By Anneke Meerkotter

The first thing you are confronted with when you walk into the service section of the South African embassy in Harare is a South African department of home affairs poster on the process to register civil unions, including same-sex marriages. Why is this interesting? Because Zimbabwe’s first draft constitution released last week explicitly reserves marriage for opposite-sex couples in not one but two sections of the constitution. During the same week, Zambia released its draft constitution which similarly excludes same-sex couples from the right to marriage.

The preamble to Zimbabwe’s draft constitution starts off on a promising note:

United in our diversity by our common desire for freedom, justice and equality, … Reaffirming our commitment to upholding and defending fundamental human rights and freedoms … Cherishing freedom, peace, justice, tolerance, prosperity and patriotism in search of new frontiers under a common destiny.

But a few sections later, the Constitution deliberately prohibits same-sex marriage.

On the face of it, such exclusions are clearly discriminatory, denying same-sex couples the opportunity to have their committed lifelong relationships afforded societal status through the designation of marriage. Such discrimination no doubt causes harm to same-sex couples because it classifies them as different from, and less deserving than, opposite-sex couples.

The past decade has seen increasing legal and political challenges against the prohibition of same-sex marriages, with 2012 already appearing to be the year in which the debate on the prohibition or acceptance of same-sex marriages will come to the fore more than ever before.

Interestingly, this debate is raging on two continents – North America and Africa – at the same time. The timing of this debate coincides with a separate but related debate: whether the United States has the right to insist that independent African states acknowledge the right not to be discriminated against based on sexual orientation and decriminalise consensual same-sex sexual conduct, or not. It remains difficult to escape the irony that the United States is using sexual orientation as a political negotiating tool in their dealings with Africa when it continues to be such a contested issue in that country.

Historians and sociologists will also be quick to point out that Africa has been far less judgmental of people of the same sex who form loyal, enduring, intimate relationships prior to colonisation by the West, and that many of the homophobic responses in Africa can be traced directly to colonial and Western roots. Even in the 20th century, in the midst of harsh exploitation of workers by the apartheid state, men from southern Africa who lived in single-sex hostels sought to engage in ‘mine marriages’ with each other for mutual support, protection and care, sometimes even formalising such relationships with ceremonies and payment of lobola. Given this past, it is difficult to point to a legitimate government interest for a prohibition against same-sex marriages. But then, historical facts and rational arguments are seldom at the forefront of the same-sex marriage debate.

In the United States, little more than a handful of states have actually legalised same-sex marriages, with a seemingly endless stream of court cases pending in various states challenging either the ban or legalisation of these marriages. In 1996 a federal law, the Defence of Marriage Act, defined marriage as between a man and a woman, and stipulated that states do not have to recognise same-sex marriages registered in other states. The Act further excluded otherwise valid state same-sex marriages from federal law. The Act’s constitutionality has been repeatedly challenged in US courts and a number of appeals are currently pending. When the US Court of Appeals for the First Circuit heard arguments on the constitutionality of this Act in April 2012, the department of justice acknowledged that the Act’s discrimination on the basis of sexual orientation deserves the same heightened scrutiny used in cases of discrimination based on race. The Obama administration has indicated that it would no longer defend the constitutionality of the Act in the courts.

In Africa, leaders have not been keen to extend the right to marriage to same-sex couples. Some even go as far as specifically legislating against it, just to make sure they do not happen. In February 2012, for example, a Bill was tabled before the Liberian Parliament requesting that the law specifically prohibit marriage between persons of the same sex. The proponent of the Bill, Senator Jewel Howard-Taylor, ex-wife of the war criminal Charles Taylor, does not elaborate on the reasons for her proposition, apart from stating that “It is incumbent upon us, as guardians of our sacred heritage to ensure that our generation leaves our nation in a better position than we found it.” Indeed it is.

Lawyers will tell you that eventually such laws can be challenged successfully in court for constituting unfair discrimination, as has happened in South Africa, Mexico, Argentina, Canada and various states in the US. Courts have recognised that being married carries symbolic weight; the status of being married means that the law recognises, protects and values the relationship. Courts have therefore also rejected measures which only allow same-sex couples to register domestic partnerships – but deny them the right to marry.

But lawyers get ‘a bit stumped’ when prohibitions against same-sex marriages are contained in a constitution. One example is the Proposition 8 debate in California, where voters voted for an amendment of the state constitution to remove the right of same-sex couples to marry. This constitutional amendment was overturned in February 2012, by the United States Court of Appeals for the Ninth Circuit in the case of Perry v Brown. The judgment is important because it considers the constant interplay between the rights of sexual minorities, the private beliefs held by members of the community and the requirements necessary for valid law reform. The US Court of Appeals held that communities are entitled to enact laws which they believe are desirable, but they must have a legitimate reason for passing laws which treat different classes of people differently, declaring that “tradition alone is insufficient to justify maintaining a prohibition with discriminatory effect”.

The US Court in Perry v Brown emphasised that it did not believe that everyone who voted for the amendment did so out of ill will: “Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. Disapproval may also be the product of long-standing sincerely held private beliefs. Still, while private biases may be outside the reach of the law, the law cannot, directly or indirectly, give them effect.”

Law academics in the United States criticised the Perry judgment on a range of grounds, arguing that the courts cannot find a constitutional right to same-sex marriage, and that this task should instead rest on the people through a democratic, political process. In Zimbabwe, the political parties will similarly argue that they had canvassed the issue in all the regions during the constitution-making process. Yet, neither the Californian voters in the United States nor the Zimbabwean participants of constitutional outreach meetings debated these issues with the rigour required to ensure that the debate is not influenced by prejudice and misinformation.

Both the Californian and Zimbabwean examples create the impression of voters being guided into deciding what should be in the constitution and how this should be phrased. For example, the talking point for community outreach during the Zimbabwe constitution-making process was “Should a woman be allowed to marry another woman and a man to marry another man?” This question was asked in public in a context where discrimination on the basis of sexual orientation is rife.

When considering the legitimacy of a constitutional provision, it is important to assess whether the constitution-making process which preceded it genuinely sought to create an educated public that understands the importance of constitutionalism. Engaging voters in a constitution-making process without openly discussing both sides of the argument does not lay an adequate foundation for democratic practice. Too often politicians are seen to selfishly promote their partisan positions at the expense of reasoned and transparent debate. Thus, in a society where human rights are not universally respected, constitution-making processes can easily be controlled to produce a certain result.

A fundamental principle underlying constitutional democracy and international human rights law is the principle of universality of rights. If the constitution itself promotes discrimination against certain groups of people, this makes a mockery of the founding values and principles espoused in the constitution and creates the impression that the right to equality and dignity in the constitution can be selectively applied when it pleases the state to do so. States can only claim a commitment to human rights if they can demonstrate the political willingness to uphold and protect the rights of everyone, including sexual minorities.

Anneke Meerkotter is the project lawyer on sexual minorities at the Southern Africa Litigation Centre.


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