Some foreign partners are supporting petition to decriminalise homosexuality
Mwanza asks ConCourt to decriminalise same sex relationships
By Ernest Chanda
ACTIVIST Isaac Mwanza has petitioned the Constitutional Court asking it to decriminalise same sex intimate relationships.
According to his petition in the Constitutional Court dated May 31, 2024, Mwanza argues that provisions in the penal code which criminalise same sex intimate relationships do not clearly define what the term “unnatural sex” means.
Mwanza, who is Zambia Civil Liberties Union executive director, also contends that the term “against the order of nature” in section 155 of the penal code is vague and contravenes the constitutional principle of legal certainty.
Mwanza is first petitioner in the matter while his organisation is the second.
He further argues that the penal code’s classification of same sex as unnatural offences is unconstitutional as it discriminates on the basis of sexual orientation.
Mwanza says section 155 (a)(c) of the penal code is unconstitutional as it contravenes article 8(d) of the Constitution by violating the value of dignity.
He says forensic anal examinations conducted by the state against the will of consenting adults who engage in sexual intercourse violate their dignity as humans, are intrusive, invasive, and constitute cruel, inhuman, and degrading treatment.
“Your petitioners further allege that by criminalising consensual acts between adults which are undertaken or which occur in private, the provision unlawfully intrudes upon individuals’ private lives in contravention of Article 17(1) and 19 of the Constitution which provides for a person’s right to privacy and freedom of conscience, respectively,” Mwanza contends. “Your petitioners shall further allege that section 155 (a)(c) is unconstitutional as it unreasonably restricts the satisfaction of human needs and desires and your petitioners shall aver that carnal knowledge, like hunger, thirst, sleep, etc are natural human desires; and that like air, water, food, shelter, and clothing among others, carnal knowledge is a universal natural human need. These desires and needs are essential for enjoyment of human life and interference with them is a violation of human dignity as provided in Article 8(d).”
Mwanza seeks interpretation of what he terms constitutional contraventions.
He is seeking various reliefs from the Constitutional Court, among them a declaration order that the expression “the order of nature” in section 155(a) of the penal code is vague and ambiguous and contravenes the constitutional principle of legal certainty.
He also wants the court to declare that section 155(c) of the penal code is unconstitutional on the grounds that it is discriminatory on the basis of sexual orientation, among others.
Mwanza further wants the court to declare that “persons, whether married or not, who consent to engage in different categories of sexual intercourse are excluded from liability for a criminal offence”.
Mwanza also seeks the court to order a list of sexual intercourse which can be performed according to the order of nature.