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Sexual orientation and Zimbabwe's Constitution: A case for inclusion
Gays and Lesbians of Zimbabwe (GALZ)
July 02, 2009

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Executive Summary

Although democracy is about the rule of the majority, the majority does not have unfettered power. A democratic constitution must incorporate various fundamental rights in order for it to be democratic. These fundamental rights are not determined by majority opinion, but are regarded as inalienable and inherent. These rights have been integrated into all international human rights treaties. Zimbabwe has ratified the International Covenant on Civil and Political Rights and has thus undertaken to respect the rights of equality and privacy. The right to equality protects gay and lesbian identity, the right to privacy, and consensual adult gay and lesbian conduct. The right to equality implies respect for difference. No person should be deprived of opportunity solely on the basis of an irrelevant personal characteristic. Such a deprivation constitutes unfair discrimination. To deny a job simply on the basis of a person's gender, when the fact is unrelated to the ability to perform the required work, is an affront to the person's dignity.

Identity of treatment may also result in substantive inequality. To equally deny maternity leave to women as well as men results in equality through a failure to acknowledge a difference in circumstances and sex. Unfair discrimination thus results from the unequal treatment of equals and the equal treatment of unequals. Gays and lesbians have the personal characteristic of same sex attraction. This characteristic is irrelevant to their contribution to the community or ability to perform work. Yet gays and lesbians encounter unfair discrimination solely on this basis.

The right to privacy recognises that there is an area in each individual's life which ought to remain free from government intrusion. Sexuality is a most private area of a person's life. It ought not to be interfered with unless there are legitimate reasons to do so. International jurisprudence reveals that public morality alone is an insufficient basis to intrude upon private sexual acts which cause no harm to others. There is no legitimate basis for government interference in gay and lesbian sexual acts where these take place in private between consenting adults.

However, neither the right to privacy alone nor a general right to equity of all persons is sufficient to protect the dignity of the gay and lesbian community and to prevent unfair discrimination. The Universal Declaration of Human Rights declares a general right to equality but lists specific grounds upon which discrimination is proscribed where these grounds have historically been the targets of unfair discrimination. Sexual orientation is one such ground and thus should likewise receive specific mention. A right to privacy alone is an inadequate safeguard for gay and lesbian rights, since gays and lesbians are not discriminated against solely on the basis of what they are perceived to do, but who they are. Accordingly, Zimbabwe's new constitution requires rights to privacy and a right to equality, in which sexual orientation receives specific mention.

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