According to what appears to be the final draft of the new Zimbabwean Constitution, posted online and dated 25 January 2013, the country is set to constitutionally ban gay and lesbian marriages.
This is a blow to hopes that progressive voices would convince notorious homophobe President Robert Mugabe and his ZANU PF party to not include the restriction in the long-negotiated document.
Zimbabweans will be asked to approve or reject the draft document as their new constitution in an upcoming referendum, the date of which is yet to be announced.
In Clause 3, Section 78 (Marriage rights), ironically under “Fundamental Human Rights and Freedoms”, the constitution states jarringly and unambiguously: “Persons of the same sex are prohibited from marrying each other.”
Activist Chesterfield Samba, director of the beleaguered Zimbabwean LGBT rights group GALZ, told Mambaonline in his personal capacity that while he was disappointed with the ban, “it was expected from us that this ugly clause would find its way in the draft…given the manner in which the issue polarised and threatened to derail the whole [constitution drafting] process”.
He went on to say: “We are concerned that the constitution deliberately excludes the rights of same-sex couples to marry. We do not believe that there is a legitimate reason for differentiating between same-sex and opposite sex couples. We believe that the constitution is not the appropriate forum to give effect to the private beliefs held by some that same-sex couples should not be married.
“By denying this right to some groups, the constitution is contributing to the stigma and discrimination faced by people who are attracted to members of the same sex in Zimbabwe. Zimbabwe has come too far in its constitutional reform process to debase this process by showing an outright desire to harm a politically unpopular group without any legitimate government interest,” he said.
Samba explained that the issue of gay rights and specifically the marriage clause “was part of the amendments that ZANU PF proposed before the second all stakeholders’ conference and one which has ultimately found its way into the constitution, obviously through negotiation and arm twisting”.
In addition to the same-sex marriage restriction, the constitution also fails to follow in the footsteps of its neighbour South Africa and does not include sexual orientation as one of the grounds on which discrimination will be outlawed.
Samba said that, despite these setbacks, he and his organisation “welcome the draft”.
“The constitution recognises in its founding values the equality and inherent dignity and worth of all human beings. These are important values which are common to all Zimbabweans, including the LGBTI community,” said Samba.
He added that if adopted and adhered to by the government the otherwise progressive human rights values and freedoms enshrined in the document could make life easier for LGBTI people and human rights groups.
Samba expressed his hope that the upcoming referendum and elections “will be peaceful and not characterised by violence and hate speech which has a significant impact on the lives of LGBTI people”.
GALZ and its members have suffered ongoing harassment from the authorities over the years. In 2005, President Mugabe called GALZ an “immoral and repulsive” organisation, offensive “against the law of nature and the morals of religious beliefs”.
Last year, the organisation suffered a number of raids on its offices, confiscation of equipment and arrests of its members. In August, GALZ was charged with being an “unregistered” organisation.
It is now challenging the legality of the warrant that was used to raid the GALZ office and confiscate its equipment as well as the charge that it is not a lawful organisation.
Under current laws, gay sex, as well as members of the same sex holding hands, hugging or kissing, are illegal in Zimbabwe, with penalties of up to three years in jail.