Interpretation of Relevant Laws On Homosexuality

Derrick Sokoni

4 May 2011

opinion

First and foremost, I wish to commend the Committee of Citizens for taking a bold step to seek legal interpretation of laws in Zambia as regards homosexuality.

This way, unproductive debates on the matter can be done away with and allow civility to return, instead of unwarranted attacks on each other over matters that can easily be explained.

The Committee of Citizens executive director Gregory Cifire has requested the Law Association of Zambia (LAZ) to state its stand on the legal interpretation of relevant laws to deal with the issue of homosexuality in Zambia.

The request is reported in the Times of Zambia for Tuesday, April 26, 2011. The article is headed “Break the silence on gays LAZ told.”

Power to Interpret laws in Zambia

The court (High Court) has unlimited and original jurisdiction to hear and determine any civil or criminal proceedings under any law, conferred on it by the Constitution, (Article 94 (1) of the Constitution).

This provision simply put means that any relief sought under any law in Zambia can be obtained from the competent court of law, which includes interpreting the law.

What LAZ can do is merely express an opinion or state its position on the matter whereas the authority to interpret the meaning of any law in Zambia lies with the court of law.

The best example, to show the power of the court to interpret statutes, is the case of Mulundika and seven Others v The People (1995) ZR 20(SC) In this case the appellants challenged the constitutionality of Section 5(4) of the Public Order Act Cap 104 which was viewed to be in conflict with articles 20 and 21of the Constitution; and the role of the court was to interpret Section 5(4) in line with the Constitution, the supreme law of the land.

The Supreme Court in its wisdom held that Section 5(4) contravened articles 20 and 21 of the constitution, was null and void, and therefore invalid for unconstitutionality.

This will suffice for now on the powers of the judicative in Zambia which is not the main issue in my contribution to the nation on the position of homosexuality in Zambia.

Do laws in Zambia recognise Homosexuality?

To use the language of Mr Sata, do laws in Zambia recognise gayism and lesbianism? The answer is ‘Yes’ they do and if so, which are these laws? And by the use of the term recognise, what do I mean?

Acknowledge the existence of homosexuality and take measures to criminalise it, by including a provision which specifically prohibits same-sex sexual activity, otherwise it would be illogical to enact a Law prohibiting an act or conduct which is non- existent.

So I would categorically state that, it is right to say that, the Law recognises, as in knowing, admit or acknowledge the practice. We have:

-The Constitution Cap 1

-The Marriage Act Cap 50

-The Penal Code Cap 87

-The Criminal Procedure Code Cap 88

-The Matrimonial Causes Act 2007

Let me now endeavour to show that laws in Zambia do recognise lesbianism and gayism.

The first step is to define the law and briefly elaborate the jurisprudence of the law.

Law: a rule enacted or customary in community and recognised as enjoining or prohibiting certain actions and enforced by the imposition of penalties (The Oxford English Reference Dictionary) Osborn’s concise law dictionary defines law as: an obligatory rule of conduct.

The commands of him or them that have coercive power (hobbes). A law is a rule of conduct imposed and enforced by the sovereign (Austin).

You will notice from the above definitions that law is simply rules which any given community prescribes to itself to observe in order to curtail, prohibit, control or direct certain behaviours known to it.

In other words, before a community can prescribe to itself a law to deal with a specific issue the community at large for example will be unhappy about certain behaviours by some members of the community.

It will unanimously agree to impose a law, rule, regulation to deal with a particular conduct in a manner prescribed. A conduct or behaviour not known to the community cannot, in anyway trigger a need to make a law, for the same reason that a conduct or behavior, is non- existent.

Let me cite a practical example, in Zambian schools there has been an increase in cases of child defilement and indecent assaults.

And persistent calls from parents and NGOs the Government was compelled to amend Section 155, of the Penal Code, cap 87 of the Laws of Zambia in order to stiffen the punishment on the offenders by replacing the words, “guilty of a felony and liable to imprisonment for fourteen years” and substituted with the words “commits a felony and is liable, upon conviction, to imprisonment for a term not less than 15 years and may be liable to imprisonment for life.”

What this means is that, an offence which was punishable for a period of 14 years is now punishable for a minimum period of 15 years to a maximum of life imprisonment depending on the extenuating or aggravating factors.

This came about because the community at large was aware of the increased abuse of children in schools.

When Parliament responded by imposing severe punishment on would be offenders was an act of recognition in itself of the fact that abuse was rampant in schools and something needed to be done to stop the abuse dealing severely with the offenders.

And one such case, so far recorded is where the headmaster was convicted and imprisoned for 15 years for touching a girl’s breasts, which also raised eyebrows in the legal fraternity as to whether the amendment was to0 harsh. I leave that to you the reader to determine.

Now to get into the gist of the matter or should I say, shed light on the issue in question, I wish to show what the legal position is in this country, as regards homosexuality. It will help if I define the terms I will constantly use in my discussion.

1. Homosexual: Feeling or involving sexual attractions only to persons of the same sex.

2. Marriage: The legal union of man and woman in order to live together and often to have children.

3. Husband: A married man especially in relation to his wife.

4. Wife: A married woman especially in relation to her husband. (According to Oxford English Reference Dictionary 2nd edition, Oxford University Press, Judy Pearsall and Bill Trumble).

From the time of Adam and Eve, the term sex was always synonymous with marriage up until it was perverted over time.

The Bible records in the book of Genesis Chapter 2 and verses 22 – 25:

“And a rib, which the LORD GOD had taken from man, made he, a woman, and brought her unto the man. And Adam said, this is now bone of my bones, and flesh of my flesh: She shall be called Woman, because she was taken out of Man. Therefore, shall a man leave his father and his mother, and shall cleave unto his wife; and they shall be one flesh.

And they were both naked, the man and his wife, and were not ashamed.”

We can’t run away from the fact that marriage was ordained by God and that sex is strictly supposed to be enjoyed in marriage.

So any sex act, conducted outside marriage between man and woman before God is SIN and between woman and woman and man with man is an abomination, because sexual acts between the same sex is termed unnatural.

Unfortunately the Marriage Act cap 50 does not define marriage. It only refers to Husband and Wife in section 38.

The marriage Act is only described as an act to provide for the solemnisation of marriages; to provide for the validation of marriages already solemnised; and to provide for matters incidental to or connected with the foregoing.

AllAfrica – All the Time