As noted above, discrimination on the grounds of sexuality is not explicitly mentioned in the human rights section of the constitution. The question of whether the word “gender’” as mentioned in the constitution is inclusive of “sexuality” was addressed by Judge President Chidyausiku in the case of State v Banana. Interpreting section 23 of the old constitution, which is like section 56 of the 2013 constitution of Zimbabwe, also termed the new constitution, Chidyausiku ruled that a law criminalizing sodomy between consenting male adults did not violate the constitution. The Judge President held this point:

From the above judgment, it can be argued that section 56, like section 23 of the old constitution, precludes sexuality. In addition to the above, section 73 (1) of the Criminal Law (Codification and Reform) Act of Zimbabwe prohibits consensual sexual intercourse between male adults or any act involving physical contact other than sexual intercourse that might be deemed by a reasonable person to be an indecent act. Offenders according to the act shall be guilty of sodomy and liable to a fine, imprisonment for a period not exceeding one year, or both. By failing to include female adults in its context, section 73 (1) of the Criminal Law (Codification and Reform) Act of Zimbabwe unfairly discriminates against men based on gender and violates of section 56 of the constitution.

While there is no equivalent act that prohibits similar relations between female adults, the impact of the stigma from the law is similarly felt by individuals who identify as gay and lesbian (GALZ 2017, 7). Individuals perceived to be LGBTQ experience all forms of abuse, ranging from discrimination, physical, and emotional abuse. Allegations of expulsion of adolescents who show signs of LGBTQ identity from schools are often reported. Unfortunately, because there is no law that protects LGBTQ rights, victims suffer in silence. In most instances, families of such children choose to reprimand them and invest in preventing the community from knowing rather than challenging the status quo. State institutions such as the police are also accused of aggravating the situation, through soliciting bribes from those perceived to be homosexuals (Galz 2017, 7). Due to the above-mentioned factors, people in the LGBTQ community lack the confidence to approach existing legal institutions and request reimbursement if their rights have been infringed.

Exclusion of sexuality from section 56 does not preclude members of the LGBTQ community from enjoying all the rights enshrined in chapter 4 of the constitution. Section 57 of the constitution affirms the right to privacy to all Zimbabweans and despite their status, individuals who identify as LGBTQ equally benefit from all the other constitutional provisions. In other words, the absence of sexuality does not justify the violation of all the other rights that are stated in chapter 4 of the constitution on the grounds that someone is LGBTQ. The LGBTQ community, like the cis-heteronormative population, can still invoke section 85 of the constitution and claim their locus standi if one presumes their constitutional rights are likely to be, are being, or have been infringed.

However, the chapter must acknowledge that while certain human rights violations are exclusive to people in the LGBTQ community, Zimbabwe is among the African countries with a poor record of upholding constitutional rights. The ruling party, Zimbabwe African National Union-Patriotic Front (ZANU-PF), with the aid of state institutions, is accused of undermining rule of law, perpetrating violence, and using terror to thwart any opposition from entities such as political parties, human rights activists, non-governmental organizations, religious bodies, and other institutions. Thus, regardless of sexuality and gender identity, advocating public policy changes is one of the most challenging initiatives in Zimbabwe.

CIVIL SOCIETY AND LGBTQ RIGHTS IN ZIMBABWE

Over the years, civil society organizations have been applauded for championing human rights, promoting democracy, advocating for policy changes, and complementing government efforts in public service delivery, just to mention a few activities. Since 1980, Zimbabwe has witnessed a considerable increase in the number of organizations that seek to represent minority and marginalized groups such as people living with disabilities, women, and youths, among others. It is against this backdrop that the following segment seeks to evaluate the role of civil society organizations in the promotion of LGBTQ rights in Zimbabwe.

