ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

AN ANALISIS OF THE CONSTITUTION OF ZAMBIA (AMENDMENT) ACT

NUMBER 2 OF 2016 ON THE TREATMENT OF SEXUAL MINORITIES IN
IN ZAMBIA VIZ_A_VIZ INTERNATION STANDARDS

BY
NYASHA KOMBONI
LL22111534

Research dissertation submitted for the approval of the Zambian Open University Senate
in partial fulfillment of the requirements for the award of the Bachelor of Laws Degree in
Law (LLB)

SEPTEMBER 2O24
 DECLARATION

I NYASHA KOMBONI, declare that AN ANALISIS OF THE CONSTITUTION OF ZAMBIA

AMENDMENT) ACT NUMBER 2 OF 2016 ON THE TREATMENT OF SEXUAL MINORITIES
IN ZAMBIA VIZ_A_VIZ INTERNATION STANDARDS, which is hereby submitted for the award
of Bachelor of Laws (LLB) degree at the School of Law, Zambian Open University, is my original
work and has not been previously submitted for the award of a degree at this or any other tertiary
institution. The sources that have been used or quoted have been indicated and duly acknowledged
as complete references. The errors or omissions are solely the author’s.

………………………………………………….
NYASHA KOMBONI
SEPTEMBER 2024

i
© 2024 by NYASHA KOMBONI
All rights reserved.

ii
 RECOMMENDATION

ZAMBIAN OPEN UNIVERSITY SCHOOL OF LAW

I recommend that the research dissertation prepared under my supervision

By

NYASHA KOMBONI

Computer Number: LL 22111534

Entitled
AN ANALISIS OF THE CONSTITUTION OF ZAMBIA AMENDMENT) ACT NUMBER 2 OF
2016 ON THE TREATMENT OF SEXUAL MINORITIES IN ZAMBIA VIZ_A_VIZ
INTERNATION STANDARDS

Be accepted for examination. I have checked it carefully and I am satisfied that it fulfills the
requirements pertaining to format as laid down in the University regulations governing Bachelor
of Laws Dissertations.

……………………………………

Supervisor

Dated the………………day of……………………………..2024

iii
 ABSTRACT
The issue of homosexuality and the rights of LGBTQ people has been a source of much heated
debate all across the globe and currently momentum is building and the debate on gay rights is
omnipresent. For those Countries that have declared themselves in favour of decriminalization of
homosexuality, it has been an up-hill climb filled with difficulties owing to the homophobic
rhetoric that attributes most societies especially in Africa. In Zambia citizens who belong to the
sexual minority group have been excluded from mainstream society, consequently denying them
their enjoyment of basic fundamental rights which are constitutionally guaranteed to every person
in the country. The discrimination of sexual minorities seems to be institutionalized owing to the
anti-homosexuality Laws prescribed by the Country’s Penal Code thus it is difficult to combat
discrimination and ill-treatment that members of the LGBT community. Laws that discriminate
tend to validate other kinds of discrimination which have nothing to do with why the certain piece
of legislation was enacted. The criminalization of consensual same- sex sexual relations has led to
the discrimination of people who identify as belonging to the LGBTQ community and they have
not been able to enjoy basic rights that they are entitled to. Infringement of fundamental Rights on
a certain minority group is an outright attack on the core principles and ideals of a true democratic
country. Homosexual are treated as sub-humans due to their sexual orientation and yet the
fundamental human rights contained in the constitution are meant to be enjoyed by every person
by virtue of belonging to the human family. Certain freedoms such as the freedom of expression,
speech or assembly are curtailed when it comes to gay rights or anything related to homosexuality.
Certain protections like protection from inhuman, degrading and humiliating treatment and
protection of the Law; are not fully enjoyed by sexual minorities because of their different sexual
orientation. Rights such as the right to privacy, right to proper healthcare and safety and the right
to education are all part of the rights which sexual minorities do not enjoy in their own country
and the Government has done little to defend these fundamental rights which is in itself an affront
to the Human rights principles set out in International Instruments such as the UDHR, ICCPR and
the ICESCR. It is incumbent for the arms of government especially the judiciary and legislature to
create an environment that fosters tolerance and offers protection to all people regardless of sexual
orientation.

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 DEDICATION
This research paper is dedicated to my parents Cindy and James Komboni who I strive to make
proud for their collaborated efforts in ensuring that I conquer in all my academic endeavors. Again,
I dedicate this thesis to my younger siblings Tariro and Tanaka Komboni, who I believe will be
inspired by my work and aim towards achieving the same and even reaching greater heights. Lastly
this research is dedicated to the voiceless to whom it speaks about and may it contribute towards
a more progressive, tolerant and peaceful society for all people regardless of any status.

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 ACKNOWLEDGEMENTS

As I express my immense gratitude to those who helped bring this research paper to fruition;
special thanks goes to my supervisor Madam Tracy Mbandama. Thank you for everything you
have done for me since the beginning when I started writing this research. You went above and
beyond to take me under your wing and no words can describe how grateful I am. I most certainly
could not have done it without you.

I would like to thank my parents James and Cindy, who assisted by funding my every need towards
the completion of this research.

I further extend my appreciation to my personal support network during my studies as their

presence in my life contributed towards my success. Special thanks goes to my Aunt Elfridah who
has been a strong support system in my Academic journey. My gratitude again goes to my friends
and other family members who offered me the much needed support and companionship namely;
Tatenda Kabodzi, Brian Gurumombe, Tafadzwa Chapuredima, Erica Chongo, Denmore Kasenza,
Ben Mbengo, Michael Buwa, Harriet Chitalo, Previous Mufunganzira, Tanaka Mandiyamba,
Blessings Salasini, Julia Wanda and Musoka Kalyangu.

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 KEY WORDS/OPERATIONAL DEFINITIONAL TERM

Sexual minorities - A sexual minority is a demographic whose sexual identity,

Orientation or practices differ from the majority of the
Heterosexual society.

Coming Out - Coming out of the closet, often shortened to coming out, is
a metaphorical term used to describe LGBTQ peoples
Self-disclosure of their sexual orientation, romantic
Orientation or gender identity

In the Closet - It is a metaphorical term referring to a person who has

been hiding their homosexual sexual orientation from
Society.

Homophobic - Having or showing a dislike of or prejudice against

Homosexual people.

Homophobes - It stems from the word Homophobia, which entails fear,

Hatred, discomfort with, or mistrust of homosexuals.

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 LIST OF ACRONYMS

AC - African Charter on Human and Peoples Rights

AIDS - Acquired Immunodeficiency Virus
CAT -Convention against Torture and other Cruel, Inhumane or Degrading Treatment or
Punishment
CERD - Convention on the Elimination of Discrimination
HIV - Human Immunodeficiency Virus
LGBTQ - Lesbian, Gay, Bisexual, Transgender and Queer
ICCPR - International Covenant on Civil and Political Rights
ICESCR - International Covenant on Economic, Social and Cultural Rights
NGO’S -Non-Governmental Organisations
UN - United Nations
UDHR - Universal Declaration of Human Rights
HRC - Human Rights Committee

viii
 TABLE OF CONTENTS

Content Page

DECLARATION……………………………………………………………………………………… I

RECOMMENDATION………………………………………………………………………………..III

ABSTRACT…………………………………………………………………………………………….IV

DEDICATION……………………………………………………………………………………….....V

ACKNOWLEDGEMENTS ……………………………………………………………………………VI

KEYWORDS/OPERATIONAL DEFINITIONAL TERMS……………………………………….VII

LIST OF ABBREVIATIONS…………………………………………………………………………VIII

CHAPTER ONE

1.1. Introduction and Background to the Study…………………………………………….1

1.2. Statement of the Problem……………………………………………………………....4
1.3. Objectives of the Study………………………………………………………………...5
1.4. Research question……………………………………………………………………....5
1.5. Significance of the Study………………………………………………………….........6
1.6. Theoretical Framework…………………………………………………………………6
1.7. Literature review………………………………………………………………….…….8
1.8. Methodology……………………………………………………………………………11
1.9. Scope of the Study……………………………………………………….………….......11
1.10. Ethical Considerations……………………………………………………………..…....12
1.11. Conclusion…………………………………………………………………………….....12
CHAPTER TWO
Constitutional Framework on the Basic Fundamental Human Rights in Zambia
2.1. Introduction………………………………………………………………………………14
2.2. Principles of equality and non-discrimination guaranteed by the Constitution………….15
2.2.1 Protection from inhumane or degrading treatment----------------------------------------------16

ix
2.2.2. The Right to Security of the Person and Protection of the Law-------------------------------19
2.2.3 Right to privacy…………………………………………………………………………..20
2.2.4 Freedom of Association and Expression………………………………………………….22
2.3 Conclusion…………………………………………………………………………………24

CHAPTER 3
International Human Rights Treaties and the Rights of Sexual Minorities in Zambia
3.1. Introduction…………………………………………………………………………………26
3.2. The Human Rights framework………………………………………………………………27
3.3. The United Nations Charter…………………………………………………………………27
3.4. Overview of the key agreements and treaties……………………………………………….27
3.4.1 The Universal Declaration of human rights (UDHR)……………………………………27
3.4.2 The International Covenant on Civil and Political Rights (ICCPR)………………………29
3.4.3. International Covenant on Economic Social and Cultural Rights (ICESCR)…………33
3.4.4. African Charter on Human and Peoples Rights………………………………………34

3.4.5. Convention against Torture and other Cruel Inhumane or Degrading Treatment or
Punishment……………………………………………………………………………………….35
3.5. Conclusion…………………………………………………………………………………36

Chapter 04

Judicial protection of fundamental human rights for sexual minorities in Zambia

4.1. Introduction…………………………………………………………………………………38
4.2. Overview of the Judiciary’s function in Zambia……………………………………………38
4.3. Role of the courts in safeguarding liberties of sexual minorities……………………………40
4.4. Judicial review and its impact on protection of sexual minorities………………………40

4.5. Recent decriminalization of consensual same-sex conduct through judicial review in other
jurisdictions within the African region………………………………………………………….42
4.6. The existing challenges to judicial enforcement of sexual minority equal rights…………..44
4.7. Conclusion…………………………………………………………………………………46

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CHAPTER 05
Synopsis of Chapters, recommendations and conclusions.
5.1. Introduction………………………………………………………………………………..47

5.2. Synopsis of chapters………………………………………………………………………..47

5.3. Recommendations…………………………………………………………………………..49

BIBLIOGRAPHY……………………………………………………………………………52

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Blank page

xii
 CHAPTER 01

1.1. Introduction and Background to the Study

It is a sad but true fact, that in this day and age they are still human beings who are still fighting to
have their basic human rights recognised and protected. One group of people who have long
suffered and still seem to have a long way to go before their basic human rights are fully recognized
are sexual minorities whom according to Sullivan Michael K are those people whose sexual
identity, orientation or practices differ from the majority of the surrounding society and it is
primarily used to refer to Gay, Lesbian, Bisexual or non-heterosexual individuals1. Heterosexuals
typically refers to individuals who are sexually attracted to people of the opposite gender.
Discrimination, abuse, injustice, unfair treatment and social ostracism are all words that sexual
minorities all over the world are too familiar with due to the sad realities they face at the hands of
the hetero-normative2 society in general. As of 2024, homosexuality is criminalized de jure in 61
United Nations Member states and de facto in 2 others and 7 of these impose the death penalty3.
The Republic of Zambia is among the countries that criminalize same-sex relations seeing those
charged and convicted having to face a maximum of 14 years in prison 4. According to
Afrobarometer, Zambians have some of the lowest levels of tolerance towards presence of a
different sexual orientation in Africa5. In the sixth round of world values survey6, 73% of Zambians
cited homosexuals as a group they would not want as their neighbours. A further 57% said
homosexuality was Un-African, unjustified and an imported western evil.

Seeing the plight and sad reality that sexual minorities face of being subjected to discrimination,
verbal, physical and sexual abuse and living in a life of being isolated and marginalized; it is only
logical for one to assert that being a sexual minority cannot be termed as a choice or some sort of
belief because no one in their sound mind would actively choose to make their life more difficult.

