By Amb. Emmanuel Mwamba
Watch this petition designed to decriminalise homosexuality in Zambia
..Constitution Court to hear and determine whether homosexuality should be decriminalised in Zambia…
Campaigners for LGBTQ rights have devised a way of decriminalizing of homosexuality in Africa.
The traditional method of Parliament has failed and has infact stoked more ourragr where the Legislature have come with new and stiffer laws against homosexuality as has recently happened in Nigeria, Uganda and Ghana.
So they seek a second amd easier method. They look for a petitioner who approaches the courts for interpretation and that way, the decriminalization of homosexuality is repealed ising the courts as has happened in Botswana, Kenya and Namibia.
Isaac Mwanza’s petition falls in the latter category using the same cpurt method seeking to decriminalise of courts.
Below is the ruling of court on the matter when it came up before court;
Ruling; Constitutional Court possesses the necessary jurisdiction to entertain the petitioners’ petition.
In determining this sole issue, our starting point will be considering the provisions of Article 128 of the Constitution which provides
as follows;
(1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear,
(a) a matter relating to the interpretation of this Constitution,
(b) a matter relating to a violation or contravention of this Constitution;
(c) a matter relating _ to the President, Vice-President or an election of a
President;
(d) appeals relating to election of Members of Parliament and councillors; and
(e) whether or not a matter falls within the jurisdiction of the Constitutional Court.
(2) Subject to Article 28 (2), where a question relating to this Constitution arises
in a court, the person presiding in that court shall referthe question to he
Constitutional Court.
(3) Subject to Article 28, a person who alleges that:
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(a) an Act of Parliament or statutory instrument;
(b) an action, measure or decision taken under law; or
(c) an act, omission, measure or decision by a person or an authority:
The above provisions define the scope of the Court’s jurisdiction. We note the
issues raised by the petitioners which are, on the face of it, distinguishable from the issues considered before this Court in the cited cases. With that in mind, we are of the considered view that the petition raises issues that can only be determined after a full hearing of the matter. It is therefore the Court’s position that the matter be scheduled for a full hearing of the Court before a
single judge.
Earlier Isaac Mwanza petititioned that;
[2] The petition was filed into Court on 31s May, 2024 alleging contravention
of the constitution as follows;
That section 155(a) (c) of the Penal Code is unconstitutional due to its vagueness and ambiguity regarding the concept of “the order of nature” as it pertains to acts of carnal knowledge and contravenes the constitutional principle of legal certainty as guaranteed by Article 18 of the Constitution of Zambia.
- That section 155(a)(c) of the Penal Code, which pertains to unnatural ffences is unconstitutional o he grounds of
discrimination due to sexual orientation or vagueness or gender identity thereby contravening the values of non-discrimination and principles of equality as enshrined in Article 8 of the Constitution.
5] When the matter came up for a preliminary hearing we asked the parties to address the Court on whether the Court has jurisdiction to entertain this petition which is anchored on Part Ill of the Constitution.
We also asked the parties to address the Court on whether it has jurisdiction to interpret the constitution, having come by way of a petition.
[6] The 1s petitioner, Mr. Mwanza, in addressing the Court submitted that this
petition was standing on three limbs. The first being an allegation that an Act of Parliament has contravened Article 8(d) of the Constitution.
Secondly, the petitioners allege that a provision of the law, that is section
155(a) (c) of the Penal Code, is inconsistent with both a protective provision of the Constitution, specifically, Article 18 (8) of the Constitution and another provision outside
Part a, namely Article 8(c) and (d) of the Constitution 7] The petitioners finally sought the interpretation of Articles 15, 17 (1), 18
(8), 19 (1) and 23(1) under Part IlI of the Constitution.
