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  • Human rights, gay rights and the Constitution - SAPES Seminar
    Upenyu Makoni-Muchemwa,
    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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    Derek Matyszak

    These rights, 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. Listen

    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. Listen

    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? Listen

    The Republican 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. Listen

    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 special mention. Listen

    Rudo Gaidzanwa

    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. Listen

    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. Listen

    The 1999-2000 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? Listen

    In Zimbabwe 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). Listen

    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. Listen

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