Source of the photo: Zambia Observer-https://www.zambianobserver.com/video-wayne-mwenya-mulenga-sings-nasekela-seka-natemwa-after-his-vows-at-a-wedding/
Introduction
On 24th October, 2021, the Zambian Observer, a social media platform, reported that a Zambian national in the United Kingdom, Mr. Wayne Mwenya Mulenga, was involved in a Gay Marriage. The Zambian Observer reported that “Mr. Wayne Mwenya Mulenga becomes the first known Zambian to be officially involved in a gay marriage. The ceremony took place in Manchester. He hopes to celebrate the marriage in Zambia before his extended family. But his relatives will have none of the embarrassment and have advised him to keep his “Ubushilu” in UK…”[1]
It was observed that the news about Mr. Wayne Mwenya Mulenga received condemnation by a cross section of the Zambian people on social media. Commenting on the development, someone said that “such is honestly foolish [for] him to call himself a Zambian…” while another commented that “Immediately they land in this country even the pilot, passengers, the relatives waiting for them they should be arrested and straight ku Mukobeko….We don’t want to contaminate this nation”. Another person stated that “We have our constitution that doesn’t allow a Man to marry a Man in ZAMBIA or a ZAMBIAN outside ZAMBIA. This Man needs serious visitation for destroying the name of the country…” while someone wrote that “…even animals do not do that and honestly human beings are doing it in the name of human rights what a shame batwale ubupuba no bushilu ukutali God forbid”.[2]
The development became a trending issue and has prompted the Zambia Law Development Commission to publish this Article entitled “I Proposed to my Boyfriend- The Legal Position on Same Sex Marriages and Relationships in Zambia.” The Article attempts to define marriage and sexual orientation. Further, it seeks to provide the legal position of same sex marriages or relationships in Zambia, compare the trends in other African countries, espouse the human rights approach on the matter, and whether or not there is need for legislative reforms.
Defining Marriage and Sexual Orientation.
The Marriage Act,[3] which is an Act that provides for the solemnisation (ceremony) of marriages, does not provide a statutory definition of marriage. However, reliance has in practiced been placed on the case of Hyde v Hyde and Woodmansee[4] in which Lord Penzance defined marriage as “the voluntary union for life of one man and one woman, to the exclusion of all others”.
When applied to customary marriages in Zambia, Lord Penzance’s definition is correct only to the extent that marriage is a union between persons of the opposite sex. However, the union under customary law may not be voluntary, for life nor to the exclusion of all others. The difference in the definition of marriage under statutory and customary marriage notwithstanding, marriage in Zambia can only be contracted between a man and a woman.
On the other hand, sexuality or orientation refers to a person’s sexual feelings, thoughts, attractions and behaviors towards other people.[5] The most frequently used labels for sexual orientation are heterosexual, homosexual, bisexual and transexual. Heterosexual is simply having a sexual preference for persons of the opposite sex while homosexual is having a sexual preference for persons of the same sex (commonly referred to as Gays and Lesbians). Bisexual is being attracted to individuals of either sex while transexual refers to a person born as one gender, but who believes that their identity is that of the opposite sex.
In the context of this Article, the focus is on same sex marriages and relationships in Zambia involving Gays and Lesbians.
Solemnising Same Sex Marriages in Zambia – The Legal Position
In order for a marriage to be solemnized in Zambia, the parties to the intended marriage are required to give notice to the Registrar of Marriages. To this effect, Section 6 of the Act provides that:
“No marriage shall be solemnised unless notice of the intended marriage shall have been given in the prescribed form by one of the parties thereto to the Registrar of the district in which the marriage is intended to take place not less than twenty-one days before the date of solemnisation.”
Further, the Marriage Act in Section 10(1) mandates the Registrar, at any time after the expiration of twenty-one days and before the expiration of three months from the date of the notice, to issue a certificate to the parties. However, there is a further provision to Section 10(1) which states, among other things, that the Registrar “…shall not issue such certificate until he has been satisfied by affidavit …that there is not any impediment of kindred or affinity or any other lawful hindrance to the marriage.” There is a further requirement in Form 8 (contained in the Schedule) for the person giving notice to make a declaration that parties have met the age requirements, and that there is no other lawful hindrance to the intended marriage.
Interestingly, despite the Marriage Act providing for both substantive requirements to contract a marriage and the procedure to be followed, the Act and subsidiary legislation (including the Forms under the Act) have omitted to provide for disclosure of sex (i.e whether one is male and the other female) of the parties to the intended marriage. Therefore, a person may be under an illusory, façade and sham belief or impression that in Zambia, same sex marriages or relationships are allowed.
Given that disclosure of sex for either Party to the intended marriage is not a requirement under the Marriage Act, the question that remains to be answered at this stage is whether there is any other legal provision which is a hindrance to contracting a same sex marriage or relationship in Zambia. On this matter, Section 155 of the Penal Code[6] criminalises the committing of offences against the order of nature. The Section provides in that:
“Any person who-
- has carnal knowledge of any person against the order of nature; or
- (b) has carnal knowledge of an animal; or
- (c) permits a male person to have carnal knowledge of him or her against the order of nature;
is guilty of a felony and is liable to imprisonment for fourteen years.
