LGBT rights in Zambia | |
---|---|
Status | Illegal since 1911 (as Rhodesia) [1] [2] |
Penalty | Imprisonment: 15 years − possible life sentence [3] |
Gender identity | No |
Military | No |
Discrimination protections | None |
Family rights | |
Recognition of relationships | No recognition of same-sex unions |
Adoption | No |
Lesbian, gay, bisexual, and transgender (LGBT) people in Zambia face significant challenges not experienced by non-LGBT residents. [4] Same-sex sexual activity is illegal for both men and women in Zambia. [1] Formerly a colony of the British Empire, Zambia inherited the laws and legal system of its colonial occupiers upon independence in 1964. Laws concerning homosexuality have largely remained unchanged since then, and homosexuality is covered by sodomy laws that also proscribe bestiality. [1] Social attitudes toward LGBT people are mostly negative and coloured by perceptions that homosexuality is immoral and a form of insanity. [1] However, in recent years, younger generations are beginning to show positive and open minded attitudes towards their LGBT peers.
LGBT persons are subjected to human rights violations by police and authorities. Subject to arbitrary arrest and detentions, they suffer violence and abuse in custody. Police are reported to threaten and extort LGBT persons. Those prosecuted for same-sex conduct are subjected to the use of forced anal examinations for evidence-gathering purposes. Such procedures are invasive and traumatic and are widely condemned by medical authorities and human rights groups; they are discredited for the purpose of providing any evidence of same-sex sexual activity.
Other serious societal discrimination and abuse is directed towards LGBT persons. They may be targeted threats, stalking, vandalism, violence, and other hate crimes, including murders. LGBT people routinely face community harassment and discrimination, with little recourse to assistance from police or government.
In recent years, the onset of the internet has led to more positive support and opinions towards the LGBT community. The fast digitization of the country has led to exposure to more people and stories from different facets of life. This in turn has led to more open minded attitudes amongst the growing youth reducing discrimination and prejudice among people of different communities.
Same-sex sexual activity is proscribed by Sections 155 and 156 of Zambia's penal code (as amended 1933 and repealed and replaced by Act No. 15 of 2005). [lower-alpha 1] The law criminalizes consensual same-sex sexual conduct, with penalties upon conviction for engaging in "acts against the order of nature" of fifteen years' to life imprisonment. Convictions under the lesser charge of "gross indecency" carries a penalty of up to fourteen years' imprisonment. [3] [5] [6] [7] [8]
Section 155 ("Unnatural Offences") criminalizes homosexual sex as a felony punishable by terms of imprisonment which range from fifteen years, up to a life sentence. [3] [6]
Any person who- (a) has carnal knowledge of any person against the order of nature; [lower-alpha 1] or ... (c) permits a male person to have carnal knowledge of him or her against the order of nature; commits a felony and liable, upon conviction, to imprisonment for a term not less than fifteen years and may be liable to imprisonment for life
Section 156 imposes imprisonment for seven years for any attempt "to commit any of the offences specified in section one hundred and fifty-five". [6]
The lesser offence of "indecent practices between persons of the same sex" is "any act of gross indecency" that a man commits with a man [s. 158, §(1)] or a woman commits with another woman [s. 158, §(2)]. These offences attract penalties of terms of imprisonment of between seven years and fourteen years. [6] [9]
Although no specific criminal penalty is set out, Section 158, §(3) [lower-alpha 1] as amended in 2005, [lower-alpha 2] is to regulate any same-sex sexual contact between minors, applying to: [6]
A child who, whether in public or private, commits any act of gross indecency with another child of the same sex or attempts to procure the commission of any such act by any person with the child's self or with another child or person of the same sex, whether in public or private, commits an offence and is liable, to such community service or counseling as the court may determine in the best interests of the child.
