GALZ and The Law

There is a common misconception amongst many Zimbabweans that it is illegal to be homosexual in Zimbabwe. This is a myth since it is not possible to legislate against what people think, only against what people express or do. Nevertheless, with ordinary Zimbabweans and law enforcers being given carte blanche by national leaders to arrest homosexuals on the streets, many LGBTI people in Zimbabwe live in fear of blackmail and being arrested for consensual sexual acts. GALZ has successfully provided legal assistance to many members who have been victims of state harassment or extortion.

In January 2006, Zimbabwe codified its criminal law, effectively replacing common law crimes by statutory ones. This has resulted in substantial changes to the laws affecting LGBTI persons.

Most importantly, whereas previously, consensual and non-consensual anal sex between men were both regarded as sodomy, sodomy now only refers to consensual sex between men. In addition, sodomy only previously referred to anal sex. Sodomy now includes any sexual contact between men and is defined as follows:

Any male person who, with the consent of another male person, knowingly performs with that other person anal sexual intercourse, or any act involving physical contact other than anal sexual intercourse that would be regarded by a reasonable person to be an indecent act, shall be guilty of sodomy and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding one year or both.

Due to rampant inflation in Zimbabwe, fines are now set at various levels, from one to 14, the monetary quantum of which is then altered periodically by regulation.

The penalties stipulated are the maximum possible and will only be imposed by the court for the gravest infringement of the legislation. In practice, a lesser sentence will be imposed. We wait to see if the courts follow the precedent of imposing fines in the region of level three or less for sodomy. Nonetheless, rather than codifying the common law, the penalties for consensual anal sex do appear to have increased. It is anomalous that non-consensual sexual acts falling short of anal sex, attract a lesser fine of level seven.

It will also be interesting to see how the courts interpret the phrase “regarded by a reasonable person to be an indecent act”. Is the reasonable person homophobic? Does the reasonable person accept international human rights instruments? This provides fertile grounds for GALZ to bring a test case.

Because both parties are guilty of an offense, in the case of consensual sexual acts, it is GALZ’s experience that most cases are reported to the police as being non-consensual, usually contrary to the facts. Accordingly, it is necessary for us to include here the law relating to non-consensual sexual acts. Non-consensual male-to-male anal sex is now called ‘aggravated assault’ which is defined as follows;

Any person who, being a male person, commits upon a male person anal sexual intercourse or any other act involving the penetration of any part of the other male person’s body or of his own body with indecent intent and knowing that the other person has not consented to it or realising that there is a real risk or possibility that the other person may not have consented to it, shall be guilty of aggravated indecent assault and liable to the same penalty as is provided for rape.

The penalty provided for rape is a maximum of life imprisonment, though generally the sentence is usually between seven and ten years.

Any other male-to-male non-penetrative, non-consensual sexual act is now called ‘indecent assault’ which is defined as follows:

A person who, being a male person, commits upon a male person any act involving physical contact that would be regarded by a reasonable person to be an indecent act, other than anal sexual intercourse or other act involving the penetration of any part of the male person’s body or of his own body with indecent intent and knowing that the other person has not consented to it or realising that there is a real risk or possibility that the other person may not have consented to it, shall be guilty of indecent assault and liable to a fine not exceeding level seven or imprisonment for a period not exceeding two years or both.

The common law prohibiting consensual lesbian sexual acts had previously fallen into disuse and this law has not been revived by the codification and modification of the criminal law.