dyton mupawaenda
Lloyd Machacha
As Zimbabweans we pride ourselves of our unique identify, strong values and beliefs that have survived generations. Recent years has seen cultural dilution and diffusion brought in through globalisation but our rich cultural and religious diversity has stood the test of time.
There are a number of topics that generate huge interest and debate amongst people of various backgrounds in Zimbabwe. One such topic is Same Sex Marriages and Relationships. Statistics show that only 22 out of the 54 African countries have legalised homosexuality. South Africa was the first African country in 2006 and remains the only county to legalise same sex marriages.
However, homosexuality is punishable by death in 4 African countries namely; Mauritania, Nigeria (states that implement sharia law), Somalia and South Sudan. Even the holy bible condemns acts of homosexuality in Leviticus 18v26 and in Romans 1v 26-27. Despite coming from different backgrounds, the majority of Zimbabweans seem to have a common position on this topic.
Perhaps to bring traction to this discussion, the starting point is to differentiate between Same Sex Relationships and Same Sex Marriages. As a layman l would define Same Sex relationship as a romantic or sexual relationship between people of the same sex whilst Same Sex Marriage as the institutionalised recognition of such relationships in the form of a marriage.
A marriage is therefore defined in terms of the Marriages Act (Chapter 5:15) as marriage solemnised, registered or recognised in terms of the Marriages Act. Equally, the ordinary man seems to understand same sex relationship to mean homosexuality. Homosexuality takes various forms and shape including sodomy which is a crime in Zimbabwe.
Sodomy involves anal sex or physical contact that would be regarded by a reasonable person as indecent in terms of section 73 of the Criminal Codification and Reform Act (Chapter 9:23) therein after referred to as the “Code.”
The Code provides as follows: 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.”
Although regarded as a sin in the holy book, it is clear from our jurisdiction that same sex relationships of females are not prohibited by law, similar as same sex relationships of males for as long as it does not involve physical contact which could be regarded as indecent by a reasonable person.
So in other words, the reasonable person-test is the yardstick to define indecent physical contact. Similarly, same sex marriages are prohibited in Zimbabwe through a constitutional provision under Section 78 (3) which provides as follows: “Persons of the same sex are prohibited from marrying each other”. What it entails is that, same sex marriage rights are not provided for amongst people of the same sex whether males or females.
Although same sex relationships are not expressly prohibited by our legislation, its omission does not mean they are allowed. By implication one would argue that by expressly denying the right to same sex marriages, it tacitly means same sex relationships are also prohibited. With this background, it then brings us to yet another very important fundamental human right provided for in our Bill of Rights.
The right to equality and non- discrimination (section 56, of our constitution). Attention is directed to Section 56(3) which list the grounds upon which one cannot be discriminated on. The intention of the legislature appears to be clear when one looks at the elaborate list provided therein. However, recent developments in the alignment of the Medical Services Act to the Constitution suggests otherwise.
There has been deliberate efforts to try and smuggle recognition of same sex relationships under the guise of removing discrimination based on sexual orientation. One would question, has anyone failed to access health care services on the basis of sex? Further questions would arise why specifically sexual orientation?
With these pertinent questions, one is left equally perplexed.
For those that had been following the debate around the Medical Service Amendment Bill (H.B. 1, 2022), one would see that the first report of THE JOINT PORTFORLIO COMMITTEE ON HEALTH AND CHILD CARE AND THEMATIC COMMITTEE ON HIV AND AIDS presented at the Fifth Session of the Ninth Parliament on the 16th of February 2023 proposed as follows: “Thus, to ensure that there is clear expression of intent and clearing of any doubts in the health services, in this bill, they recommended recitation of Section 56 (3) broader list by the insertion of sexual orientation and gender identity on the list.”
Close analysis of this submission will clearly show that this is a deliberate attempt to push for the recognition of same sex relationships. Further examination of the proposal will demonstrate that, it did not end there.
The sponsors of that provision have attempted to sneak it in at all costs. An extract of the verbatim of the proposed Bill will demonstrate what has been proposed by the Minister is the correct position which respect our values and beliefs.
Minister’s proposed insertion reads as follows: “Section 12 (“Prohibition against discrimination in exercise of right to admit patients”) is amended in subsection (2) by the deletion of “no person of a particular description by race, tribe, place of origin, gender, political opinions, colour or creed shall be prejudiced” and the substitution of “no person shall be prejudiced by reason of discrimination in contravention of section 56(3) of the Constitution”.
This is perfect yardstick in my view. For avoidance of doubt the grounds provided for under section 56(3) of the constitution is perfectly worded as follows: “(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.”
It is beyond doubt these grounds are quite elaborate. There is no reason that justifies, expanding the grounds to include sexual orientation.
With no particular attention to detail, one would be fooled to think it does not matter, but a thorough analysis of the proposal points to smuggling legalising, recognition of same sex relationships behind the back door. It is also inarguable that the proposed changes to the draft bill goes beyond just aligning the said Act to the Constitution but it attacks the core values what defines us as people.
The preamble to our Constitution provides that we; Celebrate the vibrancy of our tradition and cultures. Further to that, the Founding values and principles that define Zimbabwe under section 3 of our Constitution provides as follows: “3(1) Zimbabwe is founded on respect for the following values and principles- (d) the nation’s diverse cultural, religious and traditional values”.
Same sex relationships are not and have never been part of our values and beliefs. Any attempt to impose them on us will be a serious attack on what defines us as a people. Sadly, the proposed changes by the Parliamentary Committee on Health to the Bill tabled by the Minister offends our core values of what defines us Zimbabweans.
It goes beyond just eliminating the discrimination in as far as the right to access Medical Services to the extent of legalising same sex relationships are concerned.
It attempts to smuggle recognition of same sex relationships by expanding the grounds for non-discrimination to include sexual orientation. One would wonder how this supposed to be done. By implication, the moment you recognise one’s sexual orientation you’re accepting or recognising same sex relationships. This l believe is a direct attack on our values and beliefs as people.
In conclusion, it is without doubt that there is an attempt to smuggle recognition of same sex relationships in our legislation. I submit that the Bill is okay as it is with respect what was presented by the Minister.
Any attempt by the Parliamentary Committee to expand the grounds under s56(3) to include sexual orientation is tantamount to recognising or legalising same sex relationships in our jurisdiction. In short, the word sexual orientation is coming as a culvert to legalise same sex relationships through the back door.
Mr Speaker Sir, the word sexual orientation should never find its way in our statutes as it attacks our core values and beliefs. It is my submission that the alignment is long overdue to the extent that it does not devour Zimbabwe’s rich value system.
The article reflects the opinion of the author Lloyd Machacha who writes in his personal capacity and does not represent any organisation(s). Machacha is a registered Legal Practitioner, Conveyancer and Notary Public. Llyod Machacha (LLBs, LLM*, UZ) Contacts: [email protected]: +263713 113 314.
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