By John Cassim
Harare, Zimbabwe – George Gudyanga (not real name) is a 28 male who resides in Highfield, one of the oldest townships in the Zimbabwean capital Harare.
George is gay but was forced by his relatives to marry a woman his parents preferred, as they thought he was bewitched. His father is a Pastor in one of the local protestant churches.
A visit to George’s house revealed all the fears surrounding his secret life but he contains them just to please his parents and neighbours.
His fears grew recently when government through the Ministry of Justice, introduced the Marriages Bill, which seeks to usher in the first anti-same sex marriage law.
“I heard of the Bill when I switched on to StarFM a local radio station run by the government owned ZimPapers Group.
I listened to the debate by Pastors and I quickly deduced that some churches seem to have a position against LGBTI members,” George said.
From his marriage, George sired two daughters aged eight and three but rarely stays with the wife due to the lack of affection. However there are a number of people who knows he is gay, despite being married.
He added, there were so many anti-gay and lesbian messages in the past, during President Robert Mugabe’s tenure such that members of the LGBTI were often attacked in public.
Offices of the Gays and Lesbians Association of Zimbabwe (GALZ) were ransacked several times leading to some arrests. This stopped when President Emmerson Mnangagwa succeeded the 95-year-old Mugabe.
Mugabe is remembered for having said, ‘homosexuals are worse than pigs and dogs.’
According to George, each time Mugabe made public utterances on gays and lesbians, his statements would be followed by physical attacks by his party followers and police.
“The Bill is explicit and restricts same sex marriages, but considering we have been attacked before, the public debate around the Bill is likely going to amplify anti-gay and lesbians rhetoric leading to fresh attacks, humiliations, segregations and ridicule,” George lamented.
MARRIAGES BILL ON GAYS AND LESBIANS
The Marriages Bill contains two very clear sections that relates to the existence of LGBTIs in the country.
The Bill outlaws same-sex marriages in the definitional section of terms, by defining the term “marriage” as meaning a marriage solemnised, registered or recognised as such in terms of the Act, being a union between persons of the opposite sex.
This is in line with Section 78 subsection 3 of the Constitution, which clearly states that, “persons of the same sex are prohibited from marrying each other”.
The reality of the Zimbabwean society is that citizens have different sexual orientations. Same sex couples exist in Zimbabwe, have always existed and will always exist.
Apart from the Supreme Law, no other law in Zimbabwe speaks about ‘same sex marriages’ meaning if enacted, the Bill shall bring in, the first law that clearly criminalises gay and lesbian marriages.
However the only Zimbabwean law that exist is the Criminal Law and Codification Reform Act, which targets certain acts against gay men through the crime of “sodomy.”
“Sodomy is classified as unlawful sexual conduct and defined in the Criminal Law Code as either anal sexual intercourse or any act involving physical contact that would be regarded by a reasonable person to be an indecent act between two consenting adult men.
Both men involved will be charged with sodomy. Boys under 14 and mentally incompetent persons cannot be charged with sodomy,” Zimbabwe’s Constitutional Law expert Professor Lovemore Madhuku, explained during a workshop meant to unpack the Marriages Bill for legislators.
However the same act is silent on the same sex marriages as well as lesbians. The law does not contain a provision similar to the sodomy provisions against lesbian women in that there is no specific law that explicitly describes and criminalises sex between lesbians.
“Section 77 of the Criminal Law Code, prohibit any person from indecently exposing him or herself or engaging in “indecent conduct” which causes offence to other people. This conduct can be in a public place, or in a private place.
The crime attracts up to a level 9 fine or 6 months in prison,” Harare based legal expert, James Tsabola explained during a workshop for legislators.
The most controversial issue, which has sparked a lot of debate arising from the Bill, deals with a peculiar relationship, which has been termed “civil partnerships”.
This is in terms of section 40 of the Bill, which reads as follows:
A relationship between a man and woman, who are both over the age of eighteen years and have lived together without legally being married, to each other.
Civil partnerships are not recognised as marriages as defined under this Bill, but for the purpose of realising justice between the parties to the partnership in terms of the Matrimonial Causes Act [Chapter 5:13] upon the dissolution of the relationship.
It is understood that, the main mischief behind the concept is to protect women who are in co-habitation relationships.
