The Constitution Process and Sexual Minority Rights in Zimbabwe

by Marc Epprecht – Dept. of Global Development Studies and Dept. of History, Queens University, Canada

Two flags fly side by side over the corner of a quiet tree-lined street and a busy thoroughfare in one of Harare’s inner northern suburbs. There is the red, gold, black and green of Zimbabwe‘s national standard (let‘s not talk of the splash of white just now). But beside it flutters something even more colourful: the international symbol of gay pride. The rainbow flag signifies the diversity of sexual orientation and gender identity within the unity of the whole, humanity, democratic rights and freedoms for all citizens.

It is a remarkable statement of self-confidence by GALZ (formerly Gays and Lesbians of Zimbabwe), the owner of the property from which the flags have been hoisted. The association itself has been around for over two decades providing social and legal support, counselling, sexual health education, research, and lobbying for sexual minority rights. Its social centre dates from 1996 courtesy of the courage of its founders and the generosity (and discipline) of its principal funders, HIVOS and the Atlantic Philanthropies, notably. GALZ maintains a website and puts out a well-written, sometimes quite combative newsletter/magazine. Among GALZ’ numerous other publications is an overview of the history of same-sex sexuality in southern Africa from pre-colonial times (that is, within traditional African cultures), and a thoroughly referenced legal brief that argued for the inclusion of sexual orientation in the proposed (but eventually aborted) 1999 constitution (GALZ 1999).

I was at the centre recently to chat with members, and I have to admit my expectations coming in were not all that high. GALZ’ long-time director and resident dynamo Keith Goddard, had died suddenly a couple of years ago, while many of the other movers and shakers from the early days had left. I’d heard that following the last police raid, the library and archives had been moved away for safety. Harare in general is a mess, people are close to starving in the rural areas, and I had frankly never seen a tobacco leaf as pathetic as the ones hanging from spindly stalks in the new resettlement farms I had passed through. The press was meanwhile once again full of bile, stereotypes and mockery of homosexuals and the very concept of gay rights.

The prospect of elections always seems to bring out this nasty streak in Zimbabwe’s political discourse, although of course Zimbabweans are not alone in that regard. From Uganda to Senegal to Burundi, sexual minorities have been the target of increased demagogic attacks and quite explicitly, expansively oppressive legislation in the last few years. Uganda’s proposed Anti-Homosexuality Bill would criminalize mothers who didn’t report their own children to the police if they suspected homosexual behaviour, among other insanities justified in the name of protecting the nation from immoral foreign influences..

Yet in all my years of visiting, GALZ has never looked quite so … solid. It was not just the flag. The grounds of the centre were neat, the computers new-ish, the staff professional and efficient. And the members who came to my event were all black by the usual measure of these things. They ranged from mature Shona women to nattily dressed young puppies (male “queens“), from articulate and well-informed professionals to somebody smoking mbanje in the back row. I was informed that membership is well above the levels of the late 1990s. There now affinity groups in most of the major cities of the country with outreach projects extending even into the rural areas.

My visit to GALZ this time was to present my perspectives as an academic researcher on the current state of the struggle for sexual minority rights on the continent, and in the process to take the pulse of opinion on the topic. More than 100 people turned up on a chilly Friday afternoon to listen, and respectfully to contest my basically optimistic view of things. After a lengthy Q and A, we broke for bread and some enthusiastic dancing. I was not convinced that lgbti (lesbian, gay, bisexual, trans and intersex) people are as oppressed and fearful today as they were in the mid-1990s when the political homophobia (and my own involvement) began. To be fair, no one really tried all that hard to persuade me that they were.

Not to say that GALZ is strong, per se. Like most such associations in the region, it remains heavily dependent on foreign donor support. Acts of violence, blackmail, and dehumanizing speech against members are common, while the temptation to gap it to the West or South Africa for asylum or simply to make ends meet is powerful. Yet GALZ has not only survived with growth through the devastating last decade. It has also been able to build bridges with other civil society groups working towards a democratic Zimbabwe. In May, GALZ joined with representatives of several of those groups to present their anxieties about the current situation to the visiting UN envoy on human rights, Navi Pillay, an outspoken supporter of the seamlessness of sexual minority rights with gender equality and all the other rights and freedoms enshrined in the vast array of international declarations, treaties and convenants to which Zimbabwe is signatory.

Human rights in a general sense are indeed back in public discourse as Zimbabwe prepares for the end of the Government of National Unity next year. Part of that process is the drafting of a new constitution that would enable free and fair elections – and the rule of law thereafter – in accordance to the high standards enunciated by SADC. A committee of parliament comprised of representatives of all three parties known as COPAC was struck and started gathering public input in 2010. COPAC presented its first draft in February of this year, with further revisions suggested in May.

