Before the law: Criminalizing sexual conduct in colonial and post-colonial southern African societies
By Scott Long
There is no reason to suppose that white colonists brought same-sex sexual behavior to Africa for the first time. What they did bring, though, was the criminal categorization of that behavior. The acts were indigenous. The name and crime were imported.
The paradox is crucial: the laws that some politicians now defend as bulwarks of independence and authenticity are themselves colonial impositions. The law that criminalizes homosexual conduct in Zambia or Botswana is not a local phenomenon. It has its exact counterpart in similar laws in other former (and present) British colonies, including India and the English-speaking Caribbean; and all derive from metropolitan models enacted in Victorian times. Moreover, these laws are deeply rooted in European Christian culture, in particular in a medieval, theological fear of non-procreative sex, which sought to ban acts anathematized with Biblical sweep and imprecision. The presence of these provisions in Africa is a historical accident-or, more exactly, the product of a historical injustice: colonial rule.
None of the laws in Africa that criminalize consensual, adult same-sex relations actually mention "homosexuality." (The term "homosexual" itself was invented in Europe in 1869, by a medical doctor, and took a long time to move from medical to legal discourse.) Indeed, what is most striking about all those laws is their vagueness-referring as they do to "unnatural offenses," or "carnal knowledge against the order of nature," or "gross indecency." Their history is mostly one of legal, political, and social attempts to fill in those vacuous, umbrella terms with specific acts-with a content constantly shifting, according to alterable understandings of what "nature," or social mores, would actually allow.
Laws criminalizing so broad and ill-specified a range of behaviors are clearly not ones that allow individuals to say with certainty whether a particular act is permitted. Two U.S. legal authorities have written, of sex laws in that country, that "When law tracks the moral beliefs held by all or at least the vast majority of the members of a society, as is true of the laws prohibiting murder and theft, people do not have to `know' the law in order to comply with it; they have only to follow their conscience. Given the diversity of moral opinion regarding sex in the United States, conscience is not a sure guide to legality any more."87
If one changes "opinion" to "behavior," the statement might hold true of most societies across the world and across history. No society, however monolithic, can impose uniformity in sexual practice, much less desire. Nor is the law likely even to be cognizant of the diversity of practices and desires its subjects experience, so shrouded are many of them likely to be in stigma, secrecy, and silence. A sweeping prohibition of "crimes against nature" serves not only a punitive but a preceptive purpose. Its function is less to specify despised acts than to outline a positive vision of sex as employed in the service of procreation. Yet in so doing it abandons the regulative garment of law in order to wear a prophetic mantle, and exhort in the name of its own particular Utopia.
This Appendix will examine the history of criminal penalties for same-sex behavior in colonial, and post-colonial, southern African societies. It will show two legal systems intersecting, each with its own religious animus toward such behavior-and each with its own terminology. From the south came Roman-Dutch common law, the law brought by settlers from the Netherlands: a version of codified Roman law, interpreted by Renaissance classicists in the Low Countries, who read it in the light of Germanic common law. This legal tradition spoke of "sodomy." From the north came English common law and British penal codes, with a history of criminalizing "buggery" and "gross indecency." The two legal systems met somewhere along the Zambezi and entered into a confusing interrelationship, which generated the multiple meanings of sexual offenses in all these countries today.
It is important, however, to remember that colonial law is not a self-contained system to be studied in the abstract. It did not arise from the undisturbed development of a political and social order; rather, it was a prop for disruption and invasion. It represented a set of foreign principles of justice imported into a new, deeply unjust situation, and recruited to maintain it.
Colonial law functioned differently according to who its subjects were. For whites, it served to regulate their own community; for the larger society, it served to differentiate peoples so that no "community" could possibly exist. For whites, it was an affirmation of their own "civilizing" mission; for others under its sway, it was an instrument of separation, stigmatization, and control.
In looking at sex laws in such segmented and striated societies, therefore, one must remember their different effects on different populations-as well as their role in supporting not only moral beliefs but the concrete workings of the colonial system. Particularly in South Africa, apartheid employed sexual puritanism, and the regulation of sexual behavior, to maintain segregation and to justify surveillance. But throughout the region, these laws operated in conjunction with other legal provisions that made it possible to marginalize and control stigmatized groups, and gave the state immense power over social life. Most of these provisions remain in effect, long after colonialism proper has passed away.
Finally, the law that whites wrote was itself segregated. Colonial law oversaw the creation of another system that both supplemented it and confirmed its primacy: white rulers also codified "native" or "customary law" that would govern the daily lives of much of the population. In so doing, they rewrote those customary rules, either in their own images or in the image of what they believed the "native" should be.
This Appendix will therefore examine the changing definitions of forbidden sexuality in the laws the Europeans brought to Africa. It will then look at other laws surviving from the colonial period that furnish states with means to persecute or discriminate against sexually stigmatized groups. Finally, it will suggest how the codification of customary law may have changed the place of sexuality in African societies-as well as the understanding of "custom" itself.
A. Criminalizing Homosexual Conduct
1. Sodomy and Roman-Dutch law
Roman-Dutch common law was an interpretation of Roman law codes in the light of Dutch and Germanic practice, as synthesized by humanist scholars in the Low Countries in the Renaissance. This hybrid was brought to the Cape of Good Hope by settlers from the Netherlands in 1652.88 As long as the colony was under Dutch rule, its legal system continued to follow the evolution of the law in the colonists' home country.89 During the Napoleonic wars, the colony was occupied by Great Britain, and in 1806 it was formally annexed to the British Empire. Rather than impose English common law, however, the new occupiers decided for convenience's sake to preserve the existing Roman-Dutch system.
Roman-Dutch law thus was carried by whites from the Cape Colony over the rest of what became South Africa-brought by the Afrikaner Voortrekkers to the new domains they established beyond the Orange River, and by the British to the lands they extorted or annexed from their native inhabitants. It was taken to what became Zimbabwe when that territory (as the colony of Southern Rhodesia) was occupied by Cecil Rhodes' British South Africa Company. It spread to what is now Namibia when, after the First World War, the former German colony of South West Africa was "mandated" to South Africa's repressive care by the League of Nations. It also became the common law of the British colony of Bechuanaland, which after independence became Botswana.
Early Roman-Dutch law contained an offense, or a complex of offenses, variously termed sodomie, onkuisheid tegen de natuur (lewdness against nature) or, in Latin, venus monstrosa. The word sodomie came to supersume or include the other two: it was, however, broadly defined. As a 1987 Zimbabwean High Court decision declared, reflecting on the development of the term:
... the word used in early Roman-Dutch law was "sodomy" and this term, at that time, encompassed virtually any form of aberrant sexual behaviour. The crimes now known as sodomy and bestiality were included under this term, and some authorities also included acts such as self-masturbation, oral intercourse, lesbianism, and many other such practices. Some jurists even regarded normal coitus between a Jew and Christian as "sodomy."90
A selection of early definitions from Dutch legal scholars displays both the breadth and the bloodthirstiness of early European law. Joost Damhouder (1507-81) divided sodomy into three categories-self-masturbation, unnatural sexual acts between two humans, and bestiality-and stated, "When someone has committed sodomy with other people, whether with his own or opposite sex, the same are usually capitally punished with fire."91 Matthaeus (1601-1654) wrote, "Venus monstrosa occurs whenever it perverts a man or a woman. Of this type are sodomites, catamites, tribadists [women having sex with women], masturbators, practitioners of fellatio, those who submit to fellatio, and whoever exercises vile desire with beasts. All these are to receive the highest penalty since they have transgressed the boundaries of nature and in this way cheat the future of mankind."92 Carpzovius (1595-1666) wrote that "He who wastes the sexual act when copulating with men against nature, having abandoned the use of nature, has his head cut off... for example, when a man makes love to a woman in the wrong way, deliberately not inserting his member into her organ or not doing it in the correct manner."93 Some defintions were narrower. U. Huber (1636-94), a Frisian judge, maintained that only bestiality and unnatural intercourse between human beings (not masturbation) were punishable; Simon van Leeuwen (1626-82) further excluded unnatural acts between females, or between males and females-leaving only male-male acts and bestiality as criminal offenses.94 These shifts reflected not an increasing precision in jurisprudence but continuing contests over an elastic terrain of known and unknown, described and unmentionable, sexual acts. Two things, though, are clear:
· The common law responded to a belief rooted in Christian theology: that sexual acts were only permissible when aimed at childbearing. As South African jurist Edwin Cameron writes, in Roman-Dutch law "only male/female sexual acts that were directed to procreation were permitted. All other sexual acts ... were cruelly punished."95
· The very stigma attached to these acts prevented an effective definition. A Dutch jurist stated in 1806 that "the turpitude of this unspeakable crime is so great that it ought, it seems, to be passed over in silence rather than to be expounded to the ears of the chaste, and hence many commentators on the criminal law too have merely touched on it with very few words."96
Both the profound moral value attached to the legal promotion of procreation, and the vagueness bred by silence, would remain consistent factors in the strange career of "sodomy" in southern Africa.
England's annexation of the Cape of Good Hope had peculiar consequences for the common law: it preserved the system, but ensured that it would develop independently of whatever happened in its homeland. Ironically, three years afterward, the Netherlands-now part of the French Empire-saw the introduction of the Napoleonic Code, which abolished Roman-Dutch law altogether and decriminalized all same-sex sexual acts. This repeal had no impact at the Cape. The British conquest ensured that a lopped and frozen form of Roman-Dutch law, and the crime of "sodomy," remained in place at the tip of Africa. Dead at the root, a graft of the medieval law survived in its remote colonial branches.
2. South Africa
As late as 1907, a four-volume guide to South African common law noted that "Sodomy and bestiality are punishable with death ... although a lesser punishment may be inflicted at the discretion of the court," adding however that in South Africa "it has been the constant practice of our courts to punish the offense otherwise than capitally."97 (The last known execution for sodomy appears to have been in the Cape Province in 1831.)98 As late as 1997, a one-year suspended prison sentence was imposed in a case in Western Cape Province.
This 1907 text divided sodomy into "two species," one being bestiality, the other "where one man has carnal intercourse with another man or with a boy," noting, however, that "Masturbation... is also a crime equally with sodomy and bestiality."
