By: Enerst Nkhoma
Why Zambia Must Decriminalize Homosexuality: Being Who You Are Should Never Be Illegal and a Discriminatory Religious Doctrine cannot justify Criminalization
Being who you are should not be illegal, yet in Zambia, people
are punished simply for their sexual orientation; a part of themselves they did
not choose. Science shows SEXUAL ORIENTATION IS INNATE, NOT A LIFESTYLE
CHOICE. Criminalizing it does nothing to protect society. It only spreads
stigma, fear and mental harm. Laws should protect citizens, not punish them for
being themselves. It is time for Zambia to choose justice, equality and human
rights over fear and prejudice.
In Zambia, homosexuality remains criminalized under specific provisions of the Penal Code Act, Chapter 87 of the Laws of Zambia. The law treats consensual same‑sex sexual activity as a criminal offence, imposing severe penalties on those found guilty. Section 155, titled ‘Unnatural Offences,’ criminalizes consensual sex ‘against the order of nature’ and classifies it as a felony, with potential imprisonment.[1] Closely linked, Section 156 punishes attempts to commit such acts, ensuring that even unfulfilled intentions are subject to legal sanction.[2] Meanwhile, Section 158, concerning ‘Indecent Practices Between Persons of the Same Sex,’ criminalizes acts of gross indecency between people of the same sex whether in public or private and applies to both men and women, carrying penalties of up to fourteen years’ imprisonment. Together, these statutes form the legal framework that allows for the prosecution and imprisonment of individuals for engaging in consensual same‑sex relationships. Importantly, such behavior involves consenting adults and does not harm others. Criminalizing these acts raises serious questions about the fairness and justification of these laws. These legal provisions bear grave consequences for individuals whose sexual orientation places them at risk.
In India, cows are considered sacred
by Hindus. However, this raises an important question. Should a religious belief
make it a crime for everyone to eat beef? A similar issue exists in Zambia,
where homosexuality is criminalized mainly on the basis of Christian beliefs, a
justification that is deeply flawed and unreasonable. In both cases, religious
values are being used to create criminal laws that apply to an entire society,
including people who do not share those beliefs.
Therefore, what difference does it
make in comparison to our forefathers, who used laws and religious teachings to
justify slavery? For example, the Bible in Leviticus 25:44-46 states:
“If you need slaves, you may buy them from
the nations around you. You may also buy the children of the foreigners who are
living among you. Such children born in your land may become your property, and
you may leave them as an inheritance to your children, whom they must serve as
long as they live
. Another verse that justifies slavery
is Deuteronomy 20:10-11. It states that:
“When you go to attack a city, first give
its people a chance to surrender. If they open the gates and surrender, they
are all to become your slaves and do forced labor for you." [3]
Just as people in the past were punished or
restricted for something as arbitrary as their ethnicity or social status,
today individuals are criminalized for something innate like their sexual
orientation based on religious or cultural beliefs.
If we apply reason and critical thinking,
rather than relying on social conditioning, it becomes clear why society has
often overlooked or stigmatized people who practice homosexuality.
Socialization through family, religion and cultural norms has taught many
Zambians to see same-sex relationships as immoral or unnatural. Yet these
beliefs are social constructs, they are not objective truths. Reason shows that
consensual same-sex relationships do no harm to others and punishing
individuals for their sexual orientation is therefore both unjust and
irrational. By questioning inherited prejudices, we can recognize that
discrimination against LGBTQ+ people is the product of cultural bias, not of
any legitimate legal or moral principle.
To begin with, scientific research
consistently shows that sexual orientation is not a choice and is not caused by
upbringing or environment. Just as people do not choose their height, skin
color or whether they are left or right-handed, they do not choose who they are
attracted to. Studies across genetics, prenatal hormone exposure and brain
development suggest that sexual orientation emerges naturally as part of human
variation.[4] If
this is the case, why should anyone be criminalized for something they did not
choose?
Moreover, basic principles of
criminal law hold that if there is any reasonable doubt about a person’s
responsibility or culpability, they should not be charged or punished.
Criminalizing homosexuality, therefore, punishes people for something innate
and beyond their control, making such laws fundamentally unjust. Many people claim that Zambia is a Christian
nation, but such declarations are found only in the preamble of the Constitution,
which, as a matter of law, is not binding. While the preamble expresses guiding
principles, it does not override or dictate the enforceable provisions of the
Constitution. In fact, the Constitution itself sets out its own legal values
and protections in Article 8 which
guarantees equality, on-discrimination
and respect for human dignity.[5] This
means that no religious declaration, however prominent in the preamble, can
justify laws that infringe on the fundamental rights of citizens, including
laws that criminalize homosexuality.
The Constitution of Zambia is the
supreme law of the land. Article 1 provides
that the Constitution prevails over any other law and any provision
inconsistent with it is null and void to the extent of the inconsistency. Articles 11 and 23 further guarantee
that every person is equal before the law, entitled to protection from
discrimination and able to enjoy fundamental rights and freedoms without unfair
distinction. Despite this, Sections 155, 156 and 158 of the Penal Code Act, Chapter 87
criminalize consensual sexual activity between adults of the same sex, singling
out LGBTQ+ individuals for prosecution for something they cannot choose.