Negotiations are currently stalled, however, and it is not hard to see why. A truly democratic constitution would have dire consequences for the ruling party’s grip on power. It would prevent the many layers of human rights abuses, cheating and looting by which ZANU-PF has entrenched itself while driving the economy into the ground over the past decades. No one doubts that the stakes are high, not least of all the security apparatus. Members of the latter have hinted darkly at they would not allow the forces of colonialism to re-take the country, a not-too-subtle threat against the Movement for Democratic Change-Tsvangirai, and a gesture of contempt towards SADC. SADC has nonetheless insisted that the process must be adhered to, while Pillay directly chastised the military for intervening in the discussion. She warned all parties, but with most obvious allusion to ZANU-PF, that human rights are not negotiable or divisible.

Unsurprisingly, ZANU-PF has shown little enthusiasm for the constitutional process and has sought to derail it by whatever means it can. It lodged no less than 90 objections to the first draft of the constitution, including over such huge political questions as the devolution of power from the national to provincial jurisdictions and limitations on the executive powers of the president. Judging from coverage in the state-controlled (sycophantic) Herald, however, the biggest threat posed to the nation would seem to be “the gays.“ On the day of my arrival, a front page story worried about language in the draft that called for no discrimination based on “circumstances of birth.” This was a rewording of the original February draft (“natural difference or condition or  […] other status,” which had already been rejected by ZANU-PF. The problem? It was too open to interpretation that it included sexual orientation. In case readers didn’t get the point, this story was followed by another of a brutal paederastic rape and a warning from visiting American evangelists on how much they love homosexuals as people but hate the sins that homosexuals allegedly commit.

The “circumstances of birth” clause was not the only one to raise the alarm for various ZANU-PF critics. Attack dog Jonathan Moyo, for example, denounced COPAC (despite having ZANU-PF members on it!) for using “trickery and deceit” to sneak gay rights into the constitution against the democratic wishes of the mass of the population. Unlike Zambia’s new constitution, for example, the draft does not explicitly define marriage and family as based upon opposite-sex unions only. COPAC was hence almost inviting “the gays” to use the document’s other generous equality and human rights provisions, or its respectful mentions of international obligations, to press their “scandalous” demands. Competing ZANU-PF factions are meanwhile assiduously courting traditional chiefs and popular evangelical Christian leaders using barely coded language of hate that would be prohibited under the proposed constitution’s definition of what would not allowed under freedom of speech.

As it happens, gay marriage is not a priority for GALZ, which also adamantly rejects any connection between sexual minority rights and pederasty, rape and bestiality, common misleading associations made by its enemies. GALZ further rejects the notion of gay rights (that is, rights specific to lgbti). It insists, rather, that all it seeks are equal protections against discrimination, violence, and hate speech to those offered (at least theoretically) to the rest of the citizenry. To that extent, the present draft of the constitution is promising.

People have of course come to expect abuse and misinformation from ZANU-PF and its fellow travellers, while few were surprised last year when MDC-T leader Morgan Tsvangirai sided with Mugabe on the need to exclude sexual orientation as a category requiring constitutional protection on the grounds that it would be against Zimbabwean culture. Tsvangirai has since stated that he would, after all, accept a clause protecting sexual minority rights but that these were an extremely low priority for his party. Unsurprisingly, therefore, confidence both in Tsvangirai’s leadership on this issue and that the present draft of the constitution will be adopted, appears to be low among GALZ members.

As for the American “friends” of Zimbabwe who propose to show their love for African homosexuals by offering to cure or convert them back to God’s supposed plan, they are a new and worrisome development. The so-called ex-gay movement lends a cloak of moderation or pseudo-scientific validity to the denial of human rights to lgbti. Yet it has been directly linked to the rise of extremist homophobia in Uganda, and has been used as a justification for vigilantism that serves opportunistic politicians well.

It is a fraught situation given the other very strong appeals that evangelical Christianity has among Zimbabwe’s struggling population. I would nonetheless like to argue that there is greater hope for thwarting the ex-gay movement than might first appear. A new report by the World Bank is a good starting point. That institution is not normally given to strong statements on matters of religious faith or psychological theory. In this case, however, it states rather forcefully that:

“An overwhelming body of evidence supported by the international community of professional organizations who have reviewed the extant literature on the efficacy of conversion therapy has rejected it as ineffective, unnecessary, potentially harmful, and ethically controversial. On the basis of expert consensus in combination with a lack of biologic plausibility and efficacy data, reparative or corrective therapy is given a Grade 4, or inappropriate recommendation” (Chris Beyrer et al 2011, xxxiii).

