THE OUSTING of Robert Mugabe as president of Zimbabwe in November 2017 was a cause for jubilation for many people, including members of the LGBT community. The hope and expectation was that the end of Mugabe’s thirty-year dictatorship would usher in a new era with brighter futures for ordinary citizens. Some LGBT folks shared in the euphoria, as their community has long borne the brunt of so much intolerance fueled by our leaders.
A few days into the post-Mugabe era, one of the nation’s leaders, army chief Phillip Valerio Sibanda, was reported to have urged graduating recruits to “protect the nation against homosexuality—a Western imposition and threat to the nation’s conservative culture.” It is not clear what prompted these utterances, but it may have been a deliberate move to dampen the hopes of the LGBT community and to send a message that the fight for equal rights is far from over. The general’s utterances are tantamount to hate speech and an incitement to violence. And yet, much of the citizenry didn’t bat an eye at these remarks.
In 2016, Mark Gevisser, a South African author and journalist, carried out a survey to assess the extent to which LGBT people experience social exclusion in ten southern African countries, including Zimbabwe. Part of the survey included asking participants if they would mind having a gay neighbor. A majority of the Zimbabweans interviewed answered in the affirmative.
In light of these attitudes, what do the Zimbabwe Constitution and statutory law say about the LGBT community and its rights? Part 4 of Chapter 4 (s78) of the Constitution prohibits marriage between persons of the same gender, but there is no further mention of sexual relations between consenting adults of the same gender. However, the Criminal Law (Codification and Reform) Act does so. In Chapter 5, Part 3 of the Act, one finds rules that govern the sexual conduct of LGBT folks under “Sexual Crimes and Crimes against Morality.” Here are some excerpts from the Act:
Section 73—Sodomy
(1) Any male person who, with the consent of another male person, knowingly performs with that other person anal sexual intercourse, or any act involving physical contact other than anal sexual intercourse that would be regarded by a reasonable person to be an indecent act, shall be guilty of sodomy and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding one year or both. …
(3) For the avoidance of doubt it is declared that the competent charge against a male person who performs anal sexual intercourse with or commits an indecent act upon a young male person —
(a) who is below the age of twelve years, shall be aggravated indecent assault or indecent assault, as the case may be; or
(b) who is of or above the age of twelve years but below the age of sixteen years and without the consent of such young male person, shall be aggravated indecent assault or indecent assault, as the case may be.
As can be clearly seen, the law prohibits anal sex or any physical conduct between consenting men. While it is commendable that the law criminalizes performance of such acts on young people regardless of consent, one can’t help but notice that the proscription of sexual relations only applies to men, and there is no specific provision that outlaws intercourse or private intimacy between consenting adult females. Women will only be charged if the other party has not consented to such activity. Also unexplained is why the law punishes two men for engaging in anal sex but does not punish a man and a woman for having anal sex. Surely this counts as discrimination based on gender, which the Constitution prohibits (Section 56 of Chapter 4).
Going back to the Constitution, Chapter 4 (s56) stipulates that “all persons are equal before the law and have the right to equal protection and benefit of the law and that every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their … sex, gender.” It is this particular clause that forms the basis for the argument that the Code unfairly discriminates against gay people, since there is a clear disparity in the treatment of sexual relations based on the gender of the partners.
The LGBT community of Zimbabwe definitely needs a champion for its cause. Since his swearing in as the country’s interim president, Emmerson Mnangagwa has managed to sway many with his words of love, unity, and progress. One would be forgiven for thinking that there could be a silver lining in the cloud for gay people. However, after his interview in Davos, Switzerland, where he said the cause of the LGBT community was not an important issue for the nation, one does not need more evidence to know that the interim president is not our champion. And so, the fight continues.
Joyline Maenzanise is a queer Zimbabwean writer. Her main areas of interest include LGBT+ issues, socio-economic justice, and mental and sexual health.
