The country has witnessed unprecedented levels of homophobia in the last few days, characterised by self-righteous religious leaders and politicians outdoing each in fanning flames of hatred against gay people.
A national meeting of church leaders and government officials was held on 23 September 2022, at which church leaders took turns inveighing against gay people, describing them in subhuman terms and calling for their arrest and ostracism.
Somehow, an impression has been made that gay people are not entitled to express themselves, to freely associate and assemble and dress as they please. We argue in this article that persons with same-sex orientations are entitled to the benefits of constitutional rights and that subordinate laws criminalising same-sex relations are violative of the Constitution and, therefore, void. It must be made clear from start that our concern is for consensual same sex relationships.
It is clear to us that gay people are entitled to all rights in the Constitution, like any other person. These include freedoms of expression, assembly and association, privacy, equality and dignity. These fundamental freedoms are enjoyed by virtue of being human and not a favour given to anyone by the majority in society. Inclusion of human rights in the Constitution elevates them above the capricious whims of the majority and entails emancipation for everyone. Gay people do not enjoy these rights as a favour nor do they need the approbation of the majority, instead, rights they are constitutional rights, removed from the whimsical convictions of those who may not like them.
A few case examples can illustrate this point. The case of the People v Paul Kasonkomona (2014) dealt with the arrest and charging of an activist with the crime of soliciting for immoral purposes, following his TV appearance where he urged decriminalisation of homosexuality in Zambia. Justice JZ Mulongoti, in the High Court, held that “the respondent’s conduct of participating in a debate advocating for gay rights did not amount to soliciting for immoral purposes” and that “the respondent was exercising his right to freedom of expression …”.
The same approach has been taken by several other comparable jurisdictions. In Kasha Jacqueline, David Kato Kisuule and Onziema Patience v Rolling Stone Ltd and Giles Muhame (2010), the Ugandan High Court had to deal with the issue of a newspaper that published a list of suspected gay people and their residential addresses as means of fighting gayism in the country. The Ugandan High Court considered this as a violation of the dignity and privacy of gay people and asserted: “… the court has no doubt again, using the objective test, that the exposure of the identities of the persons and homes of the applicants for the purposes of fighting gayism and activities of gays can easily be seen from the general outlook of the impugned publication, threaten the rights of the applicants, to privacy of the person and their homes. They are entitled to that right.”
Similarly, the Botswana Court of Appeal in the case of Attorney General of Botswana v Thuto Rammoge and 19 Others (2016) held that a refusal by government to register a gay organistion was a violation of their constitutional rights to freedom of assembly and association. The Court linked freedom of association and assembly to human dignity and asserted: “members of the gay, lesbian and transgender community, although no doubt a small minority, and unacceptable to some on religious or other grounds, form part of the rich diversity of any nation and are fully entitled in Botswana, as in any other progressive state, to the constitutional protection of their dignity.”
It is often argued that human rights are not absolute and the rights of gay people should be curtailed on this basis. It is indeed correct that human rights may not be absolute. Article 20 of the Zambian Constitution, which guarantees freedom of expression, for example, recognises that freedom of expression can be limited in the interest of “public morality.” The argument by conservatives is often that same-sex relationships violate “public morality” as the majority of Zambians are conservative Christians opposed to such relationships.
This approach clearly misapprehends public morality in the constitutional sense. Public morality in the constitutional sense is not a derogation from constitutional norms, but the elevation of core constitutional values and norms above everything else. The effect is that only constitutional norms are recognised as public morality and everything else should be measured against constitutional norms. To hold otherwise would be to mutilate the Bill of Rights and subject its provisions to the tyranny of the majority or mob justice.
Predominant Christian views of morality are not the measure of what is constitutionally acceptable. As Justice Albie Sachs said in the case of Minister of Home Affairs v Faurie (2005): “It is one thing for the Court to acknowledge the important role that religion plays in our public life. It is another to use religious doctrine as a source for interpreting the Constitution. It would be out of order to employ the religious sentiments of some, as a guide to constitutional rights of others. Between and within religions, there are vastly different and at times highly disputed views on how to respond to the fact that members of their congregations and clergy are themselves homosexual. Judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues which have caused deep schisms within religious bodies.”
Dipak Misra,the former Indian Chief Justice, took the same approach in Navtej Singh Johar and Others v Union of India and Others Petition (2016), when he held that: “The concept of constitutional morality urges organs of the state, including the judiciary, to preserve the heterogeneous nature of the society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the populace. Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the rule of law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.”
From the above discussion, it is clear that gay people enjoy the same rights as everyone else. Gay people are free to express themselves, assemble and associate freely, and live dignified lives. This being the case, what becomes of the status of provisions in the Penal Code which criminalise same sex relationships? These include section 155, which provides for what are referred to as “unnatural” offences which are committed when any person (a) has carnal knowledge of another person “against the order of nature”, (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” and section 158 which criminalises what are termed as “indecent practices between males.”
It is our view that to the extent that these provisions criminalise adult consensual same sex, they run afoul of the Constitution and are therefore invalid.
Jean Couvaras argued in her LLM dissertation: “Given that sections 155 and 158 criminalise sexual intercourse between individuals done in a certain way, even when done in private, it is arguably unconstitutional in so far as it purports to regulate private consensual sex.”
This position is correct and is supported by ample jurisprudence from across the common law world. One of the most well-reasoned cases on this score is that of the Indian Supreme Court, to which we have already referred, the case of Navtej Singh Johar and Others v Union of India and Others Petition (2016). In this case, the Indian Supreme Court declared section 377 of the Indian Penal Code (a replica of section 155 of the Zambian Penal Code) unconstitutional. One of the major reasons for arriving at this decision was that this was a violation of the right to privacy.
Then Chief Justice, Misra compellingly argued that “… homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and intimate as heterosexuality”; that “… sexual orientation is also a facet of a person’s privacy and that the right to privacy is a fundamental right under the Constitution of India”; and that “As sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual, including that of the LGBT to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.” In effect, the state should have no business in checking what body orifices citizens use for consensual sexual intercourse. That would be a violation of the fundamental right to privacy.
Article 17 of the Zambian Constitution protects the right to privacy. The enjoyment of this right is not contingent on one’s sexual orientation. The case of Dudgeon v United Kingdom described the essence of the right to privacy as “the right to be left alone.”
Indeed, gay people should be left alone. Their sexual orientation is their private business. Gay people are not the cause of poverty, corruption, poor service delivery, hunger, and many other major social problems saddling our country. Our collective actions should focus on tackling these common challenges which force many people to live in subhuman conditions. Society suffers no harm by tolerating and accommodating same sex relationships. Instead of being demonised, gay people are owed an apology for their continued persecution and ostracisation. As Justice Indu Malhotra of the Indian Supreme Court states, the time has come to render an apology to these people: “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries” because “the LGBT persons deserve to live a life unshackled from the shadow of being unapprehended felons.”
[The authors are lecturers in the School of Law at the University of Zambia]
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