With time, the original general crime of "sodomy" gradually became differentiated in South African common law into three separate offenses. Bestiality took its independent place. It was "usual," said an early twentieth-century legal text, "to require proof of penetration" in sodomy cases99 (although both the active and passive partners were guilty of the same crime), and a 1926 decision indicated that to charge a man with sodomy without evidence of penetration "might have been misleading."100 These detailed divisions of sexual behaviors took some time to be established in the common law. By mid-century, though, a standard definition of sodomy could be said to exist, which required penetration, did not require seminal emission, and identified both the active and passive partners as criminal practitioners: "Sodomy consists in unlawful and intentional sexual relations per anum between two human males."101
The ultimate definition of sodomy left over what one legal scholar called "a residual group of proscribed `unnatural sexual acts' referred to generally as `an unnatural offence.'"102 "Unnatural offenses" were still difficult to define: at a minimum, though, they included those sexual acts between men that did not involve anal penetration. In 1967, two men could still be convicted of "unnatural offenses" for mutual masturbation. As will be shown below, these divisions in the original corpus of crimes constituting "sodomy" showed the influence of British occupation. English law by now saw anal sex between men as one crime, and other forms of homosexual sex-"gross indecency"-as another. This categorization had come to inflect Roman-Dutch common law as well.103
A still profounder influence on the place of sexuality in society was the apartheid regime. Regulating sex was basic to its power. From the beginning, the National Party campaigned against interracial sex-the very existence of a mixed-race population problematized its project of comprehensive racial categorization. Yet beyond that, the architects of apartheid aimed to create an all-white, all-Christian public sphere in which racial and moral purity would be forcibly conjoined. Thus the Sexual Offences Act of 1957 criminalized interracial sex-but, in the same terms, barred prostitution, solicitation for immoral purposes, and a range of other activities that brought "immorality" into the public gaze.
Finally, moral panics were a tool for the regime to reinforce its position. Kevan Botha and Edwin Cameron have written that "During the apartheid era, key moments of political crisis have coincided with incidents of repression against non-conformist sexuality."104 Homosexuality soon entered the roster of the regime's public demons. In January 1966, a police raid on a house in the northern suburbs of Johannesburg found
a party in progress, the likes of which has never been seen in the Republic of South Africa. There were approximately 300 male persons present who were all obviously homosexuals ... Males were dancing with males to the strains of music, kissing and cuddling each other in the most vulgar fashion imaginable. They also paired off and continued their love-making in the garden of the residence and in motor cars in the streets, engaging in the most indecent acts imaginable with each other.105
The ensuing scandal led to an extended panic over the threat homosexuality posed to the society. The central office of the South African police sent a circular throughout the country instructing officers to use informers to infiltrate homosexual gatherings. The minister of justice told Parliament,
History has given us a clear warning, and we should not allow ourselves to be deceived into thinking that we may casually dispose of this viper in our midst by regarding it as innocent fun. It is a proven fact that sooner or later homosexual instincts make their effects felt on a community if they are permitted to run riot ... Therefore we should be on the alert and do what there is to do lest we be saddled later with a problem which will be the utter ruin of our spiritual and moral fibre.106
A Parliamentary Select Committee was formed to recommend new legislation. Their report predictably saw homosexuality as a problem for, and within, the white community-non-whites appeared only in the context of possible interracial relationships. The overriding concern of the report was that homosexuality was moving out of the private into the public sphere. With the declared aim to "stamp out homosexual gatherings," Parliament amended the Sexual Offences Act to punish "A male person who commits with another male person at a party any act which is calculated to stimulate sexual passion or to give sexual gratification," defining a party as "any occasion where more than two persons are present" (emphasis added). While the racial provisions of the Sexual Offences Act were repealed in 1985, this amendment survived. One historian writes:
The immediate consequences of the legislation have never been fully documented, but there is evidence of a clampdown on outdoor cruising places and routine police surveillance of clubs, bars, and parties during the 1970s. So as to remind gay people of the law, police would also conduct random raids, bursting into a party or club, grabbing people who were kissing or dancing together, and bundling them into police vans. Photographers would line people up against the wall and snap pictures of as many faces as possible while cops took down the numbers of the cars parked outside... Exposure could have meant unemployment, social isolation and vitriolic abuse wherever one went.107
In 1977, the Criminal Procedure Act listed sodomy as a Schedule 1 offense, giving police broad powers to investigate cases and make arrests even without warrants; allowing the state to intercept letters and other private communications in sodomy investigations; and disqualifying people convicted of sodomy-or their dependants-from receiving pensions. A 1987 parliamentary report on youth defined homosexuality as an "acquired behavioural pattern," a "serious social deviation," and an "evil."
The unravelling of the legal and social stigma attached to "sodomy" did not begin until the final passage of the 1996 constitution, with its express inclusion of sexual orientation as a status protected from discrimination. Two years later, the Constitutional Court held that the criminalization of sodomy, as well as Section 20 (A) of the Sexual Offences Act, violated the Equality Clause of the constitution, as well as its protections for privacy and human dignity.
In 1920, the League of Nations gave the former German colony of South West Africa to South Africa as a mandate territory. After the Second World War, the mandate became one of the most disputed issues in international law: South Africa attempted to incorporate the territory as its fifth province, while both the United Nations and the International Court of Justice at the Hague refused to recognize its continuing occupation. A long war of liberation resulted in the territory's independence as Namibia in 1990.
The South Africans brought Roman-Dutch law into the territory, and after independence it remained the common law of Namibia. Thus the common-law offense of sodomy, and the related crime of "unnatural offenses," remain criminalized in Namibia. The Namibian constitution, unlike the South African, does not offer express protection against discrimination based on sexual orientation-and these laws remain in full force.108
However, other apartheid-era legislation directed at homosexual conduct did not apply in Namibia, owing to its formal administrative differentiation from South Africa. South West Africa's puppet legislature did enact a "Combating of Immoral Practices Act" (Act No. 21 of 1980). The act is mainly aimed at heterosexual conduct; however, it defines sexual intercourse between two people who are not partners in a civil or customary marriage as "unlawful carnal intercourse." The constitutionality of the Act is now being challenged in court.
The lands north of the Limpopo River were colonized in the late 1880s by Cecil Rhodes' British South Africa Company (BSAC), based in Cape Town. Although an agent of the British imperial enterprise, the Company operated under Cape law. The settler government Rhodes inaugurated was dismantled in 1980, but the law he brought remains in force: Section 89 of Zimbabwe's constitution declares that (aside from provision for "African customary law") the law of the country is "the law in force in the colony of the Cape of Good Hope" in 1891-that is, Roman-Dutch common law.
In fact, this solution leaves Zimbabwe's common law in confused condition. There was no codification of Cape law as it stood in 1891; the absence of an ur-text for the law has left judges free to identify common law as they see fit, drawing freely on English principles and South African precedents. One expert observes that Zimbabwe's common law is "English-trained judges applying English common law through a South African lens and calling it Roman-Dutch."109 It also means that the Zimbabwean common law is free to develop, through precedent, in different directions from its South African source.
A standard Zimbabwean criminal law manual defines sodomy, in terms clearly derived from South African legal texts, as "unlawful sexual relations per anum between two human males," going on to specify that penetration is necessary but "emission of semen by the active party" is not.110 A 1987 Zimbabwean High Court decision, dealing with an appeal on a case of bestiality, divides up "unnatural offenses" in a way derived from South African examples:
There are three categories of offences involving sexual acts contrary to the order of nature: sodomy, bestiality and a third category into which fall certain residual sexually abnormal acts classified generally as unnatural offenses. It is not possible to define with precision what types of sexually deviant acts constitute an unnatural offense, although the nature and number of such acts are more limited than they were. It is an open question whether sexual offenses between females constitute unnatural offenses. 111
Certain technical differences from the South African law of sodomy are also clear, however. The decision leaves open the possibility that lesbian sexual acts might be punished as "unnatural offenses" in Zimbabwe, a possibility apparently foreclosed in South African common law.112 The criminal law manual, moreover, also posits that male-male sex without penetration might still be punished as "attempted sodomy."113
Law in white-ruled Rhodesia had been somewhat slower than South African law to narrow the definition of sodomy. Only in 1950 did a court hold that sodomy should be confined to cases "in which the accused gained actual physical gratification," as opposed to casual or accidental (non-penetrative and non-sexual) touching.114 Only in 1968 did a High Court ruling definitely find that consensual anal sex between men and women was no longer a crime, thus narrowing the definition of sodomy to sex between men.115 In 1975, for the first time, a High Court ruling followed South African precedent in dividing "unnatural offences" into three classes: "sodomy," "bestiality," and "a residual group of proscribed `unnatural' sexual acts referred to generally as `an unnatural offence.'" The court left it ambiguous whether mutual masturbation between two males fell into the latter category-although the judge stated that it "cannot be compared with the disgust and abhorrence which other forms of conduct such as sodomy arouse."116
It was never exactly clear, then, where Zimbabwe drew the difference between "sodomy" and an "unnatural offence." The hesitancy likely reveals the difficult struggle of a small, rural settler society-still more reticent about sexuality than was comparatively urban South Africa-to adjust an antiquated legal language.
The condition of record-keeping in Zimbabwean (and, previously, in Rhodesian) courts makes a full historical accounting of sodomy convictions almost impossible. Sodomy cases are heard in local, magistrate's courts, the proceedings of which are not published but kept at the courts of origin, or in regional archives. Only cases that are appealed reach the High Court; and only those High or Supreme Court cases that are regarded as legally significant, or precedent-setting, are published in the Zimbabwe Law Reports.117
Nonetheless, research in magistrates' courts records from the first three decades of white rule has shown that, of approximately 250 cases of sodomy or "unnatural offenses" (however defined) between 1892 and 1923, only twenty-two involved white men.118 By contrast, since 1980-though these two sets of figures cannot be taken as comparable- the only four sodomy cases involving consensual, adult sex that reached higher courts, and that have been recorded in law reports, all involved white men.119 A number of factors underlie this disparity-one of them being that whites are still far more likely to be able to afford legal representation and to undertake the appeal that might end in their case being recorded. There is no reason to think a disproportionate number of those who engage in "sodomy" in Zimbabwe, or of those who suffer the legal consequences, are white.
However, there is also reason to suppose that police and courts in the waning years of colonalism, and in the period of unilaterally-independent white rule (UDI, 1965-80), may have turned the law increasingly against fellow whites. Settler rule had a vested interest in subjecting whites' sexuality to inspection and regulation. Whites' identities as bearers of the "civilizing mission" depended on their adherence to moral codes; whereas "native" sexualities, much as in South Africa, were seen as either irrelevant or so irregular as to be beyond the pale.120 Yet if it is true that arrests for sodomy under white rule grew to target whites especially closely, that may have contributed to a popular impression that sodomy was the "white man's disease." A white regime desperate to ensure that no white man could engage in "perversion" lent ammunition to post-independence politicians eager to prove that only a white man would.
There is also reason to believe that sentences for sodomy have gradually decreased. S v Roffey, the last case to reach the Zimbabwean Law Reports, saw a Z$300 fine levied. 121 One attorney believes that a fine of Z$300-500 is now a standard sentence for sodomy in magistrate's courts.122
However, magistrate's courts have discretion to impose sentences of up to seven years' imprisonment, and sentences of up to six months are not subject to automatic review by higher courts. Other authorities believe that sentences of at least several months' imprisonment almost certainly occur.123 Moreover, as discussed below, a new "Sexual Offences Act" in Zimbabwe makes an HIV-positive man committing sodomy liable to a draconian sentence.
