Ska Ngwenya gives evidence before the Constitutional Commission

CONSTITUTIONAL SUBMISSIONS

It has always been GALZ’s dream that, like South Africa, a new constitution for Zimbabwe would include a clause specifically outlawing discrimination on the basis of sexual orientation.The present Zimbabwean constitution, imposed upon the nation as part of the Lancaster House Agreement of 1979 and which paved the way for Zimbabwean independence from Britain in April 1980, has, for many years, been seen by many to be inadequate to the needs of Zimbabweans. In addition, the numerous amendments to the present constitution by the ruling party which, except for a brief period between 2000 and 2005, has consistently enjoyed the two-thirds majority required to make constitutional changes, has led to the erosion of most of the few precious human rights protections contained in the original version.

The first major initiative to provide Zimbabwe with a new homegrown constitution came from the National Constitutional Assembly (NCA). In 1998, GALZ joined this coalition of civic-based organisations and individuals and, through submissions and presentations, has consistently argued for the inclusion of sexual orientation as a specific ground for non-discrimination.

Although the magic words ‘sexual orientation’ do not appear in the present NCA draft, there is still the likelihood that the clause will find its rightful place in the final version. At present, the broader phrase ‘natural difference or condition’ is included which is generally interpreted to cover LGBTI interests. However, with the NCA perceived by the State as a threat to the current regime, it is unlikely that that the NCA version will be adopted in the present polarised political climate

In 1999, albeit against the wishes of the NCA, GALZ decided to participate in a parallel constitutional process led by the Constitutional Commission (CC). This government-led initiative was seen by many as a way to diffuse growing interest in the NCA process and pre-empt any pressure for the NCA constitution to be put to a national referendum. GALZ produced a written submission and made two formal presentations before the CC. For the second, in front of 400 commissioners, four GALZ activists, Ska Ngwenya, Chesterfield Samba, Romeo Tshuma and Keith Goddard spoke about their lives as lesbian and gay people and their need for protection under a new constitution. They were booed and heckled and many Commissioners had to be restrained by the Chair and reminded that GALZ representatives were the guests of the Commission.

Not surprisingly, GALZ was unable to persuade the Commission to include the exact words ‘sexual orientation’ but, again, the phrase ‘natural difference or condition’, which had the appearance of being a compromise, was widely interpreted to include LGBTI persons.

The proposed draft was rejected as a whole in a public referendum in February 2000, not because it might have protected gays and lesbians, but because it was thought to award too much power to the proposed new National Executive.