1
M. K. Sullivan, “Sexual Minorities: Discrimination, Challenges, and Development in America” (Hawath Social Work
Practice Press, 2003)
2
The assumption that normal and natural expressions of sexuality in society are heterosexual in nature. A
heteronormative society is structured morally, socially and legally to discriminate against non-heterosexuals.
3
Published by Statista Research Department, https://www.statista.com
4
Section 155 of the Penal Code Chapter 87 of the Laws of Zambia
5
Howard B, “All in this Together: Africans tolerant on Ethnic religions, National, but not sexual differences”
Afrobarometer Dispatch No 302 (2020)
6
The Centre for Human Rights Shadow Report on Zambia’s Initial State Report to the African Commission on
Human and Peoples Rights, Pretoria (2007)

1
The existence of sexual minorities within the human race and among the citizens of Zambia is an
irrefutable fact and yet the government, despite what the Constitution7 provides and despite the
International human rights treaties Zambia is a party to, still decides to turn a blind eye to a group
of people who also call Zambia their home. The constitution of Zambia right in its preamble states
that, “We the People of Zambia… Uphold the human rights and fundamental freedoms of every
person”. Article 8(d) lists some of the national values and principles and these are inclusive of the
right to dignity, equity, social justice, equality and non-discrimination. Part III of the Constitution
provides for the Bill of Rights which contains the fundamental rights entitled to every Zambian
citizen by virtue of them being a human being born in Zambia. J Donnelly describes the nature of
fundamental rights as those rights which are inviolable in the sense that no law, ordinance, custom,
usage or administrative order can abridge or take away a fundamental right8. The rights provided
in the Bill of Rights are binding on the legislature as well as the executive. These rights are
prescribed in Article 11 under the Bill of rights and they include the right to personal liberty,
freedom of conscience, freedom of expression, freedom of assembly and the protection for the
privacy of his home. The Bill of Rights goes on to list other rights entitled to Zambians such as
protection from inhumane or degrading treatment, protection of freedom of expression and
enforcement of protective provisions. Zambia is also a party to a plethora of International treaties
such as the International covenant on civil and political rights (ICCPR), the International
Covenant on Economic Social and Cultural rights, the African Charter on human and
people’s rights and Protocol on African charter on human and people’s rights. Despite all
these legal provisions which ought to apply to all people including sexual minorities, members of
the LGBTQ community are treated like sub-Humans. The crux of the matter is not really sexual
minority special rights rather it is the recognition of basic human rights even for sexual minority
individuals. It is prudent for one to note that the adoption of International Human rights instruments
is of little value in the absence of effective enforcement or implementation mechanisms. States
obligation towards human rights include obligation to fulfill, obligation to protect and obligation
to promote these rights.

Sexual minorities do not enjoy fundamental basic human rights as a gift from the majority but
rather by virtue of them being human beings. If the majority is homophobic and intolerant it does

7
(Amendment) Act Number 2 of 2016
8
J Donelly,” The Relative Universality of Human Rights, (Human Rights Quarterly) 2007, Vol 29(2)

2
not mean that the country’s laws ought to reflect those views. During the recent public lecture
commemorating the Silver jubilee of the Supreme Court of Zambia, on 22 September 2023, held
at the University of Zambia, the Chief Justice Honourable Dr. Mumba Malila was asked about his
view on sexual minorities particularly gay persons. In his response he put forward that, “whether
people are gay or not, they are human beings at the end of the day, and human rights must be
accorded to all human beings”. The Centre for Human Rights stood in solidarity with the Chief
Justice cementing the fact that the principle of equality and non-discrimination contained in the
Constitution of Zambia and the human rights treaties to which Zambia is a state party, are all
universal human rights principle which also apply to sexual minorities.

The position that heterosexuality is the only form of sexual expression and that homosexuality is
“Un- African” is what strengthens the homophobic sentiments that the general population has.
These sentiments of intolerance and hatred are what lead to the basic fundamental rights which
sexual minorities are also entitled to, to be infringed and trampled upon. Evangelical Christians
have played a pivotal role in shaping African views on homosexuality terming it as demonic and
the worst of sins. Seeing that the majority of the Zambian population is Christian the discrimination
and homophobia stems from that. It is ironic how the claim that homosexuality is “Un-African” is
one that was in fact created by the colonial institution and propagated by religious missionaries 9.
Diversity will always be within the human race and that diversity ought to be understood and
embraced for the betterment of society for all human beings. Sexual minorities in Zambia look
towards the Law for protection, they look towards the Supreme Law of the land which is the
constitution which guarantees basic fundamental rights for all. Only one thing lifts their heads the
heads of sexual minorities in Zambia and points them forward and that is hope. The hope for a
better tomorrow a brighter future and a happier day for all people including themselves. Hope that
there is more to life than what they now experience and feel.

Therefore, this study seeks to examine the injustices perpetrated against sexual minorities despite
their fundamental rights being guaranteed by the Constitution and International mechanisms and
delves into how best the Legal institutions can help ensure that basic human rights are enjoyed by

9
M Epprecht, “The ‘Unsaying’ of Indigenous homosexuals in Zimbabwe: Mapping a blind spot in an African
Masculinity” (1)998

3
all Zambians. Decriminalization of same-sex relations as the first step towards creating a more
tolerant environment which will ensure that all people enjoy the rights entitled to them.

1.2.Statement of the Problem

Given the unfortunate and irrefutable fact that sexual minorities suffer some of the worst
discrimination in the country from the society in general it has culminated in their basic human
rights enshrined in the Constitution10 to not be applied to them and these include freedoms of
expression11, assembly12, association13, privacy14and protection from inhumane treatment15.This
has resulted in a plethora of acts committed against sexual minorities and the issuing of threats of
violence against them16. Other News Articles reveal how there have been a string of violent attacks
and state prosecutions of people believed to be gay17 some men who would have been accused and
arrested for allegedly having sex against the order of nature are subjected to forced anal
examinations by government doctors to prove their involvement in sexual activity18 and these
examinations are tantamount to torture, inhumane treatment and are scientifically invalid. The
constitution of Zambia19, in its preamble states unequivocally that it upholds the human rights and
fundamental freedoms of every person. Article 11 further recognizes and declares that every
person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms
of the individual. Constitutional rights such as rights to liberty, freedom of expression, freedom of
conscience, protection from inhumane treatment and protection from discrimination are all rights
entitled to every citizen. These same rights are contained in International agreements and

10
(Amendment) Act Number 2 of 2016
11
Article 11 of the Constitution (Amendment) Act Number 2 of 2016
12
ibid
13
Articles 11 and 21 of the Constitution (Amendment) Act Number 2 of 2016
14
Article 11 of the Constitution
15
Article 15 of the Constitution
16
[Online] Article in the New Lines Magazine by Kwangu Liwewe, “Zambia’s New President, the US and the Politics
of Homosexuality” https://newlinesmag.com/argument/zambias-new-president-the-u-s-and-the-politics-of-
homosexuality/ accessed 27 May 2024
17
[Online] Amnesty International: “Zambia: End state-sponsored persecution as same-sex trial reaches verdict”
https://www.amnesty.org/en/latest/press-release/2014/02/zambia-end-state-sponsored-persecution-same-sex-
trial-reaches-verdict/ accessed 26 May 2024
18
CNN World: Amnesty “Release Zambian men arrested over alleged homosexual acts”
https://edition.cnn.com/2013/09/12/world/africa/zambia-gay-arrest/index.html
19
(Amendment) Act Number 2 of 2016

4
organizations which Zambia is a party to. Therefore, the problem that arises here is despite the
constitutional provisions and Zambians ratification of International instruments little has been
done to actualize these rights on behalf of sexual minority citizens.

1.3.Objectives of the Study

The general objective of this research is to investigate the treatment of sexual minority citizens in
Zambia and focus on the constitutional provisions and international agreements which Zambia is
a party to, which reveal how sexual minority groups have been having their basic human rights
infringed. The specific objectives are:

a) To analyze the provisions of the Constitution of Zambia which reveal that the basic human
rights belonging to all Zambians have seemingly not been fully recognised when it comes
to sexual minorities
b) To analyze the human rights agreements and treaties to which Zambia is a state party and
compare the internationally recognized standards in order to prove that sexual minorities
have not enjoyed the rights they are legally entitles to
c) To critically examine the role of the Judiciary in aiding the protection of sexual minorities
based on the current Constitutional Order.

1.4.Research questions
The questions posed by this study are as follows:

a) What are the provisions of the Constitution of Zambia which reveal that the basic human
rights belonging to all Zambians have seemingly not been fully recognized when it comes
to sexual minorities?
b) Which are the human rights agreements and treaties to which Zambia is a state party and
when internationally recognized standards are compared how does it prove that sexual
minorities in Zambia have not enjoyed the rights they are legally entitles to?

5
 c) How can the Judiciary aid the protection of sexual minorities based on the current
Constitutional order?

1.5.Significance of the Study

The Constitution of Zambia is the Supreme Law of the Land and any law that is to be enacted by
Parliament would be declared void to the extent of inconsistency with the Constitution20. This
supremacy extends to all the governing institutions of the State and to each and every person in
the Republic inclusive of the President21. This Constitution is the same one which contains the Bill
of Rights under part III which provides for fundamental human rights which each and every
Zambian is entitled to. This study is significant because it reveals the true reality faced by the
sexual minorities in Zambia which is the reality that some if not all of the fundamental and basic
human rights entitled to every Zambian are not fully enjoyed by members of the LGBTQ
community. This study will reveal and imbue the reader with enough knowledge to realize that the
homophobic sentiments that are in the majority population should not necessarily reflect the legal
policies in the Country. The study will show how the basic human rights of sexual minorities have
been infringed yet they are provided for in the Constitution and also in the International agreements
ratified and signed by Zambia. The study is significant as it reveals the plight of sexual minorities
and proposes ways in which they may also enjoy the same human rights that other Zambians enjoy
as well

1.6.Theoretical Framework
The study, analysis and examination of sexual minority rights has been a source of much debate
worldwide but most strongly in Africa. Cultural relativism, universalism, queer theory, social
constructionism and gay and lesbian studies are among the main theories that attribute the issue
of LGBTQ rights.

20
See Christine Mulundika and 7 others v The People (1995) SCZ 25 and Thomas Mumba v The People [1984] ZR
38(HC)
21
M Besa, “Constitution, Governance and Democracy” (Mission Press, 2019) p56

6
This research paper is in favor of universalism rather than cultural relativism when it comes to
the recognition of sexual minority rights. The former simply entails that human beings, wherever
they are, are entitled to certain fundamental freedoms and rights by virtue of them being human
beings and it is traceable to the Universal Declaration of Human Rights22 which was the mother
of the Bill of Rights worldwide. Proponents of this theory include Sylvie Namwase and Adrian
Jjuuko23 and they postulate that sexual minorities are human beings and thus deserve the same
rights as their heterosexual counterparts. In proposing this argument they put forward a rhetoric
question that, “are gay rights human rights? What does it mean to be human? , who decides who
is a human worthy of rights and who is not?” .This rhetoric question espouses the universalism
argument that it is not a matter of LGBTQ people getting their own special rights but rather they
are given the same rights other citizens are entitled to for simply being human beings.

Cultural relativism on the other hand postulates that one should treat their own culture as the
center of their social life and evaluate other cultures based on it24. It exhibits certain commonalities
with the theory of ethnocentrism25. Most opponents of same sex relations or homophobic people
who vehemently argue against recognition of sexual minority rights based their arguments on the
cultural relativism theory. Their argument being that recognition of sexual minority rights would
be contrary to African culture which is premised on heteronormative gender roles and hence LGBT
members are considered immoral as homosexuality is seen as an imported western evil. Critics of
sexual minority rights in Zambia and Africa as a whole have argued that the fact that economically
powerful western Countries impose sanctions for those countries that fail to recognize the rights
of sexual minorities is a sign that LGBTQ issues are of western origin. Some world leaders
especially those in Africa have opposed sexual minority rights in retaliation against threats by
certain powerful Western nations to stop giving aid to African countries which do not protect the
rights of sexual minorities like the former president Edgar Lungu of Zambia in an interview with
Sky News had reaffirmed that “even animals did not engage in same sex relations” and reaffirmed
that Zambia will not legalise homosexuality and that those engaged in it need help. Other African

22
(UDHR) New York: United Nations General Assembly, 1948
23
S Namwase and A Jjuuko, “Protecting the Human Rights of Sexual Minorities in Contemporary Africa” (Pretoria
University Law Press 2017)
24
https://www.khanacademy.org/test-prep/mcat/society-and-culture/culture/a/cultural-relativism-article
accessed 12 April 2024
25
ibid

7
leaders who share the same sentiments include President Museveni of Uganda, Former
Zimbabwean President Robert Mugabe and Bola Ahmed Tinubu of Nigeria who out-rightly stated
that homosexuality is Un-African. This study however delves into how it is in fact homophobia
which is a choice and which is what can be termed as “Un-African” because the Ubuntu principles
existing in the African culture and values calls for unity, tolerance, mutual respect and love as the
core values are not hatred discrimination and intolerance.

In addition, the queer theory is also one of the oldest theories that has surrounded studies on
sexual minorities and proponents include Judith Butler, Gail Rubin and Michael facault. The
theory challenges traditional understandings of gender and sexuality, emphasizing the fluidity and
diversity of identities and experiences. It criticizes the ways in which sexual norms and
expectations can limit the rights and freedoms of sexual minorities and it advocates for a more
inclusive and affirming approach to sexuality and gender.

1.7.Literature Review
The subject matter of sexual minorities and the LGBTQ plus community in general has been an
issue of much debate for decades now. A plethora of articles, books and studies have been carried
out on issues to do with sexual minority rights and general. Zambia in particular does not have a
lot of literature relating to sexual minorities and their rights because authors tend to avoid the topic
as a whole.

