The reality of any society, Zimbabwe included is that citizens have different sexual orientations. Same sex couples exist in Zimbabwe, have always existed and will always exist. However Zimbabwean law does not allow them to give full expression to their sexual orientation, but rather labels them as deviants in most instances criminalising their difference.
International law however recognises that there are lesbian, gay, bisexual, transgender and intersex people and protects their rights. Lesbian (L) refers to a woman who is sexually attracted to other women. Gay (G) refers to a man who is sexually attracted to other men. Bisexual (B) refers to an individual who is sexually attracted to both men and women. Transgender (T) refers to a person whose gender identity and self-identity does not correspond to the genitals that they were born with. So a transgender person is born male or female and grows up to identify as the opposite sex. Intersex (I) refers to someone whose genital anatomy, reproductive organs, and/or chromosomal patterns from birth do not fit the “standard” or “typical” recognised form of male and female. For example a child may be born with unclear genital form, which is the baby will be obviously male or female. Sometimes a child is born with ovaries (which are found in females) and a penis (which is a male reproductive organ). In countries where there is advanced technology, the doctors, with the parents’ consent will decide to operate the baby to assign one sex of the parents’ choosing. This choice is not always the right one as some children may grow up to identify as the opposite sex.
What is criminalised about gay men?
In Zimbabwe, the Criminal Law and Codification Reform Act, 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. Men found guilty of sodomy can be sent to prison for 1 year or be made to pay a level fourteen fine or they can be sentenced both to imprisonment and payment of a fine. The law does not care whether these acts are performed in the privacy of people’s homes or in public places. This means the law criminalises consensual sex between gay men as well as the display of affection between them if the display of affection is seen as “indecent physical contact.”
What about lesbian women?
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. However provisions on public indecency in the Criminal Law Code affect lesbian women. These provisions (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.
The determination of what constitutes public indecency will however be for the courts to decide. In reaching their conclusion on such issues, the courts would have to pay regard to international standards as well as social and other factors. These factors include whether the conduct is sufficiently serious to warrant punishment and in doing so will address the nature of the conduct; the extent to which the conduct was persisted in, the age and gender of the person who witnessed the conduct, any previous relationship between the parties; and the degree of offence caused to the person who witnessed the conduct.
This means if an old lady sees a lesbian couple kissing in a park or having sex on their balcony or cuddling on their veranda, it does not matter whether the acts were in the privacy of their home or in a public space, if the old lady saw them and considers their conduct and display of affection offensive and indecent, she can report them to the police and they can get arrested for it. Given the general levels of intolerance towards same sex relationships is highly likely that the police will arrest the lesbian couple. The fear of such arrest limits public displays of affection between lesbian women and prevents the full expression of their sexuality.
Is bisexuality a crime?
There is no specific law that defines and prohibits bisexuality. However Bisexual men would be charged with sodomy in instances where they are involved with other men and bisexual women would be charged with public indecency if they are involved with other women.
Is there a law that regulates transgender identity?
There is no specific law that specifically speaks to being transgender. However where transgender people (who look like they are of one sex yet identify as the opposite sex) are involved with a person of the same sex as that which they are generally identified with, then they are seen as gay or lesbian and would be affected by the same laws that affect gay and lesbian people. The law does not recognise transgender identity and as such there are no legal provisions allowing for sex change, yet our society is awash with examples of boys who are very effeminate and girls who are very masculine. It is legally permissible for an individual to change their name should they want to but there is no example yet of a transgender person who has tried to change their name from say Sean Matapura to Sheila Matapura to align their name with their gender identity.
What does the law say about intersex people?
There are several cases of intersex children being born in Zimbabwe. There is no known policy on how this is handled; whether doctors are permitted to choose the identity of the child and operate on them or whether they let the child grow up with both genitalia. However, parents often choose the child’s sex and consequently the child grows and is identified with that identity. Should they choose to identify differently then they are faced with the same challenges as those facing lesbian and gay women and men respectively.
What of marriage?
The Constitution of Zimbabwe in Section 78, in no uncertain terms states that “persons of the same sex are prohibited from marrying each other.” This means that under no circumstances will individuals of the same sex be legally recognised as a couple. The Constitution however does not say what same sex means. It is not clear whether a couple would be recognised as same sex where a transwoman (someone who was identified as a man at birth but identifies as a woman) is involved with another woman or a trans-man (someone who was identified as a woman at birth but identifies as a man) is involved with another man.
How do these laws impact the lives of gender-non conforming individuals?
Although there are cases of homosexuals getting arrested in Zimbabwe, these laws are rarely used. However, the constant threat of being caught and being humiliated remains a fear for LGBTIs in Zimbabwe. The fear of prosecution, public harassment, and stigmatisation forces homosexuals to live underground and to supress their sexuality. The prohibition of same sex marriage in the Constitution also means that heterosexual couples can publicly declare their feelings for each other while homosexual couples cannot. Except through a written will, homosexual couples cannot automatically inherit from each other. The deceased spouse has to make it clear in their will that they are leaving their property, pensions and other benefits to their partner.
Can the law on sodomy be legally challenged?
Several LGBTI activists argue that the sodomy laws are discriminatory in that they give heterosexual couples the right to live openly, publicly display affection for each other and marry, while homosexual couples are denied the same right. As the law in Zimbabwe stands, the Supreme Court in the case of SV Banana[1] said that the crime of sodomy is not unconstitutional on the grounds of discrimination.
International Law and other countries
Under international law, the right to equality is understood in two ways. First is the right to equal treatment before the law and second the right to equal protection of the law. This means that 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, the crime of sodomy was abolished. In the case of National Coalition for Gays and Lesbian Equality and Another v Minister of Justice & Others[2] the South African Constitutional Court ruled that the crime of sodomy and other related provisions of the criminal law were unconstitutional and therefore invalid. In the case of Minister of Home Affairs and Others[3] it also ruled for the legalisation of same sex marriages and Parliament then passed the Civil Marriage Act of 2006 which recognises same sex partnerships.
[1] [2000 (1) ZLR 607 (S)]
[2] [1998] ZACC 15, 1999 (1) SA 6, 1998 (12) BCLR 1517
[3] [2005] ZACC 19, 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC)
