LGBT rights in Zambia

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 occupiers 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]

LGBT rights in Zambia
StatusIllegal since 1911 (as Rhodesia)[1][2]
PenaltyUp to 14 years[3] or up to life imprisonment[4]
Gender identityNo
MilitaryNo
Discrimination protectionsNone
Family rights
Recognition of relationshipsNo recognition of same-sex unions
AdoptionNo

In 1999, the non-governmental organisation Zambia Against People with Abnormal Sexual Acts (ZAPASA) formed to combat homosexuality and homosexuals in Zambia.[1][5] Arguably the largest recipient of Fundamentalist Evangelical missionaries during British colonial times,[6][7][8][9] Zambia's 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).[10] In 2013, Christine Kaseba, the wife of former 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."[11] Recent reports suggest authorities in Zambia are using anal examinations on homosexuals which are abusive.[12]

Law regarding same-sex sexual activity

Same-sex sexual activity is proscribed by Cap. 87, Sections 155 through 157 of Zambia's penal code.[5]

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.[5]

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]".[5]

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. [13] 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, as this would allow the relevant Criminal Code sections to be tested, and deleted if they are found to contravene the Constitution.

Legal action regarding same-sex sexual activity is abundant. Although Zambia has maintained a strict stance against any form of LGBT activity, there have been a number of efforts, from both the United Nations and Zambian citizens, to change its policies and law regarding same-sex activity. These efforts have been largely in vain as Zambia sustained its policies.

Zambian legal policies regarding same-sex activity have effectively bred a national environment of homophobia which has made it to where that the justice system severely disadvantages LGBT identifying individuals. The justice system fails to recognize and protect the lives of LGBT citizens which has in effect opened the window for citizen based-militia activity against LGBT individuals. The US Department of State's Human rights states that:

"the government enforces law that criminalizes homosexual conduct and did not respond to societal discrimination...according to LGBT advocacy groups, societal violence occurred, as did societal discrimination in employment, housing, and access to education or health care… LGBT groups reported frequent attacks and discrimination in the neighborhoods in which they operated. Activists reported regular harassment, including threats via text message and e-mail, vandalism, stalking, and outright violence.[14]”

In April 2013, Paul Kasonkomona, a notable Zambian LGBT activist, was arrested for speaking about LBGT and HIV related issues on a local TV station.[15] Kasonkomona was charged with the crime of "soliciting in a public place for immoral purpose." Also in 2013, two gay-identifying men were beaten outside of a nightclub after being found in a "compromising position". They decided against pressing charges out of the fear of being jailed themselves.

In May 2014, citizens of the Marapodi area of Lusaka apprehended two women who were suspected lesbians. They captured the women, brought them to the local police station, and demanded their arrest.[16]

In January 2015, an openly gay man was attacked by a mob which reportedly included three police officers.[17]

In terms of recent legislative news, Zambia has abstained from/denied a number of reform efforts. In 2011, Zambia was one of three countries to abstain from a call from the Human Rights Council to prepare a report on the rights of its LGBT citizens.[18] In a 2012 UPR review, Zambia rejected recommendations to repeal laws criminalizing same-sex relations. This followed a similar recommendation by the UPR in its 2008 review. The Zambian delegation provided the following in defense of their rejections:

"the Constitution making process will give the people the opportunity to determine whether specific rights for LGBT persons should be enshrined in the Constitution. The Government was determined not to prescribe to the Zambian people those rights that the Constitution should contain, but to let them make such a determination".[19]

However, in its 2018 review, Zambia noted the recommendations to decriminalize same-sex relations.[20] Aside from this, no further actions have been made thus far.

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 legalize same-sex marriage, claiming that it is a sin that goes against the country's Christian status (see Religion in Zambia).[21] In February 2010, the National Constitutional Conference (NCC) unanimously agreed to adopt a clause that expressly forbids marriage between people of the same sex.[22]

Constitutional protections against discrimination

There is implicit but no explicit legal protection against discrimination based on sexual orientation and gender identity 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".[5]

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.[5]

According to a report by Behind the Mask, a non-profit organisation dedicated to LGBT affairs in Africa,[23] 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."[24]

Restrictions on advocating for LGBT rights

The Zambian government does not permit advocacy of LGBT rights,[5] however freedom of expression has been affirmed by the courts.[25]

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".[5] President Frederick Chiluba described homosexuality as "unbiblical" and "against human nature".[26] 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.[5]

