THE Parliamentary committee leading the country’s constitutional reforms (COPAC) has triggered yet another storm over homosexuality after including in its latest draft a clause that critics say could be used to guarantee gay rights.
A draft released in February included a controversial reference to “natural differences” which had been rejected by the majority of Zimbabweans during the constitutional outreach exercise.
But the new draft released last week replaced the contested phrase with ‘‘circumstances of birth’’ which legal experts and political analysts said was still open to manipulation by gay rights activists.
Said Harare lawyer Jonathan Samukange told the Herald: “Circumstances of birth may include sexual orientation because those people can actually go to court and challenge any discrimination based on that clause.
“That is how other countries end up having gay rights in their constitutions, it won’t be clearly stated for instance the South African constitution provides for non-discrimination and that is used by the gays.
“This provision in our draft I think is actually intended to cover up for homosexuality and the moment it’s in the constitution then it will be used by the gays.”
Another Harare lawyer Terence Hussein added: “The clause itself is vague, it will need to be clarified by the courts because someone can argue that they were born with a particular sexual orientation and demand that they not be discriminated against.
Tsholotsho North MP, Jonathan Moyo whose Zanu PF party is opposed to the inclusion of gay rights in the constitution said it was scandalous that COPAC was resorting to “trickery and deceit” in a bid to protect homosexuality.
“It is scandalously revealing that the latest Copac draft constitution released last week has resorted to trickery and deceit in a desperate but ill-fated attempt to retain and entrench homosexuality by mischievously hiding it under the cover of a new seemingly innocuous and yet loaded phrase of ‘circumstances of birth’ which has replaced the roundly rejected phrase of ‘natural difference’ which was controversially included in the February Copac draft,” he said.
“What is very offensive about this is that the people of Zimbabwe specifically and vociferously rejected the constitutional protection of homosexuality during the Copac outreach programme.
“The fact that homosexuality has come back in a foolishly hidden way in the latest draft demonstrates beyond any doubt that the Copac co-chairs, who have taken ownership of the draft in the name of a negotiated consensus, are contemptuous of the people’s views and proves that the MDC-T, which has been very vocal in support of the latest draft, is fully behind the latest sinister trick to entrench homosexuality in the Copac draft constitution against the very clear views of the people of Zimbabwe who have spoken in their great numbers against homosexuality.”
But former Attorney General, Andrew Chigovere said in his view there was nothing wrong with clause in question.
“If provisions are written in such a way that is susceptible to many interpretations, then we may have problems but as far as I understand this clause, it is not about homosexuality but the manner in which one is born,” he said.
“We may have a situation where one is born by an insane person and those are the circumstances of birth that are being talked about.
“We already have a provision for marriage being between people of opposite sex so it is not possible for someone to claim that homosexuality is provided for. The only thing gays can do is to argue that the provision on marriage is discriminatory in the sense that it talks of people being of opposite (sex).”
Zimbabwe is currently writing a new constitution as part of a raft of political reforms expected to culminate in fresh elections to choose a substantive government.
But the critics have dismissed the process, already delayed by constant bickering between parties to the coalition government, as a costly failure with many insisting the exercise should be abandoned.
Said Harare academic Ibbo Mandaza last week: “Copac got its mandate through … the Global Political Agreement (GPA) wherein the three political parties agreed it should lead the drafting of a new constitution for Zimbabwe.
“Herein lies the first problem: a political tri-partisanship that has proved almost fatal for Copac and in general accounts for the incessant bickering therein, the failure to complete work within the stipulated 12 months and the obscene budget of US$45 million!
“Copac has so far succeeded most in affording constitution-making a negative image. A laughing stock perhaps! But Zimbabweans in general are no more informed about constitutionality under Copac than they were in 2000 when the draft constitution was rejected, for the wrong reasons, in that referendum.
“To be fair, people have become cynical about constitution-making, let alone about Copac.”