According to Van Klinken26 the constitutional declaration of Zambia as a Christian nation has
given rise to a form of ‘Pentecostal nationalism’ in which homosexuality is considered by many
to be a threat to the purity of the Zambian nation and that it is demonic and associated with the
devil and eternal damnation. This argument of justifying homophobia on the basis that the nation
is ‘Christian’ is oftentimes used merely for political purposes as history has shown. Klinken avers
that the issue of sexual minorities and their rights always becomes intense during Presidential
election campaigns and he gives an example that in 2011, when the ruling MMD party insinuated
that Zambia’s character and identity as a “Christian nation” would be jeopardized if the main
opposition party the Patriotic Front (PF), under the leadership of Michael Sata; were to be voted

26
Van, Klinken, A, (2014) “Homosexuality, Politics and Pentecostal Nationalism in Zambia”

8
into power. Rumors were that Sata would start to promote homosexuality and sexual minority
rights however when Michael Sata won the election he dismissed those rumours as untrue. Klinken
therefore epitomizes the connection between public and political controversies and that the
obsession that has arisen lately with putting people into ideological lines of sexual orientation in
Zambia is merely a way of distracting the Zambian population from the bigger problems that affect
the country. Problems such as food security, the state of the health system and the high
unemployment rates. Klinken also writes about sexual minorities and how Zambia’s status as a
Christian nation is a major source of homophobia existing today27 and this will also be dealt with
in detail in this study

According to Abraham Mwansa28, the Zambian Constitution29 does not explicitly provide for
sexual minority rights, but these rights may be asserted under the provisions related to the right to
equality, non-discrimination, privacy, assembly and association. Be that as it may, the rights of
gay people, lesbians and bisexuals have been denied in Zambia and nothing has been done to
uphold supposed constitutional supremacy on the subject, nor has the government provided
favorable policy decisions. The constitutional rights that even sexual minority are also entitled to
may sometimes be difficult to assert as the Penal Code30 criminalizes homosexuality which is
confused by some to mean homosexual identity.

Landilani Banda31 talks about how sexual minorities suffer even where the criminalized sexual
acts did not occur. The provisions of Penal Code, constituting the unnatural offences are often
misunderstood and misinterpreted to mean that they criminalize homosexual identity rather than

27
V Klinken, (2015) “Sexual Orientation, (anti-) discrimination and human rights in a “Christian Nation”: the
politicization of homosexuality in Zambia. Critical African Studies, 9(1), 9-31.
https://doi.org/10.1080/21681392.2015
28
A. Mwansa, “ Law , Religion and human rights in Zambia: The past, present and the practice” (African Human
Rights Journal) p554-556
29
(Amendment) Act Number 2 of 2016
30
See Sections 155, 156, 158 of the PC Chapter 87 of the Laws of Zambia
31
L Banda, “LGBT Law fare in response to heterosexual Nationalism and the retention of the anti-sodomy Laws in
Zambia” (Queer law fare in Africa: Legal Strategies in contexts of LGBTIQ+ criminalization and politicisation,
Pretoria University Law Press) https://www.pulp.up.ac.za/latest-publications/355-queer-lawfare-in-africa-legal-
strategies-in-contexts-oflgbtq-criminilisation-and-politicisation

9
the actual conduct described in the Penal Code. From a fair and strict criminal law point of view,
sexual orientation and gender identity are not elements of the offences and yet sexual minorities
suffer the consequences of discrimination and social ostracism merely for identifying as a member
of the LGBT community. In essence the provisions of the Penal Code criminalizing same-sex
conduct are indiscriminate regarding sexual orientation or gender identity, and by its exact
drafting, rules out the exclusive applicability of the provisions of sexual and gender minorities. L.
Banda goes on to postulate that the justification for and the retention of the anti homo-sexuality
laws represent a form of heterosexual government nationality that denies the diversity of sexual
citizenship yet respects other forms of diversity such as in religion or political opinion.

In a country report written by Lilly Phiri32 informed by engagement with individuals and
organisations in Zambia she provides an insight on the extent to which the human rights of
lesbians, gays, bi-sexual, transgender and intersex people are respected and upheld in Zambia. She
reveals how human rights groups in Zambia used the Universal Declaration of human rights and
Zambia’s Bill of Rights which ensures such rights has the right to respect, dignity and freedom of
assembly and expression to tackle the colonial provisions of the Penal Code and debunk negative
public debates that continue to deny LGBTI people their basic human rights

In an article by Sebastian Maguire he accepts that he does not aim to try and resolve the debate
surrounding sexuality within the human rights movement. Rather, it accepts the premise that they
are basic rights belonging to all human beings33. Maguire postulates that the local legislation in
different countries which criminalize same-sex relationships is actually the main reason why there
is legitimacy to the anti-homosexual campaign African leaders have launched in recent years, thus
engaging violence perpetrated by both state and private actors such as community and family
members. Victorian era British anti homosexuality laws are still in force in Zambia and described
the prohibited conduct as carnal knowledge against the order of nature or gross indecency34. Now
due to such laws it then directly affects how LGBTQ individuals enjoy the basic rights because in
society’s view they are criminals first before being looked at as fellow human beings. It is prudent

32
L Phiri, “Canaries in the Coal Mines: An analysis of spaces for LGBTI activism in Zambia Country Report” 2017
33
S Maguire, “The Human Rights of Sexual Minorities in Africa” Volume 35 (California Western International Law
Journal)

34
Sections 155 and 158 of the Penal Code Chapter 87 of the Laws of Zambia

10
to note that many authors have included in their studies that even without explicit constitutional
provisions dealing with sexual orientation, the constitution and laws of other African states contain
provisions that can be invoked to promote the human rights that sexual minorities are also entitled
to.

Apart from reviewing related Literature, a plethora of International instruments and the
Constitution shall be consulted by the researcher in this study

1.8.Methodology
In a quest to accomplish this study, the researcher intends to make use of both quantitative data
collection methods which include the traditional survey research, Internet online surveys and also
the use of qualitative methods such as one-on-one interviews and cognitive interviews as they
allow for a more detailed account of individual experiences of members of the LGBT populations.

1.9.Data Collection and Analysis

Secondary data collection will involve consultations from a plethora of documents inclusive of
international human rights treaties, reports of human rights organisations, books, magazines,
journal articles, Internet sources, libraries and both online and hardcopy Newspaper Articles. More
so local legislation, legal commentaries and other publications that have been written on the subject
involving sexual minority groups will be made reference to.

1.10. Research Instruments

A sound recorder and a notepad shall be made use of to take down and record information that will
be found as one carries out the research. The interview guides will be the main tool for conducting
any form of interviews. The notebook will be used to create a log book of the research, as well as
other relevant points in the research

1.11. Sampling Method

11
This study will employ snowball-sampling method which is a non- probability sampling technique
where existing study participants recruit future participants. It is often used when the population
of interest is difficult to access directly and hence it is useful for searching stigmatized populations
such as members of the LGBT community.

1.12. Sample Size and Location

The sample size will consist of 30 respondents that will be interviewed for the location of the study
will be the city of Lusaka

1.13. Scope of Study

Basic human fundamental rights engraved in the Constitution of Zambia and other binding
International treaties is basically the parameter of this study. This study will be limited to inquiring
into the treatment of sexual minorities in Zambia and analyze local legislation such as the
Constitution itself and relevant international human rights treaties to which Zambia is a party to in
order to analyze whether or not sexual minorities have been unfairly treated. Reference will be
made to the Laws of other countries especially in Africa where the treatment of sexual minorities
seems to be the same.

1.13. Ethical Considerations

The research will observe all ethical issues when collecting data as well as asking for consent and
acknowledging all the works of other people who have information on this Subject.

1.14. Conclusion
This proposal has highlighted briefly the human rights enshrined in the country’s Constitution and
a host of International instruments and mechanisms that protect the rights of sexual minorities on
equal footing with the rights of other human beings. The crux of the matter is not necessarily the

12
issue of giving sexual minorities any special rights such as the right to adopt children as gay
couples or to get married as this study does not cover that. Rather the issue is that the rights entitled
to them by virtue of being Zambian citizens and also human beings entitles them to enjoy those
rights as well. The study reveals how criminalization of same-sex relations has strengthened an
environment of hatred and intolerance directed at all members of the LGBT community. The fact
that sexual minorities are regarded as outcasts due to their identity, decriminalization of same-sex
relations would therefore be the first step in ensuring that despite the homophobia that is likely to
remain in the heterosexual counterparts, sexual minorities are given the same treatment just like
all other people in regards to the rights entitled to the by the country’s constitution.

13
 CHAPTER 02

Constitutional Framework on the Basic Fundamental Human Rights in Zambia

2.1. Introduction

The current Zambian constitution35 contains and recognizes fundamental human rights which
everyone is entitled to by virtue of being a human being born in Zambia. According to Jack
Donnelly, basic human rights are those minimal rights, which every individual must have against
the state, or other public authority, by virtue of being a member of the human race irrespective of
any consideration36. Under Part III of the Constitution37 known as the Bill of Rights it puts forward
the fundamental rights of people, rights inclusive of the right to freedom of speech, expression,
conscience, protection from discrimination, right to privacy and protection from cruel inhumane
or degrading and humiliating punishment. In this light one would ever that sexual minorities are
equally entitled to these rights because their sexual orientation or how they identify does not make
them any less human. Fundamental freedoms and rights should be enjoyed by all people, grounded
on the principles of equality and non-discrimination. In this chapter one is to epitomize how sexual
minorities have had some of their constitutionally guaranteed fundamental human rights not
respected or infringed simply based on the fact that they are different.

Verbal assault and violence from society, constant shaming and harassment from religious groups
and political leaders, unfair and unlawful treatment from police and abuse are among the plethora
of problems faced by members of the LGBTQ community globally. In Zambia, at face value it
even seems as though merely identifying as a member of the LGBTQ community is what is
criminalized yet on the contrary it is the act of having or attempting to have carnal knowledge
against the order of nature which is actually criminalized and also gross indecency between
males38. The crux of the matter is not that the sexual minorities in Zambia want special rights such
as marriage rights or adoption rights as those rights can take decades to be recognized because
dynamism is slow especially in African countries, rather the outcry is for them to equally enjoy

35
(Amendment)Act Number 2 of 2016
36
Donnelly J, “Human Rights” (2005) Human Rights and Human Welfare: Volume 5, Issue 1, Article 58 Available at
https://digitalcommons.du.edu/hrhw/vol5/iss1/58
37
(Amendment) Act Number 2 of 2016
38
Sections 155,156 and 158 of the Penal Code Chapter 87 of the Laws of Zambia

14
the same existing rights which all Zambians are entitled to by virtue of the current Constitutional
order.

2.2. Principles of equality and non-discrimination guaranteed by the Constitution.

Under Part III of the Constitution39 the national values, principles and economic policies of Zambia
Article 8 (d) prescribes principles such as human dignity, equity, equality and nondiscrimination.
The Constitution contains modern non-discrimination and equality guarantees with a commitment
to the two principles woven in the whole document. In its preamble the Constitution unequivocally
states that it upholds the “…human rights and fundamental freedoms of every person” and Article
11 goes on to recognize and declare that “every person in Zambia has been and shall continue to
be entitled to the fundamental rights and freedoms of the individual”. The Center for human rights,
Faculty of law, University of Pretoria stood in solidarity with the Chief Justice of Zambia, Dr.
Mumba Malila SC about a comment he shared during a public lecture commemorating the Silver
Jubilee of the Supreme Court of Zambia on 22 September 2023 at the University of Zambia40. He
made a remark after a question arose relating to sexual minority rights and his exact words were,

“I think there is something absolutely wrong in discriminating people

that are different because of their sexuality. If there are people you
know who are gay, I think it is absolutely wrong in allowing them less
right than you would give to another anyone else. Whether people are
gay or not, they are human beings at the end of the day, and human
rights must be accorded to all human beings”.

Days after the Chief Justice made such remarks he received a lot of backlash from homophobes
across the nation calling for his resignation. Some human rights lawyers in the country stood in
solidarity with the Chief Justice41 and among the Lawyers are Dr O’Brien Kaaba, Professor Muna

39
(Amendment)Act Number 2 of 2016
40
Centre for Human Rights: University of Pretoria, “Centre for Human Rights stands in solidarity with the Zambian
Chief Justice Mumba Malila and Human Rights Lawyers on rights of sexual minorities in Zambia (published 4
October 2023) available at https//www.chr.up.ac.za/latest-news/3595-centre-for-human-rights-stands-in-
solidarity-with-zambian-chief-justice-mumba-malila-and-human-rights-lawyers-on-rights-of-sexual-minorities-in-
Zambia#:~:text=the%20Centre%20for%20Human%20Rights,of%20sexual%20minorities%20in%20Zambia
41
[online] LusakaTimes, “10 Human Rights Lawyers back Chief Justice over gay rights in Zambia (September
26,2023) https://www.lusakatimes.com 2023/09/26/10-human-rights-lawyers-back-chief-justice-over-gay-rights-
in-Zabia

15
Ndulo, Dr Chanda Chungu and Linda Kasonde. The position Mumba Malila postulated on the
matter is similar to what is prescribed by the African Commission on Human and People’s Rights
in its Resolution on the Protection against Violence and other human rights violations on the basis
of sexual orientation and gender identity42 (Resolution 275) which accepts that sexual orientation
does not exclude Africans from being able to invoke rights such as the right to personal integrity
and dignity. The Bill of Rights has fundamental human rights which ought to be enjoyed by
everyone as some of them are so fundamental such that they are non-derogable43 for example
protection from inhumane or degrading treatment outlined in Article 15.