5. "Buggery" and British law in Botswana and Zambia
A complex of criminal classifications deriving from "sodomy" entered Africa from the south, with Roman-Dutch law. A different complex of sexual offenses came from the north, deriving more or less from the English common law offense of "buggery."
"Buggery"124 in English law was a term almost as flexible as "sodomy" to the south, but generally referred either to bestiality or to anal sex between men. It had been made a capital crime in the fifteenth century, and remained so until 1861, when Parliament reduced the sentence to imprisonment for ten years to life.
In 1885, the British House of Commons debated a bill to raise the age of consent for heterosexual intercourse from 13 to 16. One MP, Henry Labouchere, successfully proposed an amendment to punish "Any male person who, in public or in private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person, of any act of gross indecency." The sentence was up to two years in prison. (Under this law, known as the Labouchere Amendment, Oscar Wilde was convicted in 1896.) Labouchere's law completed the criminalization of all male-male consensual sexual contact in Great Britain: common-law "buggery" covered anal sex, and "gross indecency" embraced the rest.
It was this distinction that infiltrated its way into Roman-Dutch interpretations in South Africa, as a line between penetrative "sodomy" and other "unnatural offenses." Under somewhat different terms (with the less vehement "carnal knowledge against the order of nature" substituting for "buggery") it was carried directly into the penal codes of future Botswana and Zambia.
British Bechuanaland (the future Botswana), as a colony settled by the BSAC from the Cape, received Roman-Dutch common law. Northern Rhodesia (the future Zambia) when it passed from BSAC administration to direct British Government rule in 1911, adopted English common law. Both colonies, however, received colonial penal codes-and these superseded the common law for criminal offenses.
Both codes contain almost exactly the same provisions-penalizing, on the one hand, a complex of offenses deriving from buggery; and, on the other hand, the same "gross indecency" that was the undoing of Oscar Wilde.
Northern Rhodesia's white rulers adopted its Penal Code in 1930; new provisions on sexual offenses, Section 155-58, were added by Act in 1933.125 All passed seamlessly into the Penal Code of independent Zambia in the 1960s, and remain in force. Section 155 reads:
Any person who-
a) 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.
Attempt at these offenses is criminalized in Section 156, and is punished with seven years' imprisonment. Section 158 reads-in language borrowed almost exactly from the Labouchere Amendment:
Any male person who, whether in public or private, commits any act of gross indecency with another person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a felony and is liable to imprisonment for five years.
Botswana's Penal Code is similarly a colonial inheritance, and its sexual offenses provisions are almost identical, though the penalties entailed are somewhat lighter. Section 164 reads:
Any person who-
a) has carnal knowledge of any person against the order of nature; or
b) has carnal knowledge of an animal; or
c) permits any other person to have carnal knowledge of him or her against the order of nature;
is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.
Attempt is criminalized in Section 165, with five years' imprisonment. Section 167 reads:
Any person who, whether in public or private, commits any act of gross indecency with another person, or procures another person to commit any act of gross indecency with him or her, or attempts to procure the commission of any such act by any person with himself or herself, with another person whether in public or private, is guilty of an offence.
In contemporary Zambia and Botswana, the vagueness of these provisions remains a serious concern. Colonel C. Musemba, Superintendent of Crime of the Zambian National Police, told our researcher in 2000 that "there is no doubt that these so-called gays and lesbians are the people at issue in this law [Section 155]"-although in fact paragraph c) of the law seems directed at heterosexual sodomy as well.126 And Gideon Duma Boko, a lecturer in law at the University of Botswana, argues that the breadth of the Botswanan provisions violates the fair-trial protections of the constitution: "The Penal Code does not provide any definition of `order of nature'... The sections are extremely vague and embarassing in law. The conduct they seek to proscribe is so unclearly defined, if at all, that the ordinary citizen and society must keep guessing at their meaning and differ as to their application."127 (Indeed, the U.K. itself, through the Sexual Offences Act of 1956, long ago replaced the term "carnal knowledge" with "sexual intercourse" in the interests of precision.)
What is clear is that, in Botswana, the language and interpretation of the law have both shifted. Section 164 and 167 were changed in the Penal Code Amendment Act of 1998. Whereas both had originally penalized acts committed by "male persons," this was replaced by gender-neutral language-ostensibly as part of a comprehensive program to eliminate gender-discriminatory terms from Botswana's legislation. As a result, for the first time sexual acts between women are clearly criminalized in Botswanan law.
This doubtful triumph for women's equality was in fact designed to preserve the legal inequality of lesbians and gays, Gideon Duma Boko argued. At the time we interviewed him (as explained in Chapter III.C above), a case of two persons arrested under these provisions was being heard in court, and was expected to lead to a constitutional challenge to the laws. Boko explained,
One of the arguments that the attorney who originally handled the case raised was the very fact that the provisions were gender discriminatory. At that moment, carnal knowledge-if that's the way you want to put it-between females would not have been an offense: it was the male sexual union that would have passed as an offense under the provisions. So he raised the discrimination argument in that context, that this discriminates: as between females it is permissible, as between males it is not, and that is in violation of the constitution in light of the Unity Dow case [a landmark gender-discrimination case in Botswana] and subsequent to the cases that followed hers. When we did argue the case this year, that argument was obviously not available to us because now the provisions had been made gender neutral.128
The change in the Penal Code, Boko says, "was conscious." He also argues that an accompanying shift has expanded the understanding of "carnal knowledge" in the Penal Code:
The definition now of carnal knowledge has been broadened to include any sort of penetration of any orifice. It doesn't have to be the private parts as such, but any orifice. The purpose of such penetration must be to obtain sexual gratification. So it is much broader now.129
The broadening does not diminish the fact-made evident by the homophobic statements of politicians and officials-that male homosexual conduct remains the main target of the law. Such reinterpretations, rather, show the lengths to which the state will go to cling to a provision imposed on it by its former colonial occupiers. The laws remain on the books in Botswana; in March, 2002, the High Court at Francistown rejected the constitutional challenge to the Penal Code provisions, holding that "public morals or moral values" justified the restriction of other constitutional rights for men who have sex with men. A further challenge to the provisions is underway at the Court of Appeal.
B. Other Laws Affecting Sexual Experience and Sexual or Gender Expression
So-called sodomy laws provide a means to harass, arrest, and in some cases imprison individuals. Yet they also single out a class of people as subject to still more comprehensive discrimination and denial of rights. They move from punishing acts toward defining, and marginalizing, identities and groups based on those acts. A mere fine of a few hundred Zimbabwean dollars may not seem much punishment for consensual "sodomy"-though to an unemployed laborer it may be a great deal. More serious, though, is the social shame, almost amounting to social death, created by entering into a class of "sodomites" whom the country's leader has called "worse than dogs and pigs."
People facing discrimination for their sexual desires, sexual conduct, or gender identity or expression are therefore likely to confront more than one law, or kind of law, confirming their marginalization and exclusion. The "sodomy" laws that define them only make them more vulnerable to other kinds of legal repression. Vaguely written laws that target "obscenity," or "indecency," or broadly aimed penalizations of "scandalous" or "offensive" public behavior, will find these identities and communities a ready and convenient target.
1. Laws on obscenity and censorship
Most countries in the region continue to give their governments substantial powers of censorship, at least on paper. Only in South Africa have the censorship mechanisms established under white rule been significantly rolled back.
Section 54 (1) of Zambia's Penal Code gives the executive broad censorship powers: "If the President is of the opinion that there is in any publication or series of publications published within or without Zambia by any person or association of persons matter which is contrary to the public interest, he may, in his absolute discretion," declare "that that publication, or any publications published by the same person or association or persons, "shall be a prohibited publication." Section 55 also punishes persons in possession of prohibited publications who do not immediately deliver them to the nearest police station with a fine or imprisonment of up to one year.
Still more specifically, Section 177 of the Code (in the Chapter on "Nuisances and Offences Against Health and Convenience") imposes five years in prison or a substantial fine on any person who:
a) makes, produces, or has in his possession any one or more obscene writings, drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films or any other object tending to corrupt morals; or
b) imports, conveys or exports, or causes to be imported conveyed or exported, any such matters or things, or in any manner whatsoever puts any of them in circulation;
c) carries on or takes part in any business, whether public or private, concerned with any such matters or things, or deals in any such matters or things in any manner whatsoever, or distributes any of them, or exhibits any of them publicly, or makes a business of lending any of them; or
d) advertises or makes known by any means whatsoever with a view to assisting the circulation of, or traffic in, any such matters or things, that a person is engaged in any of the acts referred to in this section, or advertises or makes known how, or from whom, any such matters or things can be procured either directly or indirectly; publicly exhibits any indecent show or performance or any show or performance tending to corrupt morals.
Similar provisions exist in the Botswana penal code. The extensive powers given government to regulate public expression in both countries give existing enforcement agencies-particularly the police-ample scope to intimidate, confiscate and silence.
A censorship council and an elaborate system for judging public expression already exist in Zimbabwe, a relic of the puritanical policies of the white regime. Zimbabwe's Censorship and Entertainments Control Act dates back to 1967 Rhodesia. That Act established a Board of Censors appointed by the hinister of home affairs, with power to ban any film or "publication, picture, statue, or record" which
a) depicts any matter that is indecent or obscene or is offensive or harmful to public morals;
b) is likely to be contrary to the interests of defence, public safety, public order, the economic interests of the state or public health; or
c) depicts any matter in a manner that is indecent or obscene or is offensive or harmful to public morals.
Section 33 of the Act offers a definition of "what is indecent or obscene or offensive or harmful to pubic [sic] morals":
For the purposes of this Act a matter or thing, or the manner in which any matter or thing is depicted, as the case may be, shall be deemed to be indecent or obscene if-
a) it has the tendency to deprave or corrupt the minds of persons who are likely to be exposed to the effect or influence thereof or it is in any way subversive of morality;
b) whether or not related to any sexual content, it unduly exploits horror, cruelty, or violence, whether pictorial or otherwise;
c) offensive to public morals if it is likely to be outrageous or disgustful to persons who are likely to read, hear or see it;
d) harmful to public morals if it deals in an improper or offensive manner with criminal or immoral behaviour.
Petition to an Appeals Board for review is possible, but the minister has the option of making that Board's proceedings secret. It was under this law that the Zimbabwe International Book Fair was banned from hosting GALZ in 1995 and 1996.
