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GAY RIGHTS IN ZAMBIA

The country has yet again exploded with discussions of gay rights in the past few weeks. The current debate was further sparked by the European Union’s advertisements of funding for gay rights activism and the subsequent gay rights advocacy by some local NGOs (Non Governmental Organisations). From the media reactions, both formal and informal, like social networks, it is very clear that the majority of Zambians are not in favour of the recognition of gay rights.

Before I go further, I would like to define what human rights are. Human rights are basic freedoms inherent to all human beings regardless of their nationality, religion, race, sex or any other status in life like sexual orientation and many others. These rights are universal, inalienable, interrelated, interdependent and indivisible, and all human beings are entitled to them without discrimination. International human rights law lays down obligations for governments to act in certain ways or to refrain from acting in certain ways, in order to promote and protect human rights and fundamental freedoms of individuals or groups. However, the prevailing legal, political, religious and cultural discourses in various countries have effects on how these rights are interpreted, respected and guaranteed at national level. Therefore, countries that have ratified certain human rights treaties of the UN (United Nations) will implement them differently at country level due to the prevailing legal, political, cultural and religious circumstances in that given country. While the topic of discussion is gay rights, a lot of examples a-propos women’s rights will be given to provide a wider comparison arena. Women’s rights have also been picked due to the fact that the women’s rights treaty of the UN is the highly ratified human rights treaty and yet the one with the most reservations, therefore, making it a comparatively controversial treaty.

The idea that all humans have inalienable and universal human rights was the driving force in creating the UN system and the subsequent signing of the 1945 Charter. The Universal Declaration of human Rights, UDHR, therefore, has a central role in establishing the contours of the contemporary consensus on internationally recognized human rights. However, there is a conflict between the idea of human rights universalism and cultural relativism. Even if human rights are embodied in treaties drafted within the framework of the UN, the issue is whether their validity is based on universal ethical or moral beliefs or whether they are based on national ones of each state. The Vienna Declaration and Program of Action, of 1993, boldly asserts that the universal nature of human rights is beyond question. However, it is important to note that many human rights Universalists do not deny cultural relativity. The relativist critique has given rise to a new appreciation of the need for greater cultural sensitivity, including the need to develop more adequate cross-cultural foundations for the development of modern theories of human rights. Human rights thinkers are trying to find out what is the foundation of principles of universalism embodied in the UDHR. Some of them argue that universalism is rooted in tradition of tolerance and universality in different cultures and religion from around the world. This thought is advanced by scholars like Kushalani, Y, 2000, in his article, Human Rights in Asia and Africa in the Human Rights Law Journal No.4, 1983.

Coming back to cultural relativism in the case of Zambia, it is important to note that Zambia, like many African countries, is deep rooted in its traditions, highly religious and very intolerant to homosexuality. To this effect, homosexuality is a crime. One of the first things that law students normally learn in a law class is to distinguish morality from legality. Certain behaviours in society may be moral but not legal or vice versa. Sometimes when an immoral but legal act faces so much challenge from society, it goes through a process of reform until it conforms to the people’s way of life. Sometimes the law justifies why an immoral behaviour or action is legal and why it should stay that way. However, the ideal situation is to create laws that conform to people’s norms and values to avoid a clash of morality and legality. For example killing a very terminally sick person who is in constant pain and begs for it may be morally right in some cases but very illegal. By the same token, creating a law from an action that people find offensive or distasteful may give rise to a repugnant law that people will not welcome or accept. Only last week I talked of how our culture promotes infidelity in men and how this is widely accepted and condoned as our way of life. When it comes to issues like homosexuality, however, it is looked at with a lot of contempt and it is very normal to see people in government, the media, even social networks openly say they hate homosexuals or lesbians. Some people go as far as saying that gay people should be shot for being ‘insane’ ‘unnatural’ or ‘evil’. Every time the issue of gay rights comes up, people get so upset, and just like when Zambia is playing football, it is one of those rare times when you see the majority of Zambians agree on one thing. This is further exacerbated by the fact that Zambia, under the second Republican president, Frederick Chiluba, was declared a Christian nation. This defense of being a Christian nation is always used to advance the reason of why ungodly and unchristian behaviour should not be encouraged or condoned in the country. Others, however, argue that not everyone is a Christian and so the Christian way of life should not be imposed on everyone. This issue is very sensitive and one where people with consenting views are normally intimidated into silence or ridicule.