The fundamental rights serve as a protective barrier against those who might want to hurt or harm
someone and they are imperative in ensuring that there is peace and justice and the enjoyment of
democracy by all citizens. The two principles of equality and non-discrimination seem to not apply
to sexual minorities in Zambia when one takes to note some of the injustices and the rights they
do not enjoy and yet they are entitled to them. Among such rights is inclusive of:

2.2.1. Protection from inhumane or degrading treatment.

Under the Bill of Rights on Article 15 of the Constitution of Zambia it prescribes that, “No person
shall be subjected to torture, or to inhumane or degrading punishment or other like treatment”.
This none-derogable right has somewhat not applied to members of the LGBTQ community in
some instances like the carrying out of non-consensual rectal examinations to try and prove
allegations of same-sex sexual conduct between male individuals44.

Forced anal medical examinations are a form of cruel, degrading and inhumane treatment that can
rise to the level of torture45. The nature of these examinations which often involves medical
personnel like Doctors, involves forcibly inserting their fingers or other objects into the anus of
the accused46. By so doing, law enforcement officials and the medical personnel claim they can

42
ACHPR. ‘Resolution on the Protection against Violence and other Human Rights Violations against persons on the
basis of their real or imputed Sexual Orientation or Gender Identity-ACHPR/Res.275(LV) 2014 available at
https://achpr.au.int/en/adopted-resolutions/275-resolution-protection-against-violence-and-other-human-rights-
violations
43
Those Rights considered so important that they cannot be limited or suspended under any circumstance
44
Human Rights Watch, “Dignity Debased: Forced Anal Examinations in Homosexuality Prosecution”(July 12 2016)
https://www.hrw.org/report/2016//07/12/gignity-debased/forced-anal-examinations-homosexuality-prosecutions
45
Ibid
46
Ibid

16
determine the tone of the anal sphincter and draw conclusions as to whether or not the accused
person has engaged in homosexual conduct. The forced anal examinations to ascertain sexual
orientation and sexual behavior is an abusive medically unsound practice which is a long
discredited 19th century science47 which was initially described in a publication by a 19th century
French Forensic doctor as one of the six criteria that could be used to identify homosexuality on
examination. Despite being published in the 1800’s and discredited by medical professionals then
and now, the ideas averred continue to inform state practices with the belief that examination of
the anal sphincter can correctly determine whether or not an individual has participated in
consensual receptive anal intercourse. The Human Rights Watch compiled evidence of the use of
forced anal exams in eight countries namely Cameroon, Egypt, Kenya, Lebanon, Tunisia, Uganda,
Turkmenistan and lastly Zambia48.

On the 8th of May in 2013 in Lusaka two men namely Philip Mubiana and James Mwape arrived
at Kapiri Magistrate Court over alleged homosexual acts. The two were arrested after neighbours
reported them to the police49. The authorities are said to have subjected them to anal examinations
without their consent and forced them to confess. Philip Mubiana mentioned that the police who
brought them to the hospital for testing did not have a court order instead they gave the doctor
verbal instructions. And according to Mubiana, the doctor bent him over and inserted a small tube
into his anus and at the Court these medical reports are what the Prosecution used to try and prove
that sexual activity took place. On July 3, 2014, after more than a year in detention, a Judge
acquitted Mubiana and James for lack of evidence. The Judge found that even though the medical
report claimed to find evidence of anal pipe dilation on one of the accused it was not enough to
prove the involvement of the two accused persons in sexual act ruling that other conditions such
as constipation and compromised immunity can cause the physical examination findings on the
two suspects.

In the same vein, recently sometime in February 2024 two male medical students from the
University of Lusaka (UNILUS) were formerly arrested and detained in police custody for their

47
Cody Cichowitz, Leonard Rubenstein and Chris Beyrer, (2018), “Forced anal examination to ascertain sexual
orientation or sexual behavior: An abusive and medically unsound practice”, PLos Med 2018 Mar; 15(3): e1002536
Published online 2018 March 16 doi: 10.1371/journal.pmed.1002536
48
Global LGBT World Map~ https://www.hrw.org/video-photos/map/2016/07/07/global-lgbt-world-map
49
Faith Karimy, “Zambian man arrested over alleged homosexual act; (CNN World, May 9 2013) available
https//www.cnn.com/2013/05/09/word/Africa/Zambia-gay-arrest/index html [accessed 10 September 2024]

17
alleged offence of unnatural offence as the two were allegedly caught having carnal knowledge at
a military base toilet at Burma Barracks by a passerby who wanted to ease himself. The two were
apprehended and handed to a Zambia army sentry who in turn alerted the police. Police
spokesperson Rae Hamoonga confirmed the arrest stating the duo were medically examined at the
University Teaching Hospital (UTH) and confirmed to have engaged in the alleged act50

The degrading, cruel and humiliating treatment of members of the LGBTQ community members
is not only limited to the issue of rectal examinations to prove alleged homosexual acts but it
extends to suspected homosexuals or those who self -identify as such, being harassed and beaten
in the streets and offered no help by the authorities who have the job of protecting each and every
citizen from being harmed. No one has the right to attack another person and inflict physical
violence on their person as that would constitute a criminal offence of battery as per the country’s
Penal Code51. The right to protection from torture, humiliating or degrading treatment is not easily
accessible to sexual minorities as they fear further abuse or humiliation from the authorities
themselves hence the protection from degrading treatment seems only to apply to the majority
heterosexual citizens and not sexual minorities and that needs to be addressed in order to ensure
that the Constitutional guarantees are respected and safeguarded.

The current modernization in this digital era has made it possible for the extensive sharing of
videos, images and messages at a faster rate than ever before in history and with the use of
smartphones some of the abuse suffered by sexual minorities or suspected gay people is even
recorded by members of the public for the whole world to see. Recently a heart rending video was
posted on Facebook by African Report files on May 6th 202352. It was captioned, “A SUSPECTED
YOUNG GAY MAN BEATEN IN LUSAKA ZAMBIA”. The video also found its way to the famous
video application Tik-Tok which revealed how a man was being beaten by a mob of people for
dressing like a female and hence was suspected to be a member of the gay community and so the
mob of people decided to beat him up. The comment section of the videos revealed how
homophobic and unsupportive most of the people are as comments such as “good job” or “kill all

50
Kalemba Online News Page, “Gay UNILUS students caught in the act in military toilet” (27th February 2024)
https://Kalemba.news/local/2024/02/27/gay-unilus-students-caught-in-the-act-in-military-toilet/
51
Section 248 of the Penal Code
52
African Report File, “A suspected young gay man beaten in Lusaka, Zambia” available at
https://www.facebook.com/arfsBlog/videos/1230269060998020/?mibextid=rS40aB759Ucbxw6u

18
the gays” are among the many hateful comments on the released video. This goes to show how
sexual minorities do not fully enjoy protection from inhumane or degrading treatment owing to
the discrimination they face and how they are not seen as equal in mainstream society because of
their sexual orientation. The government is responsible for ensuring that all its citizens are
protected and that the provisions of the Constitution are safeguarded and adhered to yet it seems
to turn a blind eye to the outcry of sexual minorities for equal enjoyment of fundamental rights.

2.2.2 The Right to Security of the Person and Protection of the Law.

Article 11 of the Constitution which prescribes the fundamental rights and freedoms Postulates
how every person shall be entitled to the fundamental rights and freedoms of the individual which
according to article 11(a) includes “security to the person and protection of the law”. Scenarios
and instances like the previously mentioned suspected homosexual who was beaten merely for
being suspected53 all epitomize how protection of the law is not fully enjoyed by all citizens. The
Executive arm of government which has the police department falling under it does little to nothing
to ensure the safety of sexual minorities which makes their attempts to seek justice in certain
situations futile.

The Southern African Litigation Centre, which works to promote and advance human rights in
southern Africa, released in December a report on sexual orientation issues in Zambia54 citing a
2017 U.S. Department state report which purported that, police officers in several occasions
arrested suspected members of the LGBT community on bogus charges and held them overnight
in a cell with a choice of either paying their way out or taking the matter in front of a judge. Jack
Mwimbu, Minister of Home Affairs and internal security, the ministry in charge of law
enforcement, says he is aware of corrupt practices in the police service that infringe on human
rights but did not directly comment on the alleged prosecution by police of people in the sexual
minority group. In response to requests for a comment on accusations that police officers were
extorting money from members of the LGBT community, the Honourable Minister replied saying,
“’…not necessarily to comment on that matter but generally, we know that they are corrupt

53
ibid
54
Prudence Phiri, “How Gay Men Are Targeted by Corrupt Police in Zambia (Advocate News) August 8 2022
available at https://www.advocate.com/new/2022/8/08/gay-men-are-targetted-corrupt-police-zambia#toogle-gdr
[accessed 23 August 2024]

19
elements in the police service that are denying and denting the image of the police. We will deal
with them”.

Accused persons often face some major challenges finding representation as lawyers are reluctant
to take on their cases fearing social stigmatization. Therefore the right to security of the person in
protection of the law may not really be seen as being enjoyed by all citizens given the realities
sexual minorities face. What makes it worse is that top officials of the executive arm of government
out rightly campaign against gay-rights related issues as it would be politically motivated
homophobia since the majority against the whole idea of LGBT rights. In a Sky News interview
former President Edgar Lungu stated that “we will not support homosexuality. I will not
compromise human nature because of money”, “homosexuality is unbiblical and unchristian”55.
He further went on to say that he thinks homosexuals are sick individuals who actually need some
sort of help; which was a stance taken by the West in the 1960s when the gay rights movement
began to gain momentum due to the Stonewall riots56 in New York. The current Zambian President
Hakainde Hichilema reiterated that Zambia does not support homosexuality in accordance with
the country’s constitution. President Hichilema has encouraged the church and families to preach
against lesbian, gay, bisexual and transgender people speaking when he met the clergy in Chingola
in Zambia57.

2.2.3 Right to privacy.

The protection for the privacy of one’s home and other property is yet another a fundamental right
and freedom outlined in Article 11 (d) of the Constitution58, which is not fully enjoyed by sexual
minorities in Zambia. Arrest of two men solely for their real or perceived sexual orientation
amounts to discrimination and it is a violation of their rights to freedom of conscience expression
and privacy. In 2013, there were two men who lived together in Kapiri Mposhi who were arrested
and charged under Section 155 of the Penal Code after a tip off by relatives. They were not actually

55
Sky News, “US ambassador ‘shocked’ by Zambian President’s anti-gay comments| World News| Sky News-
https://news.sky.com/story/us-ambassador-shocked-by-zambian-president-anti-gay-comments-11876681
56
On the 28th of June in 1969, in the USA in New York at a night club known as ‘Stonewall Inn”, it became a
flashpoint when the LGBT community clashed with Police officers after a raid on that day. Riots began from that
fateful night and are considered a takeoff of the gay rights movement worldwide
57
Philip Chisalu, (Diggers News), “HH maintains stance against Homosexuality” (15th March 2023)
58
(Amendment) Act Number 2 of 2016

20
caught in any act but arrested by mere suspicion of acts they were accused of doing in the privacy
of their home59

Some strong supporters of the anti-homosexuality laws propound that the ‘right to privacy
argument’ holds no water given that in the Zambian constitution, this right has its limitations.
These limitations are listed in Article 17(2) (a-d) and they include if breach of privacy is done in
the interests of defense, public safety, public order, public health, public morality, development
and utilization of mineral resources and protecting the rights or freedoms of other persons. Now
given the examples of these limitations one might argue that two consenting adults who engage in
sexually related activities in the privacy of their own home does not in any way pose a threat to
public safety, public order, public interest or health. Phil Harris even calls homosexuality a
“victimless crime” as he talks about countries where homosexuality is criminalized; because what
two consenting adults do in the privacy of their own home does not harm anyone and he sees no
reason why then it should be considered a criminal act. Halsbury’s Laws of England define a crime
a “wrong which affects the security or well-being of the public generally so that the public has an
interest in its suppression”. The only argument that critics of gay rights mainly rely on is that
privacy may be breached if it is in the interest of public morality. The argument being founded on
the belief that homosexuality is immoral and goes against Zambian Christian values. The morality
argument has time and again been proved to be highly flawed for it to be the determinant of whose
rights ought to be infringed and whose rights ought not to be. Morality tends to be subjective
because society is made up of diverse characters. What is moral to one person might not necessarily
be viewed in the same light by another person and also using morality as a justification of
discrimination and abuse of a certain minority group is viewed by some as being immoral in itself.
African valued of “Ubuntu” are attributed by tolerance and love for one another and not hatred
and division.