In several countries in the region, recent years have seen attempts to increase state powers of censorship by instituting media regulatory bodies. As the Mugabe regime broadened its repression in 2001, it passed a media law requiring the registration of publications, and the accreditation of local as well as foreign journalists, with an extensively empowered state commission.130 Similar legislation, however, has been also proposed in democratic Botswana.131 Such mechanisms extend the state's means to stifle expressions of unpopular opinion.
2. Laws criminalizing behavior in public
Colonial rule required extensive regulation of public behavior-to police the behavior of whites and mold a morally and socially cohesive community, but also to ensure that the proximity of non-whites would be conditional and highly controlled. The laws that spun that supporting web of rules were directed at restricting movement and suppressing non-conforming expression and dress. They were written broadly, so as to give authorities maximum scope to wield them against any even potentially disruptive conduct. Most of those laws are still in place.
Section 172 of the Zambian Penal Code illustrates the coercive expansiveness of such laws: "Any person who does an act not authorised by law or omits to discharge a legal duty and thereby causes any common injury, or danger or annoyance, or obstructs or causes inconvenience to the public in the exercise of common rights, commits the misdemeanour termed a `common nuisance' and is liable to imprisonment for one year." Section 172 (2) adds: "It is immaterial that the act or omission complained of is convenient to a larger number of the public than it inconveniences."
Other laws allow Zambian authorities to attach a permanent label to persons unwanted in public space. Section 178 of the Penal Code offers a catchall definition of "idle and disorderly persons," including "every person who, without lawful excuse, publicly does any indecent act." Any person so designated is liable to one month in prison. Section 181 (a) provides that more than one conviction under 178 can cause one to "be deemed to be a rogue and vagabond," liable to three months' imprisonment for the first offense and one year for each offense thereafter. "Rogues and vagabonds" also include "every person found wandering in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose." Botswana's Code contains similar terms.
Zimbabwe's Miscellaneous Offences Act is yet another relic of white rule, dating to 1964. It punishes "any person who appears in any public place" without "such articles of clothing as decency, custom or circumstances require"-a provision which could be (and apparently has been132) interpreted to criminalize gender non-conformity in dress. It also punishes-with a fine or imprisonment of up to six months-any person who uses "obscene" language "in a public place," who "writes or draws any indecent or obscene word, figure, or representation in the view of the public," or who "commits any nuisance in any street or within view of any dwelling-house whereby public decency may be offended." The law also defines a public place as including (but not necessarily restricted to) any
a) road, street, thoroughfare, lane, footpath, or bridge to which the public has access;
b) building, part of a building, police station, police camp, stream, river, lake, dam, swimming pool, garden, park, race course, open space, open air theatre, drive-in theatre, aerodrome, sports ground, recreation ground, show ground, parade ground or other ground, whether enclosed or not, to which the public or any section of the public has access or is permitted to have access, whether on payment or otherwise and whether or not the right of admission thereto is reserved.
The sweep of this definition shows the long arm of social regulation. Read as a product of 1964 Rhodesia, however, it also reveals the difficulty colonial law had in coming up with a coherent definition of the "public." The ordinary opposition between "public" and "private property," for example, took on a different meaning in a legal regime where "natives" were legally barred from private ownership of land. The above definition notably defines "public" in terms of access to property, not rights over it. Yet even defining a "public sphere" as a space of open entry was a mockery in countries where the vast majority of the population had no political rights and minimal freedom of movement.
Ultimately these laws show a domesticization, even "privatization," of the public sphere-in which (as in Zambia's Section 171.2) the "inconvenience" or susceptibility to offence of even a small segment of the "public" can override the "convenience" of a larger; or in which (as in Zimbabwe's law) the "view from any dwelling-house" should exclude any sights likely to give offence. This suited the concerns of an embattled minority, who wanted the state to keep their lawns and vistas clear. These vestigial laws, though, now serve the purposes of authorities anxious to keep stigmatized people from exercising their rights to assembly, association, and expression.
3. Laws against prostitution
States that wish to control the public expression of sexuality, or aim to suppress association and expression based on sexual experience or desire, almost always have a convenient instrument on hand: existing laws against prostitution.
Human Rights Watch has elsewhere described how the legal regulation of homosexuality can find models in the legal regulation of sex work. In country after country, "`sexual inversion' and its constituent behaviors [have been] analogized to prostitution, conceived of as less relation than transaction, and stigmatized as a mode of togetherness impermissible in the public sphere."133 And when homosexual association, or homosexual activism, begins to take public form, the accusation of prostitution is a ready means to discredit it.
All five southern African countries surveyed here effectively criminalize prostitution, under a variety of different laws and terms-some of which allow further sweeping restrictions on public conduct and expression. In South Africa, the apartheid-era Sexual Offences Act (still awaiting the uncertain result of Parliamentary revision) criminalizes prostitutes directly: it penalizes selling sex as well as profiting from the sale of sex or maintaining a brothel. (The only aspect of sex work that it does not penalize is the act of purchase.) A debate about the future legal fate of prostitution-and the different routes of continued repression, complete decriminalization, or legal regulation-has only begun there.134 One sex workers' advocacy organization in South Africa says,
The Sexual Offences Act effectively deters sex workers from laying charges of assault, rape or labour exploitation against offenders. The criminalisation of sex work affects sex workers' ability to practice safer sex. The continued criminalisation of sex work enables clients, police, managers and members of the public to perpetrate physical, sexual, verbal and economic abuse against sex workers.135
Sections 140-49 of the Zambian Penal Code, and 149-58 of the Botswanan, punish procurers, brothel-keepers, and any "male person living on [the] earnings of prostitution." However, the Zambian code also allows "every common prostitute behaving in a disorderly or indecent manner in any public place" to be jailed for a month as an "idle and disorderly person" (Section 178.a); the Botswanan code contains similar language (Section 179.a). Under the same Sections both codes punish anyone who "in any public place solicits for immoral purposes"-language that may be directed at pimps, but could also be used against gay cruising.
Zimbabwe's Miscellaneous Offences Act provides (section 4.1) that "Any person loitering in a public place for the purposes of prostitution or solicitation" is liable to a fine or six months' imprisonment on the first offence, and a fine and/or one year's imprisonment on the second offence. The court can also order the person not to "loiter in any road, street, thoroughfare, lane, footpath, sidewalk or pavement" between 6:00 p.m. and 6:00 a.m. for a period of three years. A new "Sexual Offences Act" passed in 2001 does not criminalize the act of prostitution itself, but displays its general aim and identifies its target in the chapter heading, "Suppression of Prostitution."
The laws enable police to extend the effective criminalization of prostitution to eliminate other forms of conduct and speech. As written, they furnish a general framework for close surveillance and control of spaces and behaviors. They do not define the limits of state power: they enable its extension and intrusion.
4. Laws on rape
Laws against rape are a major social and political issue in southern Africa, amid the burgeoning incidence of sexual violence in the region. Colonial law gave successor states a heritage of laws with inexact definitions and inappropriate scope, which have provided only limited tools to counter the crisis.
The problems southern African legal systems face in addressing rape are manifold. They include attitudes and practices deeply ingrained in the police, justice, and health systems.136 Legal reform itself is only one step toward a solution. However, achieving adequate definitions is more than mere toying with terminology. It means ensuring that laws against rape and violence cover all people, and combat rather than perpetuate inequality and discrimination.
In this light, many existing laws fall dangerously short. In brief, the British-inspired penal codes inherited by Zambia and Botswana defined rape as "unlawful carnal knowledge" by a man of a woman or girl, without consent or with consent by force or fraud.137 Roman-Dutch common law as it developed in South Africa, Namibia, and Zimbabwe defined rape as "unlawful sexual intercourse with a woman without her consent." Both these definitions presented a shared set of problems:
· Marital rape was expressly exempted from criminal penalties.
· Both offered definitions of what sexual acts could constitute rape which were unspecific and subject to differing interpretations, while restricting rape to acts committed by a man against a woman.
· Particularly in the last light, the limitations of the rape laws intersected with ill-written laws penalizing homosexual conduct to create a legal maze: in it, homosexual rape could receive an a lesser penalty than heterosexual rape, or go unpunished altogether-or could see the victim punished, for engaging in "unnatural offences" or "sodomy."
Each of these shortcomings deserves separate treatment.
a. Marital rape
In Namibia, South Africa, and Zimbabwe, rape by a marital partner has at last been criminalized-in South Africa, by the Prevention of Family Violence Act, passed in 1993;138 in Namibia, by the Combatting of Rape Act, a comprehensive revision and expansion of existing laws on rape that was passed in 2000. Zimbabwe moved most recently and most reluctantly: as late as 1997, a report (aimed at achieving more effective criminal penalties against pedophilia) by the Law Development Commission of Zimbabwe recommended, ambivalently, that "if it is felt that [the rule excluding marital rape from criminal penalties] is no longer applicable or should no longer apply, it would certainly be desirable to clarify the position clearly by legislation."139 Marital rape in Zimbabwe was finally criminalized by the Sexual Offences Act, passed in 2001. More on that Act will follow below. 140
b. Definitions of rape
A Zimbabwean criminal law manual from the mid-1990s offers a detailed account of what may be called the then common-law understanding of rape:
a) There must be penetration, but it is sufficient if the male organ is in the slightest degree within the female's body.
b) It should not be necessary in the case of a virgin that the hymen should be ruptured.
c) In any case it is unnecessary that semen should be emitted.
d) If there is no penetration there is no rape, even though semen is emitted and pregnancy results.
e) A man cannot be raped, and a woman cannot commit rape.141
In Zimbabwe, at last, this has now changed. Zimbabwe has joined Namibia in recognizing that rape can be committed by men or women against men or women. Namibia did so in the Combatting of Rape Act (2000); Botswana did so in the 1998 Penal Code (Amendment) Act, which attempted to make the Code's language comprehensively gender-neutral. Zimbabwe, last again, followed suit in the 2001 Sexual Offences Act-which followed four years of debate on a 1997 proposal to that effect by Zimbabwe's Law Development Commission that this be replaced by a gender-neutral definition, which would cover anal and oral rape as well.142
However, definitions of rape that are either unacceptably limited or unacceptably vague persist. Botswana's law reform, for instance, kept the definition of rape as "unlawful carnal knowledge" intact. Before the amendment, the term was understood to mean vaginal penetration. Changing the law without changing this language leaves no clear consensus on what sexual acts the term now covers.143
Zambia and South Africa, on the other hand, continue to understand rape to mean vaginal penetration only. In South Africa and Zimbabwe, other forms of penetration, whether directed against women or men, carry the significantly lesser penalty of "indecent assault." (The Zambian Penal Code, on the other hand, only recognizes "indecent assault" against females, not males.144)
In 1999, the South African Law Commission made similar recommendations in a detailed report on sexual offenses laws:
The Commission proposes the repeal of the common law offence of rape and its replacement with a new gender-neutral statutory offence. The essence of the Commission's proposal on rape centres around "unlawful sexual penetration." The Commission says sexual penetration is unlawful per se when it occurs under coercive circumstances. Coercive circumstances include the application of force, threats, the abuse of power or authority, the use of drugs, etc. Sexual penetration is defined very broadly by the Commission to include the penetration "to any extent whatsoever" by a penis, any object or part of the body of one person, or any part of the body of an animal into the vagina, anus, or mouth of another person. Simulated sexual intercourse is also included under the Commission's definition of "sexual penetration."145
Three years later, amid an explosion of reported rape and sexual violence, these have not yet been enacted.
