Those working in the human rights sector often take it for granted that human rights are universal, and that everyone surely appreciates that they apply to ALL human beings. We tend to promote the notion that constitutions should protect the rights of minority and marginalised groups and should be inclusive in its prohibition of discrimination. Equal rights for all, and all that. And yes, these principles on the universality of human rights are captured in international human rights law and the treaties which States like Zambia have ratified. But there is in fact, no automatic understanding of what human rights entail and the consequences of making commitments through ratifying international human rights laws. Recent debates on the draft Constitution in Zambia illustrate this point.
During the past week, Zambia’s National Constitution Convention deliberated on the country’s draft Constitution. An essential part of the debate is around the process for adopting the final document, and the validity of substantial amendments made at this stage of the process.
Zambia’s constitution-making process dates as far back as 1972. The last attempt at constitution-making failed to get a required two-thirds majority in parliament in 2010. In an attempt to revive this process, a Technical Committee was appointed by President Sata to draft a new Constitution. In 2012, the Technical Committee issued the Constitution Consultative Process Guidelines which require that, for the Constitution to be validated, it should provide for extensive rights and freedoms and stand the test of time through provisions which are flexible and inclusive. A draft Constitution was released by the Technical Committee in April 2012 reflecting one of the most progressive constitutional documents in the world.
Surprisingly, in July 2012, the Zambian Human Rights Commission (ZHRC), in its response to the draft Constitution, argued against the universal application of some rights. In its submission, the ZHRC noted that the anti-discrimination clause is “very open ended and may lead to the handing of certain rights to or inclusion of certain groups that the people of Zambia may not be ready or willing to accept. In particular this concern is directed at members of the LGBTI community.” For a body tasked with protecting human rights, the Commission took a startling position – “human rights are universal but their enjoyment is not absolute. It is subject to the cultural, moral, religious, legal, economic and social context of the community/country in which they apply.” The Commission further took the position that the right to human dignity is not justiciable or worth including as a substantive right in the Bill of Rights. The ZHRC also suggested the removal of the clause, advocating for programmes which would advance the inclusion of minority and marginalised groups in all spheres of life, arguing that minority and disadvantaged groups do not really exist and are already catered for.
If Zambia’s foremost human rights institution was expressing a very conservative understanding of human rights, it was to be expected that traditional, religious and political leaders would show a similar ambivalence towards human rights at the National Constitution Convention this week. This was the case as delegates expressed concerns around the open-endedness of the anti-discrimination clause and were cautious that “minority and marginalised groups” should not be defined to include LGBT persons. Delegates even went one step further, arguing that there should be a specific clause in the Constitution which prohibits homosexual and lesbian practices, whatever that may mean. Suddenly debates on what was initially a very progressive draft document have become a distorted fascination with limiting rights as opposed to ensuring their universality. Debates that are not dissimilar to those entertained in Zimbabwe a few months earlier. Luckily, in Zimbabwe, reason prevailed which saw the exclusion from the final Constitution of a vague clause along those lines prohibiting homosexual practices.
The ferocity of the debate on homosexuality has been fuelled by events outside the National Constitution Convention. The churches and Minister of Home Affairs have spoken out harshly against LGBT persons over the past two weeks, with calls for the arrests of persons “engaged in homosexual practices” and the unlawful arrest of a human rights activist, Paul Kasonkomona, for speaking out on the issue. Mr Kasonkomona committed no crime but earned the ire of the police, politicians and the public when he spoke out in favour of the rights of sexual minorities on television. The fact that no civil society organisations rushed to defend Mr Kasonkomona’s right to freedom of expression, or to defend the rights of sexual minorities, no-doubt also contributes to the one-sidedness of the current debate on how inclusive rights should be in the Zambian Constitution. At the opening of the National Constitution Convention, the Minister of Home Affairs delivered a speech on behalf of President Sata in which he urged delegates to “avoid alien dogmas”.
Perhaps it is the very narrowly defined view of what it means to be a Christian nation that is causing the dilemma. Delegates at this week’s Convention confirmed that the country is a Christian nation and that the essence of the Constitution should capture this (although it should be noted that the vote in favour of this was 160/115, and that one of the biggest church formations, the Catholic Church argued against this provision). But defining what being a Christian nation means, in the content of the Constitution, is easier said than done.
On the one hand, delegates showed a progressive interpretation of rights in their rejection of the death penalty clause. Delegates respected the right to life of prisoners who convicted serious crimes, and rejected outdated arguments in favour of the death penalty. But when it came to the rights of persons who happen to have a different sexual orientation, the same reason did not prevail.
As the National Convention comes to a close, it is unclear what the final Constitution will look like. Recommendations by the National Constitution Convention, including a clause prohibiting homosexual practices, have been referred back to the Technical Committee. Civil society organisations have called for a National Referendum to adopt the Constitution.
We sincerely hope that those involved in the final stages of the constitution-making process are able to see past the current debates on homosexuality, to ensure that the final constitutional document reflects international standards and human rights for everyone.