2.2.4 Freedom of Association and Expression.

The fundamental freedoms of association and expression are among the fundamental freedoms
mentioned in Article 11 of the Constitution. Members of the LGBTQ community have seemingly

59
Faith Karimy, “Zambian man arrested over alleged homosexual act; (CNN World, May 9 2013) available
https//www.cnn.com/2013/05/09/word/Africa/Zambia-gay-arrest/index html [accessed 10 September 2024]

21
not fully enjoyed these rights owing to their sexual orientation which ultimately translates to being
discriminated against. The fact that they are often calls for the arrest and ostracism of members of
the LGBT community from religious leaders or politicians in general has given an impression that
sexual minority people are not even entitled to express themselves, to freely associate, to address
or to assembly at any place. Freedom of association and expression ought to be enjoyed by virtue
of being a human being born in Zambia. Their inclusion in the constitution elevates them above
the capricious whims of the majority and entails emancipation for everyone regardless of who likes
it and who does not60.

One can make reference to the much celebrated case of The People v Paul Kasonkomana61 which
is one of the major cases invoked by human rights activists when they need their right to freedom
of speech and expression to be respected. In this prominent case, the defendant, a prominent human
rights activist in Zambia had appeared on a television programme requesting the government to
decriminalize homosexuality, protect the rights of the LGBT community and to combat the spread
of HIV among these groups. Due to his remarks on the TV programme he was later arrested and
charged under Section 178(g) of the Penal Code62 with idle and disorderly crime of soliciting in a
public place for immoral purposes. At first instance he pleaded not guilty to the charges brought
forward by the state as he argued that he was exercising his right to freedom of expression which
is prescribed in the Constitution. When the Magistrate Court acquitted the defendant the State
appealed the ruling of the Magistrate to the High Court asserting that there was enough evidence
against the defendant. The state had brought forward that pursuant to Article 20 (3) of the
Constitution, which allows a justifiable limitation of freedom of expression, the defendant’s
statements were promoting immoral conduct (homosexuality) thus violating sections 178(g) the
Penal Code.

Justice Judy Mulongoti ruled in favor of the defendant and dismissed the state’s claim that the
Magistrate Court had limited the definition of ‘soliciting’. The Court was of the view that the
television programme did indeed constitute a public place but the issue of whether that public place
was used for the crime of soliciting for immoral purposes; the Court did not see it as such. Justice

60
MAKANDAY, Centre for Investigative Journalism :Comment and Analysis- “The Constitutional Status of Gay
People in Zambia by O’Brien Kaaba and Dr Pamela Towela Sambo (September 29, 2022)
61
[2015] HPA/53/204 ZMHC
62
Chapter 87 of the Laws of Zambia

22
Mulongoti agreed with the lower court that the accused was not engaging anyone to practice
homosexuality but merely advocating for the rights of LGBT people to be protected and that the
respondent was exercising his right to freedom of expression. Like many instances, the state had
tried to use sections of the Penal Code such as Section 178 (g) to punish people for expressing
opinions about human rights of sexual minority groups.

Recently the Zambian police arrested the leaders of the Sistah Sistah foundation for the offence of
giving false information to public officers and unlawful assembly63, the founders had made an
application in February of 2023 to hold a March to raise awareness against women and girl’s sexual
gender based violence. Now because in the midst of those who were among marchers were those
who were holding the Pride Flag64, the police said the conveners exhibited a different agenda as
the agenda seemed to highlight issue of gay rights. The deputy police of public relations officer
even gave a stern warning to members of the public saying they should not flout the law
deliberately by taking advantage of the prevailing environment that allows for freedom of
expression and assembly. When one attempts to critically analyze the officer’s statement what he
might have pointed to is that people should not take advantage of the right to freedom of expression
in the assembly to express any gay rights related issues. The main argument being that those rights
are limited to what is considered morally upright and since Zambia is a Christian nation it is often
put forward that same sex relationships are against public morality. Dr O’Brien Kaaba disagrees
with that argument because he avers that the effect is that only constitutional norms are recognized
as public morality and everything else should be measured against constitutional norms. To hold
otherwise would be to mutilate the Bill of Rights and subject its provisions to the tyranny of the
majority of mob justice65.

It is indeed true for one to assert that predominant religious views of morality cannot be the
measure of what is constitutionally acceptable. In Minister of Home Affairs v Faurie66 the court
acknowledged the important role that religion plays in public life. Be that as it may, using religious

63
Lusaka Times, “The Sistah Sistah Foundation Founders Arrested for giving false information to public officers (7
March 2023)
64
The rainbow flag or pride flag (formerly gay pride flag) is a symbol of LGBTQ and LGBTQ social movements. The
colours reflect the diversity of the LGBTQ community and the spectrum of human sexuality and gender
65
MAKANDAY, Centre for Investigative Journalism :Comment and Analysis- “The Constitutional Status of Gay
People in Zambia by O’Brien Kaaba and Dr Pamela Towela Sambo (September 29, 2022)
66
[2005] ZACC 19

23
doctrine or views should not be a source of authority for interpreting the Supreme law of the land
which is the constitution. It would be a travesty of justice to employ the religious sentiments of
some, as a guide to constitutional rights of other people. Constitutional norms when it comes to
Zambia include human dignity, equity, social justice, equality, non-discrimination, democracy and
constitutionalism, national unity, morality and ethics. Freedom of expression therefore must not
be curtailed on the basis that it is being used to promote sexual minority rights therefore considered
immoral as that would be in breach of the fundamental human right guaranteed by the Constitution

2.3 Conclusion

When one looks at the jurisprudence of the current Zambian constitution one finds that
incorporated into the constitution are the fundamental rights and freedoms that citizens ought to
enjoy by virtue of being human beings born in Zambia. The Bill of Rights which is under Part III
of the constitution describes certain fundamental rights which all Zambians should have and these
include the right to equality, privacy, non-discrimination, dignity, freedom of expression, assembly
and association and also protection from inhumane or degrading treatment. LGBT people exist in
Zambia and it is a known, however due to the anti-homosexual laws promulgated by the Penal
Code and calls for arrest and ostracism of gay people by their heterosexual counterparts, members
of The LGBT community are treated as sub-humans who are less deserving of these rights. It is
incumbent and germane to note that Zambians, including sexual minorities, enjoy fundamental
rights not as a favour from anyone but because they are Constitutional rights which they are entitled
to. The issue is not necessarily that LGBT people want special rights for themselves only, but
rather they seek enjoyment of the same fundamental human rights guaranteed by the constitution
and enjoyed by every other Zambian and it is the duty of the government to ensure that every
citizen is treated equally and protected from any abuse or unfair treatment based on sexual
orientation.

24
 Chapter 03

International Human Rights Treaties and the Rights of Sexual Minorities in Zambia

3.1. Introduction

The government of Zambia is instrumental in ensuring that the basic fundamental human rights
which every individual is entitled to are safeguarded because the effective protection of human
rights must come from within the State67. The Republic of Zambia is a party to a plethora of
multilateral International Human Rights Treaties which propel governments to take positive action
to facilitate the enjoyment of basic human rights which include such rights as the right to privacy,
protection from discrimination, freedom of expression, and protection from inhumane, cruel or
degrading treatment among other rights. In this chapter one is to unearth the arguments averred for
Universal enjoyment of human rights for all people regardless of sexual orientation. One is to
analyze the protections accorded to sexual minorities at an international level and international
human rights instruments which Zambia is a party to such as the International Bill of Rights, the
United Nations Charter, the regional mechanisms in the African Human Rights Systems, The
Convention against Torture and other treaties and general recommendations which contain certain
provisions that can be interpreted to protect all people inclusive of sexual minorities. The
International Human rights Law system seeks to compel states to fulfill their obligation through
either observing national Laws (constitutional or statutory) that is consistent with the International
norms, or making the international norms themselves part of the national legal system.

The anti-homosexuality laws contained in the country’s Penal Code68 consequently lead to the
infringement of fundamental human rights of sexual minorities as their mere existence is treated
by some to be a crime in itself. The government’s inability to take positive action to safeguard
fundamental human rights to its sexual minority citizens constitutes a breach of some international
agreements ratified by the state. International law contained in treaties creates legal obligations on
the contracting states through signature, ratification or accession69 Zambia has ratified certain

67
Besa M, “Constitution, Governance and Democracy”, (Mission Press, 2019)
68
Chapter 87 of the Laws of Zambia
69
Shaw M, “International Law” (6th edition, Cambridge, Cambridge University Press, 2008)

25
international agreements which are inclusive of the International Covenant on Civil and
Political Rights70 the (ICCPR), the International Covenant on Economic Social and Cultural
Rights71 the (ICESCR), the African Charter on Human People’s rights and the Convention
against Torture and other Cruel, inhuman or degrading punishment72.

3.2. The Human Rights framework

The concept of human rights is that each one of us, regardless of who we are or where we are born
is entitled to the same basic rights and freedoms73. These rights are not privileges which are just
granted by governments but are inalienable. The history behind the whole human rights discourse
is a long and complex one however one of the most modern affirmations of the human rights
emerged from the ruins of the second world war with the creation of the united nations.

3.3. The United Nations Charter.

The United Nations charter, which is the founding document of the United Nations gives as one
of its purposes to reaffirm faith in fundamental human rights and in that same light in 1948 the
Universal Declaration of Human Rights was established and it lays down the basis for modern
international human rights law and Zambia is part of the United Nations. The Universal
Declaration of human rights, unlike the covenants, is not a treaty and has not been signed or ratified
by the states however most covenants mirror the civil and political rights contained in the UDHR.

3.4. Overview of the key agreements and treaties

3.4.1 The Universal Declaration of human rights

There are 30 rights contained in the Universal Declaration of human rights created in 1948 by the
United Nations. Article 1 “All human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one another in a spirit of

70
1966
71
Ibid
72
Colson Anyangwe, “Introduction to Human Rights”, (Lusaka: University of Zambia Press, 2005)
73
Ibid

26
brotherhood”. The Zambian Bill of Rights and Part III of the Constitution mirror the civil and
political rights contained in the UDHR recognizing among other things the principle of non-
discrimination and equality, right to privacy, protection from cruel, inhuman or degrading
treatment, freedom of speech and freedom of expression. The UDHR is merely a declaration hence
it is not binding however its principles have been accepted into practice by a plethora of courts as
well as being incorporated into various treaties and may be seen as binding when looking at
customary international law74.

The UDHR contains several, political, economic and social rights that are fundamental to all
human beings, and in its preamble it prescribes that “whereas recognition of the inherent dignity
and of the equal and inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world”. Article 2 postulates that all people are entitled to the
fundamental rights set forth in the declaration without distinction of any kind, such as race, color,
sex, language, religion, political or other opinion, national or social origin, property, birth or other
status75. The prohibition on discrimination on ‘other status’ may be seen to extend even to sexual
minorities given the fact that all the clauses start with the word ‘everyone’ therefore conferring
positive rights to all. Article 5 states that no one shall be subjected to torture or to cruel, inhumane
or degrading treatment or punishment. Freedom of opinion and expression is outlined in Article
19.

Many opponents of gay rights often bring up about Article 29 of the Universal Declaration of
human rights as a justification for discrimination against members of the LGBT community.
Article 29 (2) states that

“In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law. Solely for the purpose of securing the recognition
and respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society”.

Now because in Zambia sexual minorities are persecuted on the grounds that their lifestyle is
immoral protection of sexual minorities is often not granted due to that provision. The basis of

74
Shaw M, “International Law” (6th edition, Cambridge, Cambridge University Press, 2008)
75
UDHR 1948

27
using Article 29 to deny protection or recognition of basic rights can however be counter argued
considering the provision of Article 30 which avers that the interpretation of the whole declaration
must be must not be interpreted in a manner that deprives individuals of the rights set out. More
so, Article 7 emphasizes that all individuals are entitled to equal protection against discrimination.
Discrimination against homosexuals violates these foundational principles. Provisions in the
universal declaration of human rights such as article 576, article 777 and article 3078 all proved to
be essential to members of the LGBT community who are always at risk of having their basic
rights violated due to the immense homophobia in the country.

3.4.2 The International Covenant on Civil and Political Rights.

Zambia is a state party to the international covenant on civil and political rights ICCPR and she
ratified the ICCPR on 10th of April in 198479. Francioni argues that the control machinery that
guarantees actual observance and implementation of human rights in national legal systems
remains unsatisfactory80. It is probably because it is the national legal system, which determines
the status or force of law which will be given to a treaty within that Legal system and whether
national Judges and administrators apply them. Article 2 of the ICCPR prescribes that member
states of the Covenant “undertake to respect and to ensure to all individuals within the territory
and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of
any kind such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status”. The obligation to ensure brings out the positive character
of civil rights. It means State parties must make positive steps to give effect to the rights and
freedoms in the Covenant. A duty of performance requires state parties to adopt necessary
Legislative and other measures and to provide an effective remedy to victims of human rights
violations. When looking at the current situation in Zambia one can see that there are numerous
violations of the provisions of the ICCPR namely:

76
“No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment” (UDHR 1948)
77
“All are equal before the Law and are entitles without any discrimination to equal protection of the Law...”
78
“Nothing in this declaration may be interpreted as implying for any state, group or person any right to engage in
any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”
79
United Nation: Peace, dignity and equality in a health planet: Member States https://www.un.org/en/about-
us/member-states
80
F Francioni, “International Human Rights in an Environment Horizon” (European Journal of
International Law, Volume 21, Issue 1, February 2010 https://doi.org/10.1093/ejil/chq019

28
 i. Violation of the Covenant by Discrimination against Sexual Minorities.

