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Sexual Orientation and the Constitutional Process Indaba

Report back - Sexual Orientation and the Constitutional Process Indaba
Upenyu Makoni-Muchemwa,
February 25, 2010

Sexual orientation, in particular homosexuality, as a political and social construct is a controversial issue. Governments across Africa regard homosexuality as un-African. Some governments have even gone so far as to criminalize homosexuality. Examples of this may be found in the proposed Ugandan legislation that will criminalize Ugandan LGBTI and all those who support them in any way. Malawi and Kenya have followed suit. In Malawi two gay men were arrested for conducting a traditional engagement ceremony, which was deemed by authorities as evidence of behaviour contrary to the Malawi Penal Code. Kenya already has legislation that penalises men accused of actual or attempted “homosexual behaviour” with between 5 and 14 years in prison. Further, the attitudes of the governments are reflected in their peoples. As a result open homophobia is prevalent throughout Africa societies. There is an atmosphere of intolerance with violence and discrimination occurring on a daily basis in most countries. Even South Africa, despite having one of the most liberal Constitutions in the world, faces the problem of hate crimes against homosexuals including beatings and corrective rapes. The Zimbabwe government is by no means innocent, with the President having made statements about homosexuals being ‘worse than dogs’ and there being ‘no place for such people’ in Zimbabwe.

Evidently, addressing the issues faced by LGBTI persons is more than a question of legislation. However, decriminalizing homosexuality and protecting the right of all persons to sexual orientation is a first step. The current Constitutional Process provides an opportunity not just to lobby the Constitutional Parliamentary Committee (COPAC) and the public to include this right in the new Constitution, but also to educate ordinary Zimbabweans about what exactly sexuality and sexual orientation are and how these issues affect their lives.

To that end, Gays and Lesbians of Zimbabwe (GALZ) hosted a sexual orientation Indaba on 25 February with the aim of breaking the silence around sexual orientation. A key result area of the workshop was to map a strategy for the inclusion of sexual orientation in the Constitution. In her opening remarks, Irene Petras, Director of Zimbabwe Lawyers for Human Rights outlined the two approaches available for the protection of the rights of LGBTI persons. She also mentioned that these rights had been discussed in three of COPACs thematic committees, which was encouraging.

Human rights lawyer Otto Saki spoke about the doctrine of equality and how this related to rights for LGBTI persons. Of particular interest was his observation that while the law regarded all Zimbabweans as equal, there was a presumption that some people were more equal than others. He pointed out that Zimbabwe was a signatory to the Universal Declaration of Human Rights; Article One of which states:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Through the auspices of the UDHR, the same belief in the equality of men has been incorporated in the other UN Conventions most which have been ratified by Zimbabwe.

In her speech, Sian Maseko, Director of Sexual Rights Center in Bulawayo, advocated for not simply confining the debate to sexual orientation but also including the broader subject of sexuality. Quoting Human Rights Watch she stated that sexual rights were not the property of a minority, but rather they were everyone’s right and cause for concern. She also pointed out that sexuality is a survival issue especially with regard to reproductive rights, maternal mortality, HIV/AIDS and hate crimes.

During the workshop, participants discussed social, economic and political difficulties experienced by gay people in the country. In the working groups, they identified the social and political barriers to inclusion of the necessary legislation in the Constitution. They also discussed the issues that prevented sexuality and sexual orientation being openly discussed by all Zimbabweans. Finally participants mapped a strategy for beginning a dialogue within Zimbabwe about sexual orientation.

To complement the dialogue GALZ will, in the future, disseminate information to the broader general public through advertising and statements in the local print media, to provide accurate and correct information on sexual orientation and human rights.

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