In recommending in 1997 that rape of men by men be criminalized, the Zimbabwean Law Commission posed one possible objection: the effect this might have on the existing penalties for sodomy.
It has been argued however that by amending the law so that Rape will in future include any male victim, the issue of consent would cause a problem. It is an essential of the crime of rape that the victim does not consent. If men were to be included in the new crime of Rape the consent of the male victim would be a complete defence. However sex between males is by tradition regarded as objectionable by the majority in Zimbabwe. Yet if a male were charged under any proposed new law with committing rape upon another male and lack of consent could not be established, the accused would be acquitted. This, it is said, would run counter to traditional standards or values. It would send out the wrong message.
In answer to this however the Commission points out that in such a case (i.e. where the complainant has consented or where lack of consent cannot be proved) the accused would still be guilty of sodomy (where consent is not relevant). Indeed the law should be amended so that sodomy becomes a competent alternative verdict on a charge of rape.146
The implications are worth observing. If a man accused of male rape could alternatively be charged with sodomy, so (if consent could be established) could his accuser. Thus if the accuser in a rape case failed to prove his own lack of consent, he could immediately face conviction for consensual sodomy-and his own complaint could then be used against him. The Commission did not notice that this quandary might (even if homosexual rape were formally criminalized) discourage complaints.
Inadvertently, the Commission had stumbled on a major inequality in sexual offenses laws. In Zimbabwe, under the old common law, male-male sexual contact was criminalized-either as "sodomy" for anal sex, or "unnatural offences" for other forms of contact. Yet consent was irrelevant to the crime-and no crime expressly covered non-consensual homosexual sex. Nor did the law make a distinction between "sodomy" between adults, and "sodomy" practiced on a minor. Victims of male-male rape, or of male-male child abuse, were thus left without equal protection by the law.
This has now changed in Zimbabwe, under the terms of the Sexual Offences Act of 2001, which creates a gender-neutral definition of rape. It has not changed in South Africa, astonishingly. There, when setting aside the common-law offense of sodomy, the South African Constitutional Court was at pains to declare it was
not aware of any jurisdiction which, when decriminalising private consensual sex between adult males, has not retained or simultaneously created an offence which continues to criminalise sexual relations per anum even when they occur in private, where such occur without consent or where one partner is under the age of consent.147
The Court held that male-male rape would still be criminalized by common law, either as indecent assault or assault with intent to do grievous bodily harm.
Yet the Court, committed to equality, apparently paid little attention to the precise situation underlying its words. Those legal protections are still inadequate: they offer lesser penalties than rape, and thus the solution fails to acknowledge that male-male rape is indistinguishable from other forms of rape. It deserves the same classification, and demands the same consequences. Treating it otherwise means perpetuating discrimination.
The provisions also, whether intentionally or not, place the victims of male-male rape under the same penumbra of benign indifference (at best) and malign stigma (at worst) with which the law long regarded "sodomy." This point is worth expanding upon, and in order to do so one must return to the situation as it was in Zimbabwe before the Sexual Offences Act was passed.
There, the inequalities in sentencing between men who raped women, and men who raped men or boys, long remained acute. In one 1987 case of forcible sodomy by a twenty-eight-year-old man upon a ten-year old boy, a sentence of ten months' imprisonment was imposed-consistent, it appears, with general sentencing practices for consensual sodomy. When the case was reviewed by the High Court, the judge indeed held that
Where an accused forcibly commits sodomy on a complainant it is no different from rape. In a matter like this, the offence is aggravated by the fact that the complainant was a very young and therefore helpless boy. I consider the act perpetrated on the young complainant in this case is as much degrading as an act of rape upon a young girl.148
Nonetheless, the judge recommended only a three-year sentence-as opposed to sentences of seven to ten years that were customary for the rape of a minor female.149
Meanwhile, the rape of an adult male by an adult male could fall under a number of different criminal categories. The defendant could be charged with sodomy; he could also be charged with "indecent assault"-which a criminal law manual defined tautologically: "Indecent assault consists of an assault which is itself of an indecent character."150 If the assault did not involve anal penetration, the situation would be still less clear. One Zimbabwean observer held that "a non-consensual homosexual sexual act which falls short of sodomy is usually charged as indecent assault, [but] there is no legal rule that this is so."151
The gender-neutral provisions of the Sexual Offences Act of 2001 in Zimbabwe seem to have cleared up this confusion. Yet the Act expressly did not eliminate the criminalization of consensual sodomy: it explicitly states (Section 20) that "Nothing in this Act shall be taken as limiting any offence at common law." Nor did it counteract one grim aftereffect of the long legal limbo: the association in the popular mind between "sodomy" and non-consensual sex between men.
Keith Goddard notes that cases of consensual sodomy in Zimbabwe are still publicized, with the name of the "offender," in the state-run press-and that "The angle of these articles is always... as far as possible, to suggest that abuse was involved."152 This practice persists even after "sodomy" has ceased to be a rubric covering non-consensual acts as well.
And the association of sodomy with rape is retained in the language of the law. The Sexual Offences Act of 2001 also contains, controversially, provisions criminalizing "deliberate" transmission of HIV.153 The provisions also radically increase the sentence for "sexual offences" if the convicted person was "infected with HIV, whether or not he was aware of his infection" [Section 16; emphasis added].154
The list of "sexual offences" includes "rape or sodomy"; "sodomy" is listed twice in the law in a roster next to rape. The language obviously demonstrates how far the Act is from contemplating a lessening of strictures against sodomy. It shows as well that the association between sodomy and rape continues to be vivid, even in a law partly meant to decouple them.
But the law's terms also mean that a person living with HIV/AIDS who engages in consensual "sodomy" (even if he does not transmit HIV in the process) could be sentenced, not to the several months' incarceration that a sodomy charge might usually bring-but to twenty years. Other provisions reinforce the discriminatory effect. The law also allows HIV testing of people charged with "sexual offences"-stating that "any medical practitioner or designated person ... may use such force as is reasonably necessary in order to take the sample or samples" (Section 17). These results may be introduced at a public trial, with the result that even if the accused is acquitted, his serostatus is public knowledge. (The law specifies [Section 18] that "if it is proved that a person was infected with HIV within thirty days after committing an offence ... it shall be presumed, unless the contrary is shown, that he was infected with HIV when he committed the offence.") And the state as well as the persons taking samples are exempted from damages in most cases if "detention, injury or loss" results from the testing-including unjust imprisonment if the test results err, as well as damages to reputation.
Thus a man believed to be living with HIV/AIDS who has consensual sex (even safer sex) with another man will face forcible testing, public disclosure of his serostatus, and two decades in prison-and enjoy no claim to redress if the test produced a false positive result. The new law, widely hailed as progressive in its protections for children and married women, nonetheless deprives gay men living with HIV of any remaining shred of the right to a sexual existence.
C. The Realm of the Customary
"Customary law" in Africa developed as settler societies came to terms with the existence of the large, subject but never completely subjugated societies around them. Assimilating all "natives" to colonial civil law would have met resistance-from whites as well as natives, for it would have meant moving indigenous peoples closer to formal legal equality. One response of colonial authorities was to allow those societies to decide daily life within their communities by a version of their traditional rules-contingent, however, on white supervision, revision, and veto.
Customary law is less a codification of custom than a travel-writer's redaction of it, and less a system of law than a playbook for a spectator sport. The players were the "natives," the spectators-and writers-were the whites. The fact that custom in all African societies was complex, sometimes contradictory, and almost always unwritten gave whites the privilege of writing it. The codes they developed blended observed and actual practice with settlers' additions, improvisations and deletions.
That disputes would be resolved by a version of native rules did not mean they would be resolved by "natives" themselves. The British policy of "indirect rule" had limits to its indirection. As courts were systematized, the colonial executive generally expropriated the role of the Great Chief, and his administrators intervened to settle tribal and communal issues.155 In assuming community tasks of conflict resolution, colonial officials often turned even those traditional customs that they understood from flexible principles to rigid rules.
Two systems of law thus developed: colonial civil and criminal law on the one hand, and customary law on the other. The former, as the rulers' law, had primacy, the latter only a circumscribed jurisdiction. Customary law was largely relegated to addressing disputes over the allocation of "native" land-the small percentages of territory left to the indigenous peoples after colonial expropriation.156 Private property in "native" land (the capacity of an individual "owner" to alienate or sell it) was not recognized. This meant that allocation of communal land was governed by kinship rules-as interpreted by white administrators.
In turn, this meant that marriage would lie at the heart of customary law. As one South African authority wrote, "The [customary] law of persons or status is, for the most part, bound up either directly or indirectly with the question of marriage, and deals with capacity; marriage, its consummation, consequences, and dissolution; children, their minority, tutelage, and emancipation; and succession...." Customary law had other aspects, but "Since Native law deals mostly with rights flowing from status, there is not much left over."157
"Native" marriage was thus given over to the colonizers to codify. White settler societies were almost unanimous in their disapproval of two aspects of native marriage: polygyny and the practice of lobola, the exchange of bridewealth.
Images of the un-Christian polygynous family were used to discredit all "native" marriages not performed before state or religious authorities, and relegate them to inferior legal status.158 Bridewealth presented more complex problems. Communities clung closely to the practice of the groom's family giving goods in exchange for the bride, as a key way of reallocating wealth.
In the end, most colonies reached a compromise: customary law was recognized, but customs were subjected to a morals test. For instance, South Africa's Native Administration Act of 1927 stated that Courts of Native Commissioners had discretion to decide questions "according to the Native law... provided that such Native law shall not be opposed to the principles of public policy or natural justice."159 Lobola almost always passed the test . Polygyny was recognized in some jurisdictions, only silently tolerated in others.
The morals test allowed settlers to mold custom in the simulacrum of their own ideals. Native marriage was so far as possible re-imagined. No longer, in this vision, an instrument for integrating extended kinship units, it would be forcibly pruned into a nuclear and exclusive union that then would stand at the center of "traditional" law and culture: in the Victorian phrase, "The voluntary union for life of one man and one woman to the exclusion of all others."160 Many women lost rights and status, as patriarchal domesticity was packaged for export from the metropolis to the colonies.161
It is naïve to romanticize "authentic" lineaments of custom anterior to colonialism; it is sensible only to recognize their unrecoverability, the impossibility of fully deciphering traditional cultures beneath their codified, reified versions. However, given the moral preoccupations of the codifiers, putatively reconstructing customary relationships around a nuclear model also entailed eliminating any possible alternatives.162 The morals test implicitly meant the Christianization of custom. In the process, any residual place for gender or sexual nonconformity which customary practice might once have accorded was inevitably, in the new enactments, expunged. Moreover, the arguably-intensified subjection of women made it doubly difficult for them to form affective relationships, or enter into roles in the community, outside heterosexual marriage.
