http://orcid.org/0000-0003-2011-5537
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Abstract
Zambia has recently witnessed heated public and political debates over issues of homosexuality and gay or LGBTI (lesbian, gay, bisexual, transgender and intersex) rights. This article explores these debates with particular reference to the new draft constitution and the role of the Human Rights Commission (HRC). Homosexuality and LGBTI rights became heavily politicized during the constitutional review process. Discussions emerged not only about the penal code that prohibits same-sex practices, but also about the anti-discrimination clause in the constitution. The HRC explicitly warned against an inclusive formulation of this clause to prevent it from being applied to sexual orientation. Offering a critical historical and religio-political reconstruction of the politicization of homosexuality in the constitutional review process and examining the ambivalent contribution of the HRC, this article analyses these dynamics in relation to the political imagination of Zambia as a Christian nation. The article argues that the ambivalent contribution of the HRC must be understood as a complex negotiation of the moral and religious sensibilities in society, and of popular political and religious rhetoric. However, the analysis also demonstrates that the logic of the Christian nation, and its subsequent moral geography, has begun to be subverted by a marginal yet important counter-narrative.
La Zambie a connu d’houleux débats publics et politiques sur les questions de l’homosexualité et des droits gays ou LGBTI (lesbiennes, gays, bisexuels, transgenres et intersexués). Cet article examine ces débats, notamment en ce qui concerne le nouveau projet de constitution et le rôle de la Commission des Droits de l’Homme (Human Rights Commission, HRC). L’homosexualité et les droits LGBTI ont été fortement politisés lors du processus de révision constitutionnelle. Des débats ont émergé non seulement à propos du code pénal, qui interdit les pratiques homosexuelles, mais aussi sur la clause de non-discrimination dans la constitution. La HRC a explicitement déconseillé une formulation inclusive de cette clause, pour éviter qu’elle ne soit appliquée à l’orientation sexuelle. En proposant une reconstruction critique, historique, et politico-religieuse de la politisation de l’homosexualité dans le processus de révision constitutionnelle, et en examinant la contribution ambivalente de la HRC, cet article analyse cette dynamique par rapport à l’imagination politique de la Zambie comme une nation chrétienne. L’auteur soutient que la contribution ambivalente de la HRC doit être conçue comme une négociation complexe des sensibilités morales et religieuses dans la société et de la rhétorique politique et religieuse populaire. Cependant, l’analyse démontre également qu’un contre-récit marginal mais important a commencé à subvertir la logique de la nation chrétienne et la géographie morale qui en découle.
Acknowledgements
I would like to thank the journal's anonymous reviewers, whose feedback has helped me to further develop and strengthen the analysis and argument, and Angela Stokes (AcEDemy), whose editing skills have improved the readability of this article. As always, all errors are mine.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. This article mainly concerns the period 2011–2013 and was written in 2014, before the death of President Michael Sata in October 2014. It has been revised and updated after the presidential by-election in January 2015, through which Edgar Lungu – who served as Minister of Home Affairs and later as Minister of Defence under Sata – was voted into power.
2. Zulu's Facebook page states that he is ‘an award winning Zambian reggae musician and human rights activist’ and lists his personal interests as being in ‘equal rights and justice’ (Accessed August 15, 2014. https://www.facebook.com/pages/Maiko-Zulu/66191028913?sk=info). His professional website refers to ‘his involvement and active work in promotion of human rights’ that is internationally recognized (Accessed August 15, 2014. http://www.maikozulu.org.zm/biography.htm).
3. In February 2014, the American state Arizona passed a bill allowing businesses to deny service to gay and lesbian customers on the basis of religious beliefs.
4. As Ndulo and Kent observe, the 1996 Constitution falls short on democratic principles because it was shaped to bar former President Kaunda from running for the presidency again. Other flaws they observe are the prohibition of the participation of traditional chiefs in politics, the strong power attached to the presidency without adequate check and balances and the flawed protection of human rights, where they specifically mention the limited constitutional provisions for the freedom of press and – indeed – the freedom from discrimination, particularly against women (Ndulo and Kent Citation1996, 276–277).
5. Likewise, in its response to the above-mentioned EU advertisement, the Evangelical Fellowship of Zambia – in a public statement – presented a democratic argument – ‘In a democracy, the interest of the majority must be respected’ – to make the case that ‘the interests of the minority groups to pursue unacceptable practice and behavior’ cannot be recognized (EFZ Citation2013).
6. Remarkably, no public discussion emerged this time around the definition of marriage in the constitution. The draft constitution, like the current 1996 constitution, recognizes ‘the right to freely choose a spouse of the opposite sex and marry’ (First Draft Constitution of the Republic of Zambia Citation2012, Art. 54.2). However, in the constitutional review process prior to the 2011 installation of the TCDZC, the then National Constitutional Conference (NCC, the predecessor of the TCDZC) in February 2010 had already adopted a clause in addition to the then draft constitution (that had been produced in 2005 by the Mung'omba Commission installed by President of that time, Levy Mwanawasa), which explicitly stated that ‘Marriage between persons of the same sex is prohibited’. Ironically, it was the NCC's Human Rights Committee that introduced this clause (see Chanda Citation2010). It is remarkable that the TCDZC did not follow the NCC and left out this clause in the 2012 first draft constitution, while a country such as Nigeria at that time was in the process of passing its Same-Sex Marriage (Prohibition) Bill. Whether the issue was raised in the consultation processes following the release of the draft is unknown as reports of the consultative meetings have not been released. However, I have not come across any discussions of the definition of marriage in relation to the 2012 first draft constitution.
7. The formulation ‘discriminated against, directly or indirectly, on any grounds including … ’ in the new draft constitution is identical to the anti-discrimination clause in the current (1996) constitution.
8. Moreover, in November 2013, President Sata's wife, first lady Dr Christine Kaseba – a medical doctor herself – caused uproar with a call to break the taboo on men having sex with men in relation to HIV prevention campaigns (see Simpson and Bond Citation2014, 1077). How the National Aids Council, which until recently was chaired by a Pentecostal bishop, Dr Joshua H.K. Banda, has responded to this is not clear. Yet apart from demonstrating the existence of opinions, even in State House, that diverge from the dominant public opinion, it also illustrates that in addition to a human rights discourse, a public health discourse is another possible strategy to call attention to sexual minority issues (see also Epprecht Citation2012).
9. According to (Epprecht Citation2013, 1), in 2009 the Ugandan courts ‘affirmed the right to privacy for LGBTI by issuing an injunction to stop a newspaper from publishing the names and addresses of alleged “top homosexuals”’. A Zambian law student in her MA dissertation also argued recently that Zambia's penal code criminalizing consensual and private same-sex sexual intercourse is unconstitutional because it violates the right to privacy (see Couvara Citation2013).