Is homosexuality entrenched in the Constitution?

By Learnmore Zuze

Sometime in March I wrote a piece which won the praises of most Ugandans in my e-mail feedback. In the article I highlighted how science, nature and the Bible condemn homosexuality. It made me realise that most people underestimate the passion with which homosexuality is loathed in the East African nation.

A Ugandan law-maker who claimed to have been instrumental in the crafting of the country anti-homosexuality law wrote, “Your piece of writing condenses the exact reasons why homosexuality is evil and satanic … this is precisely why Uganda will not accept and yes we are prepared to pay the price.”

Mwesiga Prince wrote, “My brother thank you so much on behalf of Ugandan people for the encouragement in the face of impending persecution for our tough stance against homosexuality. “Thanks for boldly standing up for Godly and cultural ethics,” wrote Dan Odeke.

However, on the other extreme, it would appear the piece provoked a different response back home. A considerable number of Zimbabweans believe that our condemnation of homosexuality is just but cosmetic.

I had dismissed an e-mail from a member of Gays and Lesbians Association of Zimbabwe (GALZ) who wrote to, “enlighten” me that there was nothing wrong with being gay and that the law (Constitution) in Zimbabwe did not forbid all forms of homosexuality. I had taken his e-mail to be nothing but the view of a person blighted with pre-conceived notion. However, this shocking view was to be expressed again by unlikely sources.

Some seasoned anti-homosexuality campaigners wrote me to echo the same view (though with different motives) as they are advocating for an amendment to the constitution insofar as homosexuality is addressed in the new constitution.

An organization, Concerned Christians and Leaders and Citizens Network (CCLCZ) is making a case for a constitutional amendment pointing out that, “The need and justification for a comprehensive amendment to Zimbabwe’s newly enacted and adopted constitution is both overwhelming and urgent.”

There is a strong school of thought among some Zimbabweans that the practice of homosexuality is subtly entrenched in the new constitution. I was surprised as I went about researching, noting that this viewpoint is held by many – even top politicians. People believe that Zimbabweans are not together in the fight against homosexuality. A Pentecostal pastor noted that there are many people sitting in places of power and wealth who are not sincere in the fight.

One well-known religio-politician affirmed that we have some people who preach against homosexuality during the day but lead its front during night. His view resonated well with that of a Bulawayo based NGO whose public relations officer sent me a lengthy submission of the same view.

The feeling is strong that the constitution does not capture the essence of the Zimbabwean story in a manner that secures the best interests of the nation and posterity. The constitution stands accused of using vague, ambiguous and open-ended language thus leaving an ever-present open door for homosexuals to push for recognition of their unions.

This school of thought stems from an analysis of section 78(3) of the New Constitution which states that: “Persons of the same sex are prohibited from marrying each other.” According to their analysis and interpretation; what that statements forbids is marriage of people of the same sex, not relationships.

The express prohibition of people of the same sex from marrying each other does not at all affect the right of homosexuals to legally found a family just like heterosexual couples. The position is the same in most countries where gays are not allowed to exactly marry but their unions exist via a separate legal regime allowing them to have a family. Examples are South Africa and UK (Civil Union) (New Zealand, Australia, and Germany (Civil Partnership).

In the view of the law, such arrangements do not constitute marriage because they are made outside an arrangement of existing marriage laws. When people of the same sex contract a civil partnership or civil union, they are not marrying each other as it were, but, as the name suggests, are entering into a civil contract.

The constitution, being the supreme law, takes precedence over any other law. It is perhaps also the reason why defiant members of GALZ are quick to downplay any statute which prohibits homosexuality arguing that the superior law (constitution) does not criminalize homosexuality which is practiced outside ‘marriage.” The section (78) simply forbids a man and a man, for example, from being brought in union by a marriage officer.

Therefore, the strong argument of proponents calling for Constitutional amendments to this section is that the section deliberately leaves a leeway for those who engage in homosexual acts without necessarily intending to formalize them through marriage. They argue that a man and a man who cohabit have committed no crime according to provisions in the constitution. Those who engage in casual homosexual acts without strings attached are not committing any crime in view of the constitution.

Now, it is incumbent upon the legislature to look into these issues with a view to, where possible, have them redressed because homosexuality remains topmost of the vile sins that human beings may commit. Whether practiced by the rich or the famous, homosexuality should not be extolled in any of God’s creation and if necessary the amendments need to be made forthwith.

Learnmore Zuze can be reached at [email protected]