National Aids Council (NAC) communications manager Justine Mwiinga says there is no law in Zambia which criminalises homosexuality.
Meanwhile, the UNDP Zambia Legal Environment Assessment for HIV, TB, Sexual and Reproductive Health and Rights 2019 report has recommended the need to amend the Penal Code and decriminalize sex between consenting adults of the same sex.
In an interview, Mwiinga said controversial as it may be, homosexuality is not criminal, but what is criminal is canal knowledge against the order of nature.
“This is a potential area of grave misunderstanding where we think that homosexuality, controversial as it is in this country, it’s not criminalized. What the law criminalizes in this country is sexual acts called ‘canal knowledge against the order of nature’. Homosexuality is an orientation of someone being sexually attracted to a person of the same sex. And you cannot legislate an orientation. So, what is criminalized in our jurisdiction is what is known as canal knowledge against the order of nature. So, when a man has sex with another man, and there is evidence to prove that, that conduct is criminalized yes. But it might interest you to know that having canal knowledge against the order of nature just goes beyond anal sex. It might include other behaviours that depart from this rigid penis–vaginal sex. Anything outside that is deemed to be canal knowledge against the order of nature,” Mwiinga said.
And Mwiinga said not every man who has sex with a fellow man is homosexual.
“The most important thing to note is that what we generally think is criminalized homosexuality in this country is not. So people who are merely suspected to be homosexuals are prevented from having access to services because of their being when in fact, there is nothing illegal about being homosexual. There is no law that criminalizes homosexuality in this country. And the fact that some men may choose to have sex with men does not make them homosexuals. They may fall under a category of men having sex with fellow men but that doesn’t make them homosexuals. Not every man who has sex with another man is homosexual,” he said.
“A homosexual is a person who is sexually, intellectually, emotionally and romantically attracted to a person of the same sex, without confusing it with the act. It’s an orientation and not the act. So, for prisoners who are in confinement and congested, sodomy is rife in prisons, but that doesn’t mean that those men are homosexuals. When they get released from prisons, they go back to their wives.”
And Mwiinga expressed concern that some key populations in society were being left behind when it came to HIV service provisions.
“We have realised, through evidence, that there are certain population groups that are being left behind in terms of HIV service provisions and these HIV groups encounter the HIV epidemic differently from people in the general population. Our concern is that to continue leaving them behind will not be beneficial to the country. Secondly, it is the realization that the HIV risks that are happening in these sub-population groups are very high. And apart from being very high, there is an interaction between these sub-population groups and the general populations. The people we are calling key population or marginalized groups are people who live with HIV, migrant workers, people living with disabilities, inmates, injection drug users, adolescents, and men and women above the age of 50. All these sub groups are experiencing the epidemic differently,” Mwiinga said.
He warned that the country would not achieve the Universal Health Coverage if key populations were left out from health service provisions.
“The other group that I left out from the groups that I mentioned are men who have sex with fellow men. And like I said, what happens in these groups has an effect on the general population. So, it’s like mopping the floor when the tap is running. If we don’t address the special needs of these sub-populations, we are not expected to make any strides as a country. First of all, we will not achieve Universal Health Coverage. Universal Health means that everybody, regardless of their status, ought to be given a service that they need. And we will not reach the global goal of ending AIDS by 2030 if we continuously leave certain groups behind,” Mwiinga said.
“And thirdly and maybe also most importantly, Zambia, with an unhealthy population will not lift itself out of the poverty that it is in now. We will not attain our ambition goal of becoming a middle-income country because we can only do so if we have a universal Health Coverage and the population is health.”
Mwiinga said over one million Zambians living with HIV were on treatment.
“Countrywide, we have 1,200,000 people that are living with the HIV virus and of those, we have managed to put above a million on treatment. So we are only remaining with about 200,000 to go. This is as of 2018 and is according to the Zambia Demographic survey,” said Mwiinga.
Meanwhile, the UNDP Zambia Legal Environment Assessment for HIV, TB, Sexual and Reproductive Health and Rights 2019 report has recommended that there is need to amend the Penal Code and decriminalize sex between consenting adults of the same sex.
“Support legal reform, through submissions to the Zambia Law Development Commission, to amend the Penal Code to decriminalize same-sex sex between consenting adults. Ensure the involvement of LGBTI populations in law review and reform processes. Sensitize LGBT populations, including young key populations, on their rights. Conduct community awareness-raising and sensitizing campaigns to reduce stigma and discrimination against LGBTI populations, including young key populations. Sensitize Law Enforcement officers on the rights of LGBTI populations. Strengthen access to justice for LGBTI populations, including through strategic litigations. Integrate sexual and reproductive health care services, including psycho-social support services for the needs of LGBTI populations, including young LGBTI populations. Provide pre-service and in-service training to health care providers on the human rights of and health care needs of LGBTI populations, including young LGBTI populations,” read the UNDP report.