These sections are therefore
incompatible with the Constitution, as they violate the principles of equality,
dignity and non-discrimination. In Christine
Mulundika & Others v The People, the Supreme Court struck down provisions of the Public Order Act
for being unconstitutional, affirming that any law that infringes
constitutional rights is void and unenforceable.[6]
Furthermore, in the case of Athur Wina and Others v Attorney-General,
the High Court of Zambia held that a directive by the President restricting
government-owned newspapers from covering activities of the Movement for Multi-Party
Democracy (MMD) was unconstitutional and discriminatory because it violated
constitutional protections.
The principle of supremacy of the Constitution
was also applied in the case of Thomas
Mumba v The People (1984) Z.R. 38 in this case, Thomas Mumba argued
that the Corrupt Practices Act of 1980 specifically, Section 53(1) violated Article
20 (7) of the Zambian Constitution and the court ruled in favor of Mumba.
The court held that the Constitution is the supreme law. Any act of Parliament
that contradicts it is void to the extent of that inconsistency. Through the
same logic, the provisions of the Penal Code criminalizing homosexuality should
be repealed or amended to align with Zambia’s constitutional mandate to protect
the rights of all citizens.
If Zambia fears the consequences of
abolishing oppressive laws that criminalize homosexuality, we can learn from
other countries that have done so successfully. Across the globe, courts have
increasingly recognized that laws punishing consensual same-sex relations
violate fundamental human rights, including the rights to privacy, equality,
dignity and non-discrimination. For example, in India the Supreme Court in Navtej Singh Johar v. Union of India (2018)
unanimously struck down Section 377 of the Indian Penal Code, a colonial era
law criminalizing “unnatural offences,” including consensual same-sex
relations.
The Court held that the law violated
fundamental rights to equality, privacy, dignity, freedom of expression and
non-discrimination.[7]
Similarly in the United States, the Lawrence
v. Texas decision saw the Supreme Court invalidate Texas’ sodomy
law, ruling that criminalizing consensual same-sex sexual activity violated the
due process rights to liberty and privacy protected by the Fourteenth
Amendment. This decision ended similar laws across the remaining U.S. states.
In Botswana, the High Court in Motshidiemang v. Attorney General (2019)
held that criminalizing consensual same-sex relations violated constitutional
rights to privacy, liberty, dignity and non-discrimination.[8] The Court of Appeal later
upheld this ruling, cementing decriminalization in the country. In Ecuador, Case No. 111-97-TC (1997)
saw the Constitutional Tribunal overturn a law criminalizing same-sex
sexual activity, establishing constitutional protections for sexual
orientation.
Moreover, in Europe, the landmark
case of Dudgeon v. United Kingdom
(1981) ruled that criminalizing consensual homosexual acts between
adults in private violated Article 8 of
the European Convention on Human Rights.[9] This decision led to the
decriminalization of same-sex acts in the UK and influenced similar decisions
across Europe. More recently, in Namibia, the High Court struck down
colonial-era “sodomy” and “unnatural offences” laws, ruling that they unfairly
discriminated against same-sex couples and violated constitutional rights to
equality, dignity and privacy.
These cases demonstrate a clear
judicial trend laws that criminalize consensual same-sex relations are
increasingly viewed as incompatible with modern constitutional and human rights
standards. Courts around the world have repeatedly affirmed that such laws
violate privacy, equality and dignity, offering persuasive reasoning and a
roadmap for countries like Zambia to follow in decriminalizing homosexuality
without societal harm.
In conclusion, this article is not
advocating for the promotion or endorsing of homosexuality, but rather about
amending the discriminatory laws that criminalize it. Zambia’s Constitution
under Article 4(3) describes the
country as a unitary state. This principle goes beyond simply uniting people of
different religions, cultures or skin color. It also encompasses uniting
citizens who love differently, including those who identify as homosexual.
Respecting this constitutional value means ensuring that all Zambians, regardless
of sexual orientation are treated equally under the law and are not punished
for something they cannot control. Amending these laws would strengthen the
Constitution’s promise of unity, equality, and human dignity for all citizens. ONE
ZAMBIA ONE NATION. Make Zambia a safer place for everyone!
BIBLIOGRAPHY
STATUTES
The Constitution of Zambia Act No 2
of 2016
Penal Code Act Chapter 87 of the
Laws of Zambia
CASES
Dudgeon v. United Kingdom (1981)
Motshidiemang v. Attorney General
(2019)
Mulundika and Others v The People
(S.C.Z. Judgment No. 25 of 1995) [1996] ZMSC 26
Navtej Singh Johar v. Union of India
(2018)
Thomas Mumba v The People ( (1984) Z.R. 38 (H.C.)
BOOKS
Bailey JM, Vasey PL, Diamond LM,
Breedlove SM, Vilain E and others, Sexual Orientation, Controversy, and Science
(2016) 17 Psychological Science in the Public Interest
The holy Bible
[1] Penal
Code Act, Chapter 87 of the Laws of Zambia.155.
[2] IBD
[3] The holy bible
[4] J
Michael Bailey, Paul L Vasey, Lisa M Diamond, S Marc Breedlove, Eric Vilain and
others, Sexual Orientation, Controversy, and Science (2016) 17 Psychological
Science in the Public Interest 1, 17–45.
[5] Constitution
of Zambia, 1991, (as amended 2016)
[6] Mulundika
and 7 Others v The People (S.C.Z. Judgment No. 25 of 1995) [1996] ZMSC 26
[7] Court
in Navtej Singh Johar v. Union of India (2018)
[8] Motshidiemang
v. Attorney General (2019)
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