The Centre for Human Rights (Centre), Faculty of Law, University of Pretoria stands in solidarity with the Chief Justice of Zambia, Dr Mumba Malila SC, who has come under attack following his remarks about the need to respect the human rights of sexual minorities in Zambia. During a public lecture commemorating the Silver Jubilee of the Supreme Court of Zambia, on 22 September 2023, held at the University of Zambia, Justice Malila was asked a question on the rights of sexual minorities in Zambia, particularly of gay persons. In his response, Justice Malila stated:
I think there is something absolutely wrong in discriminating people that are different because of their sexuality. If they are people you know who are gay, I think it is absolutely wrong in allowing them less right than you would give to anyone else. Whether people are gay or not, they are human beings at the end of the day, and human rights must be accorded to all human beings.
I think there is something absolutely wrong in discriminating people that are different because of their sexuality. If they are people you know who are gay, I think it is absolutely wrong in allowing them less right than you would give to anyone else. Whether people are gay or not, they are human beings at the end of the day, and human rights must be accorded to all human beings.
In solidarity with Chief Justice Malila, the Centre reiterates that the principle of equality and non-discrimination contained in the Constitution of Zambia and the human rights treaties to which Zambia is a state party, is a universal human rights principle which applies to sexual and gender minorities. Therefore, sexual minorities, such as gay men, are entitled to all constitutional rights and those found in the various international treaties ratified by Zambia.
The Constitution of Zambia, in its preamble states unequivocally that it upholds ‘the human rights and fundamental freedoms of every person’. Article 11 further recognises and declares that ‘every person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the individual’. Clearly, all Zambian citizens, irrespective of their sexual orientation – or any other personal characteristics – are rights holders under the Constitution. Take, for instance, the extreme example of article 15, which provides as follows: “No person shall be subjected to torture, or to inhuman or degrading punishment or other like treatment.” It is inconceivable that any group of Zambians would be excluded from the protection of such constitutional rights based on belonging to a particular group. The Centre understands the Chief Justice to have underlined this basic premise of the Zambian Constitution.
The basic position expressed by Chief Justice Malila is also reflected in the position of the African Commission on Human and Peoples’ Rights in its Resolution on the Protection against Violence and other Human Rights Violations on the basis of Sexual Orientation and Gender Identity (Resolution 275) which unequivocally accepts that sexual orientation and gender identity does not exclude Africans from being able to invoke rights such as the right to personal integrity and dignity.
The Centre therefore views the attacks and calls for the Chief Justice Malila to resign unjustifiable, as he was merely restating a commonly accepted human rights principle.
The Centre further stands in solidarity with the Zambian human rights lawyers who expressed support to the Chief Justice in a joint statement issued on 26 September 2023 to the Zambian media. In expressing solidarity to Chief Justice Malila, the human rights lawyers stated:
We stress that the principle of equality and non-discrimination, which the Zambian Constitution expresses, entails that the rights contained in the Bill of rights are to be enjoy despite the whimsical convictions of those who are avers to gay people being human rights holders in Zambia.
The human rights lawyers also stated:
In light of these judicial precedents and our own Constitution, we believe the Chief Justice simply stated the current position of constitutional rights in Zambia, echoing the basis on which rights are celebrated and enjoyed everywhere in the world.
Attacks on these human rights lawyers as human rights defenders are unwarranted and concerning, and can potentially harm Zambia’s human rights record.
The fact is that minorities, including sexual minorities, are entitled to rely on the rights under the Zambian Constitution. Just as it is with any other person, it does not mean that they will succeed with every claim they make. But they are entitled to the protection of the Constitution, and any case they submit should be heard by the judiciary to determine the exact content of their rights in a particular context.
For more information contact:
Tel: +27 (0) 12 420 3151
landilani.banda@up.ac.za
