Should gays and lesbians be given rights?
In attempting to answer this question I have taken a risk. I have risked the work of human rights activists being rejected as simply that of homosexual lovers. I have risked what my conservative family would say in response to my stance in favour of gays and lesbians. I risk all the bad jokes my friends will make. And above all I risk my professional career as colleagues are mostly conservative and traditionalist.
Nonetheless, the reason I do this is not only because I find it important for people to openly debate constitutional matters and would thus take any side for purposes of debate, but because I believe that what I have written is what is right.
The purpose of this article is to advance the case of people now known as sexual minorities.
“Sexual minorities” is a term that includes gays, lesbians, bisexuals, transvestites, those people who are born with both sexual organs (hermaphrodites) and those people who for one reason or another have had their sexual organs altered or identify with the opposite sex (transgendered).
In essence the term covers those people most of us would rather not want to be associated with because they are “sexual deviants”.
There has been a lot of research on why people become homosexuals.
A lot of questions have been asked. Is it that they were abused? Were they born like that? Is it their upbringing? Is it hereditary? It is contagious or communicable? Are they just trying to be different and difficult?
These questions have resulted in numerous strategies against homosexuality. Some have suggested psychotherapy, others find counselling as the solution.
In Africa our “solution” is to arrest, prosecute and imprison these social and sexual deviants. Our “solution” has been to ostracise these people in an effort to compel them to comply with our social norms.
My arguments in this matter shall be premised on two concepts that are of paramount importance in any modern national constitution that promotes human freedom. These are human dignity and equality.
These concepts are not only human rights but are the pillars that sustain the human rights movement. We need to begin by asking ourselves what the purpose is of having a supreme constitution that has an entrenched Bill of Rights.
The point to be made is that where anything is put to a vote it is the majority that will always win at the expense of the minority.
The stance of black Africa towards homosexuality is not only hypocritical but has smacks of bigotry, ignorance, double standards and selective amnesia.
Arguments made against homosexuality are threefold. Homosexuality is said to be unnatural, against our African culture and against the laws of God. As a Christian who has been raised in the African culture I am not convinced by these three arguments.
With regard to “natural”, it is not clear to me who determines what is natural and what is not.
In my opinion there can be nothing natural or unnatural in human social behaviour. Nature can be used to refer to the birds and the bees and maybe human biology but not human social behaviour.
What we call “natural” is simply what we have been socialised and are now accustomed as that being the way things are done.
I am also not convinced by the African culture argument because I am unaware of any culture in the world that embraces homosexuality (the Greeks as well). Even in the United States where there are more liberal people you will find strong opposition against sexual minorities.
Both the US and UK still report cases where homosexuals are subject to violence. In Hitler’s Germany homosexuals were sent to the gas chambers together with those who were physically and mentally disabled.
Some people would want to suggest that homosexuality is a Western phenomena but nothing could be further from the truth. Many historians acknowledge the presence of homosexuals in Africa long before the advent of colonialism. There are also African homosexuals who have never been exposed to Western cultures.
As a black African the Christianity argument is regrettably the least convincing towards me.
Even though I am a Christian, whenever Christianity is going to be used to discriminate people I choose to dissent from my fellow Christians.
Having travelled to Zanzibar and to Ghana’s Cape Coast where you get a feel of how the slave trade took place you get a bit sceptical not only of Christianity but those who claim to be the guardians of Christianity.
In the Cape Coast slave castles there is a church right above the male slave dungeons. In one of the castles where a captain was buried there is a plaque that praises him as a God-fearing man. One wonders how one can be called God-fearing yet he treated fellow humans in the most inhuman manner.
Likewise, it is inconceivable that people could call themselves Christians yet they perpetuate and cast a blind eye to the discrimination that sexual minorities suffer.
I am also not oblivious to how white (Christian) supremacists used to oppress black people. In the UK, US and apartheid South Africa, white people convinced themselves that God had given them black people so that they could use them as labourers.
White South African Christians saw nothing wrong with having separate churches for black and white people as if they were praying to separate Gods.
In any case what I really do not understand is why the law should punish consenting adults for what they do in their bedrooms.
It is just plain absurd for the law to regulate bedroom conduct. The law should not seek to punish all conduct that the majority considers to be socially unacceptable.
I am forced to go back to the debate of law and morality. To what extent should the law enforce morality? This debate is complex and is beyond the scope of this article.
What is important is that we must all become suspicious when the law seeks to criminalise acts based solely on moral grounds. This is because history has taught us that the person who claims to hold the moral yardstick will use it for tyrannical purposes.
Fundamentally, it is not wrong for the law to have a moral basis. What is wrong is when everything that is considered to be immoral is to be also considered to be illegal.
Drunkenness, adultery, smoking and fornication are all immoral but they are not illegal and people who do these acts are not discriminated against. So what’s the big deal with homosexuality?
Ultimately it is our humanity that should lead our consciences and our consciences that should lead constitution-making process.
• Tazorora TG Musarurwa is a Zimbabwean lawyer and writes in his personal capacity. This article has been excerpted from SW radio. He can contacted at firstname.lastname@example.org