An article titled, “Government clamps down on gays” in the NewsDay edition of November 30, 2015 makes sad reading. From a human rights perspective, one wonders about the rationale behind pulling down of an exhibition stand and the confiscation of display material by the Zimbabwe Revenue Authority belonging to gay rights activists attending the International Conference on Aids and STIs in Africa currently underway in Harare.
It is high time Zimbabwe understands that lesbian, gay, bisexual, transgender and intersex (LGBTI) people are human beings like any other and should have their fundamental human rights and freedoms protected, promoted and fulfilled, especially in this era of advancing human rights.
Firstly, the government must understand that it is a reality that we do have LGBTI people in Zimbabwe, some not by choice but by nature. Secondly, it is high time that Zimbabweans understand that total denial of the recognition of LGBTI people as part of humanity is the same as denying that there is day and night. Thirdly, it is high time that Zimbabwe understands that human rights should be accorded to all human beings by virtue of being born human regardless of their sexual orientation.
Zimbabwe, thus, must quickly embrace the protection, promotion and fulfilment of the rights of LGBTI people who have endured severe violence, hate speech, discrimination and marginalisation for a long time, if we are earnestly an open and free democratic state founded on the principles of rule of law, tolerance and respect for fundamental human rights and freedoms. The issue of homophobia, though not even a new phenomenon in Zimbabwe, must be relegated to the dustbin of our history. For the past years, politicians, church leaders and court officials have vilified homosexual orientation as “un-cultural” and “a threat to nationhood”.
President Robert Mugabe is on record for lashing out at homosexuals, describing them as “worse than pigs and dogs”.
The Zimbabwe Republic Police (ZRP) has not also spared LGBTI people and their representative organisations. Arbitrary arrests and detention are common experiences for LGBTI people, while police raids are the order of the day for the LGBTI representative organisations. A number of reasons ranging from religious, cultural and morality issues are given for the suppression of the rights of LGBTI people in Zimbabwe.
Lesbian couple laughs during the third annual gay pride celebrations by members of the LGBT community in Entebbe, southwest of Uganda's capital Kampala
However, the point we are driving home is that it is not necessary to have a total clamp down on LGBTI people without understanding their cause and without giving them audience and space to co-exist with their human counterparts. LGBTI people do need the same rights and equal protection, especially in these times of fighting against the deadly HIV and Aids. Zimbabwe really needs the input of LGBTI people if the war against HIV and Aids is to be won. Political bickering aside, Zimbabwe just needs tolerance towards LGBTI people because the continued denial of the reality that LGBTI people do exist is suicidal if the nation has to realise fundamental human rights and freedoms and if the nation wants to win the war against HIV and Aids.
From a legal perspective, a lot needs to be done to co-opt LGBTI people. Zimbabwe adopted a new Constitution that came into force on August 22, 2013. The non-discrimination clause in the first drafts provided for non-discrimination on the basis of “circumstances of birth”, “natural difference or condition” and “other status”. However, such grounds were rejected in the drafts the main argument advanced by then being that, such provisions could be read as including non-discrimination based on sexual orientation. The final provisions on equality and non-discrimination in the Constitution thus deliberately left out sexual orientation as a prohibited ground of discrimination.
In the circumstances, the height of suppression of the rights of LGBTI people was evidenced by the intended exclusion of sexual orientation as a prohibited ground of discrimination. Thus, the constitution-making process in Zimbabwe was full of mockery for homosexuals and the very concept of gay rights.
To exacerbate this position, the non-discrimination clause’s scope is limited due to the fact that it is a self-contained clause. In other words, the non-discrimination clause is not open-ended so as to admit grounds that are not explicitly listed.
The position would have been different for the LGBTI people if the non-discrimination clause was not exhaustive, as is the position with the non-discrimination clause of the African Charter on Human and Peoples’ Rights (to which Zimbabwe is a ratifying party) or the South African Constitution, where analogous grounds of discrimination, not specifically mentioned, are also included by use of terms such as “other status” or “including” among the list of protected grounds.
The Constitution further provides that “persons of the same sex are prohibited from marrying each other”. Thus, the main problem in Zimbabwe is the definition of marriage as excluding same-sex marriages. The provisions are an explicit denial of sexual minority rights in Zimbabwe.
Be that as it may, it can still be argued that the Constitution only prohibits same-sex marriages but does not extend the prohibition to same-sex relationships. There is also no definition of what marriage entails under the Constitution.
Furthermore, LGBTI people can still find protection under other generous human rights provisions of the Constitution which are as follows; the founding values and principles under the Constitution include the recognition of fundamental human rights and freedoms. The recognition of the inherent dignity and equal worth of each human being is also provided for. In the same breadth, section 51 of the Constitution provides that every person has inherent dignity in their private and public life and the right to have their inherent dignity respected and protected. It is submitted that the Constitution extends cover to LGBTI people to that extent. The recognition of the inherent dignity and equal worth of each human being is important, especially for LGBTI people who are normally treated without dignity.
Furthermore, rights protected under the Constitution also extend protection to LGBTI people, especially the right to privacy and the right to freedom of assembly and association. It is submitted that privacy includes one’s sexual behaviour and orientation. LGBTI representative associations can also find protection under the right to freedom of association. Moreover, when interpreting the Constitution, courts of law and other tribunals are mandated to promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom. International law and all conventions that Zimbabwe is a party to have to be also taken into account when interpreting the Constitution and relevant foreign law may be considered. It is submitted that such provisions are important in that developments at the international level pertaining to the promotion, protection and fulfillment of the rights of LGBTI people are guiding principles to be applied in Zimbabwe. To that extent, the Constitution at least consolidates the rights of LGBTI people.
Similarly, the Constitution provides that freedom of expression does not include incitement of violence, advocacy of hatred or hate speech, malicious injury to a person’s reputation or dignity, malicious or unwarranted breach of a person’s right to privacy. The Constitution is, therefore, commendable in that statements like “homosexuals are worse than pigs and dogs” are to be rendered unconstitutional in Zimbabwe in that they constitute hate speech.
So without arguing from a misinformed basis, the government has to understand that there is no need to clamp down on gay rights, but rather, the solution is to promote a culture of tolerance and acceptance of the diversity of humanity. Let us all relegate the past to the past and start on a new page where LGBTI people are allowed to co-exist with others and their rights are guaranteed.
In conclusion, change at individual level is of paramount importance. Hate speech, stigma and homophobia can be changed at the individual level. It is high time that Zimbabweans recognise and respect human difference. The time is also opportune for Zimbabweans to value and accept same-sex behaviours and identities. LGBTI people are part of humanity and have equal rights and bear equal obligations to the nation. As long as the culture of denial persists, this will further fuel discrimination and the spread of HIV and Aids.
Esau Mandipa is a lawyer and law lecturer. He writes in his individual capacity and can be contacted at email@example.com or 0773 429 047.