The term “civil society” is a highly contested field that suffers from definition exactness. However, the working definition for this paper is going to be borrowed from scholar Lloyd Sachikonye, who distinguishes civil society as “an aggregate of institutions whose members are engaged primarily in a complex of non-state activities—economic and cultural production, voluntary associations and household life—and who in this way preserve and transform their identity by exercising all sorts of pressures or controls upon state institutions” (Masunungure 2014, 4). From the above definition, civil society encompasses a range of non-state actors which are neither partisan nor for profit-making establishments through which members organize shared objectives and interests toward the state. These organizations might operate at national, international, and regional levels; at rural or urban domains; or within formal or informal establishments. In the same vein, Masunungure identifies the following as illustrations of civil society organizations: non-governmental organizations, faith-based organizations, research institutions, trade unions, employer organizations, cooperatives, professional/business associations, and non-profit media.

Given the above definition and illustrations, the attitude of civil society organizations toward promoting LGBTQ rights in Zimbabwe can be classified into three categories. The first group is the conservative group, mainly faith-based associations and other organizations that have acted as a hindrance to the advancement of LGBTQ rights in Zimbabwe. The segment on religious fundamentalism reveals how the church as one of the most important affiliates of civil society has entrenched homophobia in Zimbabwe. The second class is the passive group. This group constitutes the largest percentage of civil society in Zimbabwe. These organizations generally promote human rights, democracy, good governance, human development, and marginalized groups. They neither condemn nor openly advocate for the promotion of homosexuality. This is perpetuated by the hostile political and policy environment in Zimbabwe. The last group is the active class. This group comprises those organizations that openly support, advocate, and represent LGBTQ rights in Zimbabwe. Nevertheless, this class constitutes the smallest percentage of civil society that supports the LGBTQ community.

Currently, there is no organization that represents the LGBTQ community that is registered with any government ministry or department in Zimbabwe. Gays and Lesbians of Zimbabwe (GALZ), an organization that strives for the fulfillment of full and equal human, social, and economic rights in all aspects of life for lesbians, gay, bisexual, trans, and intersex persons is not registered either (GALZ 2017, 10). However, according to law, GALZ is recognized as universitas, meaning a juristic or legal person.

Social media has evolved as another alternative platform through which individuals with similar objectives harness their interests and influence policy changes. In a country with a shrinking space for freedom, expression, and democracy, most Zimbabweans have turned mainly to Facebook, Twitter, and WhatsApp platforms to mobilize support from the masses and channel their grievances toward the government. Although LGBTQ-focused online campaigns have also attracted a following and sometimes score positive comments from the masses, the attention has been minimal as compared with other human rights movements. In most instances, these campaigns are met with staunch resistance from the masses.

HOMOSEXUALITY AND POLITICS: THE ZIMBABWEAN EXPERIENCE

LGBTQ issues have become increasingly visible in the international context, including in Zimbabwe. Recent recognition of homosexual rights and approval of equality in laws in several countries confirms the relevance of the issue in the 21^st century. Reaction from conservative groups in different contexts has also brought LGBTQ rights to the forefront in both national and international political agendas. Homophobia is deliberately fomented by political actors (even presidents and ministers) as soon as they confront a legitimacy crisis. In economic crises, in which public criticism of abuses of power, excessive corruption, and patronage by a small ruling elite begins to increase, heads of state and high-ranking politicians employ homophobia to attack people of different sexuality and/or gender identity vehemently in the regime-friendly media.

Since Zimbabwe’s independence in 1980, former President of Zimbabwe Robert Mugabe and his political party, Zimbabwe African National Union-Patriotic Front (ZANU-PF), relied heavily on political rhetoric that demonized lesbian, gay, bisexual, transgender, and queer-identifying (LGBTQ) persons. It can be argued that the anti-LGBTQ political rhetoric in Zimbabwe is part of a larger program known as “patriotic history,” which emphasizes a particular kind of Zimbabwean identity which sought to legitimize the continued rule of Mugabe and ZANU-PF. The value of combining patriotic history and political homophobia emerges out of the unique political and economic context which Mugabe’s regime found itself unable to adequately address. To illustrate how and why this has happened, the chapter focuses on two key incidents: the 1995 Zimbabwe International Book Fair and the public conversation over writing a new constitution between 2010 and 2013.

