On Sunday 7 April 2013, Zambian police officers arrested Paul Kasonkomona at the gate of Muvi TV, a private television broadcaster in Zambia. Mr Kasonkomona, a well-known HIV and human rights activist, had been a guest on a programme debating the issue of same-sex marriages in Zambia.
During the programme, Mr Kasonkomona spoke out openly in favour of gay rights. The police officers who arrested Mr Kasonkomona reportedly acted on the orders of Acting President and Home Affairs Minister Mr Edgar Lungu.
Mr Kasonkomona was eventually charged under section 178(g) of the Zambian Penal Code, Chapter 87 of the Laws of Zambia, for soliciting in a public place for an immoral purpose. The charge is unusual since section 178(g), which deals with idle and disorderly persons, has never been used in this context. The offence originates from the English Vagrancy Act of 1898 and was repealed in England in 1956.
The specific offence was never intended to curb free speech on contentious issues of interest to the public. The police’s willingness to arrest and detain a person under a minor charge completely unrelated to the person’s acts is a cause for concern. Mr Kasonkomona has now spent three nights in custody, even though he was able to provide sureties which would entitle him to release on police bond.
The arrest of Mr Kasonkomona comes in the wake of an escalation of anti-gay rhetoric by Minister Lungu:
On 18 March 2013, the European Union (EU) issued a call for proposals to organisations in Zambia working on human rights, including the rights of LGBTI persons. An outraged Minister Edgar Lungu, in an interview a week later, stated that the EU was promoting same-sex marriages in Zambia.
Lusaka City Council marriage registrar Henry Kapata was quoted in the press as having refused to register the marriages of four same-sex couples over the Easter weekend. Following this report Minister Lungu went a step further and called for criminal investigation of the couples. “The police must do their work…same-sex marriages are not a normal thing” he was quoted as saying. Two days later, the police released a statement noting that homosexuality is a serious offence in Zambia and that members of the public should report anyone involved in the practice to the police. On the day of Mr Kasonkomona’s arrest, Minister Lungu’s speech at a Christian gathering reportedly derided “criminal and evil acts like gay marriages”.
Contrary to Minister Lungu’s claims, the act of trying to register a same-sex marriage is not an offence under any law in Zambia and it is entirely legal to discuss whether same-sex marriages should be registered. Same sex marriages are not dealt with in criminal law. Whilst consensual same-sex sexual acts are prohibited under the Penal Code, it is not an offence to be attracted to someone of the same sex or to be gay. There is nothing illegal about advocating for the removal of laws which criminalise same-sex sexual acts and advocating for the equal rights of LGBTI persons. The media and politicians adore the debate around same-sex marriages, and seem to enjoy conflating the issues. This point was made in an opinion piece in the Lusaka Times on the same day as Mr Kasonkomona’s arrest.
As we look toward the national convention on the draft Constitution to be held from 10 April 2013, we hope that representatives from all walks of society are not side-tracked by Minister Lungu’s utterances. The constitution-making process provides an excellent opportunity for Zambians to recognise the rights to equality and dignity of everyone, especially marginalised groups. The value of the debate and development of a rights-based discourse on LGBTI issues extends beyond only benefitting LGBTI persons themselves. LGBTI organisations are in effect pioneering a new discourse – that rights are universal and apply to all, irrespective of ethnicity, religious belief or sexual orientation. The benefits of accepting such notion of diversity are invaluable. Activists like Mr Kasonkomona should be heralded for being brave enough to highlight the need for a rights-based approach to all issues. That he has instead been arrested and detained casts a shadow on the meaning of democracy and the extent of enjoyment of human rights such as the right to free speech and expression in Zambia.
By Anneke Meerkotter, LGBT/Sex worker Project Lawyer, Southern Africa Litigation Centre