There is no similar legislative provision in the penal code that covers sexual conduct between minors of opposite sex. [6]
The Zambian government does not permit advocacy of LGBT rights; [8] despite this, freedom of expression has been affirmed by the courts. [10] Nevertheless, in their 2021 report, the bare conclusion of the U.S. Department of State was: "Freedom of expression or peaceful assembly on LGBTQI+ matters remained nonexistent." [9]
In 1998, in a statement to the National Assembly of Zambia, Vice President Christon Tembo called for the arrest of individuals who promote gay rights, citing a need to "protect public morality". [8] President Frederick Chiluba described homosexuality as "unbiblical" and "against human nature". [11] Later, Home Affairs Minister Peter Machungwa ordered the arrest of any individual or group attempting to formally register a gay rights advocacy group. Herbert Nyendwa, the Registrar of Societies, stated that he would refuse to register any LGBT organisation or civic group. [8]
The restrictions on advocating for LGBT rights were challenged in Zambia's courts in 2013, after a human rights activist appeared on TV talk show program. During the program, the activist called for the decriminalization of homosexuality in Zambia, [12] the recognition of rights for sexual minorities, [10] and HIV's spread to be combated among sexual minority groups. [13] After the program, the activist was stopped by police, held in jail overnight, and accused of inciting the public to take part in indecent activities. [12] [13] [14] The activist was later charged with "idle and disorderly conduct under Section 178(g) of the Penal Code, of the Laws of Zambia". [13] [15]
The activist challenged the charges in court by questioning three definitions to which he was charged: (1) "soliciting", (2) "public space", and (3) "immoral purposes". [13] [15] In the first level of court, the Magistrate Court, the judge ruled in favour of the activist and stated the activist's statements reflected an act of freedom of expression. [10] [15] The government challenged the decision.
In the High Court, the judiciary ruled that the government could not prove that the activist's participation in the debate could not be considered "soliciting" as the activist's calls were not persistent and did not contain an element of pressure. [13] The court agreed that the television program could be considered a "public place". [13] The court did not agree with the government that the activist's statements were for "immoral purposes" as the activist was not encouraging people to engage in same-sex activities but to protect people from harm. [10] [13] [15] Additionally, the High Court further ruled that the activist was reasonably exercising his right to freedom of expression. [10] [13] [15] [16]
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As many East and Southern African former British colonies have done, Zambia enacted its own constitution in the 1990s. This overrides much of the pre-1964 criminal code, and there are very broad protections against discrimination, with much of the language lifted from the UN Charter on Human Rights. [17]
23. [Protection from discrimination on the ground of race,etc.]
- Subject to clauses (4), (5) and (7), no law shall make any provision that is discriminatory either of itself or in its effect.
- Subject to clauses (6), (7) and (8), no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
- In this Article the expression "discriminatory" mean, affording different treatment to different persons attributable, wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
It can be argued that homosexuality is constitutionally protected under Article 23 of the 1996 Constitution. As constitutions override other laws, this may be why few, if any, prosecutions for homosexuality have taken place, as this would allow the relevant Criminal Code sections to be tested, and deleted if they are found to contravene the Constitution.
The Constitution of 1991, as amended by Act no. 17 of 1996, contains an anti-discrimination clause, present in Article 23 of the document. According to Article 23(1), "no law shall make any provision that is discriminatory either of itself or in its effect". Article 23(2) further prohibits discrimination "by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority", and Article 23(3) defines discrimination as extending to differential treatment of persons on the basis of "race, tribe, sex, place of origin, marital status, political opinions, color or creed". There is implicit but no explicit legal protection against discrimination based on sexual orientation and gender identity in the Zambian Constitution. [8]
Although Zambia has maintained a strict stance against any form of LGBT activity, there have been a number of efforts by the UN to get Zambia to change its policies and law regarding same-sex activity. These efforts have been largely in vain as Zambia sustained its policies.
Zambian legal policies regarding same-sex activity have effectively bred a national environment of homophobia which has made it to where that the justice system severely disadvantages LGBT identifying individuals. The justice system fails to recognize and protect the lives of LGBT citizens which has in effect opened the window for citizen-based militia activity against LGBT individuals. The US Department of State's 2010 report on human rights in Zambia states that: [18]
...the government enforces law that criminalizes homosexual conduct and did not respond to societal discrimination ... according to LGBT advocacy groups, societal violence occurred, as did societal discrimination in employment, housing, and access to education or health care ... LGBT groups reported frequent attacks and discrimination in the neighborhoods in which they operated. Activists reported regular harassment, including threats via text message and e-mail, vandalism, stalking, and outright violence.
In April 2013, Paul Kasonkomona, a notable Zambian LGBT activist, was arrested for speaking about LBGT and HIV related issues on a local TV station. [19] Kasonkomona was charged with the crime of "soliciting in a public place for immoral purpose." Also in 2013, two gay-identifying men were beaten outside of a nightclub after being found in a "compromising position". They decided against pressing charges out of the fear of being jailed themselves.
