LGBT rights in Zambia

LGBT rights in Zambia

Same-sex sexual activity legal? Illegal since 1911 (as Rhodesia)[1][2]
Penalty:
 Up to 14 years imprisonment[3]
Gender identity/expression –

Lesbian, gay, bisexual, and transgender persons in Zambia face legal challenges not faced by non-LGBT citizens. Same-sex sexual activity is illegal for both males and females in Zambia.[1]

Formerly a colony of the British Empire, Zambia inherited the laws and legal system of its colonial master upon independence in 1964. Laws concerning homosexuality have largely remained unchanged since then, and homosexuality is covered by sodomy laws that also proscribe bestiality.[1]

Social attitudes toward LGBT people are mostly negative and coloured by perceptions that homosexuality is immoral and a form of insanity.[1] In 1999, the non-governmental organisation Zambia Against People with Abnormal Sexual Acts (ZAPASA) formed to combat homosexuality and homosexuals in Zambia.[1][4]

Arguably the largest recipient of Fundamentalist Evangelical missionaries during British colonial times,[5][6][7][8] societal attitudes towards homosexuality heavily mirror these influences. A 2010 survey revealed that only 2% of Zambians find homosexuality to be morally acceptable; nine points below the figure recorded in Uganda (11% acceptance).[9]

In 2013, Christine Kaseba, the wife of President Michael Sata, said that "silence around issues of men who have sex with men should be stopped and no one should be discriminated against on the basis of their sexual orientation."[10]

Recent reports suggest authorities in Zambia are using anal examinations on homosexuals which are abusive.[11]

Law regarding same-sex sexual activity

Same-sex sexual activity is proscribed by Cap. 87, Sections 155 through 157 of Zambia's penal code.[4]

Section 155 ("Unnatural Offences") classifies homosexual sex (in the vague description "carnal knowledge of any person against the order of nature") as a felony punishable by imprisonment for 14 years.[4]

Any person who- (a) has carnal knowledge of any person against the order of nature; 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.

Section 156 imposes imprisonment for seven years for any "attempt to commit unnatural offences". Finally, Section 157 applies to "any act of gross indecency" committed between males, "whether in public or in private", and classifies such acts as felonies punishable by imprisonment for five years. The provision also extends to "attempts to procure the commission of any such act [of gross indecency]".[4]

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.

Although Zambia's penal code contains no explicit reference to consensual sex between females, Cap. 87, Section 155 legally covers lesbianism.[1]

However, like all former British East and Southern African colonies, Zambia enacted its constitution in the 1990s, overriding much of the pre-1964 criminal code, and there are very broad protections against discrimination, with much of the language lifted from the UN Charter on Human Rights. [12] It can be argued that homosexuality is constitutionally protected under Article 23 of the 1996 Constitution:

23. [Protection from discrimination on the ground of race,etc.]

(1) Subject to clauses (4), (5) and (7), no law shall make any provision that is discriminatory either of itself or in its effect.

(2) Subject to clauses (6), (7) and (8), 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.

(3) In this Article the expression "discriminatory" mean, affording different treatment to different persons attributable, wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions colour 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.

Considering that any constitution overrides all other laws, it is relevant that few if any prosecutions for homosexuality have taken place, which would allow the criminal code laws to be tested and, if found to contravene the Constitution, be struck from the books.

Recognition of same-sex relationships

Zambia provides no recognition of same-sex couples. In 2006, Home Affairs Minister Ronnie Shikapwasha stated that Zambia would never legalise same-sex marriage, claiming that it is a sin that goes against the country's Christian status (see Religion in Zambia).[13] In February 2010, the National Constitutional Conference (NCC) unanimously agreed to adopt a clause that expressly forbids marriage between people of the same sex.[14]

Constitutional protections against discrimination

There is implicit but no explicit legal protection against discrimination based on sexual orientation in the Zambian Constitution. The Constitution of 1991, as amended by Act no. 17 of 1996, contains an anti-discrimination clause, present in Article 23 of the document. According to Article 23(1), "no law shall make any provision that is discriminatory either of itself or in its effect". Article 23(2) further prohibits discrimination "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", and Article 23(3) defines discrimination as extending to differential treatment of persons on the basis of "race, tribe, sex, place of origin, marital status, political opinions, color or creed".[4]

Living conditions

According to a report submitted to the United Nations Human Rights Committee by Global Rights and the International Gay and Lesbian Human Rights Commission, the criminalization of consensual homosexual sex in Zambia "has a devastating impact on same-sex practicing people in Zambia". The report asserts that LGBT people are subject to arbitrary arrest and detention, "discrimination in education, employment, housing, and access to services", and extortion–often with the knowledge or participation of law enforcement authorities.[4]

