Africa-Press – Zambia. THE Constitutional Court has refused to determine the petition in which a civil liberties organisation challenged the constitutionality of a piece of law which criminalizes same s3x acts and other styles, which are deemed “against the order of nature”
In this petition, the petitioners, who have issues with section 155(c) of the Penal Code, wanted a clear definition of what “against the order of nature” means.
Alternatively, they wanted section 155(c), which criminalizes certain sexual acts like same sex, to provide an exhaustive list of categories of sexual intercourse which can be performed in accordance with the “order of nature”
But last week, the Constitutional Court said it has no jurisdiction to determine this petition because issues raised have to do with the Bill of Rights.
The court found that the petition alleges contravention of Articles 17, 18, 19 and 23 of the Bill of Rights, which are to be handled by the High Court.
“This petition fails for lack of merit,” ConCourt deputy Judge president Arnold Shilimi said on behalf of six other judges.
In this petition, Zambia Civil Liberties Union (ZCLU), and its director Isaac Mwanza had sought a declaration that section 155(c) of the Penal Code is unconstitutional.
Section 155(a) (c) prohibits carnal knowledge by persons of the same sex or between male and female or between female and male, deeming it “against the order of nature”.
The petitioners argued that the section is discriminatory on the basis of sexual orientation, gender, gender identity and advances inequality of persons under the law in contravention of Article 8(d) of the Constitution.
They sought a declaration that the section is unconstitutional and contravenes Article 8(d) and 17(1) of the Constitution.
Articles 8(d) and 17(1) provides for the right of privacy, human dignity and equality between adults engaged in consensual relations or sexual activities and violates and undermines their autonomy and personal freedoms.
Alternatively, the petitioners sought a declaration that single or married people who consent to engaging in different categories of sexual intercourse are excluded from liability for a criminal offence under section 155(a) (c).
Further, they sought an alternative order that section 155(a) be repealed for being vague and ambiguous.
They also wanted clarity on the expression “the order of nature” with regards to sexual activities.
The respondents Attorney General Mulilo Kabesha while three church mother bodies- Council of Churches in Zambia, Zambia Conference of Catholic Bishops and Evangelical Fellowship of Zambia (EFZ), joined as interested parties.
Both Mr Kabesha and the church mother bodies had urged the court to uphold section 155 and dismiss the petition.
Mr Kabesha submitted that section 155(a) should be maintained, further dismissing contentions that the statute is discriminatory.
He argued that section 155 does not prevent anyone from having sex with another individual as long as the act is within the “order of nature”.
And rendering judgement, Judge Shilimi said the petition lacked merit owing to jurisdiction issues since it raises questions to do with the Bill of Rights.
Meanwhile, Mr Mwanza said he proceed to take the same matter to the High Court for determination.
“We shall be going to the High Court, because, as you have noticed, the Constitutional Court has even acknowledged that the issues that have been raised in this matter are very, very significant,” Mr Mwanza said.
Meanwhile, the church mother bodies also said when Mr Mwanza takes the case to the High Court, they will also be part of it, in defence of morals and national values in the Christian nation.
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