Countries that administer or permit violence or discrimination against members of the LGBT
community deny them the fundamental rights enshrined in the ICCPR. Article 26 of the ICCPR81
is very much similar to Article 2 of the UDHR82. Article 26 prescribed that

“all persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any
ground it is race, color, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status”.

The use of the term ‘other status’ may be taken to mean even including sexual minorities
as well. Zambia’s law explicitly criminalizing same-sex sexual relations between both
men and women makes it very difficult for LGBT rights to be respected. These laws not
only violate international laws and conventions that Zambia has committed to because of
their discriminatory nature, but reinforce negative social stigmatization and homophobia
against sexual minorities. Top political members of the Government like the former
President Edgar Lungu and the Current President Hichilema have all maintained their
stance against homosexuals having their voices heard and their rights recognized.
Through the fostering of an environment of discrimination Zambia is not fulfilling its
obligations under the ICCPR. The discrimination against homosexuals has even reached
an extent whereby the Ministry of Health banned the use of the word sexual and
reproductive health rights saying the term promotes LGBT rights83.

The ICCPR imposes an obligation on a state party to protect against discrimination of all
forms. In Toonen v Australia84famous case the right to equality was raised in respect to
Articles 2(1) and 26 of the ICCPR. Toonen argued that the alternative sexual orientation
should be included in the expression ‘other status’ to apply protection to gays and

81
1966
82
1948
83
Amy Fallen, “Zambia deletes ‘sexual’ from SRHR in blow to LGBTQ+ and rights groups”, Devex News (26 October
2023) https://www.devex.com/new/zambia-deletes-sexual-from-srhr-in-blow-to-lgbtq-andrights-groups-106434
[accessed 23 August 2024]
84
No.488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994)

29
lesbians. The human rights committee also found that sex as a ground for non-
discrimination is to be interpreted to encompass sexual orientation. The landmark case
resulted in the repeal of Tasmanian laws criminalizing same-sex sexual acts and set a
precedent in the United Nations Human rights system for addressing discrimination
against LGBT people. “Laws tend to have a teaching effect, Laws that discriminate,
validate other kinds of discrimination and Laws that require equal protections reinforce
the moral imperative of equality”85

ii. Violation by breach of Right to Privacy.

The arresting of two men solely for their real or perceived sexual orientation amounts to
discrimination and is a violation of their rights to freedom of expression and privacy. The violation
to the right to privacy is constituted by the Zambian Penal Code86 which criminalizes same-sex
sexual relations between consenting adults in private. Article 17 of the ICCPR affirms the right to
privacy and it states that no one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence. The United Nations human rights committee has
interpreted this to mean or to include consensual same-sex sexual activities between adults as part
of an individual's private life. According to the Black’s Law Dictionary, privacy has been defined
as the right to live a life of seclusion, the right to be free from unwanted publicity, and the right to
live without unwanted interference by the public in matters with which the public is not necessarily
concerned87. A person’s right to choose an intimate partner of their choice in itself constitutes
privacy of choice because the right to privacy is multifaceted and it may relate to one’s physical
body (physical privacy). It may also relate to one’s personal information, otherwise known as
informational privacy and privacy of choice88. When suspected homosexuals are arrested in a way
their privacy would have been compromised as the whole process “Outs” those who want their
sexual orientation to be a secret and the issue of anal examinations to ascertain that sexual activity

85
Hillary Clinton, (December 2011) UN Headquarters
86
Chapter 87 of the Laws of Zambia
87
Bryan Garner, “Black’s Law Dictionary” (6th edition, 1990)page1196
88
Warren S.D and Brandels L.D, “The Right to Privacy” (Harvard Law Review, 1890) Vol 4 No 5 at pages
193-196

30
took place has been viewed by Human rights experts as a major breach of the right to physical
privacy and so as a State where such violations occur, Zambia ought to find ways to address the
human rights violations.

iii. Inability to protect against Torture and other Cruel, Inhumane or Degrading
Treatment or Punishment.

It is the duty of our government to ensure that it protects all its citizens from the non-derogable
right to be safe from torture and other cruel, inhumane and degrading treatment or punishment.
The Constitution of Zambia under the Bill of Rights prohibits cruel, inhumane or degrading
treatment or punishment and Article 7 of the ICCPR states that,

“no one shall be subjected to torture or to cruel, inhumane or degrading treatment or

punishment. In particular no one shall be subjected without. He is free consent to medical
or scientific experimentation”.

Several arrests of suspected gay couples occur in Zambia and in most cases the accused persons
are subjected to anal medical examinations to try and prove that anal intercourse took place. An
Amnesty researcher in Zambia named Simon Mawanza89put forward that anal examinations
conducted to prove same-sex conduct are scientifically invalid and if they were conducted without
the men’s consent, contravened the absolute prohibition to torture and other cruel, inhumane and
degrading treatment or punishment under the international law. Furthermore, the examinations are
said to have no forensic or evidentiary value for consensual homosexual acts90. They are contrary
to medical ethics as laid out by the World Medical Association91 and the United Nations Principles
of medical ethics relevant to the role of health personnel, particularly physicians. Principles Four
of the United Nations principles states,

It is a contravention of medical ethics for health personnel, physicians… to apply their

knowledge and skills in order to assist in the interrogation of prisoners and detainees in a

89
Simon Mawanza, Amnesty International Zambia: Drop charges against men accused of same sex conduct, 11
September 2013, available at https: www.refworld.org/docid/5232c4494html
90
Staff Reports, (October 20, 2017) ,”World Health Association Condemns anal exams”
https://www.washingtonblade.com/2017/10/20/world-medical-association-condemns-anal-examination
91
Ibid

31
manner that may adversely affect the physical or mental health or condition of such prisoners
or detainees and which is not in accordance with the relevant international instruments”.

According to a Human Rights Watch Report92 some people subjected to these examinations
experienced lasting psychological trauma. Several victims told Human Rights Watch that they
experienced forced annual examinations as a form of sexual violence and that their mental well-
being was compromised as they felt humiliated and treated as less human. Medical personnel who
conduct forced anal exams do so in Violation of International principle of medical personnel.

3.4.3. International Covenant on Economic Social and Cultural Rights (ICESCR)

The International Covenant on Economic Social and Cultural Rights obligates states to ensure
equal rights to everyone regarding economic, social and cultural development. Discrimination
against homosexuals can hinder their access to education, healthcare, housing employment
opportunities and a chance to lead a happy normal life. Zambia became a state party to the ICESCR
in 1984 by way of accession and yet violations of some rights can be seen to be committed against
sexual minorities in the Country. Part II of the Covenant, in Articles 2 and 5 outlines the obligations
of the State parties in the implementation of the rights guaranteed. Article 2(1) states

“Each state party...undertakes to take steps individually and through international assistance and
cooperation, especially economic and technical, to maximum of its available resources, with a
view to achieving progressively the full realisation of the rights recognised in the present Covenant
by all appropriate means, including particularly the adoption of legislative measures”

i. Violation by denying Healthcare and Information on Healthcare to sexual minorities.

The ICESCR guarantees a number of social and economic rights which include the right to health
and information on how to live a healthy life. The committee of economic social and cultural rights
has issued for example GC14 on the Right to the highest attainable standard of health under Article
12 which requires that health care and information on healthcare are availed without discrimination

92
Human Rights Watch, “Dignity Debased: Forced Anal Examinations in Homosexuality Prosecution”(July 12 2016)
https://www.hrw.org/report/2016//07/12/gignity-debased/forced-anal-examinations-homosexuality-prosecutions

32
of any form including color, race, sex or sexual orientation93. In violation of Article 12 Christopher
Simoonga, the Permanent Secretary in Zambia’s Ministry of Health, sent a letter to provincial
health directors in late September 2023 asking them to just use the term ‘reproductive health and
rights’ because the inclusion of ‘sexual’ and ‘rights’ in the same phrase is inclusion of lesbian,
gay, bisexual, transgender and queer rights he wrote in the letter. Such demands were met with
outrage from the LGBT activists and they warned and that in a country that already criminalizes
consensual same-sex sexual relationships, the letter encourages ongoing discrimination against
members of the gay community.

Not including ‘sexual’ in the word sexual and reproductive rights due to the mere fact that it
includes sexual minorities is discrimination at its zenith and means information on health care is
not availed to all people as set out in Article 12 of the ICESCR. Ensuring that health information
is available to all citizens is pivotal not only because International Human Rights Standards
prescribe such but also because it helps in the curbing of the spread of diseases such as HIV/AIDS
for example. PEPFAR Zambia undertook a size estimate exercise in 2019 which estimated the
population of men who have sex with men (MSM) to be 68,044 with an HIV prevalence rate of
17.7%94. The fact that some members of the gay community are in the closet and are married to
women and even have children is more reason why health information should be availed to all
people because in the bid to discriminate against homosexuals by denying them health information
it increases the likelihood of more HIV/AIDS cases or other STDs in the whole population at large.

3.4.4. African Charter on Human and Peoples Rights.

Zambia has ratified the African Charter on Human and Peoples rights and its human rights policies
and practices are monitored by the African Commission on human and people’s rights a (ACHPR)
which reviews the states reports concerning its human rights situation. Article 2 of the charter
postulates that,

“Every individual shall be entitled to the enjoyment of the rights and freedoms recognised
and guaranteed in the present charter without distinction of any kind such as race, ethnic

93
Office of the High Commissioner for Human Rights (CESCR General Comment No 14: The Right to the Highest
Attainable Standard of Health. Adopted at the twenty-second session of the Committee on Economic, Social, and
Cultural Rights, on 11 August 2000 (Contained in Document E/C. 12/2000/4)
94
PEPFAR ZAMBIA: Country Operational Plan 2021 Strategic Direction Summary May 11, 2021

33
group, color, sex, language, religion, political or any other opinion, national and social
origin, fortune, birth and other status”95.

The term ‘other status’ can be interpreted in the same way the Human Rights Commission has
interpreted it in the Universal Declaration of Human Rights in Article 2 and in the ICCPR in Article
26 therefore it extends to sexual minorities as well. The Charter also emphasizes the importance
of human dignity, which is undermined by discriminatory practices such as violence against sexual
minority individuals or anal examinations to prove that those accused of homosexual acts would
have committed the sexual intercourse.

Zambia is subject to the jurisdiction of the African Court on human and People’s Rights, which
has interpreted the African charter to include protections against discrimination based on sexual
orientation. Discrimination and its negative impact on sexual minorities may be challenged under
this framework, stating that such discrimination is incompatible with regional human rights
standards.

3.4.5. Convention against Torture and other Cruel Inhumane or Degrading Treatment or
Punishment

Article 1 of the Convention defines the term torture to mean, “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a convention, punishing him for an act he or
a third person has committed or is suspected of having committed… when such pain or suffering
is inflicted by or at the institute Of or with the consent or acquiescence of a public official or other
person acting in in an official capacity”96.Inhumane treatment covers at least such treatment as
deliberately causes severe suffering, mental or physical, pain which in the particular situation, is
unjustifiable while degrading treatment grossly humiliates an individual before others or drives
the individual to act against the individual’s will or conscience. When one considers the plight of
sexual minorities in Zambia one can include that suffering be it mental or physical is all too
common in the LGBTQ+ community.

95
ACHPR Adopted 9 June 1981
96
CAT 1987

34
A committee expert noted that there was hate speech from high level Zambian officials and reports
of arrest and forced anal exams of two men after consensual sex and an intersex individual forced
to undress to apply for a job that required a female employee. Some suspected homosexuals were
beaten outside the club after being caught in a compromising position but could not report the
matter to the police because of the fear of further abuse from the police officers themselves. Article
2 of the convention states that each state party shall take effective legislative, administrative,
judicial or other measures to prevent acts of torture in any territory under its jurisdiction. It goes
further in Article 3 (2) to describe how the right is non-derogable in Article 2(3) says an order
from a superior officer or a public authority may not be involved as a justification for torture.

In Media Rights Agenda v Nigeria97, communication 22 the African Commission stated that the
term ‘cruel, inhuman and degrading punishment or treatment is to be interpreted so as to extend
the widest possible protection against abuse, whether physical or mental. In Modise v Botswana98,
the African Commission elaborated further and noted that exposing victims to personal sufferings
and indignity violates their rights to human dignity. It went on to state that ‘personal suffering and
indignity can take many forms, and it would depend on the particular circumstances of each case.

3.5. Conclusion

This chapter has brought to light how Zambia has ostensibly upheld the tenets laid down by the
International Bill of Rights, the Convention against Torture and other Cruel, Inhumane Degrading
Treatment or Punishment and other regional treaties in public proclamation and ratification, yet
human rights violations against sexual minorities are perpetuated by the Zambian government
through its inability to safeguard the rights of all citizens as per the rules of state responsibility.
Due to the criminalization of same-sex sexual relations in Sections 155-157 of the country’s Penal
Code a grim reality exists for fundamental human rights of gay people. Violence against suspected
gay men, anal-examinations for accused gay men, invasion of privacy and hate speech against

97
Communication Nos 105/93 (1998)
98
No.97/93 (2000)

35
sexual minorities are among the human rights violations suffered by sexual minorities and all
constitute violations of international human rights agreements which Zambia would have ratified.