In May 2014, citizens of the Marapodi area of Lusaka apprehended two women who were suspected lesbians. They captured the women, brought them to the local police station, and demanded their arrest. [20]
In January 2015, an openly gay man was attacked by a mob which reportedly included three police officers. [21]
Zambia has abstained from/denied a number of reform efforts. In 2011, Zambia was one of three countries to abstain from a call from the Human Rights Council to prepare a report on the rights of its LGBT citizens. [22] In a 2012 UPR review, Zambia rejected recommendations to repeal laws criminalizing same-sex relations. This followed a similar recommendation by the UPR in its 2008 review. The Zambian delegation provided the following in defense of their rejections: [23]
the Constitution making process will give the people the opportunity to determine whether specific rights for LGBT persons should be enshrined in the Constitution. The Government was determined not to prescribe to the Zambian people those rights that the Constitution should contain, but to let them make such a determination.
However, in its 2018 review, Zambia noted the recommendations to decriminalize same-sex relations. [24] Aside from this, no further actions have been made thus far.
Zambia provides no recognition of same-sex couples. In 2006, Home Affairs Minister Ronnie Shikapwasha stated that Zambia would never legalize same-sex marriage, claiming that it is a sin that goes against the country's Christian status . [25] In February 2010, the National Constitutional Conference (NCC) unanimously agreed to adopt a clause that expressly forbids marriage between people of the same sex. [26]
The U.S. Department of State's 2010 Human Rights Report found that "the government enforced the law that criminalizes homosexual conduct and did not respond to societal discrimination" and that "societal violence against homosexual persons occurred, as did societal discrimination in employment, housing, and access to education or health care." [18]
Zambia's societal attitudes towards homosexuality strongly reflect the influences of evangelical religions and historical colonial attitudes to homosexuality. Arguably the largest recipient of fundamentalist evangelical missionaries during British colonial times, such fundamentalist-style religious adherence is widespread in Zambia. [27] [28] [29] [30]
In 1999, the non-governmental organisation Zambia Against People with Abnormal Sexual Acts (ZAPASA) formed to combat homosexuality and homosexuals in Zambia. [1] [8]
A 2010 survey revealed that only 2 percent of Zambians find homosexuality to be morally acceptable, nine points below the figure recorded in Uganda (11 percent acceptance). [31] In 2013, Christine Kaseba, the wife of former President Michael Sata, said that "silence around issues of men who have sex with men should be stopped and no one should be discriminated against on the basis of their sexual orientation." [32]
According to a report submitted to the United Nations Human Rights Committee by Global Rights and the International Gay and Lesbian Human Rights Commission, the criminalization of consensual homosexual sex in Zambia "has a devastating impact on same-sex practicing people in Zambia". The report asserts that LGBT people are subject to arbitrary arrest and detention, "discrimination in education, employment, housing, and access to services", and extortion–often with the knowledge or participation of law enforcement authorities. [8] The U.S. Department of State's 2021 Human Rights Practices Report for Zambia concurs, stating: [9]
Police perpetrated violence and verbal and physical harassment against persons based on gender identity and sexual orientation. LGBTQI+ persons were at risk of societal violence due to prevailing prejudices, misperceptions of the law, lack of legal protections, and inability to access healthcare services, and were subjected to prolonged detentions.
The report notes that LGBTQI+ advocacy groups advise that police regularly solicit bribes from arrested individuals for alleged same-sex activity.
