Maravi

(NEWZIMBABWE) Gay rights: in the end courts will decide

Gay rights: in the end courts will decide
02/12/2011 00:00:00
by Tonderai Nhuka

IN THE midst of the bickering and the uncertainty surrounding the position Zimbabwe should take on gay rights in the new constitution, the process has reached the critical drafting stage.

The nation is also waiting with bated breath to see the drafters’ verbiage or silence on pertinent issues such as the death penalty and the irreversibility of the land reform programme.

If the feedback from the outreach exercise is for the illegalising of homosexuality, the abolition or retention of the death penalty and the entrenchment of the land reform programme, the draft constitution must give effect to the people’s wishes expressly and unequivocally.

Depending on the contents of the Bill of Rights, silence or ambiguity on the aforementioned issues will certainly have serious consequences when the courts later interpret the Bill of Rights in the light of cases brought before them by litigants.

The placement under constitutional scrutiny of any law or conduct brought before the courts by citizens is the hallmark of constitutionalism that I am sure Zimbabweans want to achieve through the new constitution.

Many Zimbabweans mistakenly believe that the South African constitution openly and clearly recognised gay rights and outlawed the death penalty. As a matter of fact, it is the interpretation of the Bill of Rights by the courts during the adjudication of cases brought before them that resulted in the recognition of gay rights and the abolition of the death penalty.

The words of the constitution as couched by the constitutional development assembly (CODESA) were ambiguous on these issues, and it was left to the courts to use their judicial discretion to give effect to what they deemed to be the intention of the legislators on the contentious issues of the death penalty and gay rights.

The landmark Mkwanyane case resulted in the abolition of the death penalty in South Africa. In reaching its decision to declare the death penalty unconstitutional, the Constitutional Court interrogated the Bill of Rights clauses on human dignity, the right to life and the right to equality before the law. The court concluded that South Africans had, through the new constitution and the Bill of Rights in particular, elected to have a break with the past replete with death sentences and executions involving mostly the black majority.

In all the various cases involving gay rights, the South African courts have after an interpretation of the Bill of Rights clauses on human dignity, privacy and sexual orientation ruled in favour of gays. The various court decisions have declared that it is constitutional for gays in South Africa to inter alia marry each other and even have the marriage solemnised by a church minister, adopt children, inherit both testate and intestate, claim spousal insurance benefits, claim maintenance from a deceased spouse’s estate and qualify for South African citizenship by virtue of being a foreign spouse of a South African gay spouse.

In fact, all references to spouses or husband and wife in all South African statutes should be interpreted to include partners in a homosexual marital union. So, even if the ordinary South Africans and community leaders might be against homosexuality, the ambiguity of the constitution or, put differently, the construction of the country’s Bill of Rights left the courts with no option but to rule in favour of gay rights.

This brings me back to our constitution drafters. Their task is to express the views of the people unequivocally, or if they elect not to express them, leave it to the courts to use the Bill of Rights and other clauses of the constitution to breathe life and meaning into the hidden intentions (read silence or equivocation) of the constitution makers.
What then should be done to avoid a post-constitution busy time for our justices?

It is incumbent upon the constitution makers to give effect to what the people said during the outreach exercise, since there was a prior political agreement that there shall be a “people-driven constitution”. How else do you have a people driven constitution if you leave it to the courts to interpret the politicians’ own hidden intentions in the same document?

The Bill of Rights is a part of the constitution that is mostly transplanted from the so called universal human rights which are basically an expression of the western world’s value system that has been internationalised over the years. It is a fairly new phenomenon in the constitutions of the developing world. An unfettered transplant of these rights into our constitution might make some of the people’s views on some matters legally repugnant and therefore unconstitutional or inappropriate for inclusion in the country’s proposed supreme law.

In order to circumvent this problem, the South Africans qualified some rights in the Bill of Rights to reflect the will of the people. For instance, private property rights were qualified in order to recognise the need for land restitutions as a result of the apartheid era arbitrary land dispossessions. The inclusion of affirmative action was used to qualify the right to equality to ensure that there is substantive equality in South Africa as opposed to just formal equality.

The post-draft constitution discussions and workshops must ensure the document is in accord with the provincial and national reports on the outreach exercise with reasonable compromises here and there.

It should be noted that in constitution-making, silence or equivocation may actually mean including what you did not want in the constitution or the exclusion of what you intended to be in the constitution when the courts as the ultimate adjudicators of disputes relate cases before them to the constitution.

Labels: HOMOSEXUALITY

posted by MrK @ 5:56 PM