Zimbabwean law and homosexuality

Although there is at present no Statutory law proscribing or prohibiting the activities of homosexuals in Zimbabwe, the Common Law does not allow gay men, and to a lesser extent, lesbians to give full expression to their sexual orientation. Common Law prohibitions are Sodomy and Unnatural Offences, and these are particularly repressive. These laws criminalise sex and even the display of affection between men. Sexual acts between consenting adults of the same gender are prohibited. Although these outdated laws are not always applied, the threat of being caught still hangs like a sword over peoples' heads. The presence of oppressive laws causes much personal stress to people, even though they may not be prosecuted each time they break the law. This oppression has caused most of the gay community in Zimbabwe to become invisible in the past, for fear of prosecution of public harassment. Other laws which may be enacted to harass homosexuals are the Miscellaneous Offences Act and the Censorship and Entertainments Control Act. This may all be about to change for the worse if the incredibly repressive Sexual Offences Bill becomes law.

Sodomy

Sodomy is defined as the "unlawful and intentional sexual relations per anum between two human males". If all the other requirements of the offence are present, both parties are guilty. There must be a degree of penetration. The "unlawfulness" requirement might not be met if, for example, the passive party were subject to coercion, i.e.: was not a consenting party. Like wise the requirement that the act be "intentional: might not be present where one of the parties is, for example, so drunk, or so under the influence of drugs to be incapable of appreciating what he is doing.

A boy under the age of 14 is irrebutably presumed incapable of rape, and like wise must be irrebutably presumed to be capable of committing sodomy as the active party. His does not affect his criminal liability for participation as the passive party.

Unnatural offenses

An unnatural offence consists in the unlawful and intentional commission of an unnatural sexual act by one person with another person. The adjective "unnatural" involves a value judgement varying from country to country. Some sexual practices have never been prosecuted here, and if they are, they may well be held to have become abrogated as crimes. Indeed, it is submitted that the tendency should be in that direction unless the acts are substantially similar to conduct previously held criminal by our courts.

For the commission of the offence at least 2 people must be involved. However acts which may be perfectly lawful between male and female may well become criminal between two men. Thus cases of mutual masturbation, masturbation by one of the other, and various other combinations involving friction of the male genitals have all been found to constitute criminal conduct. Both consenting parties are liable to prosecution. That having been said, it is unlikely that most acts, short of sodomy, between fully consenting adult males in private, would be regarded as criminal by the courts.

With regards to women, it is an open question as to whether sexual acts between females constitute "unnatural offences". It seems that such contact was criminal in terms of original Roman-Dutch Law. However, there are no such reported cases either in South Africa or Zimbabwe. It would therefor seem that if such an offence did originally exist it has now been abrogated.

Miscellaneous Offenses Act

Section 4(1) of this Act says that "any person loitering of being in any public place for the purpose of prostitution or solicitation shall be guilty of an offence". This can be used to harass gay men cruising for sex in public places. The definition of "public place" is very wide and includes any building or part of a building to which the public has access.

Censorship and Entertainments Control Act

This Act has been used to harass gay people in Zimbabwe. Section 11 provides that no person shall import, print, publish, distribute, or keep for sale any publication which is undesirable. A publication is undesirable if it is "indecent or obscene or is offensive or harmful to public morals or is likely to be contrary to public health."

Section 27 of the same Act deems something to be indecent or obscene if it has "the tendency to deprave or corrupt the minds of persons who are likely to be exposed to the effect or influence thereof". Something is offensive to public morals if it is likely to be outrageous or disgustful to persons who are likely to read, hears or see it. Something is "harmful to public morals" if it deals in an "improper or offensive manner with criminal or immoral behaviour".

There is substantial room for subjective interpretation of all these provisions. Also the Act has not kept pace wit technology, so it is unclear how this law relates to viewing and downloading of pornography via the Internet.

The constitutional position

The Constitution of Zimbabwe provides in Section 23 that every one shall be entitled to equal protection under the law as follows:

"No law shall make any provision that is discriminatory either of itself or in its effect".

Laws against gays and lesbians are openly discriminatory. Their very purpose is to prevent gays and lesbians from expressing their sexuality while heterosexual desire may be openly expressed. These laws have far reaching repercussions. They serve the purpose of telling gays and lesbians that they are outcasts and thy are then treated as such. This discrimination extends beyond sexual conduct and people use laws proscribing homosexual conduct to discriminate against gays and lesbians in areas involving familial relations, employment, housing and immigration, to name a but few.

Section 20 of the Declaration of Rights in the current flawed Constitution of Zimbabwe provides for the protection of freedom of expression. Any person is free to hold his own opinions, and free to receive, import and transmit information without undue interference. However, in terms of section 20(2), that right may be limited, inter alia, in the interest of public morality, provided that such a limitation is reasonably justifiable in a democratic society.

Any person who feels that his constitutional rights have been, are being, or are likely to be infringed is entitled in terms of section 24 to apply to the Supreme Court for redress. The Supreme Court has the power to issue such orders, writs or directives, as it deems appropriate for the purpose of securing the applicant's rights. The rights violated could be any of the following:
a) A violation of the applicant's freedom of association, in that the applicant was being harassed for being, for example, a member of a gay rights organisation, or a gay social club.
b) A violation of the applicant's freedom of expression in that the applicant's activities as a member of a community was being hindered by continual harassment by the authorities.
c) Discrimination on the basis of one's beliefs, such as belief in equal rights under the law for homosexuals, in contravention of section 23 of the Constitution.
Even though there are at present no statute laws prohibiting the activities of homosexuals in Zimbabwe, the authorities can always cite a provision in a statute and purport to act in the defence of public morality. The determination of what is contrary to public morality s obviously a subjective one, and is best done by the judiciary. In reaching its determination on this issue it would have to regard worldwide trends, as well as social and other factors. The Supreme Court would almost certainly consider the position of other countries, such as the United Kingdom and South Africa, where homosexual activities are no longer illegal. In South Africa the only statutory prohibition to homosexuality is where one party is below the age of consent. Many academic writers advocate the abolition of the common law crime of sodomy altogether. This has already happened in the Western Cape. The Supreme Court would also give due consideration to the question of whether targeting homosexuals by the authorities is "reasonably justifiable in a democratic society" in terms of the Constitution.