In 1995 poverty and unemployment increased in Zimbabwe, accompanied by cuts in education and health care because of the Economic Structural Adjustment Program (ESAP). In 1991, the government of Zimbabwe abandoned its highly interventionist economic strategy and adopted a market-driven Economic Structural Adjustment Programme (ESAP). A major objective of ESAP was the reorientation of the economy from the production of non-tradable to tradable goods. At that time the low-income rural and urban population was also hit hard by HIV/AIDS and deficiency-based diseases exacerbated by misdirected aid programs during the many years of devastating drought and corruption. President Mugabe diverted attention from bad administrative decisions during his rule with homophobic hate speech and sought to legitimize his incitement by invoking the anti-colonial independence struggle.

In 1995 the annual international book fair took place in the Zimbabwean capital of Harare. Shortly before it opened, a political row broke out on the participation of the Gays and Lesbians of Zimbabwe (GALZ) organization. The Ministry of Information put the organizers under pressure to exclude GALZ, and Dumiso Davengwa, former Minister of Information and Publicity, explained that non-heteronormative sexuality was abnormal and prohibited in Zimbabwe. In his opening speech, President Mugabe emphasized that social morality, anchored in religion, had to be protected against what he called “sexual perverts.”

The prosecution of LGBTQ individuals had been introduced by the British colonial authorities at the beginning of the 20th century at the behest of European missionaries. Colonial laws criminalized sexual practices that had been tolerated in pre-colonial days (Buttler, 2010, 78). Nevertheless, at a major event held by the party’s ZANU Women’s League, Mugabe affirmed that homosexuality is against the culture and traditions of Zimbabwe. Furthermore, he claimed, it is immoral and against the will of God. To repel the “perversion” that threatened national identity, he invoked both a selective neo-traditionalism and the influence of the Christian church, although the latter had been championed in Zimbabwe only from the end of the 19th century within the framework of European colonialism. President Mugabe diverted public attention back to himself. In a parliamentary debate shortly after the book fair in 1995, Chief Chigwedere, one of the traditional authorities, gave many homophobic speeches and compared LGBTQ-identifying individuals to a “festering finger” that had to be cut off to save the body. He, too, called for draconian punishments for LGBTQ individuals (Dunton, Palmberg, 1996, 25). Between the book fairs in 1995 and 1996, there were many international protests against Mugabe’s homophobic utterances, which encouraged the organizers of the book fair and GALZ to take further legal action (Gibbons et al 2008, 65). This response had become necessary because the Minister of Information had officially refused to allow GALZ to participate. The still-independent Constitutional Court at that time enabled GALZ and the organizers of the book fair to defend themselves successfully against the state’s action. The conflicts also escalated in the religious domain. A case in point was an international meeting of the World Council of Churches (WCC) in 1998 in Harare. GALZ was refused permission to participate after controversies between official churches from Western and Eastern Europe. However, the church-related and innovative men’s organization, Padare, which had been set up by committed Christians of the Ecumenical Support Services in Harare to tackle gender-specific violence and to martial male images, invited GALZ to take part in a discussion. Since then, the controversy in Zimbabwe’s official churches on dealing with LGBTQ Christians has continued. The rising number of evangelical, often fundamentalist, Pentecostal churches has further inflamed homophobia.