On Sunday, 7th April 2013, Paul Kasonkomona, the National Coordinator of an NGO called Engender Zambia was arrested after appearing on Muvi TV’s the Assignment programme, championing gay rights. The assistant Inspector General of police announced that he was arrested for inciting the public to take part in indecent activities and cited the section of the penal code that was used to effect his arrest. Conversely, anybody who has worked or works for international organisations or lives in certain countries knows that openly criticising gay people is not only a career suicide but also an infringement of their rights. On the other hand, in Zambia, advocating for gay rights is not only a political and career suicide but attracts the same kind of hate speech and ridicule that is attributed to gay people. This is partly the reason why Zambians in the diaspora who have come out saying that they are not homophobic have received a lot of condemnation, hate speech and insults from many Zambians living in the country. The issue has yet again divided some of the local and diaspora Zambians and the truth is that culture and religion is at the centre of the diverse views being advanced by both sides. So how should Zambians, both locally and abroad, as well as the international community proceed with this issue?

To begin with, while international treaties and customary law form the backbone of international human rights law, other instruments, such as declarations, guidelines and principles adopted at the international level contribute to its understanding, implementation and development. Respect for human rights requires the establishment of the rule of law at the national and international levels. According to Article 28 of the Vienna Convention on the Law of Treaties, VCLT, States parties can ratify and make formal declarations to not accept as binding, certain part or parts of the treaty. These are called reservations to the Convention. A Reservation is a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in application to that State. Reservations are also tolerated as a way of securing more ratifications. The definition of reservations indicates that it is the substance of the statement that matters and determines its nature as a reservation. According to article 28, paragraph 2 of the VCLT, reservations are permitted so long as they are not incompatible with the object and purpose of the present Convention.

Zambia, therefore, having ratified international treaties that require it to respect human rights of all its citizens including gay people faces a huge challenge at home due to the intolerance of gay rights that the citizens exhibit. This is very delicate grounds for the Zambian government as domestication of such laws is political suicide from which they can never recover or get a re-election. Whether in government or opposition, all politicians know that supporting gay rights is simply digging their political grave. An example of this was mainly seen prior to the 2011 elections when the former regime launched a media campaign to explain to the masses that the then popular opposition leader Michael Sata would support gay rights once voted into office. Sata had to launch a counter anti-gay campaign of his own assuring the people that he would do no such thing once voted into office. This is the exact opposite of countries like the USA where we saw Obama supporting gay rights and marriages prior to the 2012 elections. Most African countries have outlawed homosexuality, and its practise carries jail sentences. With the recent arrest of Kasonkomona in Zambia, it has become apparent that even its advocacy is illegal and an arrestable offence. Therefore, the international community should be sensitive to the prevailing political, legal, cultural and religious circumstances in which the Zambian government and local NGOs are operating and desist from pushing them to advocate for gay rights. With the current situation, any gay rights advocacy will just rebound and yield negative results than the ones intended. For instance, when Malawi ratified CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), also known as the Women’s rights treaty of the UN, on 12th March 1987, it made reservations and declarations to Article 5, citing the tenacity and importance of custom. Malawi declared that “owing to the deep-rooted nature of some traditional customs and practices of Malawians, the Government of the Republic of Malawi shall not, for the time being, consider itself bound by such of the provisions of the Convention as require immediate eradication of such traditional customs and practices.” Just like in the case of Zambia, customary law is internalised as a norm in the socialisation process of Malawi and women are the custodian of the culture that emphasises the unequal power relationships between women and men. This culture observes that women should remain submissive to men and customary law, further, allows polygamy. In some cases, in Malawi, domestic violence against a wife is acceptable within the customary law, which expects the husband to exercise a disciplinary role. This is very similar to the Zambian case though Zambia ratified CEDAW without reservations from the onset.

