus mugae and kenneth kaunda speech in Malawi on criminsalition

[23] The Impact of Homophobia, supra, note 5 at 23 (emphasis in the original).

[24] ibid

[25] Ryan Thoreson and Sam Cook Nowhere to Turn: Blackmail and Extortion of LGBT People in Sub-Saharan Africa p.33

[26] Human Rights Watch, More than a Name, 92–102.

[27] Mason, “Being Hated,” 590.

[28] I Cor 6:9 the king James Version

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