The smear campaign escalated in 1998 when Canaan Banana, the first President of Zimbabwe, was prosecuted for alleged sexual assaults of male subordinates. Mugabe ordered the secret service to investigate all members of parliament and ministers in order to discover who practiced non-heteronormative sexuality. Shortly before this crisis, he had asserted that the British cabinet was controlled by LGBTQ individuals, while his ministers were all “real” men. Broadcasting in Zimbabwe has been a contested terrain since its introduction in the then-colonial Rhodesia in the 1930s. Despite claims to neutrality by both pre- and post-independence governments, the ruling elite has always used broadcasting as a tool for political control and manipulation of the masses. In the name of national interest, national security, and national sovereignty, broadcasting from Rhodesia to Zimbabwe has been characterised by two salient features: its legal status as a state monopoly and its location under the Ministry of Information, which rendered it a political tool in the hands of the government.

The regime-friendly press in Zimbabwe intensified its smear campaign against GALZ to divert attention from Mugabe’s predicament (Muparutsa 2014, 4). In addition to the extension of censorship of the distribution and possession of materials that were against dominant morals, which meant primarily GALZ’s information materials, a 2006 revision to Zimbabwe’s criminal code expanded the penalty for sodomy to include acts that “would be regarded by a reasonable person as an indecent act.” This code included two men holding hands or hugging, punishable by an extended prison term.

In the run-up to later elections, especially the contested election of 2008 and the constitutional debate of 2012, security-police operations against GALZ events escalated; GALZ’s office was also searched and computers confiscated. GALZ representatives were accused of insulting the president; staff and activists were arrested, abused, or threatened. Since the politically motivated attacks on GALZ in the mid-1990s, the organization, unfortunately, has faced infiltration by police informers and the bribery of individual members by state security forces, who testified against GALZ. On August 20, 2012, incursions on GALZ were the second raid in a single month, and the events of this raid were published in the Human Rights Watch Report of August 27, Zimbabwe: End Attacks on LGBT People.

During the period of the government of national unity (GNU) in Zimbabwe (2009-2012), the leader of the Movement for Democratic Change (MDC), Morgan Tsvangarai, pushed to include sexuality and gender identity as protected statuses in the new Zimbabwean constitution, only to be thwarted by his governing partners, resulting in the codification of criminal penalties for homosexuality in that very constitution.^[7] This left LGBTQ Zimbabweans worse off than they were before Tsvangirai’s affirmative push. This was a failed attempt at providing minimal protections for members of the LGBTQ community’s positions. The MDC’s constitution Section 5.10 states:

The above clause, however, is not explicit about which groups are “minority and special interest groups.” Furthermore, not much has been done by MDC because the major opposition political party ensures that the party’s policies and structures are inclusive of the LGBTQ community (Mafekone 2013, 16; Mabvurira et al 2012, 35).

Hate speech uttered by the leadership in Zimbabwe has created an environment of permissible homophobia, demonstrated regularly during the people-driven constitutional reform process in 2010-2012 (Maseko 2012, 15; Mabvurira et al 2012, 36).^[8] This process fashioned a podium for conservative and oppressive opinions and views on sexual behavior and sexuality to come to the fore.

Butler (2010, 23) argues that the rhetoric of the constitutional process was “people-centered” and participatory. However, the messages of democracy and human rights were juxtaposed with indignant acts that offended humane and public morality of LGBTQ individuals.^[9] Perceptibly, the lack of religious and cultural empathy affected the inclusion of LGBTQ persons in Zimbabwe’s constitution (Solomon, Hove 2017,30). Human rights activists in Zimbabwe point to this as a driving force in the denial of LGBTQ rights initiatives.

HOMOSEXUALITY IN THE 2nd REPUBLIC

According to a 2018 survey, 50% of gay men in Zimbabwe had been physically assaulted and 64% had been disowned by their families. 27% of lesbians also reported disownment. In 2013, the Zimbabwe Constitution was amended to define marriage as being between a man and a woman; Zimbabwe does not recognize same-sex marriage or civil unions (Kuveya 2018, 10). After Robert Mugabe's forced removal from the presidency in November 2017, Emmerson Mnangagwa was declared President of Zimbabwe. In May 2019, Mnangagwa's Cabinet approved amendments to Zimbabwean marriage law, which would ban both child marriages and same-sex marriages, aligning it with the Constitution. There were hopes that Mnangagwa would reverse Zimbabwe's decades-long persecution of LGBTQ people, led by the virulently homophobic former President Robert Mugabe.