The World Bank report, coming on the heels of similar statements from the UNAIDS, WHO, the US government and other weighty international bodies, is a good point to begin critically assessing the commonly-held view that homosexuality and gay rights are a form of Western cultural imperialism, a fad or new religion being foisted upon Africa (hypocritically, since many jurisdictions in the West themselves do not enshrine or consistently enforce said rights). This is a point where ZANU-PF and many of its opponents seem to basically agree. Even if reluctantly accepted as a legitimate extension of human rights, the protection of sexual orientation and gender variance is a luxury that Africans can ill afford, “elitist” in Tsvangirai’s terms. In this view, African leaders who do more than pay lip service to the principle are spinelessly kowtowing to donor pressures rather than defending the cultural integrity and other supposedly real interests of their people. Indeed, Malawi‘s new president Joyce Banda has already received a lot of grief from African critics for her quick and unambiguous denunciation of her predecessors’ homophobia.

No one disputes that many Africans are sincerely upset by the challenge to traditional culture posed by the emergence of openly gay identities in Africa. And few would deny that there are clear ties between this new-ish kind of sexual politics and “the gay international” (as one Arab critic put it). It is a big mistake, however, to go from there to denying the African-ness, including the patriotism, of African sexual rights activists. Yes, there is sometimes discomfiting pressure from Western donors these days, with no small sums of hypocrisy in their human rights discourse. But my reading of that discourse is that human rights are in fact often rather understated in the broader foreign policy or development priorities. The main thrust of the World Bank report, for example, is to calculate the economic costs of continuing to ignore the HIV pandemic associated with African msm. Using various models, it comes up with dollar and lives-saved figures for different levels of public health interventions. Even the cheapest options (for example, educational materials, partial coverage of the most-at-risk msm with condoms and lubricant) would save tens of thousands of lives each year. The most expensive option would include full coverage of msm with anti-retroviral medications. While it would cost hundreds of millions of dollars continent-wide, it would save billions of dollars depending on how much value is attached to the lives of young adults and children infected at birth.

The World Bank report draws on recent data that show up to 15-20% of all new infections in places like Kenya and Senegal involve msm either infecting each other or, more commonly, the wives and girlfriends with whom they also maintain relations. Why would msm also have sex with women? No doubt some enjoy the variety for what they experience as its inherent pleasures. For many, however, wives and girlfriends are a strategy to hide their “real” sexuality from public exposure and the risk that such brings of ostracism from family, loss of employment, violence, and social disgrace. This secretive de facto bisexuality means that a high percentage of the victims of homophobia in Africa are heterosexual women and the children they bear who may carry the infection passed to them from their fathers, something which GALZ has been warning its own members about for many years.

How to achieve 100% coverage of msm and the consequent economic benefits? It is an impossible target if men are afraid to be identified due to homophobic laws and social stigma. Human rights are thus strongly implicit in the World Bank argument, however clumsily economistic it may sound.

Any leader who wilfully ignores such evidence in the name of supposed African culture (while at the same time wearing Saville Row suits) would be criminally negligent, no? Tsvanigirai’s recent lukewarm, if not token nod in favour of the principle of sexual minority  rights takes on a new light in that perspective. Terming them “elitist,“ he is clearly not aware of the overwhelming evidence that connects human rights for all citizens to public health and economic development. Since this connection is clearly stated in Zimbabwe’s National AIDS Strategy, he is also clearly unaware of his own government’s official (albeit in practice almost totally disregarded) policy.

GALZ members on the whole do appreciate the public health argument to the extent that it puts their concerns forward in an ostensibly apolitical, scientific, and morally neutral manner. A range of euphemisms and acronyms (like msm and MARP or most-at-risk-population) is also useful for getting a foot in the door for interventions that might otherwise not make it past the guardians of public virtue. But medicalizing the debate is also highly problematic. How will women who have sex with women be included in an approach that necessarily emphasizes the high risk nature of many current msm practices? How can a stigmatized population avoid further stigmatization if publicity focuses on the health dangers they pose to the general population? How are the goals of self-esteem and political confidence nurtured among young lgbti when the main association representing them prioritizes disease and practices mild deception? And who wants to trust the World Bank?

