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13/02/2012 00:00:00
by Mduduzi Mathuthu
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ZIMBABWEAN homosexuals claiming asylum in the United Kingdom are more than likely to be turned down because the African country has a thriving “gay scene” and is “not the worst place in the world to be gay or lesbian”, a court ruled.

In a recent landmark judgement, the UK’s Upper Tribunal (Immigration and Asylum Chamber) left the door slightly ajar for asylum claimants whose personal circumstances place them at risk or suffer from HIV.

A Zimbabwean asylum seeker, known by the initials LZ, arrived in the United Kingdom in 1999. She claimed asylum in 2009, stating that she feared persecution as a lesbian back home.

The UK Home Office turned down her asylum bid leading to the case reaching the Upper Tribunal of the Immigration and Asylum Chamber.

In its judgment described as “significant” by immigration lawyers, the Upper Tribunal said it was “unable to accept that homosexuals are being persecuted as a generality when concrete examples are few, and when that standpoint is not supported by the best placed local observers”.

Finding that there has been much public expression of extreme homophobia at the highest levels in recent years, including by President Robert Mugabe and Prime Minister Morgan Tsvangirai, Justices Macleman and Holmes went on: “Male homosexual behaviour is criminalised, but prosecutions are very rare. Lesbianism is not criminalised...

“There are no records of any murders with a homophobic element. ‘Corrective rape’ is rare, and does not represent a general risk.

“There is a ‘gay scene’ within limitations.”
The judges also noted that lesbians, living on their own or together, may face greater difficulties than gay men.

But the court was heavily swayed by a submission by the Gays and Lesbians Association of Zimbabwe (GALZ) which told a UK Border Agency fact finding mission that Zimbabwe is “not the worst place in the world to be gay or lesbian even though the President, government officials and church leaders have whipped up a climate of hysterical homophobia.”

Applying a standard set in an earlier ruling in HJ & HT, Judge Holmes and Judge Mclean said “there is no general risk to gays or lesbians” in Zimbabwe.

“The perception that a woman is a lesbian may lead to discrimination or harassment from some individuals, but not generally to violence. There is a higher level of tolerance of homosexuality within Zimbabwean society than government rhetoric would suggest,” the judges found.


The Tribunal, using information supplied by GALZ, went on to suggest that there were different tolerance levels for homosexuals in Zimbabwe, with Bulawayo seen as most tolerant.

“A homosexual at risk in his or her community can move elsewhere, either in the same city or to another part of the country. He or she might choose to relocate to where there is greater tolerance, such as Bulawayo, but the choice of a new area is not restricted.”

LZ’s application failed on the general risk test, but was allowed after the Upper Tribunal said there could be “personal circumstances” that would place homosexuals at risk.

The court ruled that “although not decisive on its own, being openly gay may increase risk. A positive HIV/AIDS diagnosis may also be a risk factor.”

Homosexuality is hogging the public debates in Zimbabwe as the country prepares for a referendum on a new constitution.

By a wide majority, most Zimbabweans are opposed to homosexuality and would like to see the retention of laws criminalising same sex relationships.

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