The research and advocacy group Human Rights Watch reports the use of forced anal examinations for police prosecutions, despite such procedures having no evidentiary value as to same-sex activity. The examinations are widely condemned as invasive and traumatic. They are viewed as abusive treatment by the World Health Organisation and medical authorities. [33] In reporting a specific 2014 prosecution, Amnesty International described the treatment of the two men in the case, who were subjected to forced anal examinations as "tantamount to torture and scientifically invalid". [34]
LGBTQI+ individuals are at risk of harassment in the community from threats, stalking, vandalism and even violence. [9] [21] [35] According to a report by Behind the Mask, a non-profit organisation dedicated to LGBT affairs in Africa, [36] most LGBT people in Zambia are closeted due to fear of targeting and victimisation. Lesbians are especially vulnerable, according to the report, due to the patriarchal structure of Zambian society. [1]
As of July 2007, no public or private programmes provide HIV-related counselling to homosexual men in Zambia, where the HIV seroprevalence rate among adults is approximately 17 percent. [37] Although men involved in same-sex sexual relationships have a higher risk of HIV transmission, the government-operated National AIDS Control Program does not address same-sex relationships. [8]
In June 2007, the Zambian Ministry of Health agreed to conduct, together with the Centers for Disease Control and Prevention and Society for Family Health under Population Services International, an assessment to evaluate HIV and AIDS prevalence and transmission among gay men. [38]
Same-sex sexual activity legal | (Penalty: Imprisonment; from 15 years, up to possible life sentence) [3] [6] [35] |
Equal age of consent | |
Anti-discrimination laws in employment only | |
Anti-discrimination laws in the provision of goods and services | |
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) | |
Recognition of same-sex couples | |
Step-child adoption by same-sex couples | |
Joint adoption by same-sex couples | |
Gays allowed to serve in the military | |
Right to change legal gender | |
Access to IVF for lesbians | |
Commercial surrogacy for gay male couples | |
MSMs allowed to donate blood |
Section 158: Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
Lesbian, gay, bisexual, and transgender (LGBT) people in Mali face legal and societal challenges not experienced by non-LGBT residents. Although same-sex sexual activity is not illegal in Mali, LGBT people face widespread discrimination among the broader population. According to the 2007 Pew Global Attitudes Project, 98 percent of Malian adults believed that homosexuality is considered something society should not accept, which was the highest rate of non-acceptance in the 45 countries surveyed. The Constitution of Mali has outlawed same-sex marriage since 2023.
Lesbian, gay, bisexual, and transgender (LGBT) people in Kenya face significant challenges not experienced by non-LGBT residents. Sodomy is a felony per Section 162 of the Kenyan Penal Code, punishable by 21 years' imprisonment, and any sexual practices are a felony under section 165 of the same statute, punishable by five years' imprisonment. On 24 May 2019, the High Court of Kenya refused an order to declare sections 162 and 165 unconstitutional. The state does not recognise any relationships between persons of the same sex; same-sex marriage is banned under the Kenyan Constitution since 2010. There are no explicit protections against discrimination on the basis of sexual orientation and gender identity. Adoption is restricted to heterosexual couples only.
Lesbian, gay, bisexual, and transgender (LGBT) people in Nigeria face severe challenges not experienced by non-LGBT residents. LGBT rights are generally infringed upon; both male and female expressions of homosexuality are illegal in Nigeria and punishable by up to 14 years of prison in the conventional court system. There is no legal protection for LGBT rights in Nigeria—a largely conservative country of more than 230 million people, split between a mainly Muslim north and a largely Christian south. Very few LGBT persons are open about their sexual orientation, as violence against them is frequent. According to PinkNews, Nigerian authorities generally target the LGBT community. Many LGBT Nigerians are fleeing to countries with progressive law to seek protection.
Lesbian, gay, bisexual, and transgender (LGBT) people in Tanzania face severe challenges not experienced by non-LGBT residents. Homosexuality in Tanzania is a socially taboo topic, and same-sex sexual acts are criminal offences, punishable with life imprisonment. The law also criminalises heterosexuals who engage in oral sex and anal intercourse.
Lesbian, gay, bisexual, and transgender (LGBT) people in Benin face legal challenges not experienced by non-LGBT residents. Although same-sex sexual acts for both men and women are legal in Benin, homosexuals continue to face widespread persecution and are rarely open about their sexuality. They are also considered by many as deviants to the society, and homosexuality is often called a disease brought by white people to the country. LGBT persons additionally face stigmatization among the broader population.
Lesbian, gay, bisexual, and transgender (LGBT) people in the Gambia face significant challenges not experienced by non-LGBT residents. Same-sex sexual activity is illegal for both men and women in the Gambia. Criminalisation commenced under the colonial rule of the British. The 1933 Criminal Code provides penalties of prison terms of up to fourteen years. In 2014, the country amended its code to impose even harsher penalties of life imprisonment for "aggravated" cases. The gender expression of transgender individuals is also legally restricted in the country. While the United States Department of State reports that the laws against homosexual activity are not "actively enforced", arrests have occurred; the NGO Human Rights Watch, reports regular organised actions by law enforcement against persons suspected of homosexuality and gender non-conformity.
Lesbian, gay, bisexual, and transgender (LGBT) people in Sri Lanka face significant challenges not experienced by non-LGBT residents.
