Sexual equality and the NCC draft Zambian constitution

The National Constitution Conference (NCC) has produced a draft constitution for Zambia. The NCC has been a long, political and highly contested process. The process attempts to merge the varying interests of a diverse society. However, as in any contest, the more powerful the player, the more likely she or he is to win. In a country where sexual equality – i.e. the rights women, girls and sexual minorities – is still far from reality the NCC draft constitution offered an opportunity to enshrine sexual equality into the Bill of Rights. A study of the draft finds that though women’s rights appear to be incorporated, the NCC has not gone far enough to empower women. Furthermore, not only has the NCC not decriminalised homosexuality but it has explicitly deprived lesbians, gays, bi-sexuals and transgender persons (LGBT) of their rights.

This brief analysis looks specifically at the implications of the draft Bill of Rights on women and LGBT.

LGBT RIGHTS IN THE DRAFT CONSTITUTION

The draft constitution states in Article 49 (4), ‘Any law, culture, custom or tradition that undermines the dignity, welfare, interest or status of women or men is prohibited.’ The legislation that follows regarding same-sex relations is inconsistent with this principle.

To begin with, the freedom to choose a spouse and marry is only granted only to a choice of the opposite sexes, as written in article 52 (3), ‘a person who is eighteen years of age or older has the right to freely choose a spouse of the opposite sex and marry’ and furthermore in subsection (5) ‘marriage between persons of the same sex is prohibited.’ Article 49 is negated in relation to lesbians and gays, although according to article 38 (2) the Bill of Rights applies to all ‘natural or juristic persons.’

In Zambian law homosexuality is currently termed an ‘unnatural act’ and governed by sodomy laws which do not recognise consensual sex between adults of the same sex. The draft constitution permits discrimination due to sexuality by deliberate omission in article 48 (1): ‘Every person has the right not to be discriminated against, directly or indirectly, on the grounds of race, tribe, sex, pregnancy, origin, colour, age, disability, religion, conscience, belief, political opinion, culture, language, birth or health, marital, ethnic, social or economic status.’

The justification for reinforcing homosexuality as a crime and depriving LGBT of their rights is that homosexuality is an anathema to the country’s Christian beliefs and values and its culture. However, the constitution does specify which of the many variations of Christianity it will pursue. Christian denominations have varying viewpoints regarding homosexuality. Furthermore too little is known about pre-colonial (pre-Christian) attitudes regarding homosexuality in Zambia to know if tradition and religion reinforce or contradict. What is evident is that the general public is highly homophobic, and because LGBT advocacy is banned, LGBT communities were effectively left out of the constitution making process. In addition major political parties, several church leaders and non-governmental organisations (NGO) refused to support gay rights or the call to decriminalise homosexuality.

DEFINITIONS OF ‘FAMILY’ AND THE POTENTIAL FOR DISCRIMINATION

The NCC draft states that the family is the fundamental unit of society and the basis of social order and thus entitled to protection. According to the definition given by the Gender in Development Division (GIDD) - the government department coordinating gender equality - the family is composed of the nuclear family: husband, wife, children and the extended family, paternal and maternal grandparents, uncles, nieces, nephews, aunts and other relations. GIDD as a government department makes no mention of single parent families or co-habiting couples.

Though Article 52 restates the recognition of the family as the natural and fundamental unit of society, in article 52 (9) it leaves parliament to enact legislation on what constitutes a family. As the overarching law of the country, the constitution should define a family to include the various forms family can take including single parent households (female or male headed). Furthermore the constitution opts out of making a stance on customary and statutory laws regarding family despite the extensive consulting process.

Another dichotomy is that the draft constitution declares that ‘the family is the natural and fundamental unit,’ yet the same document acknowledges that Christian, secular (rights based and statutory) and customary influences and non-Christian religions exist in the country. Norms of ‘the family’ vary in these value systems, especially with regards to polygamy and the rights of women within a marriage. Current legislation leaves too much leeway to diverse and uncodified customary law among many ethnic groups and religions in this country.

Customary law permits human rights abuses in the name of polygamy and early or forced marriage. Though the draft sets a minimum age of marriage, it only allows women ‘the right to freely choose a spouse.’ It does not say that a person cannot be forced or coerced into marriage. The Committee on the Elimination of Discrimination Against Women (CEDAW) text states women have the right ‘...freely to choose a spouse and to enter into marriage only with their free and full consent’ which would unequivocally prohibit forced marriage.

Furthermore, in a rights-based approach ‘the right to freely choose’ should not be derogated by ‘a spouse of the opposite sex’ as it repudiates the word ‘freely.’

GENDER EQUALITY AND WOMEN’S EMPOWERMENT

The NCC draft constitution states in Article 17 ‘The state shall direct the policies and laws towards securing and promoting gender equality.’ Furthermore, in Article 48 (4) the draft Bill of Rights says ‘Any law, culture, custom or tradition that undermines the dignity, welfare, interest or status of women or men is prohibited.’ This is in contrast to the current constitution of Zambia which permits the suspension of women’s rights under customary law.

Anchoring the constitution on Christian values and principles and the retention of customary law implies that the context in which these laws, cultures, customs or traditions shall be interpreted will be inherently inegalitarian and patriarchal and will not be radically progressive. The articles on abortion, family and homosexuality are an indication of how human rights can be rewritten to satisfy the limitations imposed by Christian values and principles and customary law

Finally, Article 40 (3), ‘a person shall not deprive an unborn child of life by termination of pregnancy except in accordance with the conditions laid down by an act of parliament for that purpose’ leaves an important right to complex and contradictory parliamentary legislation. Zambia’s current legislation provides for termination of pregnancies within defined spheres. A lack of knowledge and the conflation of abortion with unsafe abortion and prevailing sentiments (religious, and traditional) create a situation in which women and girls die in huge numbers of unsafe abortions, deal with unwanted pregnancies or may charged with a criminal offence for inducing an abortion. A constitutional statement on the right to abortion would send an unequivocal message to medical practitioners, courts of law and the general public on the right of a woman to her own body.

CONCLUSION

The bill of rights in the NCC draft constitution has the appearance of a document that has incorporate equality concerns. However it falls short of a real equality through the problematic inclusion of undefined Christian values and the retention of diverse uncodified and undocumented customary law. It also leaves essential rights to further legislation which may take years to complete. For instance, the Gender Based Violence Bill has been under formulation for three years and the NCC process for two. The pursuit of equality in the NCC has also been affected by the ability of those most affected to participate due to the ban on LGBT advocacy and a strong highly conservative political and NGO voice.

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* Mwila Agatha Zaza lives and works in Zambia as a mainstreaming specialist.
* Please send comments to [email protected] or comment online at Pambazuka News.