Constitutional Reform in Zambia: Managing the Impact

LGBT community members and allies convene in Lusaka

Otema Musuku, parliamentary liaison officer for the Southern African Development Community Parliamentary Forum (SADC-PF) (left) and Chivuli Ukwimi from IGLHRC (right).

Despite its relatively young existence Zambia has attempted four times to amend her constitution. For the Zambian LGBT community the most recent efforts to make a credible, durable and legitimate constitution, have in fact dealt the community a severe blow. The National Constitutional Conference (NCC) – the official body tasked with driving the reform process and rewriting the constitution – recently included a clause that forbids marriage between people of the same sex in the draft constitution. Friends of Rainka, an LGBT organization in Zambia condemned the move by the NCC as a direct attack on an already vulnerable community – and one that may overshadow any successes that the community has made to date. This condemnation is only one step in the response of activists to this threat to the human rights of LGBT people in Zambia.

To increase awareness and understanding of the constitution making process and to strengthen the capacity of activists to respond to its outcomes and implications for LGBT rights in Zambia, 12 Zambian LGBT activists and 4 allies attended a training on Constitutional Reform in Zambia: Managing the Impact from October 28-29, 2010 in Lusaka Zambia.

IGLHRC Program Director, Jessica Stern (left) and Rainka Executive Director, Chanda Mubanga (right).

The 2-day training, facilitated by IGLHRC, included presentations, case studies and working groups. These were, as noted by IGLHRC Program Director Jessica Stern, "aimed at deepening participants' understanding of the constitutional review and adoption, and law reform processes." It was also an opportunity to think together about applying this learning in developing an advocacy strategy with various stakeholders to address the impact of the discriminatory clauses in the draft Zambian constitution.

To ground the discussion the training started with a situation analysis of the state of LGBT rights in Zambia, highlighting explicit and implicit discrimination in legislation and elsewhere before moving on to focus on the current reform process and its implications. We were fortunate to have a Zambian authority on law and human rights give a brief history of constitutional reform in Zambia and an insight into the ongoing constitution making process. The draft constitution is currently before Cabinet for consideration and will be presented to Parliament for adoption before being signed into law by the President. The proposed Bill of Rights section will, as required by Zambian law, be referred to a referendum for the people to decide (the government has yet to set the date for this and with elections approaching may not rush to do so).

During the two-day gathering participants were given an opportunity to learn and discuss the potential implications and ways for the Zambian LGBT community to seek legal recourse, should the draft constitution be adopted in its current state. These implications include:

  1. Increased ostracism of Zambian LGBT community
  2. Non registration of LGBT organizations – such as Friend's of Rainka
  3. Increased arbitrary arrests and detentions
  4. Suspension of MSM/WSW HIV programming and outreach

Options for legal recourse:

  1. Amending through parliament (private member's bill)
  2. Amending through the courts of law
Daniel Libati, human rights lawyer, facilitating a law reform session.

These sessions were not only informative – the session on law reform was an eye opener for many participants – but also very empowering. In fact finding ways to respond was one of the most important pieces to come out of the training. In one participant's own words, "I now know my legal and constitutional rights and I am excited to learn that I can use cap 28 of the Zambian Constitution to challenge unconstitutional laws." (This section 28 allows a person to challenge violations of the Constitution's Bill of Rights in the High Court.)

The training on parliamentary change provided by the Zambian liaison officer for the Southern African Development Community Parliamentary Forum (SADC-PF) was equally useful. Participants were motivated and more than happy to learn that they could actually make use of various parliamentary figures and mechanisms to advocate for LGBT rights in Zambia. "I always thought it was futile to work with any state agencies, but this presentation has given me so much hope and courage to approach some members of parliament," said a visibly excited LGBT community member.

Doing the work of challenging discrimination in the constitutional reform process is challenging and there were valuable opportunities to identify areas for growth and development as well as potential challenges –for example, various state and non-state actors and internal community issues were identified as stumbling blocks to eliminating discrimination and homophobia. Many of those present underscored the need for further security training considering the challenges and realities they faced on a day-to-day basis.

Friends of Rainka staff at the Rainka offices in Lusaka, Zambia

The training was also focused on concrete action. Activists worked on prioritizing near-term activities that Friends of Rainka would undertake to manage the impact of constitutional change. Working groups were formed focusing on three areas namely: community organizing; state actors (government and its agencies, political parties and their leaders); and non-state actors (religious leaders, CSO/NGOs, traditional leaders and media). Participants then prioritized 2 activities from each focus area to come up with 6 priority areas for action:

  1. Legal training and workshop for stakeholders;
  2. Capacity building for Friends of Rainka;
  3. Work with the SADC-PF liaison officer for meetings and introductions to Zambian MPs and the SADC-PF;
  4. Advocacy towards amending the National Aids Council Act;
  5. Increased outreach to LGBT community members; and
  6. Outreach to members on issues affecting their lives other than HIV/AIDS.

Coming up with the 6 priority areas in 2 days of packed content was a great success. One of the unique moments never experienced at any training was the self-appointment of a bisexual focal person to reach out to Zambian bisexuals that like many of their global counterparts were rarely referenced. That was a first for me and so kudos to Friends of Rainka for completing the rainbow.