The People v. Paul Kasonkomona

The restrictions on advocating for LGBT rights were challenged in Zambia's courts in 2013, after a human rights activist appeared on TV talk show program. During the program, the activist called for the decriminalization of homosexuality in Zambia,[27] the recognition of rights for sexual minorities,[25] and HIV's spread to be combated among sexual minority groups.[28] After the program, the activist was stopped by police, held in jail overnight, and accused of inciting the public to take part in indecent activities.[27][28][29] The activist was later charged with "idle and disorderly conduct under Section 178(g) of the Penal Code, Cap. 87 of the Laws of Zambia".[28][30]

The activist challenged the charges in court by questioning three definitions to which he was charged: (1) "soliciting", (2) "public space" and 3 "immoral purposes".[28][30] In the first level of court, the Magistrate Court, the judge ruled in favour of the activist and stated the activist's statements reflected an act of freedom of expression.[25][30] The government challenged the decision.

In the High Court, the judiciary ruled that the government could not prove that the activist's participation in the debate could not be considered "soliciting" as the activists calls were not persistent and did not contain an element of pressure.[28] The court agreed that the television program could be considered a "public place".[28] The court did not agree with the government that the activist's statements were for "immoral purposes" as the activist was not encouraging people to engage in same sex activities but to protect people from harm.[25][28][30] Additionally, the High Court further ruled that activist was reasonably exercising his right to freedom of expression.[25][28][30]

HIV/AIDS
See also: HIV/AIDS in Zambia

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%.[31] 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.[5]

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.[32]

Summary table
Same-sex sexual activity legal (Penalty: between men, from 15 years to life imprisonment; between women, up to 14 years imprisonment[4])
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
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  2. "Where is it illegal to be gay?". 10 February 2014 – via www.bbc.com.
  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. 43. Archived from the original (PDF) on 6 March 2009. Retrieved 5 May 2009.
  4. "Country Profile: Zambia". Human Dignity Trust.
  5. 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. Archived from the original (PDF) on 1 October 2008. Retrieved 1 June 2008.
  6. "Articles: Jerusalem Lost: The Evangelical Empire Christianity's contribution to Victorian Colonial Expansion". British Empire. Retrieved 11 April 2014.
  7. Archived 19 August 2011 at the Wayback Machine
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  12. "Dignity Debased | Forced Anal Examinations in Homosexuality Prosecutions". Human Rights Watch. 12 July 2016. Retrieved 1 July 2019.
  13. "Archived copy" (PDF). Archived from the original (PDF) on 11 June 2007. Retrieved 25 October 2011.CS1 maint: archived copy as title (link) Human Rights in UNDP, Practice Note, April 2005
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  15. "NEWS RELEASE: ZAMBIA HIGH COURT CONFIRMS ACQUITTAL OF HIV ACTIVIST, PAUL KASONKOMONA – Southern Africa Litigation Centre". Retrieved 26 March 2020.
  16. "Country Reports on Human Rights Practices for 2015". 2009-2017.state.gov. Retrieved 26 March 2020.
  17. admin76crimes (31 January 2014). "Zambia's growing intolerance towards LGBTI persons". Erasing 76 Crimes. Retrieved 26 March 2020.
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  19. "ODS HOME PAGE" (PDF). documents-dds-ny.un.org. Retrieved 26 March 2020.
  20. "ODS HOME PAGE" (PDF). documents-dds-ny.un.org. Retrieved 26 March 2020.
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  22. NCC to adopt clause that forbids same sex marriage Archived 8 September 2012 at the Wayback Machine
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  27. Smith, D. (9 April 2013). "Zambian gay rights activist arrested". The Guardian. Retrieved 19 December 2019.
  28. "The people v. Kasonkomona". Columbia Global Freedom of Expression. n.d. Retrieved 19 December 2019.
  29. "Amnesty calls for release of Zambia's first arrested gay couple". Mail and Guardian. 12 September 2013. Retrieved 19 December 2019.
  30. Legal Grounds III: Reproductive and Sexual Rights in Sub-saharan African courts (PDF). Pretoria: Pretoria University Law Press. 2017. pp. 155–157. ISBN 978-1-920538-63-7.
  31. "Zambia". The World Factbook 2008. Central Intelligence Agency. 15 May 2008. Retrieved 1 June 2008.
  32. Mhlambiso, Nthateng (26 July 2007). "Hope for Zambian MSM". Behind The Mask. Archived from the original on 29 October 2009. Retrieved 1 June 2008.
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