“However, in an attempt by the Bill to do so, the provision effectively legitimises and promotes “small houses” or any other unions such as those by gays and lesbians,” Reverend Felix Mukonowembe, Chairperson of the Zimbabwe Elders Forum said.
Zimbabwe Elders Forum is a group that comprises several Christian church leaders and plays a crucial role of advising government on matters that affect religion and the church.
The forum is so influential such that its contribution on the Bill led to the government through cabinet to make an announcement recently, that Section 40 of the Bill would be removed.
“The Bill brings about the unheard of concept in our society of “polyandry”. Polyandry is a form of polygamy in which a woman takes two or more husbands at the same time.
This is a loophole that may usher in same sex unions that the same Bill seeks to prohibit,” Reverend Mukonowembe explained.
Polyandry is compared with polygyny, involving one male and two or more females.
VIEWS BY THE GENERAL PUBLIC ON THE BILL
Currently the Marriages Bill is in its consultative stage but already, it would appear its objective and meaning is yet to be understood hence the growing fear amongst members of the LGBTIs.
While some sections of the Christian community, which is regarded as the largest with at least 76% of the total population in the country, are against certain clauses based of their anti-gay and lesbian agenda, other churches and religions have easily embraced the law.
“Zimbabwean marriage laws are scattered in various other laws and the Bill seeks to harmonise all these laws. We have several issues on marriage that are also in nine other laws and that makes life very difficult for citizens in the event of death or divorce,” lawyer James Tsabola said.
Even some legislators don’t seem to understand what the Bill says in relation to the Constitution and other existing laws. Happymore Chidziva is an opposition legislator who expressed concern over the Bill.
“The Bill was thrown upon us by the Executive without warning, we are still trying to understand what it entails but already we have different interpretations of the same Bill and that’s dangerous for our society.
We have legislators who are arguing in their own capacity instead of basing their arguments on what their people in the constituencies say, so its not surprising the debate around gays and lesbians is coming back through the Bill,” Chidziva said.
Gays and Lesbians Association of Zimbabwe (GALZ) leader Chesterfield Samba took time to explain the position by his association around the Bill.
“Yes some of our members have already started registering their concerns around what is coming out the consultative meetings across the country but I am hopeful this wont result in attacks like we experienced during the Mugabe era.” He said.
Chesterfield said the current government has been tolerant of the existence of LGBTI members and held several workshops aimed at raising awareness on the basic human rights LGBTI members deserve.
“The only stumbling bloc has been the Chief’s council, while some Chief are beginning to understand, their representatives in Parliament (Chiefs Council) do not want to hear anything that we say.
So it is not surprising this debate has been re-ignited raising fresh fears amongst our members.
A Harare based lawyer Caleb Mutandwa is working with the Zimbabwe Elders Forum as a legal consultant. His duty is to interpret the law on behalf of the forum ahead of their debates.
On the Marriages Bill, Mutandwa said, “When I explained what the Bill says, the first thing that these church leaders hinted was a loophole that could legalise, homosexuality in Zimbabwe.”
Its is possible this Marriages Bill debate is taking place on the background of ignorance but whatever comes out of the consultative meeting could have far reaching effects on members of the LGBTI as well.
EFFECTS OF THE MARRIAGES BILL
If enacted into law the bill would bring the first ‘anti-same sex marriages law’ hence increased interest by the general public.
“We are not really worried about what the Bill says as it is in line with the Constitution. The law can not undo the constitution that can never happen,” Chesterfield said.
In a bid to cushion GALZ members, the association has come up with its own binding means of protecting unions that may arise; it has nothing to do with the marriages law but more of human rights.
However several legal experts who spoke on the topic are worried there has been growing debate about same sex marriages as well as ‘civil partnerships’ but does not say anything about bi-sexual, transgender and inter-sex people.
Under the international law, ‘right to equality’ means laws shall be applied equally to all persons without regard to their specific identity and where laws protect certain rights, they should not differentiate. Treating LGBTIs differently is considered a form of discrimination.
In neighbouring South Africa, Parliament passed the Civil Marriage Act of 2006, which recognises same sex partnerships and it is premised on this background that the term ‘civil partnership’ in the Zimbabwean Marriages Bill is being construed to refer to the South African set up.