Lesbian, gay, bisexual, and transgender (LGBT) people in Dominica face legal challenges not experienced by non-LGBT residents. Homosexuality has been legal since 2024, when the High Court struck down the country's colonial-era sodomy law. Dominica provides no recognition to same-sex unions, whether in the form of marriage or civil unions, and no law prohibits discrimination on the basis of sexual orientation or gender identity.
Lesbian, gay, bisexual, and transgender (LGBT) people in Malawi face legal challenges not experienced by non-LGBT residents. Both male and female expressions of same-sex sexual activity are illegal within the nation. The Penal Code prohibits "carnal knowledge against the order of nature", attempts to commit "carnal knowledge against the order of nature", and acts of "gross indecency".
Lesbian, gay, bisexual, and transgender (LGBT) people in Solomon Islands face legal challenges not experienced by non-LGBT residents. Male same-sex sexual activity is illegal, punishable by up to 14 years imprisonment, but the law is not enforced.
Lesbian, gay, bisexual, and transgender (LGBT) people in Uganda face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is illegal for both men and women in Uganda. It was originally criminalised by British colonial laws introduced when Uganda became a British protectorate, and these laws have been retained since the country gained its independence.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Antigua and Barbuda may face legal challenges not experienced by non-LGBT citizens.
Lesbian, gay, bisexual, and transgender (LGBT) people in Sierra Leone face legal challenges not experienced by non-LGBT residents. Male same-sex sexual activity is illegal in Sierra Leone and carries a possible penalty of life imprisonment, although this law is seldom enforced.
Lesbian, gay, bisexual, and transgender (LGBT) people in Grenada may face legal challenges not experienced by non-LGBT residents. The penal code makes same-sex acts on Grenada proper illegal with a punishment up to 10 years in prison, it also does not address discrimination or harassment on the account of sexual orientation or gender identity, nor does it recognize same sex unions in any form, whether it be marriage or partnerships. Household headed by same-sex couples are also not eligible for any of the same rights given to opposite-sex married couples.
Lesbian, gay, bisexual and transgender (LGBT) people in Saint Vincent and the Grenadines face legal challenges not experienced by non-LGBT residents. The Penal Code makes same-sex sexual acts illegal with a punishment up to 10 years in prison, although the law is not enforced. In addition, it outlaws the practice of "buggery", whether homosexual or heterosexual and irrespective of whether the act was consensual. The country's laws also do not address discrimination or harassment on account of sexual orientation or gender identity, nor recognize same-sex unions in any form, whether it be marriage or partnerships. Households headed by same-sex couples are not eligible for any of the same rights given to opposite-sex married couples. In 2024, Saint Vincent and the Grenadines upheld its constitutional ban on same-sex sexual activity within its High Court.
Lesbian, gay, bisexual, and transgender (LGBT) people in Tonga face legal challenges not experienced by non-LGBT residents. Male homosexuality is illegal in Tonga, with a maximum penalty of 10 years imprisonment, but the law is not enforced.
Lesbian, gay, bisexual, and transgender (LGBT) people in Tuvalu face legal difficulties not experienced by non-LGBT residents. Sections 153, 154 and 155 of the Penal Code outlaw male homosexual intercourse with a penalty of up to 14 years in prison, but the law is not enforced. Employment discrimination on the basis of sexual orientation has been banned since 2017. Since 2023, the Constitution of Tuvalu has banned same-sex marriage.
Lesbian, gay, bisexual, and transgender (LGBT) people in Kiribati face legal challenges not experienced by non-LGBT residents. Male homosexuality is illegal in Kiribati with a penalty of up to 14 years in prison, but the law is not enforced. Female homosexuality is legal, but lesbians may face violence and discrimination. Despite this, employment discrimination on the basis of sexual orientation has been prohibited since 2015.
Lesbian, gay, bisexual, and transgender (LGBT) people in South Sudan face legal and societal challenges not experienced by non-LGBT residents. Male same-sex sexual activity is illegal and carries a penalty of up to ten years' imprisonment. Active enforcement of the law is not pursued by authorities: No prosecutions are known to have occurred since South Sudan gained its independence in 2011. LGBT persons are met with abuse and discrimination from agents of the government and additionally face stigmatisation among the broader population.
Article 365 of the Sri Lankan Penal Code criminalizes "carnal intercourse against the order of nature" and provides for a penalty of up to ten years in prison.