However, on 24th October 1991, the Government of Malawi notified the Secretary-General of its decision to withdraw the reservations made upon accession and currently does not have any reservations to CEDAW. Such reservations, like the ones initially advanced by Malawi in regard to women’s rights, are what African countries like Zambia should explain and put forward to the international community when faced with the task to advance gay rights in their respective countries. Then again, Zambia is very notorious for ratifying treaties, without reservations, and later on fails to domesticate them due to the many financial, political, legal, cultural or even religious reasons that may be at play at national level.

Currently, some scholars from Islamic countries further argue that human rights discourse is not universal but a product of the European Enlightenment and its particular cultural development. They claim that the freedoms articulated in the UDHR make no sense within the theoretic bias of Islamic thought and governments in many Islamic countries often underscore this view. With particular reference to women’s rights, in Islamic states, women are often seen as a symbol of a particular cultural order, as icons of cultural purity. These countries argue that inequalities in certain laws are not discrimination, but rather reflect complementary obligations and rights under the Shari‘ah, namely that the husband is required to maintain his wife, while the wife can keep any income or wealth for herself. They regard this as a form of justice for women. The cultural practices that are seen as discrimination in other parts of the world are considered an integral part of their culture, tradition and religion. They further maintain that even if a brother and sister divided their inheritance from their father equally, the brother would still be financially responsible for supporting his sister. This means that that the person who is obliged to provide support should have greater financial resources at his disposal. Therefore, in awarding the man a greater share of the inheritance, Shari‘ah law is in fact providing for the fair treatment of men and women.

However, in as much as countries like the USA are in the forefront of advocating for gay rights and other rights, the USA has the unfortunate name of being the only industrialised country that has not ratified CEDAW. The ratification of CEDAW is a highly politicized issue in the United States, and has been the case in past decades. Some conservative groups argue that CEDAW will create additional rights, such as legalized prostitution and unrestricted rights to abortion hence they do not want to feel obligated to give these rights to the public. However, others assert that the ratification of CEDAW will provide legitimacy for countries such as Saudi Arabia, where CEDAW was ratified but women are still prohibited from voting and driving. Therefore, many countries that have problems with certain provisions of treaties they have ratified can easily cite the US as being in the fore front of running away from certain human rights obligations when it suits them. So if the USA can avoid treaties as important as CEDAW, African countries can surely find a way of communicating the extreme difficulties that come along with gay rights advocacy and campaigns in their countries. Therefore, in many African countries like Zambia, whether a few people in the country are not homophobic is not the issue, what matters is that the prevailing circumstances are not safe for anyone to champion gay rights. Like Malawi argued when it initially put reservations to CEDAW, until such a time when people are more receptive or tolerant to certain behaviours, the Zambian government and local NGOs should not be pushed to take up the task to advocate or discuss gay rights in an environment that is patently hostile and antagonistic to the issue. This tolerance may happen in the next one year, twenty years or probably never, but one thing that is clear is that a lot of caution needs to be exercised when handling gay rights advocacy in Zambia, or lack thereof.

References

Mayer, A. E. 1994. Universal Versus Islamic Human Rights. 15 MICH. J. INT'L L. 307

Moeckli et al. 2010. International Human Rights Law. New York: Oxford University Press.

Neumayer, E. 2007. Qualified Ratification: Explaining Reservations to International Human Rights Treaties. Journal of Legal Studies. The University of Chicago Press. pp. 397-430.

Newberg, P.R. 1980. The Politics of Human Rights: Civil Rights, Human Rights. New York: New York University Press

Oloka-Onyango, J. and Tamale, S. 1995. The Personal is Political, or Why Women’s Rights are Indeed Human Rights: An African Perspective on International Feminism. Human Rights Quarterly, Vol. 17: 691-731

United Nations Human Rights. Office of the High Commissioner of Human Rights. OHCOHR 1996-2012