For Africa’s LGBTQI+ community, the year began on a promising note when Angola repealed its colonial-era, anti-gay law and also criminalised any unfair discrimination on the grounds of a person’s sexual orientation.
This move gave hope to many that it would pave the way for known anti-LGBTQI+ nations in Africa to follow suit sooner or later. All eyes were on Kenya and Botswana, whose parliaments also deliberated on their anti-gay policies in February and March respectively.
Much to the disappointment of the LGBTQI+ community and allies, both countries postponed their decisions to later dates. Kenya will now make its decision on 24 May while Botswana is set to re-convene on the matter on 11 June.
Zimbabwe is one of several nations still upholding archaic laws that criminalise marriage and any sexual conduct between people of the same gender. Recently, the country’s Minister of the Environment, Tourism and Hospitality Industry, Priscah Mupfumira, announced that the Cabinet had approved the Marriage Amendment Bill, which, among other matters, seeks to “repeal and replace Zimbabwe’s Customary Marriages Act and merge it with the Marriage Act (Chapter 5:11) into one Act”.
Focusing people’s attention on and reiterating the ban on same-gender marriage may help government to recover some of its waning popularity.
The Bill, which will soon be brought before parliament for deliberation, seeks to make it effectively illegal for people of the same gender to marry. Minister Mupfumira added that the objective of the Bill is “recognition of the supremacy of the Constitution, which invalidates any law, practice and custom or conduct inconsistent with the Constitution”.
What do marriage laws in Zimbabwe say?
Currently, customary and general law govern marriages in Zimbabwe. Research carried out in 2013 by Rumbidzai Dube, a legal researcher at Zimbabwe’s Research and Advocacy Unit, showed several types of marriages one can get into: co-habiting, marrying in an unregistered customary law marriage, marrying in a registered customary marriage, or being in a registered civil marriage.
The research highlights how each marriage has its own rules that are meant to be adhered to, with customary marriages being governed by the Customary Marriage Act, while civil marriages are governed by the Marriage Act (Chapter 5:11). According to the Constitution and Marriage Act (Chapter 5:11), formerly known as Chapter 37, a civil marriage can only be entered into by heterosexual people, in a union that is monogamous.
Currently, people marry out of community of property. Such a marriage means there is no joint ownership of assets. It also means a spouse is not liable for the debts of the other spouse. Any assets accrued before and during the marriage remain under the sole ownership of the spouse who acquired them.
However, partners wanting to prevent this system from applying to their marriage can enter into an antenuptial or prenuptial contract, established by the Antenuptial Contracts Act (Chapter 5:01). Under this contract, spouses agree on how assets and liabilities will be owned during their civil marriage.
Importance of civil marriage in Zimbabwe?
There are those who believe that laws prohibiting same-gender people from marrying have no negative implications for LGBTQI+ people, given that so many civil marriages between heterosexuals are a shambles. While it is true that many heterosexual marriages are no shining beacon of success and often result in divorce, one cannot dismiss the benefits of a legal marriage.
For example, upon the death of one partner, the surviving spouse can claim spousal benefits from the deceased’s workplace. The surviving spouse can also claim an inheritance, which reduces instances of relatives unfairly possessing any property at the life partner’s expense. Of course, they do not stand to gain only the assets owned by their deceased partner but will also take on any debt owed by their spouse.
As with any relationship, conflicts are likely to occur. Sometimes, these conflicts can only be resolved by a divorce. A civil marriage enables fair proceedings to take place should the spouses decide to go their separate ways.
Since the Chapter 5:11 marriage does not allow any one spouse to marry another person or commit adultery, such a marriage will allow one to sue for damages in case of infidelity by the other partner.
What do LGBTQI+ people living in Zimbabwe say?
Unsurprisingly, many people in Zimbabwe, who often bemoan their government one day only to praise it on another, have welcomed this move. But there has been mixed reaction to the approved Bill by members of Zimbabwe’s LBGTQI+ community. While some are indifferent to the ban, others are bothered by it.
Like many LGBTQI+ people, Keisha* believes it is important for all citizens to be able to marry as long as they are of consenting age. She also believes that it will take a while before LGBTQI+ folks can be accorded this right and that the first step would probably involve changing the perceptions of the society in which we live and increase access to justice for LGBTQI+ folks. “We need to prepare society little by little and make them cognizant of our existence. When inroads have been made, we can begin to discuss the idea that we want to marry each other,” Keisha adds.
Keisha says that while it is true that some heterosexual marriages may not be rosy, LGBTQI+ folks stand to lose out on the benefits of being legally married in Zimbabwe. She understands that she can still have a long-term relationship but she also understands that sustaining such a relationship will be challenging without the legal backing of the Marriage Act (Chapter 5:11) in Zimbabwe.
Many Zimbabweans continue to use religion to justify their intolerance of the LGBTQI+ community. Because queer people are believed to be “sinning”, many believers say that according LGBTQI+ people their rights is tantamount to condoning what the Bible speaks against.
Thandeka Mujati says she has no desire to get married since a piece of paper does not equal commitment. However, she believes that anyone who wishes to get married should not be stopped from doing so on the grounds of their sexuality. Where religion is concerned, Thandeka says if LGBTQI+ people should not be granted their right to marry—among other rights—on the basis of the fact that they are “sinners”, then the same measure should apply to everyone else, since “we are all sinners”.
If LGBTQI+ people should not be granted their right to marry on the basis of the fact that they are “sinners”, the same measure should apply to everyone else, since “we are all sinners”.
Mojalifa Ndlovu from the Sexual Rights Centre says it has not been a priority for LGBTQI+ people to marry, even though it is reflective of the unfair discrimination that they endure. “Our safety, access to services such as health care and non-discrimination in other spheres of our lives have been and continue to be what we advocate for,” Mojalifa says, adding that LGBTQI+ people have realised that these were their primary needs while marriage was secondary.
While some people have openly been showing their support for the LGBTQI+ community in Zimbabwe, many have also not shied away from voicing their disdain. Sadly, intolerance of this marginalised community continues to be a uniting factor between much of the citizenry and the government which, on other days, is condemned for causing untold suffering to many in Zimbabwe.
Ras* believes the powers that be may only be reinforcing what the Constitution already specifies in an attempt to solidify support in Zimbabwe at a time when the country is bedevilled by so many socio-economic challenges, mainly due to poor leadership. She says it is highly likely that the LGBTQI+ community is being used as a prop, since the government knows most people are (openly) queerphobic. Focusing people’s attention on and reiterating the ban on same-gender marriage may help government to recover some of its waning popularity. Ras adds that this ban does bother her because it could well affect the stability and longevity of relationships in the LGBTQI+ community.
It is very clear, and not surprising, that members of Zimbabwe’s LGBTQI+ community have different reactions to the outlawing of same-gender marriage. After all, marriage is a personal matter. However, being unbothered by this ban, or not wanting to get married yourself, does not and should not dismiss the obvious homophobia that continues to inform such policies. Everyone, regardless of their sexual orientation, should be accorded their right to marry if they wished to do so. Is that not what democracy is all about?
* Not real names.