In January 2018, Mnangagwa spoke on the issue of LGBTQ for the first time, saying: "Those people who want same-sex marriage are the people who should canvass for it, but it's not my duty to campaign for this," as noted by Muparutsa in a Herald article. In June, ZANU-PF, the ruling political party, met with LGBTQ activists to discuss the situation of LGBTQ rights in Zimbabwe and to “improve the lives of LGBT people through local governance.” Chester Samba, director of GALZ, noted, "As an initial meeting it was great that they responded positively and somewhat surprising as this marked a departure from the previous leadership which did not engage with us. A willingness to engage is indeed an important shift" (Kuveya 2018, 3). The July elections were welcomed by LGBTQ activists, who called them a “historic win,” after which they witnessed a reduction in homophobic hate speech and in the politicization of LGBTQ individuals as campaign tools. Previously, the LGBTQ community had been a target of systematic verbal and physical abuse in Zimbabwe. The hate speech often escalated during the election season when politicians would use the topic of sexual identities as ammunition to fuel campaign rallies. There were fewer reports of such abuses in the lead-up to the 2018 election, but members of the LGBTQ community still faced difficulties. The LGBTQ community urged political parties and the government to ensure that all citizens would vote freely regardless of their sexuality and gender identity (Kuveya 2018, 6).

GALZ director Samba states some political formations, including the ruling party ZANU PF, responded positively in the pre-election period. The association during this pre-election period increased its work on advocacy for LGBTQ rights and acted as a space for social community activities, as well as a support center for any issues affecting individuals. Rights group Amnesty International commended the prevailing political tolerance. There had always been a lot of intolerance from the previous government, and the current political parties are showing more tolerance (Kuveya 2018 a, 10): “We are very happy about that, to see a marginalized community being brought into the broader group of society in Zimbabwe—as Zimbabweans, as human beings that have inherent rights guaranteed in the constitution” (Kuveya 2018b,22). Soon after the 2018 elections, there were high expectations from human rights activists in Zimbabwe and outside of the new government, to take a different stance on LGBTQ rights. However, Zimbabwean laws still criminalize what they define as “unnatural” sexual relationships between individuals. According to observers and community members, any tolerance toward the LGBTQ community that prevailed before the 2018 election, proved artificial as politicians tried to canvas votes from the marginalized groups and show a positive picture of Zimbabwe to the international community. Despite movement forward, the LGBTQ community is actively excluded from society so much that they indeed must follow different pathways to access services because the pathways for everyone else are engineered to exclude non-normative sexual and gender identities. There has been an outcry both nationally and internationally over the various violations of human rights in Zimbabwe since 2018, which is evident in the unlawful arrests and detention of political activists and journalists; it is, therefore, noteworthy to point out that with this shrinking space in democracy, there is still a long way to go before the government can guarantee human rights for the LGBTQ community.

CONCLUSION AND RECOMMENDATIONS

The major findings that subsequently emerged reveal that LGBTQ identity is not a new phenomenon in the African culture, and Zimbabwe is not an exception to that. A colonial legacy that ushered in religious fundamentalism and punitive laws entrenched homophobia in African legal systems. In the same vein, laws that criminalize sodomy in Zimbabwe are a residue of the colonial system and as such do not completely reflect the Zimbabwean pre-colonial traditions. Unfortunately for the queer community, they are the least represented in the Zimbabwean civil society, which makes it difficult for them to lobby for favorable policies. This has been further exacerbated by a hostile political and legal environment. However, culture should not be used to sanitize the removal of LGBTQ rights. Human rights are rights regardless of what ethics and norms prescribe. Just like how the gender equality movement has become a success against traditional and religious beliefs in Zimbabwe, LGBTQ identity and sexuality should be included as well.