As white rule ended, fledgling states faced a quandary. The distinction between civil and customary law replicated that between settler rulers and subordinate natives. One set of pressures demanded that customary law be rescued from its inferior juridical position. Yet another demanded it be harmonized or joined with civil law, to ensure legal equality across the board.
Governments have addressed this in varying ways. In Zambia, for instance, customary courts were given little support.163 In some other states, they have been strengthened-with mixed results. In Zimbabwe and Botswana such courts have reportedly bolstered public confidence in the justice system, perhaps owing more to their relative accessibility than to the supposed familiarity of the versions of custom they enforce. However, lines increasingly blur between customary and other courts, with customary judges often deciding on penal code cases that ordinarily would be referred to Magistrate's Courts. 164
A 1997 newspaper report in Botswana indicated that a customary court in Mahalapye had ruled in at least two separate case of homosexual sex between prison inmates. In one such case, one of the prisoners received "four lashes and an additional four months on his custodial term"; the other received an additional eighteen months.165 While the last known arrest for "unnatural offences" to reach a magistrate's court in Botswana was in 1994, the article implies that cases may be relatively common in customary courts. In the following year, amid debates about decriminalizing homosexual conduct, several of Botswana's traditional leaders were polled: one declared,
It should remain illegal because it is against our morals and, should I find one in the tribe, he would be publicly flogged at the kgotla [courtyard] in full view of tribespeople, just as witches of yore were punished.166
The response suggests the atmosphere surrounding cases of sexual non-conformity before customary courts.
Efforts at harmonizing or joining customary and civil law have also had mixed results. In South Africa, the Customary Marriages Act of 1998 tried to balance the gender equality provisions of the constitution with the practice of customary marriage.167 It finally ended the minor status of women in customary unions, giving them full legal and property rights. In the process, the law also recognized polygamous marriages,168 and required state registration of customary unions. In Zimbabwe, the Legal Age of Majority Act of 1982 declared all persons, regardless or race or sex, legal adults at eighteen. Yet a Supreme Court decision in Magaya v Magaya in 1999 still denied equal inheritance rights to women in customary unions-arguing that customary law took precedence over anti-discrimination protections in Zimbabwe's constitution. Such disturbing developments are possible in part because many constitutions in the region explicitly exempt customary law from the equality protections they offer.169
That fact in turn points to, as it reinforces, another dilemma: the gathering tendency, in African politics, to pit "rights" against "custom." Again and again human rights and civic freedoms are accused of promoting disruptive individualism, of tearing people away from their roots, their inherited social roles, their communities and forebears. That discourse and dilemma are central to the issues raised by this report, and the state rhetoric it describes. The dynamics of colonial division in large part underlie it.
In many colonial regimes, the realm of the "customary" was opposed to the realm where citizens enjoyed "rights." Entry into the latter, thought sometimes feasible for the native, carried a fearsome price. "Custom" gave the "native" a share in communal ownership of whatever lands were left in native hands. To have "rights," though, meant entering the settler's world of cash economy and private property-and surrendering the stake in communal property. For the native, this dispossession was a devil's bargain. The world of civil law and "rights" came to be seen not merely as the antithesis of the traditional, but as a threat to integration and belonging.170
The colonial reconstruction of "custom" around an exclusionary ideal of heterosexual marriage combined in dangerous ways with this value attached to the "customary" as the authentic antidote to "rights." Exactly the realms that some constitutions exempt from equality protections-the personal and familial-came to appear the preserve of genuine traditional belonging, regardless of the way colonialism had recast them. Modern inequality was projected onto the past; versions of contemporary, compulsory heterosexuality came to dominate nationalist discourse, as an ideology of unsullied culture. The spread of homophobia in Southern Africa, and its identification with "authentic" indigenous values, has much to do with the injustices buried in the history of customary law.
87 Richard A. Posner and Katherine B. Silbaugh, A Guide to America's Sex Laws (Chicago: University of Chicago, 1996), p. 2.
88 Legal systems derived ultimately from Roman law are generally known, of course, as "civil law" systems, and distinguished from systems deriving from English common law by giving judges only limited power to establish legal precedents. Hence the name "Roman-Dutch common law" is on the face of it confusing. In fact, the Roman, "civil law" component of this particular legal tradition is relatively small. The great Netherlands jurist Hugo Grotius (1583-1645), its key figure and authoritative compiler, in his Inleiding tot de Hollandsche Rechsgeleertheyt (1631) largely drew on Germanic custom and practice, and used Roman law (as one commentator says) "only when it supplied omissions and deficiencies in the latter." (See Wille's Principles of South African Law, 8th Edition [Cape Town: Juta, 1991], pp. 21-25.) In South Africa, however, Roman-Dutch law has migrated still further from the usual methodology of civil-law systems. Under the influence of British rule (since the United Kingdom occupied the Cape Colony in 1806), and in the absence of any conclusive metropolitan codification (since Roman-Dutch law almost immediately afterward-in 1809-became defunct at its origin in the Netherlands, which adopted the Napoleonic Code) it has become more reliant on jurisprudential precedent to establish legal norms, essentially adopting the practice of other common-law systems. The rule of stare decisis is in effect, and "judge-made" law is recognized.
89 In fact, the situation is slightly more complicated: a South African decision in R v Harrison & Dryburgh, 1922, determined that laws enacted in the Netherlands prior to the founding of the Cape Colony in 1652 were all applicable in South Africa; however, those enacted in the homeland between 1652 and 1806-during the colonial period-were binding only if they had been formally promulgated in the Cape Colony. A search ensued for evidence that many quotidian laws-taken for granted in daily life-had been publicly pronounced, rather than passively accepted, while the Dutch ruled. No such quest was called for in the case of the law against "sodomy." It was an old Dutch law in any case: and the fact that executions for sodomy had taken place under Table Mountain until the nineteenth century served as sanguinary proof of promulgation.
90 S v Chikore, 1987 (2) Zimbabwe Law Reports 48 (High Court) at p. 50.
91 Praeelectiones, ad D 48.5. nn. 12 and 13, cited in S v Kampher, 1997, High Court of South Africa (Cape of Good Hope Provincial Division), case no. 232/92, HCR no. 001377/97, and in Peter Propotkin, "Getting to the Bottom of Sodomy in Zimbabwe" (unpublished paper).
92 Com. De Criminibus Digestorum ad Lib. (48.3, 6.8), emphasis added; cited in Propotkin, "Getting to the Bottom of Sodomy in Zimbabwe," translation slightly amended.
93 Rer. Crim. Pars 2, Quaest. 76 Obs. 3, cited in Propotkin, "Getting to the Bottom of Sodomy in Zimbabwe."
94 Cited in S v Kampher at 17.
95 Edwin Cameron, "Unapprehended Felons: Gays and Lesbians and the Law in South Africa," in Cameron and Mark Gevisser, eds., Defiant Desire: Gay and Lesbian Lives in South Africa (Johannesburg: Ravan Press, 1994), p. 91.
96 Van der Keesel, Praelectiones in libros XLVII et XLVIII Digestorum ad D 48.5.29, cited in Applicants' Heads of Arguments, National Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al., High Court of South Africa (Witwatersrand Local Division), case no. 97/203677, at 3.7.
97 Manfred Nathan, Common Law of South Africa (Cape Town, 1907), v. 4, p. 2595; quoted in Propotkin, "Getting to the Bottom of Sodomy in Zimbabwe."
98 S v V 1967 2 SA 17 (E).
99 Charles Gardiner and Alfred Lansdown, South African Criminal Law and Procedure, v. II, Sixth Edition (Cape Town: Juta & Co., 1957), p. 1227: the language dates from the 1921 edition.
100 R v Gough and Narroway, 1926 CPD 159.
101 Hunt, South African Criminal Law and Procedure, 3rd edition (Johannesburg: 1996), v. 2 by J. R. L. Milton, p. 248.
102 Hunt, v. 2 at p. 264.
103 Propotkin's unpublished paper argues that this inflection is particular to Rhodesia/Zimbabwe, where judges of English background and training read Roman-Dutch law through English spectacles. It seems likely, though, that sodomy in South Africa was reinterpreted under the same unacknowledged influence.
104 Kevan Botha and Edwin Cameron, "South Africa," in D.J. West and Richard Green, eds., "Sociolegal Control of Homosexuality: A Multi-Nation Comparison" (New York: Plenum, 1997), p. 22.
105 Quoted in Glen Retief, "Keeping Sodom Out of the Lager," in Cameron and Gevisser, eds. Defiant Desire, p. 101.
106 Quoted in Retief, "Keeping Sodom Out of the Lager," in Cameron and Gevisser, eds., Defiant Desire, p. 99.
107 Retief, "Keeping Sodom Out of the Lager," in Cameron and Gevisser, eds., Defiant Desire, p. 103; see also Mark Gevisser, "A Different Fight for Freedom: A History of South African Lesbian and Gay Organisation-the 1950s to the 1990s," in the same volume. And see Glen Retief, Policing the Perverts: an exploratory investigation of the nature and social impact of police action towards gay and bisexual men in South Africa, research report submitted to the Institute of Criminology at the University of Cape Town and to the Human Sciences Research Council, March 1993.
108 "Legal Position of Gays and Lesbians," unpublished paper prepared by Clinton Light, Legal Assistance Center, Namibia, March 1997; IGLHRC interview by Scott Long with Clinton Light, Windhoek, Namibia, December 16, 1998.
109 IGLHRC interview by Scott Long with Derek Matyszak, University of Zimbabwe, August 3, 2000.
110 Clemence Masango, Criminal Law Manual (Harare: Juta Zimbabwe, 1995), p. 105.
111 S v Chikore, Zimbabwe Law Reports 1987 (2), 48 at E. The sentence was set aside, with Justice Reynolds noting, "This offence is not prevalent in Zimbabwe, and the donkey was not injured."
112 See the South African case S v Kampher, 1997, High Court of South Africa (Cape of Good Hope Provincial Division), case no. 232/92, HCR no. 001377/97, at 21: "As far as can be discovered consensual sexual acts between females do not constitute a crime in our common law and probably were not so regarded in the Netherlands at the close of the eighteenth century and possibly earlier. Certainly there is no case reported in our law reports in which a woman or women was or were prosecuted for acts of this kind."