A question then is how to make the case for human rights for sexual minorities without submerging it in medical or pathologizing language while at the same time avoiding the appearance of being “elitist” or simply aping the West? Armed with good research, this is actually not as difficult a task as people often assume. For example, one reason people justify discrimination against gay men is because they do anal and oral sex which are supposed to be against nature. Those practices are widely assumed to be exclusive to gay men (indeed, this was often flatly asserted in the early biomedical research on HIV in Africa). Yet new research shows that anal and oral sex are common among heterosexual couples in Zimbabwe, as elsewhere in Africa. If heterosexuals can do these acts, why can’t same-sex couples? If they should not do those act, will, and how will the state then intervene to stop heterosexual couples from their unnatural behaviour?

The Western cultural imperialism argument is also getting easier to refute. Is South Africa part of the West? Brazil (where last year for the first time the majority of the population identified as African)? Those two countries co-sponsored last year’s UN resolution to include sexual orientation in the list of reasons not to torture, kill or otherwise cause harm to people. Interestingly, the South African ambassador to the UN justified his country’s newly assertive foreign policy on this issue by reference to the struggle against colonialism. He pointed out how most of the African countries that persecute lgbti (including Zimbabwe) do so on the basis of laws inherited from the colonialists (he could have added shoddy science, racist ethnography, and colonialist interpretations of scripture). African liberation thus requires decriminalizing sodomy laws, among other inherited discriminatory legislation, as South Africa and Cape Verde have already done and several other countries are currently mooting (eg., the Botswana High Court is considering that application as I write).

The turn in South African foreign policy on this issue is important to the Zimbabwean case as South Africa is the “point man” for SADC’s monitoring of Zimbabwe’s political reform process. President Jacob Zuma has his critics and no doubt holds fairly deep personal reservations about sexual minority rights even in his own country. But he deserves credit for apologizing for homophobic statements he has made in the past, and for supporting the move to square South Africa’s foreign policy with the principles laid out in its domestic constitution. It is difficult to see how his party could now accept a public back down to appease ZANU-PF on this file.

There has meanwhile been a veritable explosion of new research, art, literature, and film about and by African lgbti. New social media make this material more available to Zimbabwean citizens than ever in history. GALZ members and their allies in civil society can now read about lesbian sangomas in South Africa, legal victories by lgbti in Uganda (Argentina, Mexico, Jamaica, India, and so on in the Global South), an openly gay candidate for senate in Kenya, gay-friendly churches and ministers in Nigeria, queer support groups and networks for Muslims, and much, much more on their (ubiquitous) mobile phones. In short, GALZ members, family and allies need no longer fret that they are alone in Africa or somehow un-African for their beliefs and practices.

Nor need African lgbti always and necessarily remain on the defensive. On the contrary, another noteworthy development over the past year is that African activists are no longer passive recipients of the fruits of rights victories in the West. They are taking the fight directly to the West. A suit filed by Sexual Minorities of Uganda earlier this year in a federal court in Massachusets will be a case to watch. SMUG is using US federal law to hold US ex-gay minister Scott Lively and four Ugandan “co-conspirators” accountable for the homophobic violence they are alleged to have fuelled with their activities in Uganda. Should SMUG win it will have done an important service not only for Africans who are anxious about the spread of US-style bigotry, but also for Americans anxious about the role of Christian fundamentalists in fomenting homophobia in the US. I was pleasantly surprised to find that the case was well-known to the GALZ membership.

Given all that President Mugabe has said since 1995 about lgbti as avatars of colonialism and continental moral decline, and given Prime Minister Tsvangirai‘s obvious lack of understanding and commitment to sexual minority rights, it is hard to believe that those rights will be accepted in the constitution as long as these two leaders remain key players in the constitutional debate. The tide, however, is clearly shifting under their feet.

Rights reserved: Please credit the author, and Solidarity Peace Trust, as the original source for all material republished on other websites unless otherwise specified. Please provide a link back to http://www.solidaritypeacetrust.org

This article can be cited in other publications as follows: Epprecht, M. (2012) ‘The Constitution Process and Sexual Minority Rights in Zimbabwe’, 21 June, Solidarity Peace Trust: http://www.solidaritypeacetrust.org/1226/the-constitution-process-and-sexual-minority-rights-in-zimbabwe/

SELECT SOURCES

Beyrer et al 2011. http://siteresources.worldbank.org/INTHIVAIDS/Resources/375798-1103037153392/MSMReport.pdf

GALZ. 1999. Sexual Orientation and Zimbabwe’s New Constitution: A Case for Inclusion. http://www.kubatana.net/html/archive/sexual/090702galz.asp?sector=SEXUAL

www.galz.co.zw

Zimbabwe: Constitution Parliamentary Select Committee http://www.copac.org.zw/

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