36
 CHAPTER 04

Judicial protection of fundamental human rights for sexual minorities in Zambia

4.1. Introduction

The intricate relationship between the Judiciary and the protection of Human Rights is imperative
for any democratic state and Zambia is no exception. Mulenga Besa avers that, “the judiciary
ensures that the democracy of the country is upheld in any given democratic society”99. In Zambia
part VIII of the constitution establishes the judiciary as Article 119(1) states that “judicial authority
vests in the Court and shall be exercised by the Court in accordance with this Constitution and
other law”. As the guardians of the constitution, the Judicial arm of government plays a vital role
in interpreting existing laws and ensuring that they actually align with fundamental Human Rights
standards and principles. In this chapter one is to bring to light the role that the judiciary plays in
ensuring that the fundamental rights are enjoyed by all people including sexual minorities. One is
to discuss in detail the Judiciaries mechanisms for safeguarding the constitutionally guaranteed
human rights for all citizens inclusive of sexual minorities.

4.2. Overview of the Judiciary’s function in Zambia

The Constitution of Zambia under Part VIII establishes the Judiciary and its core functions. Article
118 (2) outlines some of the principles of Judicial authority and these include, justice being done
to all without discrimination, the values and principles of the constitution shall be protected and
promoted and traditional dispute resolution mechanisms shall not contravene the Bill of Rights or
be inconsistent with other provisions of the Constitution or other written law. The judiciary’s role
is to check and ensure people’s aspirations on seen in the constitution are not disregarded by other
two arms of government100.In the case of Anupbhai Murubhai Patel v The Attorney-
General101it established that the judiciary can declare null and void a law passed by the legislature
or any order issued by the executive in the country.

99
Besa M, “Constitution, Governance and Democracy” (Mission Press, Ndola, Zambia) 2019
100
Ibid
101
[1993] ZMHC 3

37
This position is cemented in numerous cases which include that of Christine Mulundika and 7
others v the People102 the constitutionality of certain provisions of the Public Order Act chapter
104, the challenge followed on the fundamental freedoms and rights guaranteed by Articles 20 and
21 of the Constitution. Section 5(4) of the Public Order Act required any person to hold a peaceful
assembly to obtain a permit and contravention of which is criminalized by Section 7 of the same
Act. The challenge related to both the requirement of a permit and also the criminal sanctions for
absence of such a permit as this was argued to be in contravention of Article 21 (1) of the
Constitution which stated that, “Except with his own consent, no person shall be hindered in the
enjoyment of his freedoms of assembly and association, that is to say, his right to assembly freely
and associate with other persons…”.. The court held that Section 5 (4) of the Public Order Act
chapter 104 contravened Articles 20 and 21 of the Constitution hence it was held to be null and
void. Other cases such as Thomas Mumba v The People103 where Section 53(1) of the Corrupt
Practices Act was held to be unconstitutional because it was in contravention of Article 20 of the
Constitution.

In its protection of human rights through the interpretation and application of the Laws, a key
function of the judicial system is its independence, which is vital for upholding democratic
principles and safeguarding civil liberties. The current Chief Justice in his remarks made at the
ceremonial opening of the Kasama High Courts criminal session on the 30th of January 2023
postulated that, in administering the law, “adjudicators put aside their own personal views as their
role is not to re-make the law that they have to apply; nor is it permissible for them to selectively
apply those parts of the law which they personally agree with… their personal views and
preferences are irrelevant and do not enter the justice equation”. The Judiciary’s capacity to
address human rights abuses varies across the region, influencing public trust and legal recourse
in Zambia hence the effectiveness of the judiciary is independent in defending human rights
ultimately hinges on its independence, the legislative framework and the social political context in
which it operates104.

102
[1995]S.C.Z Judgement Number 25
103
[1984] ZMHC 10
104
A. W. Chanda, “Constitutional Law in Zambia. Cases and Materials” (University of Zambia)

38
In Zambia the Constitutional Bill of Rights is justiciable which entails that the arduous just task of
interpreting and enforcing the guaranteed rights is assigned to the Courts and whenever there is a
complaint by an individual alleging violation of any of the guaranteed rights and freedoms the
individual could apply to the High Court for redress105.

4.3. Role of the courts in safeguarding liberties of sexual minorities.

According to Twinomugisha106 judicial power is the authority granted to Courts to Interpret and
declare the law, which serves as a deterrent to the abuse of constitutional rights. The Courts of law
can protect the rights of sexual minorities by enforcing the Bill of Rights as it provides for certain
freedoms and protections which ought to be enjoyed by every person in the Country. The Courts
can play a crucial role in ensuring that sexual minorities do not have their fundamental rights
infringed all because of their sexual orientation. If a matter is brought before the High Court
alleging a violation of a certain Human Right[s] for example, the Court ought to rule without
prejudice of the sexual orientation of the individual who brings an action in Court. The function
of the courts of upholding basic fundamental human rights as set out in the constitution, is an
important facet of the rule of law. The fundamental rights ought to be guarded by the courts and
this extends to sexual minorities as well. The Courts therefore act as a shield to the voiceless sexual
minorities against the tyranny of the homophobic majority that seeks to trample upon their basic
human rights which they are also entitled to.

4.4. Judicial review and its impact on protection of sexual minorities.

Judicial review serves as a crucial mechanism in safeguarding Human Rights, enabling Courts to
assess the Constitutionality of Legislative Acts and the executive decisions that may infringe upon
personal fundamental freedoms. The process not only empowers the judiciary to provide checks
and balances against the possible excesses of state power but also actively promotes the protection
of marginalized groups like members of the LGBTQ plus community. The decisions rendered
through judicial review can set precedents that actually enhance the protection of individual rights
entitled to all citizens regardless of sexual orientation.

105
Ibid
106
B.K Twinomugisha , “The role of the Judiciary in the promotion of democracy in Uganda” (2001) AUR Journal

39
Judicial review is a strong tool in the hands of the judiciary used to determine the legality of
decisions made by public bodies in the country. Through the Court system, the judiciary can quash
any executive order not in line with the rules of justice and made in contravention of the rights
protected by the Constitution. One can make reference to the famous case of The People v Paul
Kasonkomona107 which illustrates how the judiciary is the bedrock upon which the fundamentals
of democracy lie. In this Zambian case, the defendant had been arrested and charged under Section
178(g) of the Penal Code with idle and disorderly crime of soliciting in a public place for immoral
purposes. The accused had appeared on a television program requesting the government to
decriminalize homosexuality, protect the rights of the LGBT community and sex workers and to
combat the spread of HIV among the same groups. The Justice Judy Mulongoti dismissed the
states claim that the accused was soliciting or encouraging people for immoral purposes. She stated
that the defendant was exercising his right to freedom of expression. The state had intended to use
Section 178 to punish the accused for expressing his opinion about human rights of homosexual
minority groups and the judicial stepped in to ensure justice and protection of defendant’s civil
liberties and to protect the right to freedom of speech and expression even regarding matters to do
with sexual minority rights.

Judicial review can be a mechanism used by the judiciary to decriminalize same-sex sexual
relations. The reason why there is intense discrimination and violation of fundamental rights
against members of the LGBTQ+ community is the retention of the colonial anti-homosexuality
laws by Zambia even after the attaining of Independence in October 1964. The anti-homosexuality
Laws, coupled with the hateful homophobic rhetoric that attributes society; it makes it very
difficult for sexual minorities to enjoy the same rights that heterosexual Zambians also enjoy.
Many African countries have set examples for how the judiciary has been of great help in
decriminalizing same-sex sexual relations which ultimately leads to less human rights violations
against sexual minorities.

According to Alfred Chanda108 Judicial Review is the authority that the judiciary has, to determine
whether a Law passed by the National Assembly is consonant with the Constitution and any Act

107
[2015] ZMHC 22
108
A. W. Chanda, “Constitutional Law in Zambia. Cases and Materials” (University of Zambia)

40
of Parliament and executive decision made contrary to the law can be adjudged as being null and
void. In the case of Marbury v Madison109, the Chief Justice Marshall stated that, “through
judicial review the court neither approves nor condemns any legislative policy. Its delicate and
difficult office is to ascertain and declare whether the legislation is in accordance with, or in
contravention of, the provision of the constitution, and having done that its duty ends”. It is this
power to interpret the constitution and other laws in the country which can aid sexual minorities
in the fight for fairness, equal rights and an environment to live peaceful lives.

4.5. Recent decriminalization of consensual same-sex conduct through judicial review in

other jurisdictions within the African region.

Sexual minorities generally suffer forms of discrimination even in the most liberal countries
however they suffer a worse plight in countries where being a homosexual and in some countries
even identifying as a homosexual or an ally to the gay rights movement is considered criminal110.
Law is very dynamic and ever evolving and the same goes for jurisprudence surrounding anti-
homosexuality in Africa. The judiciary can play a fundamental role in the realization of equal
rights for all people.

Namibia

In June 2024 the Namibian High Court decriminalized consensual same-sex relations which is
seen as a major step for equality, non-discrimination, and inclusion in Africa111. The Namibian
High Court declared the common law offences of ‘sodomy’ and ‘unnatural sexual offence’
unconstitutional thus marking a major victory of LGBTQ people in Namibia. The action was
brought before courts by Friedel Dausab who argued that the laws infringed his constitutional
rights to equality, dignity, privacy, freedom of expression, and freedom of association based on
sexual orientation. The court ruled that the criminalization of sexual intercourse between
consenting adults in private is prejudicial and not justifiable in a democratic society. The court
also pointed out that the enforcement of the private moral views of a section of the community
even if it is the majority does not justify restricting another’s freedom nor make an activity

109
1 Cranch 137; 2 L Ed 60 1803 U.S LEXIS 352
110
Like in Nigeria for example
111
Human Rights Watch, Larisa Kojoure, “Namibia Court decriminalises Consensual same-sex conduct June 25,
2024 https://www.hrw.org/news/2024/06/25/namibia-court-decriminalizes-consensual-same-sex-conduct

41
criminal. The High court's ruling In Namibia represents a hopeful step in the road toward
decriminalization of same-sex relationship across all Africa.

Botswana

In the High Court of Botswana held in Gaborone in the matter between Letsweletse
Motshidiemang and the Attorney General112. The applicant sought a relief from the court
declaring that Section 164 (a), Section 164 (c) and Section 165 of the Penal Code (Cap 08:01 Laws
of Botswana) are ultra vires Section 86 of the Constitution in so far as the said Sections are not
made for the good order and governance of the Republic of Botswana. The applicant also sought
a declaration that the Sections of the Penal Code criminalizing same-sex relations are ultra vires
Section 3 (5) of the Constitution insofar as the state section discriminate against homosexuals. The
court ruled in favor of the applicant and ordered sections 164(a), 164(c) and 65 of the Penal Code
ultra vires Sections 3, 9 and 15 of the Constitution and are accordingly struck down. The
government later appealed the 2019 ruling but the Court of Appeals dismissed the appeal with the
bench of the five judges unanimously ruling that criminalization of same-sex relationship was a
violation of the constitutional rights of LGBTQ individuals to dignity, liberty, privacy, equality
and non-discrimination. The Judiciary can therefore be seen to have come to the aid of sexual
minorities by ensuring their rights are equally upheld.

Mauritius

In a case brought before the court by an individual Abdool Ridwan and supported by an LGBTQ
group, the Supreme Court of Mauritius decriminalized homosexuality on the 5th of October 2023113
The Court ruled that the prohibition on discrimination on grounds of “sex” in the Constitution
should be interpreted to include “sexual orientation”. On that basis, the court found the prohibition
on consensual sex between consenting men to be unconstitutional and discriminatory. The
Supreme Court overturned an obsolete colonial Law and demonstrated its commitment to non-
discrimination and leaving no one behind. As the Court gave its ruling it referred to prior court
decisions in South Africa, Botswana, India, and Canada. It also referred to the 1994 case of Toonen

112
(MAHGB- 000591-16)
113
Human Dignity Trust, (4th October 2023), “Mauritius Supreme Court rules Law targeting LGBT people is
unconstitutional”, available at https//www.humandignitytrust.org/news/Mauritius-supreme-court-rules-law-
targetting-lgbt-people-is-unconstitutional/

42
v Australia114 which was before the United Nations Human Rights Committee, which found that
the criminalizing of consensual same-sex relations violated the International Coverage on Civil
and Political Rights. The Judiciary therefore is seem to have come to the aid of sexual minority
based on the existing Constitutional Order in Mauritius at the time.

Mozambique

In 2015 Mozambique decriminalized gay and lesbian relationships and their new Criminal Code
that took effect in June of the same year115. Discrimination based on sexual orientation and
employment has been illegal since 2007.

