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rights, gay rights and the Constitution - SAPES Seminar
June 10, 2010
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As part of their
ongoing policy dialogue series SAPES
Trust hosted a seminar titled Human Rights, Gay Rights and the
Constitution. The presenter was the founder of the Legal Aid Clinic
in Harare, Derek Matyszak. The evening's discussant was Professor
of Sociology at the University
of Zimbabwe, Rudo Gaidzanwa and Chairman of the National
Constitutional Assembly, Lovemore Madhuku, chaired the proceedings.
The following are excerpts from the two presentations.
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LGBTI Rights, tend to be framed in a Liberal Democratic discourse.
The way things have advanced since the mid sixties to the present,
is that it's now accepted in most jurisdictions that LGBTI
rights are Human Rights.
If we look at
the Right to Equality, the right inherent in the Right to Equality,
is the acceptance of difference. Discrimination always takes place,
or generally takes place, on the basis of some physical difference
or characteristic. So equality does not imply identity because if
everybody were identical there would be nothing to hang the discrimination
upon. The moment we accept equality jurisprudence, we accept the
right for people to be different. But you'll often hear objections
to LGBTI rights on the basis that they have a different sexuality
that is unacceptable to others.
What the Cultural
Relativism arguments say is these are Western Liberal Democratic
Rights; these are not the kind of Human Rights we want to see in
Africa. We do not see them as human rights, they are un-African,
they are against our culture and we don't want the West coming
and imposing your liberal democratic rights on our particular culture.
Culture is relative and ours does not accept these Rights; and who
are you to tell us to accept these Rights? Of course the Human Rights
Commission did tell them that in no uncertain terms. [They said]
that you cannot use culture to try and sidestep the undertaking
you made when you signed the International Covenant on Civil and
Political Rights. But the argument persists: are these rights universal
or do you have a cultural specificity in relation to Human Rights,
and should Africa develop its own particular human rights culture
separate from the West?
point of view says that the morality of a society should be determined
by the consensus within that society, and the values of that society
are determined by that society. They are not determined by some
western power that comes in and says this is going to be you value
system. So there is a sort of majoritarianism there. The Republican
point of view then tends to lobby more strongly for the Christian
ethic, which pervades a large section of American society.
Why should we
have Sexual Orientation put in the constitution? All anti-discrimination
clauses are ironically enough, discriminatory. Why are race, gender,
ethnic origin mentioned and why not height, colour of hair and various
other things mentioned? Why do we choose these and leave other ones
out - is that not discriminatory? And why then should we put Sexual
Orientation in when we don't put these other ones in? The
reason is this: it's because there is a long history of people
being discriminated against on the basis of their sexual orientation.
And that's why as a matter of historical precedent it requires
Why does the
issue of sexual orientation frighten people so much? People choose
what principles they will want to honour at any particular point
in time. But if we look at the experience of Zimbabwe, you will
see that there are many issues that we need to deal with. For example,
according to the law, there is very little mention of women's
homosexuality in the law in Zimbabwe. Its not criminalized. [Derek
Matyszak: Lesbian sex is not criminalized in Zimbabwe] Why is it
not criminalized? Because, really, it's not considered to
be sex. This is very important as a pointer to the issues.
There are many
kids who are gay, in rural areas, whose parents don't know
what to do. The children themselves are discriminated against, but
because of the closure of the discussion, they actually don't
know what to do with themselves, and they don't know where
to go and they're just confused. If you look at some of the
studies that have been conducted about the experiences of gay people
in Zimbabwe, you'll find that there are a lot of problems
because, generally, people don't understand what the issues
are, people don't understand what's happening to them
or their children and how they're supposed to deal with it.
So, because of the shutting down of that whole debate, there are
many people who are suffering.
Constitution Commission listened to gay rights advocates. But now
I find it very interesting that this particular constitution making
process is backtracking on the issue of gay rights, and on the issues
of sexuality and sexual orientation. So what has happened between
then and now that is making both the MDC and ZANU-PF take the same
position on sexual orientation?
there is also the issue of HIV because of men having sex with men,
which people don't want to deal with; not the health workers,
not the government, not anybody. Somehow people pretend that it's
not there. Quite a lot of married men have sex with both men and
women in Zimbabwe, but it's never something that is admitted,
its never put in the public domain. Those men, when they go into
the clubs in Harare, they'll be consorting with other men
who are gay, and they (the openly gay men) say but what are you
doing here since you are heterosexual? And they say Mukadzi wangu
ari kumusha (my wife is in the rural areas).
I think what
is also important is that non reproductive sexualities, that is
sexualities that don't lead to reproduction, tend to be attacked
because they tend to decouple reproduction from sex. Where sex is
for pleasure only, then its very licentious and undisciplined. Whereas
sex for procreation is better, socially. It also polices women,
because the threat of pregnancy becomes a very important weapon
to keep women loyal to men and not to stray with other men or women.
In fact when we talk about women having sex with each other in the
University of Zimbabwe, a young man will ask 'what exactly
do they do?' . . . they can't imagine any kind of sex
which is not penetrative sex between a man and a woman.
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