It is within the provisions of Section 155 (a) and (c) of the Penal Code, cited above, that sexual intercourse between males (gays), females(lesbians) or between a man and a woman, but against what is termed ‘the order of nature’, is prohibited. Given that for a marriage to be valid it has to be consummated (i.e Parties to the marriage must have the first postal marital sex within a reasonable time after solemnization) and there is a legitimate expectation that parties to the marriage will continue having sexual intercourse during the subsistence of their marriage, it follows that Section 155 (a) and (c) of the Penal Code is the any other lawful impediment or hindrance to contracting a same sex marriage or relationship in Zambia envisaged under Section 10(1) of the Marriage Act.
Consequent to the above, the Registrar of Marriages cannot accept any notice or issue a certificate to the parties to the intended marriage if both parties are of the same sex (i.e Gays or Lesbians). Further, it is a criminal offence under Section 40 of the Marriage Act for any person to swear, declare, enter, certify or state any material matter which is false in relation to the marriage. The said Section 40 stipulates that:
“Whoever in any affidavit, declaration, licence, document or statement by law, to be made or issued for the purposes of a marriage, swears, declares, enters, certifies or states any material matter which is false shall, if he does so without having taken reasonable means to ascertain the truth or falsity of such matter, be liable on conviction to imprisonment with or without hard labour for one year or shall, if he does so knowing that such matter is false, be liable on conviction to imprisonment with or without hard labour for a period not exceeding five years.”
It therefore follows that the legal hindrance applies to same sex marriage and no person should give notice, of the intended marriage, knowing that parties are of the same sex. It must be pointed out here that same sex marriages or relationships are prohibited and punishable under the law in Zambia.
Comparing Trends in the African Region
The 2020 global review by the International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA) shows that “nearly half of the countries worldwide where homosexuality is outlawed are in Africa.”[7] About 32 African countries have criminalized homosexuality while 22 other countries do not consider homosexuality a criminal offence. In addition to the foregoing, most countries that have criminalized homosexuality, the offence is punishable by imprisonment while four countries namely Mauritania, Somalia, South Sudan and in some states in Nigeria (where sharia law is applied) a sentence of death is applied. However, African has in the past ten years seen Angola, Botswana, Mozambique, Lesotho and the Republic of the Seychelles decriminalize same sex relationships.[8]
Regarding legalization of same sex marriages in Africa, South Africa became the first African country in 2006 to legalize same-sex marriages. The Country has an express provision that in the constitution that protects against discrimination based on sexual orientation, and in 2020 South Africa passed the Civil Union Amendment Act, which prohibits marriage officers from refusing to conduct same-sex marriages. Therefore, the position in South Africa is that same sex marriages and relationships are legal.
A Human Rights Perspective on Same Sex Marriages and Relationships
Even though the United Nations, African Union, and the Southern African Development Community have not adopted human rights instruments to specifically address the rights of persons with different sexual orientation, the common position among the said bodies is that they all embrace the principle of non-discrimination, equality of persons, human diversity and freedom of choice. Consequently, human rights advocates have argued that these rights should not be infringed even in countries or communities that have hard feelings about or not receptive of homosexuality. Proponents further argue that persons with different sexual orientation should be protected from oppression, violence, stigma and discrimination.
Observable Gaps in Zambian Law – Room for Legal Reforms
The following gaps have been observed in the law in relation to the prohibition of same sex marriages or relationships.
- The Marriage Act has no express provision that parties to the intended marriage must be male and female in order for a marriage to be validly solemnized.
- The Penal Code Act, despite criminalizing sexual intercourse against the order of nature, does not define ‘order of nature’.
- Based on the first and second gaps highlighted above, the law lacks clarity and certainty on same sex marriages or relationships. The position that such marriages or relationships are illegal in Zambia is arrived at by way of necessary legal implication.
- There is no law in Zambia that expressly provides for the protection of persons with different sexual orientation against oppression, violence, stigma and discrimination.
Conclusion and Recommendation
The legal position is that same sex marriages, like Mr. Wayne Mwenya Mulenga’s reported marriage, cannot be solemnized in Zambia. Zambia’s current legal framework frowns upon same sex marriages or relationships. It has been noted that despite the Marriage Act providing substantive elements and procedural requirements for contracting a valid marriage, the Act does not expressly prohibit same sex marriages. Therefore, the lawful impediment or hindrance to contracting a same marriage or relation is imported from the provisions of Section 155 of the Penal Code, which itself lacks the definition of an unnatural offence or what constitutes an offence against the order of nature, thereby further lacking clarity or certainty on the matter. This notwithstanding, Zambia’s international obligations still require that all persons, including persons with different sexual orientation, must be protected against oppression, violence, stigma and discrimination. Therefore, there is need for Zambia to redress the identified gaps in the legal framework.
Foot Notes
[1] https://www.zambianobserver.com/video-wayne-mwenya-mulenga-sings-nasekela-seka-natemwa-after-his-vows-at-a-wedding/
[2] Note: The comments in this paragraph are reproduced in verbatim as posted on social media by members of the public. They have been cited by the Zambia Law Development Commission to demonstrate the reaction by some people. However, they do not, for all intents and purposes, reflect the position of the Zambia Law Development Commission.
[3] Chapter 50 of the Laws of Zambia
[4] 1836 [L.R.] 1 P. & D. 130
[5] https://www.betterhealth.vic.gov.au/health/healthyliving/Sexuality-explained
[6] Chapter 87 of the Laws of Zambia
[7] By Aaron Rakhetsi, ‘5 Countries in Africa That Have Legalized Same-Sex Relationships in the Past 10 Years.’ Article published on February 25, 2021 and accessed at https://www.globalcitizen.org/en/content/countries-legalized-same-sex-relationships-africa/
[8] ibid