As a result, a lot of investment should be channeled toward in-depth research and awareness campaigns on LGBTQ identity, sexuality, and rights in Zimbabwe. In addition, the inclusion of the topic into school curriculums to sensitize the communities from the grassroots levels is necessary. This comes after the realization that most Zimbabweans are ignorant about the history and the biological, cultural, and social factors that shape the LGBTQ narrative. Thus, such an initiative will unveil myths that surround the topic. There is also a need to amend laws that criminalize LGBTQ sexuality to set standard procedures that can be followed by institutions. This will also contribute to policy reforms and unlock opportunities for the queer community in Zimbabwe. Zimbabwe can also emulate South Africa, which has endorsed LGBTQ rights in its constitution.

The success of the above initiatives is embedded in the collective effort from various stakeholders—namely, education, the government, state institutions, civil society organizations, the media, political parties, academic institutions, and the medical community. In addition to enabling the government to make informed decisions, such a concerted effort will ensure that homegrown solutions are incubated. However, Zimbabwe will require support from external players as well.

ENDNOTES

1. See Conway-Smith, Erin “South Africa: Thapelo Makutle, gay pageant winner, killed and ‘beheaded’ in apparent hate crime (UPDATES),” Global Post, June13, 2012. www.pri.org>stories.thapelo(accessed October 7,2020) ↑
2. Ngochani is the standard Shona term for homosexuality; refer to Victora Ndambakuwa, (2020) “Vashona Project: online English to Shona language dictionary,” vashona.com/en/dictionary. ↑
3. Isitabane is a Ndebele word referring to romantic or sexual attraction or behavior between members of the same sex or gender. This word is also similar to the Zulu term due to similarities in these two languages. Visit Zulu English dictionary online. ↑
4. Adam J. Kretz, “From ‘Kill the Gays’ to ‘Kill the Gay Rights Movement’: The Future of Homosexuality Legislation in Africa,” 11 New J. International Human Rights. 2013, 207- 208). http://scholarlycommons.law.northwestern.edu/njihr/vol11/iss2/3 ↑
5. Gender identity refers to “one’s sense of oneself as male, female, or transgender” (American Psychological Association 2006, 18). When one’s gender identity and biological sex are not congruent, the individual may identify as transgender or as another transgender category (cf. Gainor, 2000). ↑
6. Gender dysphoria involves a conflict between a person's physical or assigned sex at birth and the gender with which they identify. People with gender dysphoria may be very uncomfortable with the sex they were assigned, sometimes described as being uncomfortable with their body (particularly developments during puberty) or being uncomfortable with the expected roles of their assigned gender (American Psychological Association 2016). ↑
7. See, e.g., John Campbell, Mugabe Fights the Proposed Zimbabwe Constitution with Homophobia, Council on Foreign Relations (Sept. 27, 2012, 15), http://blogs.cfr.org/campbell/2012/09/27/mugabefights-the- proposed-zimbabwe-constitution-with-homophobia/; see also “Robert Mugabe Says No to Gay Rights in Zimbabwe’s Constitution,” Pink News, July 19 2010, 3), ↑
8. http://www.pinknews.co.uk/2010/07/19/robert-mugabe-says-no-to-gay-rights-in-zimbabwes-constitution/↑
9. Ken Williams, “In Zimbabwe, Final Constitutional Draft Criminalizes Homosexuality and Marriage ↑
10. Equality,” (San Diego Gay & Lesbian News, Feb. 27, 2012, 4), http://sdgln.com/news/2012/02/27/zimbabwe- finalconstitutional-draft-criminalizes-homosexuality-and-marriage-equality (quoting Mangwana further: “If gays and their supporters harbor hopes that homosexuality might be legalized in Zimbabwe, they should forget it. Homosexuality has been shut out of the constitution and there is no going back on that.”) ↑