4.6. The existing challenges to judicial enforcement of sexual minority equal rights

It sometimes proves to be an uphill climb for even the judicial arm of government to ensure full
protection of the equal rights of sexual minorities for several reasons:

Religion

The Constitution of Zambia its preamble declares the Republic of Zambia a Christian nation while
upholding a person’s right to freedom of conscience, belief or religion. The Christian holy book,
the Bible in verses such as Leviticus 18 verse 22116 or Leviticus20 verse 13117 are often used to
condemn against homosexual people. Religious leaders often quote scriptures to push hate and
intolerance against sexual minorities on the pretext that if God considers homosexuals sinners then
they should be condemned and treated as less human. In the same bible a plethora of acts are
prohibited and these include sowing different seeds side by side118 in the same field or working on
a Sabbath and yet all people who do those things are never discriminated against or treated as less
deserving of fundamental human rights . The Zambia majority are mostly Christian119 and they
seem to be unrepentant conformists to the anti-homosexuality ideology. As much as judges are

114
No.488/1992, U.N. Doc/C/50/D/488/1992 (1994)
115
BBC NEWS, (1 HULY 2015) , “Mozambique decriminalises gay and lesbian relationships”
https://www.bbc.com/news/world-africa-33342963
116
Holy Bible, New Living Translation, “Thou shall not lie with a man as if with a woman, it is an abomination”
117
“If a man lies with a male as with a woman, they have committed an abomination; the two shall be put to
death; their bloodguilt is upon them.
118
Leviticus 19 v 19
119
Transbantu Association Zambia, “Key issues related to sexual orientation, gender identity and expression
identified by a community consultation in Zambia (2021)

43
meant to be impartial and not let their personal beliefs interfere with the interpretation of the law,
it proves to be difficult in a society where even the political leaders who appoint those judges
vehemently oppose the exceptional conduct. There is a popular view among activists who advocate
for equal rights for LGBT people, which postulates that if individuals believe that homosexuality
is contrary to their religion, they are free to manifest that belief by not forming a same-sex
relationship however human rights law cannot protect any manifestation beyond the self-imposed
abstention, and certainly would not allow the criminalization of homosexuality on religious
grounds.

View of homosexuality ‘An African’

The most popular argument that is used to trample upon the equal rights of LGBTQ people is the
idea that the whole concept of ‘gay rights and homosexuality’ is an imported western idea that has
no place in Africa. It is ironic how homophobic Africans argue that homosexuality was a western
import yet use a foreign religion brought by the white missionaries as the basis for justifying
homophobia and anti-homosexual Laws. A number of studies have shown that homosexuality has
always been a part of the Human race and the African continent is no exception. In ‘Boy-wives
and Female husbands”120, a book that examines homosexuality and feminism in Africa, the
researchers found ‘explicit’ Bushman artwork that depicted men engaging in same-sex sexual
activity. Rock art is among the main sources of history in Africa that are widely used on the
continent.

The judiciary in some instances for example in Uganda the Constitutional Court on April 3, 2024,
upheld the radical provision of the 2023 anti-homosexuality Act including the death penalty in
aggravating circumstances121. This was in defiance of International law relating to sexual
minorities and top politicians in Uganda reiterated that they would not succumb to international
pressure as they viewed homosexuality an African

The Majoritarianism argument

120
Prof Will Roscoe, “Boy-Wives and Female Husbands: Studies of African Homosexuals”, (Palgrave Macmillan,
2001)
121
Human Rights Watch, “Uganda: Court Upholds Anti-Homosexuality Act” ( April 3, 2024)

44
The theory of majoritarian government and popular sovereignty is based on the majoritarianism
ideology asserting that a majority, whether based on the religion, language or social class is entitled
to a certain degree of primacy in society and has the right to make decisions that affect the
society122. In Zambia since the Legislature, which makes Laws such as the Penal Code, is elected
by the people of Zambia through a voting process, the argument is that Laws made by parliament
mirror the views of the majority population. Proponents of this argument argue that when the
Courts declare certain statutes as unconstitutional they reverse the product of majoritarian
democracy. Due to this reason Judges often hesitate to make decisions that are unpopular with the
majority with the fear of making them angry thus affecting their reputation in the eyes of the
majority

4.7. Conclusion

This chapter has brought to light the fact that the Judiciary can be viewed as the custodians of the
constitutionally guaranteed fundamental Human Rights principles. The Judiciary, whose duty is to
interpret the can help to ensure that sexual minorities enjoy the same rights that the rest of the
Zambians enjoy. Fundamental rights such as the right to non-discrimination from our freedom of
expression, dignity human rights to privacy and protection from cruel punishments are all
fundamental rights which the Judiciary can uphold through the current Constitutional order which
gives Judges all power and authority in the Courtroom. Through mechanism such as judicial
review, Judges are able to look into Laws made by public bodies that may be unconstitutional and
declare them null and void. The only hope to end the intense discrimination and ill-treatment
against sexual minorities begins with decriminalizing consensual same-sex relations and only the
judiciary can achieve that milestone. One has also referred to the rulings of others Jurisdictions
relating to the issue of the unconstitutionality and discriminatory nature of not respecting the
fundamental rights that sexual minorities are equally entitled to.

122
M C Dorf, (December 2010) “The Majoritarian difficulty and theories of constitutional decision making” Vol. 13.2

45
 CHAPTER 05

Synopsis of Chapters, recommendations and conclusions.

5.1. Introduction

This research was centered on the idea that the enjoyment of basic fundamental human rights is
one that each and every human being is entitled to by virtue of being a human being and this basic
principle also applies to sexual minorities. This chapter will summarize what the contents of the
research paper entail and goes on to give recommendations on how members of the LGBTQ
community can enjoy equal rights and live peacefully in their own country and not live in constant
fear of abuse, arrest, humiliation, invasion of privacy or violence.

5.2. Synopsis of chapters.

Chapter one gave an insight into the general introduction and background of this study. It
introduced the topic which has caused much heated debate globally because of the differing and
complicated arguments regarding the issue of homosexuality and the human rights of sexual
minorities. The chapter unearthed how sexual minorities do exist in Zambia and their existence is
not denied by those in authority and yet the fundamental rights which every Zambian is entitled to
are not enjoyed by members of the LGBTQ community. The existing literature on sexual minority
issues was also looked into and epitomizes how religion, cultural views, politics and the view that
homosexuality is “un-African” has culminated into a society attributed by intolerance and various
human rights violations against sexual minorities.

The Second chapter basically analyzed the constitutional framework when it comes to the issue of
basic human rights which every Zambian is entitled to. There exists a Bill of Rights under Part III
of the Constitution from Articles 11 to 32 which contains fundamental basic human rights such as
the right to non-discrimination, the right to privacy, freedom of conscience and expression, right
to protection of the law, right to equality and the right to protection from torture cruel or inhumane
and humiliating treatment or punishment. These rights contained in the Bill of Rights are
inalienable, inherent and universal and the nature of fundamental rights are such that no law,

46
custom or administrative order can abridge a fundamental right. The chapter explained how the
crux of the ‘equal rights issue’ when it comes to sexual minorities is not that the members of the
LGBT community in Zambia require certain special rights for their own community, but rather the
issue is that they want to enjoy the same rights that other Zambians enjoy by virtue of the
Constitutional framework.

Chapter 3 dealt with the International framework on the promotion and protection of human rights
including sexual minorities. The chapter brought to light International Human rights agreements
such as the UDHR, ICCPR, ICESCR, Convention against Torture and the African Charter on
Human and Peoples Rights. Zambia as a party to these international agreements by means of
ratification and in some cases by means of accession. This chapter deals with how traditionally,
human rights focused on the rights of the individual and the corresponding obligations of the state
to protect human rights. It is the state which is a the signatory party to the International Human
Rights instruments and according to the rules of state responsibility the state ought to respect,
protect and fulfill human rights. The international instruments, as developed through numerous
cases, imposes positive obligations upon states to ensure full protection of human rights. The state
has an obligation to protect individuals against abuses and duty to fulfill enjoyment of human
rights through mechanisms such as adopting necessary legislation. Violations and abuses of rights
of sexual minorities because of their sexual orientations therefore means the state is in violation of
its obligations under International Human Rights treaties that advocate for equal rights for all
people regardless of sexual orientation.

Chapter 4 looked at how the judicial arm of government can help aid sexual minorities in the equal
enjoyment of the fundamental human rights guaranteed by the constitution. The chapter touched
on how they are mandated with the duty to interpret the laws of the country and in so doing they
can determine the constitutionality of certain statutes such as provisions of the Penal Code. The
courts of law can protect the rights of sexual minorities by enforcing the Bill of Rights which
provides for certain freedoms and protections relating to the right to non-discrimination and
equality. Through mechanisms such as judicial review the judiciary can determine whether a law
passed by the National Assembly is consonant with the constitution which if not, may be declared
null and void. It is in this light it is in light of these same processes such as judicial review whereby
certain states like Botswana, Mozambique, Namibia, Mauritius and Democratic Republic of

47
Congo have made use of the judiciary to decriminalize consensual same-sex sexual relations and
ultimately preventing discrimination based on sexual orientation. The chapter noted some
challenges which the judiciary might face in attempting to ensure equal rights of members of the
LGBTQ community and these include religious views, the majoritarianism argument and the view
that homosexuality is a western imported evil. Such viewpoints make judges hesitant to rule in
favour of sexual minorities due to the fear of being ostracised themselves by the largely
homophobic society.

5.3. Recommendations

i. Public awareness regarding sexual minorities in the country.

Through precedents that have been set by the judiciary in cases such as The People v Paul
Kasonkomona activists ought to be free to raise awareness regarding issues to do with sexual
minority rights. By providing accurate information about sexual orientation and gender identity,
misconceptions and stereotypes can gradually be debunked therefore creating a better and safer
future for non-heterosexual Zambians. This public awareness should not only involve gay rights
activists but even political officials, family members of homosexuals and even religious leaders in
the Zambian community. Although change is sometimes very difficult it is not impossible. The
step towards inclusiveness and acceptance of the reality of diversity in the society begins with the
process of people understanding that people are born different and that this difference extends even
to sexual orientation and gender identity. Misconception such as the belief that sexual minorities
can infect the young generation of children and somehow turn them into homosexuals can be
debunked through awareness campaigns thus eradicating any feelings of fear, hatred or intolerance
towards the LGBTQ community. What people do not understand they tend to fear and be uncertain
about it and what they fear they tend to seek to destroy. Therefore when the society is educated
through awareness campaigns and being taught about homosexuality it promotes acceptance and
understanding which ultimately prevents discrimination and the suffering of sexual minorities.

ii. The Government should carry out its duty of protecting all citizens from abuse.

The Head of state ought to take steps that are legally within his power to end human rights
violations such as forced anal examinations or any other cruel, humiliating and inhumane treatment

48
against the gay community. Action ought to be taken on several levels to ensure that sexual
minorities receive the same protections offered to other citizens. The Government of Zambia falls
under three branches namely the Executive, the Legislature and the Judiciary and all arms of
government have a part to play in ensuring sexual minority citizens do not suffer at the hands of
the homophobic majority. Ministries of justice for instance can prohibit judges and magistrates
from admitting the results of anal examinations into evidence in cases involving consensual same-
sex conduct. Law enforcement agencies including public prosecutor prosecuting officers, police
departments can play a significant part in ending the heartrending abuses faced by sexual
minorities.

iii. The Initiating of legal reform.

The most effective way of ending the severe discrimination, abuse, ostracism and violence against
members of the sexual minority community is through legal reform. Legal reform can either be
through the judiciary which can decriminalize same-sex conduct or it can be through the legislature
which can enact laws protecting sexual minorities from the plethora of injustices they suffer. In a
number of jurisdictions which decriminalized homosexuality within the African region as was
discussed in chapter 4 of this study one can see how legal reform is the first step towards true
democracy and enjoyment of fundamental rights for all people. The reason why legal reform is
necessary is because in many countries which outlaw same-sex sexual conduct even in private,
these laws perpetuate discrimination against sexual minorities. In most African countries,
including Zambia, anti-homosexuality laws were implemented by the colonial masters before
independence but these anti-gay laws have been maintained even after independence and yet most
countries that initiated these laws and their colonies have outlawed homosexuals in their country
and these include countries like Britain, Germany, Portugal and France.

iv. Empowering of gay rights organizations in the country.

Activists who are in support of LGBT equal rights ought to be supported by government agencies
and other groups like NGO’s. This is imperative because LGBTQ organisations play an essential
role in ensuring that awareness is raised and pressure is put on government to foster positive change
for all people. By strengthening their capacity and resources they can better serve the needs of
sexual minorities and help establish and promote change at national level.

49
 v. Strengthening the monitoring and documentation of human rights violations.

Human Rights groups, organizations, activists and civil society groups should collect data,
document cases, and report on violations to raise awareness and demand justice for victims as it
can help to pressure governments to take action and uphold the rights of LGBTQ individuals.

vi. Promote International engagement and support

The recognition of LGBTQ rights in African countries like Zambia can benefit from international
engagements and support. By partnering with international organisations, governments, and
donors, it is possible to leverage resources, expertise, and influence to promote LGBT rights at the
global level. International pressure and solidarity can help to drive positive change and support the
rights of sexual minorities in homophobic societies.

50
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