According to a report by Behind the Mask, a non-profit organisation dedicated to LGBT affairs in Africa,[15] most LGBT people in Zambia are closeted due to fear of targeting and victimisation. Lesbians are especially vulnerable, according to the report, due to the patriarchal structure of Zambian society.[1]

The U.S. Department of State's 2010 Human Rights Report found that "the government enforced the law that criminalizes homosexual conduct and did not respond to societal discrimination" and that "societal violence against homosexual persons occurred, as did societal discrimination in employment, housing, and access to education or health care."[16]

Restrictions on advocating for LGBT rights

The Zambian government does not permit advocacy of LGBT rights.[4]

In 1998, in a statement to the National Assembly of Zambia, Vice President Christon Tembo called for the arrest of individuals who promote gay rights, citing a need to "protect public morality".[4] President Frederick Chiluba described homosexuality as "unbiblical" and "against human nature".[17] Later, Home Affairs Minister Peter Machungwa ordered the arrest of any individual or group attempting to formally register a gay rights advocacy group. Herbert Nyendwa, the Registrar of Societies, stated that he would refuse to register any LGBT organisation or civic group.[4]

HIV/AIDS

As of July 2007, no public or private programmes provide HIV-related counselling to homosexual men in Zambia, where the HIV seroprevalence rate among adults is approximately 17%.[18] Although men involved in same-sex sexual relationships have a higher risk of HIV transmission, the government-operated National AIDS Control Program does not address same-sex relationships.[4]

In June 2007, the Zambian Ministry of Health agreed to conduct, together with the Centers for Disease Control and Prevention and Society for Family Health under Population Services International, an assessment to evaluate HIV and AIDS prevalence and transmission among gay men.[19]

Summary table

Same-sex sexual activity legal (Penalty: Up to 14 years imprisonment)
Equal age of consent
Anti-discrimination laws in employment only
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)
Recognition of same-sex couples
Step-child adoption by same-sex couples
Joint adoption by same-sex couples
Gays allowed to serve in the military
Right to change legal gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

References

  1. 1 2 3 4 5 6 7 Numwa, Regina. "Zambia". Behind The Mask. Retrieved 1 June 2008.
  2. ↑ Where is it illegal to be gay?
  3. ↑ Ottosson, Daniel (May 2008). "State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults" (PDF). International Lesbian and Gay Association (ILGA). p. Page 43. Retrieved 5 May 2009.
  4. 1 2 3 4 5 6 7 8 9 10 Fabeni; Stefano; Cary Alan Johnson; Joel Nana (July 2007). "The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in Zambia" (PDF). Global Rights and International Gay and Lesbian Human Rights Commission. Retrieved 1 June 2008.
  5. ↑ "Articles: Jerusalem Lost: The Evangelical Empire Christianity's contribution to Victorian Colonial Expansion". British Empire. Retrieved 2014-04-11.
  6. ↑ Archived 19 August 2011 at the Wayback Machine.
  7. ↑ "History of Protestant Missions in Zimbabwe". Wmausa.org. Retrieved 2014-04-11.
  8. ↑ "Christianity". Jd-elliott.net. Retrieved 2014-04-11.
  9. ↑ "Biggest Ever Studies on Attitudes to Religion and Morality in Africa Released". Newstime Africa. Retrieved 2014-04-11.
  10. ↑ Jean Ann Esselink (2013-11-08). "Zambia's First Lady Stuns Africa By Calling For An End To Homophobia". The New Civil Rights Movement. Retrieved 2014-04-11.
  11. ↑ https://www.hrw.org/report/2016/07/12/dignity-debased/forced-anal-examinations-homosexuality-prosecutions
  12. ↑ Human Rights in UNDP, Practice Note, April 2005
  13. ↑ "Zambia will never legalise gay marriages-gov't". African Veil. 10 December 2006. Retrieved 1 June 2008.
  14. ↑ NCC to adopt clause that forbids same sex marriage
  15. ↑ "Who we are". Behind The Mask. Retrieved 1 June 2008.
  16. ↑ http://paei.state.gov/documents/organization/160521.pdf
  17. ↑ "Special Issues and Campaigns: Lesbian And Gay Rights". World Report 1999. Human Rights Watch. 1999. Archived from the original on 23 July 2008. Retrieved 6 August 2008.
  18. ↑ "Zambia". The World Factbook 2008. Central Intelligence Agency. 15 May 2008. Retrieved 1 June 2008.
  19. ↑ Mhlambiso, Nthateng (26 July 2007). "Hope for Zambian MSM". Behind The Mask. Retrieved 1 June 2008.
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