113 Masango, Criminal Law Manual, p. 106. The definition of attempt in common law involves "conduct which a) is done or omitted with the object of committing that crime, and b) forms part of a series of acts or omissions which, if carried to completion, would result in the commission of that crime": Masango, p. 56. The assumption that sexual acts intrinsically tend toward penetration reflects, of course, the imposition of a heterosexual and patriarchal model, and teleology, upon behavior and desire. The impulse to subdivide sexual acts into the completed and the attempted-into a "series of acts or omissions"-however, also reflects the growing inclination of the law toward specifying acts and detailing sexual narratives to surround them. Both are essential to predicating identities upon those acts-and both have been intensifying since the general crime of "sodomy" first made its appearance.
114 Rex v S, Rhodesian Law Reports 1950, p. 14.
115 R v Masuku, Rhodesian Law Reports 1968, p. 332; seven years earlier, in the case of R v H, Rhodesian Law Reports pp. 278-280, the judge declined to answer the question "Can the crime of sodomy be committed with a female," but cited the South African case of R v N, decided the same year, as indicating that interpretations of Roman-Dutch law there excluded heterosexual acts from sodomy's ambit. By 1979, in S v Macheka Justice Davies held that "it should now be regarded as settled law in this country that the crime of sodomy is not committed when a male has intercourse per anum with a female": Rhodesia Law Reports 1979, p. 51.
116 S v C, Rhodesian Law Reports 1976 (1), p. 57; in consequence the judge reduced the initial sodomy sentence of twelve months at hard labor (nine suspended) to a $50 (Rhodesian) fine. The court also conceded that it "seems clear that self-masturbation is not criminal. There are no reported cases dealing with unnatural acts between consenting females. The courts may well incline to treat such conduct as no longer criminal"- a degree of generosity however forgotten by the time of S v Chikore in 1987, which found the criminality of lesbian acts still an "open question" (supra).
117 IGLHRC interview by Scott Long with Derek Matyszak, University of Zimbabwe, Harare, Zimbabwe, August 3, 2000; see also Oliver Phillips, "Zimbabwean Law and the Production of a White Man's Disease," Social and Legal Studies Vol 6(4) 471-491.
118 Mark Epprecht, "`Good God Almighty, What's This!'": Homosexual `Crime' in Early Colonial Zimbabwe," in Stephen O. Murray and William Roscoe (eds.), Boy Wives and Female Husbands: Studies in Africa Homosexualities (New York, 1998); see also Epprecht, "The `Unsaying' of Indigenous Homosexualities in Zimbabwe: Mapping A Blindspot in an African Masculinity," Journal of Southern African Studies, Vol. 24 (4), pp. 631-62.
119 IGLHRC interview by Scott Long with Derek Matyszak, University of Zimbabwe, Harare, Zimbabwe, August 3, 2000; and Oliver Phillips, "Zimbabwean Law and the Production of a White Man's Disease," Social and Legal Studies Vol 6(4) 471-491.
120 See Peter Godwin and Ian Hancock, Rhodesians Never Die: The Impact of War and Political Change on White Rhodesia, 1970-1980 (Harare: Baobab, 1993), for a treatment of the conservative, puritanical morality which constituted the identity of the "independent" white Rhodesian State; and Ibbo Mandaza, Race, Colour and Class in Southern Africa (Harare, 1997) for an extended study of sex across racial lines in colonial Rhodesia, which (unlike apartheid South Africa) adopted a strategy of moral marginalization rather than criminalization to address the "problem."
121 S v Roffey, Zimbabwean Law Reports 1991 (2), p. 47. At the time this would have been a substantial sum.
122 IGLHRC interview by Scott Long with Derek Matyszak, University of Zimbabwe, August 3, 2000. This would have been equivalent to U.S.$10-15 at the time, and still a significant sum for most Zimbabweans. Whether court fines keep pace with the severe, recent inflationary pressures in Zimbabwe is not clear.
123 Oliver Phillips, "Zimbabwean Law and the Production of a White Man's Disease" Social and Legal Studies Vol 6(4) 471-491; also e-mail communication from Keith Goddard to Scott Long, IGLHRC, August 23, 2002.
124 The name, a corruption of "Bulgars," apparently derived from an early medieval heresy centered in the Balkans, and believed to condone homosexual conduct.
125 Sydney Malupande, Human Rights in Zambia: Freedom of Sexual Orientation, Homosexual Law Reform, thesis submitted in partial fulfilment of the requirements for the LLB degree, University of Zambia School of Law, April 2000.
126 IGLHRC interview by Scott Long with Colonel C. Musemba, Superintendent of Crime, Zambian National Police, Lusaka, Zambia, July 24, 2000.
127 Gideon Duma Boko, "The Case For Decriminalization of Voluntary Homosexual Conduct in Botswana," Paper presented at the Conference on Human Rights and Democracy in Botswana, November 17-19, 1998. Section 10 (8) of Botswana's Constitution requires that "No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law."
128 IGLHRC interview by Kagendo with Gideon Duma Boko, Gaborone, Botswana, November 9, 1998. For information on the Unity Dow case, see Unity Dow, ed., The Citizenship Case: Court Documents, Judgments, Cases and Materials (Gaborone: Lentswe La Lesedi, 1995).
129 IGLHRC interview by Kagendo with Gideon Duma Boko, Gaborone, Botswana, November 9, 1998.
130 See Media Institute of Southern Africa (MISA), "Draconian Media Bill Passed," December 3, 2001, at http://www.misanet.org, retrieved October 6, 2002.
131 Media Institute of Southern Africa (MISA), "Botswana Media Bill Raises Concerns,' and "MISA Appeal on Draft Botswana Media Bill," December 4, 2001, at http://www.misanet.org, retrieved October 6, 2002.
132 See, for example, the case of Kuda Kwashe, Chapter III supra.
133 See Public Scandals: Sexual Orientation and Criminal Law in Romania (New York: Human Rights Watch and IGLHRC, 1998), p. 10. In Egypt, for example, consensual (and non-commercial) homosexual conduct is criminalized in law through the expansive interpretation of provisions originally targeting prostitution. Police roundups and criminal prosecutions of people accused of homosexual acts have taken place-in growing numbers-under a provision of a 1961 law on prostitution, which penalizes consensual sexual conduct between males as "debauchery."
134 In S v Jordan (Constitutional Court of South Africa, Case CCT 31/01), decided late in 2002, the Constitutional Court upheld the prohibition of commercial sex work, rejecting the contention that the relevant provisions of the Sexual Offences Act violated constitutional protections for human dignity, freedom of the person, privacy, and economic activity.
135 Sex Worker Education and Advocacy Taskforce, fact sheet, "The reality of working in a criminalised industry," at http://www.sweat.org.za, retrieved August 22, 2002.
136 See, for an overview of such impediments, Human Rights Watch's reports Violence Against Women in South Africa: State Response to Domestic Violence and Rape (New York: Human Rights Watch, 1995), and Scared at School: Sexual Violence against Girls in South African Schools (New York: Human Rights Watch, 2001).
137 In both Zambia and Botswana rape appears under the Penal Code as an "offence against morality"-not against the person of the victim. Section 132 of Zambia's Code represents the core, colonial text: "Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force of means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of the felony termed `rape.'" Sections 133 and 134 make both rape and attempted rape punishable by life imprisonment; 137 punishes "indecent assault" on a woman or girl, with consent no defense if the girl is under twelve. Section 138 establishes an age of consent for women only: "Any person who unlawfully and carnally knows any girl under the age of sixteen years is guilty of a felony and is liable to imprisonment for life." Botswana's provisions were virtually identical until the 1998 Penal Code (Amendment) Act rendered them gender-neutral.
138 Section 5 of the Act reads, "Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted for the rape of his wife."
139 Law Development Commission, Zimbabwe, Report No. 63: December 1997, p. 8.
140 "Sexual Offences Act," Act 8/2001, at http://www.kubatana.net/docs-/legislation/sexoff010817.pdf, retrieved August 10, 2002.
141 Clemence Masango, Criminal Law Manual (Harare: Juta Zimbabwe, 1995), p. 137.
142 Law Development Commission, Zimbabwe, Report No. 63: December 1997, p. 13. The exact proposal reads:
Definition of Rape. Any person who
-without the consent of the woman concerned-
· penetrates any part of the body of the female by means of the male organ;
· penetrates the genitalia or anus of the female by means of any object, other than male organ;
· engages in cunnilingus or fellatio with the female;
-without the consent of the male concerned-
· penetrates any part of the body of the male by means of the male organ;
· penetrates the anus of the male by means of any object, other than the male organ;
· performs fellatio with the male;
shall be guilty of rape and liable for imprisonment for life.
The final provision passed in 2001 read:
1. Any person who, whether or not married to the other person, without the consent of that person-
a. with the male organ, penetrates any part of the other person's body; or
b. with any object other than the male organ, penetrates the other person's genitalia or anus; or
c. engages in fellatio or cunnilingus with the other person;
shall be guilty of an offence and liable, subject to section sixteen, to the penalties provided by law for rape.
2. Penetration to any degree shall be sufficient for the purpose of paragraphs (a) and (b) of subsection (1).
The difference shows a progressively expanding understanding of rape: the criminalization of marital rape is made explicit in the final version. What differs significantly is the reference to "section sixteen"-which provides additional penalties for the transmission of HIV.
143 The Botswanan human rights organization Ditshwanelo points out that, even before the reform, the meaning of the term in the rape provisions of the Penal Code conflicted with its meaning in Section 164 (the provision penalizing homosexual acts), where it was generally taken to mean anal penetration. The new law expands the meaning of "carnal knowledge" implicitly but still offers nothing to define it. Ditshwanelo observes, "There is generally a lack of clear definition of the various sexual offences due to the fact that terms with vague meaning such as `carnal knowledge' and `carnal connexion' are used to describe these offences." From "Ditshwanelo Discussion Document on the Penal Code (Amendment) Act No. 5 of 1998," unpublished; IGLHRC interview by Scott Long with Alice Mogwe, Ditshwanelo, Gaborone, Botswana, December 21, 1998.
144 Section 137, Zambian Penal Code. It carries a sentence of fourteen years' imprisonment, as opposed to life imprisonment for rape.
145 South African Law Commission, Project 107, (Sexual Offences), Sexual Offences: The Substantive Law, 12 August 1999, p. vi.
146 Law Development Commission, Zimbabwe, Report No. 63: December 1997, p. 6 (emphasis added). The Commission indeed went out of its way to defend the criminalization of sodomy. South African authorities, they admit (p. 18), "remark that the view that sodomy is morally wrong no longer enjoys universal support and there is increasingly recognition for the view that sodomy between consenting adults ought to be decriminalized. This however is apparently not the view of the majority of the population in Zimbabwe ... Retention of the crime as part of our common law is therefore recommended by the Commission."
147 National Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al, Constitutional Court of South Africa, Case CCT 11/98, at 66.
148 S v Ngwenya, High Court, Bulawayo, 179/87.
149 Peter Propotkin, "Getting to the Bottom of Sodomy in Zimbabwe," unpublished paper, p. 22. Propotkin also cites S v Magwenzi, High Court, Harare, 59/94, where the justice affirmed that forcible sodomy resembles rape. Yet the sentence ultimately imposed-eighteen months' imprisonment at hard labor, with six months suspended-accorded with consensual sodomy sentences, not rape sentences.
150 Clemence Masango, Criminal Law Manual (Harare: Juta Zimbabwe, 1995), p. 156.
151 Propotkin, unpublished paper, p. 23, One famous case illustrates many of these ambiguities. On February 24, 1997 a man named Jefta Dube was convicted of murdering a policeman in Harare. He claimed he had been taunted by his victim, accused of being "Banana's wife"-a reference to Canaan Banana, the first post-independence president of Zimbabwe. Dube alleged he had been subjected to repeated sexual abuse by Banana over a three-year period.
Police began investigating Banana, and at least nine other alleged victims came forward. Eventually-in a case that scandalized the country and the region-Banana was tried and convicted in the High Court in Harare. He appealed his case to the Supreme Court, which upheld his conviction on one count of sodomy; seven counts of indecent assault against various persons; one account of committing "numerous unnatural sexual offences" upon Jefta Dube; and two counts of assault.
The sentences on the sexual-offences counts are instructive.
· The count of sodomy entailed an act of anal sex, which the courts believed consensual (the courts disbelieved the complainant's assertion that he "did not consent to such acts, but submitted through fear"; on the other hand, the courts also disbelieved the assertion that he was the active partner, while Banana was passive). Banana was sentenced to one month's imprisonment, suspended.
· The counts of indecent assault entailed acts committed against seven different people. In six cases the pattern is uniform: the complainant was invited to Banana's office; Banana began playing music and invited the person to dance; "[Banana]'s penis became erect": the complainant them "broke away and left the office." In one other case, where Banana allegedly actually ejaculated between the complainant's legs, the charge was initially attempted sodomy, but Banana was convicted of indecent assault in the end. For all these counts, Banana received a total of two years' imprisonment, one of which was suspended.
· The count of "numerous unnatural sexual offences" against Jefta Dube had originated as charges of sodomy and attempted sodomy, on which Banana was convicted by the High Court; the Supreme Court reduced the sodomy conviction to one for attempt (and the attempted sodomy conviction to "indecent assault"). The facts revealed how confused legal professionals are about their terminologies for sexual acts-and how doubly confusing laymen find the words. Jefta Dube, untrained in Roman-Dutch law, had insisted he was "sodomised" by Banana, but the court found that Banana had actually ejaculated between his thighs, and that "the complainant [erroneously] believed that the latter acts amounted to sodomy." Five years' imprisonment was imposed on Banana, of which four were suspended, and a substantial fine was levied.
The case generally exhibits the painful difficulty of Zimbabwean law in coming up with a consistent legal categorization of sexual acts. Is non-penetrative homosexual sex an attempt at sodomy, or is it an "unnatural offence," or "indecent assault?" More than that, though, the case shows how the rough existing categorization made consent effectively an irrelevant issue in evaluating male-male sexual acts. Consent was only considered in judging the one sodomy count-and even there was presumably only weighed in sentencing, as under existing law it could not have affected the determination of a crime. In the remaining counts, although all the defendants charged abuse, the question of consent was formally moot, was disregarded by the High Court, and was considered by the Supreme Court only implicitly in changing "attempted sodomy" to "indecent assault." (That "attempted sodomy" should bring a higher penalty than sodomy itself indicates the inability of the law to come to terms with issues of consent. It is worth noting as well that, prior to the 2001 criminalization of marital rape, a wife could not see her husband charged with rape after forced penetrative intercourse-but could charge him with indecent assault after unwanted, non-penetrative touching. R v Gumede, 1946, cited in Clemence Masango, Criminal Law Manual, pp. 156-7.) In the end, with his several sentences imposed concurrently, Banana received only one year in prison. See Canaan Sodindo Banaan v the State, Judgment No. SC 41/2000, Crim. Appeal No. 12/99.
152 E-mail communication from Keith Goddard to Scott Long, IGLHRC, August 23, 2002.
153 Section 15 of the law imposes a twenty-year prison term on
(1) Any person who, having actual knowledge that he is infected with HIV, intentionally does anything or permits the doing of anything which he knows or ought reasonably to know:
a. will infect another person with HIV; or
b. is likely to lead to another person becoming infected with HIV; shall be guilty of an offence, whether or not he is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.
The provision does allow as a defence evidence "that the other person concerned
a. knew that the person charged was infected with HIV; and
b. consented to the act in question, appreciating the nature of HIV and the possibility of his becoming infected with it."
However, the provision does not indicate whether taking safer-sex precautions legally mitigates the "likelihood" of transmission. Moreover, it criminalizes any act which might lead to transmission, whether or not it does, and imposes the same penalty upon it. Derek Matyszak, of the University of Zimbabwe, has pointed out that the twenty-year sentence is largely symbolic: most HIV-positive persons, jailed without treatment, would die long before the sentence was served.
154 Section 16, "Sentence for certain offences where offender is infected with HIV," reads in part:
Where a person is convicted of
a. rape or sodomy . . .and it is proved that, at the time of the offence, the convicted person was infected with HIV, whether or not he was aware of his infection, he shall be sentenced to imprisonment for a period not exceeding twenty years.
155 Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton: Princeton University Press, 2000).
156 This amounted to 47 percent of the land of Rhodesia, by the Land Apportionment Act of 1930; a mere 13 percent of the land of South Africa was left to "Bantu" by the Natives Land Act of 1913.
157 S. M. Seymour, Native Law in South Africa (Cape Town: Juta, 1953), pp. 17-22.
158 In fact, polygyny may have been in decline in most Southern African societies even before colonial occupation; and the encroachments of a cash economy under colonialism certainly ensured that few African men would be able to afford multiple wives.
159 Seymour, Native Law in South Africa, p. 15. This was only a very late formulation of a long-standing colonial principle. Natal, the first province to recognize customary law, declared in 1849 that it did so "so far as it was not repugnant to the general principles of humanity observed throughout the civilized world": T. W. Bennett, Application of Customary Law in Southern Africa (Cape Town: Juta, 1985), p. 43. Similarly, the 1889 Charter of the British South Africa Company (which became the first charter law of Southern Rhodesia) stated that "native law" should apply in civil disputes between natives, but only if that law was "not repugnant to natural justice or morality": see Oliver Phillips, "Zimbabwean Law and the Production of a White Man's Disease," Social and Legal Studies Vol. 6 (4), 471-91.
160 Lord Penzance, Hyde v Hyde & another (1866), cited in Bennett, Application of Customary Law in Southern Africa, p. 138.
161 South African customary law, for instance-in large part importing from Roman-Dutch law the concept that a married woman lay under her husband's wardship-made women in customary marriages perpetual minors.
162 See Oliver Phillips, "Zimbabwean Law and the Production of a White Man's Disease," Social and Legal Studies Vol. 6 (4), 471-91.
163 See AfroNet report, "The Dilemma of Local Courts in Zambia: A Question of Colonial Legal Continuity
or Deliberate Customary Law Marginalisation?" (Afronet: Lusaka, 1998).
164 In Botswana, by some estimates, 70-80 percent of legal cases are heard in customary courts: see International Development Research Centre, "Traditional Leaders and the Botswana Judiciary," August 2001. See also Jennifer Widmer, "Courts and Democracy in Post-Conflict Transitions: A Social Scientist's Perspective on the African Case," American Journal of International Law, Vol. 95, pp. 64-75. For the Zimbabwean situation, see C. R. Cutshall, Justice for the People: Community Courts and Legal Transformation in Zimbabwe (Harare: University of Zimbabwe,1991).
165 Bashi Letsididi, "Prison `Lovers' Found Guilty of Illegal Sex," The Reporter, December 19-23, 1997. In the most recent case described, two prisoners had been engaging in what the article calls a "blissful... behind-bars romance"; one was unfaithful, and the other retaliated by assaulting him. The peculiar language of the article actually suggests, however, that the case may have reached customary courts because the lovers saw themselves as married. "A measure of comfort for the lovers is that the Mahalapye customary court did not consider spousal abuse... and adultery... but stuck to the legal charge of engaging in unnatural offences."
166 Kgosi Christopher Masunga, quoted in Billy Kokorwe, "Whip Them or Jail Them: Kgosi Seepapitso's View on Homosexuals," Midweek Sun, Botswana, June 17, 1998. One of the four traditional leaders "polled" by the newspaper urged that homosexuals' rights be recognized, however.
167 For a critique of the compromise with "culture" in the 1998 Act, see Thandabantu Nhlapo, "The African Customary Law of Marriage and the Rights Conundrum," in Mahmood Mamdani, ed., Beyond Rights Talk and Culture Talk: Essays in the Comparative Politics of Rights and Culture (Cape Town: Palgrave Macmillan, 2000), pp. 136-148.
168 At the same time, the State continued to indicate its disapproval of polygyny: the Deputy Minister of Justice and Constitutional Development was quoting as saying the Act acceded to polygyny because "the ban would be almost impossible to enforce and that the popularity of the practice seems to be waning." Quoted in Bohadi Nkomo, "South Africa: New Customary Marriages Act Sees Women as Equal Partners," WOZA, November 17, 2000.
169 Article 23(3) of Zimbabwe's post-independence constitution, for example, specifically excludes from the reach of its anti-discrimination provisions the areas (among others) of: "(a) adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law; (b) the application of African customary law." A similar provision exists in article 23 of Zambia's 1991 constitution.
By contrast, Namibia's constitution (article 66) recognizes customary law and customary marriages but does not exempt the former from anti-discrimination protections. South Africa's 1996 constitution does not formally recognize customary law. Sections 30 protects the right of everyone "to participate in the cultural life of their choice," and Section 31 protects the right of everyone belonging to a "cultural, religious or linguistic community" to "enjoy their culture." Section 15(3) specifically allows (but does not require) legislation recognising
"i)marriage concluded under any tradition or a system or religious, personal, or family law; or
ii)systems of personal and family law under any tradition or adhered to by persons professing a particular religion."
The provisions stipulate that such participation, enjoyment, and recognition must be consistent with the Bill of Rights.
170 For a detailed treatment of these processes and perceptions, see Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton: Princeton University Press, 2000). Mamdani's formulations are derived from studies of British colonial practice, however, and should not be reified (as Mamdani himelf sometimes tends to do) into generalizations about "colonialism" as a universal category.