Types of criminalisation

  • Criminalises LGBT people
  • Criminalises sex between men
  • Criminalises sex between women
Summary

Same-sex sexual activity is prohibited under the Penal Code, which criminalises acts of ‘carnal knowledge of against the order of nature’ and ‘gross indecency’. These provisions carry a maximum penalty of fourteen years’ imprisonment. Both men and women are criminalised under this law.

The law was inherited from the British during the colonial period, in which the English criminal law was imposed upon Zambia. Zambia retained the provision upon independence and continues to criminalise same-sex sexual activity today.

There is substantial evidence of the law being enforced in recent years, with LGBT people being frequently subject to arrest. A high-profile case in 2019 saw two gay men convicted and sentenced for 15 years’ imprisonment for same-sex sexual activity. Following international pressure, the men received a presidential pardon in 2020. There have been consistent reports of discrimination and violence being committed against LGBT people in recent years, including assault, harassment, extortion, and the denial of basic rights and services.

Sexual Offence Law Assessment

We’ve also assessed Zambia’s sexual offence laws against international human rights standards. Not only does Zambia criminalise same-sex sexual activity, it also fails to properly protect other vulnerable groups, such as women, children, and people with disability, from sexual offences.

Find out more
Enforcement

2020

In May, Japhet Chataba and Steven Samba received a presidential pardon following their arrest in 2019 (see below). They were among 3,000 prisoners to be pardoned to mark African Freedom Day. The pardon followed sustained international pressure, such as a statement in March by a number of United Nations mandate holders including the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. The statement held that the sentence violated the defendants’ right to privacy and non-discrimination, as well as their right to health and freedom from torture and cruel, inhuman and degrading treatment or punishment. It called on the Zambian Government to explain its justifications for the sentence and to outline what steps are being considered to repeal laws criminalising same-sex sexual activity.

2019

On 27 November, Lusaka High Court sentenced two men, Japhet Chataba and Steven Samba, to 15 years’ imprisonment for engaging in same-sex sexual activity. The two men had booked themselves into a hotel in 2017 and were seen having sex by the staff. They were convicted by Kapiri Mposhi Magistrates’ Court last year but appealed to the High Court. However, the High Court judge, Charles Zulu, refused to review the verdict and sentenced the two men. Judge Zulu is reported to have said: “The trial court cannot be faulted and there is no basis to review or substitute the conviction and I further find that there were no irregularities by the trial court.”

Their sentencing was met with strong criticism from the US ambassador to Zambia, Daniel Foote, who implored the Zambian Government to review the case. He indicated that he was “horrified” and that it would do “untold damage to Zambia’s international reputation by demonstrating that human rights in Zambia is not a universal guarantee.” His comments prompted a fierce backlash from the Zambian Government, with Foreign Minister Joseph Malanji remarking that Ambassador Foote’s comments were “tantamount to questioning the Zambian Constitution”, and President Lungu asserting “We are saying no to homosexuality.” Ambassador Foote’s comments also attracted considerable hostility on social media, and in a statement he expressed his shock “at the venom and hate directed at me and my country.” The Ambassador was recalled to Washington in December following the backlash.

We are saying no to homosexuality. Why should we say we are going to be civilised if we allow it … Even animals don’t do it, so why should we be forced to do it?

Former President, Edgar Lungu, 2019

The US Department of State report noted that by the end of 2019, four people were serving time in prison for reasons related to their sexual orientation, including the two convicted in November 2019, which was an increase from three in 2018.

2018

In August, two men were convicted for same-sex sexual conduct. They were subjected to forced anal ‘examinations’ during detention.

2017

The US Department of State report for 2017 stated that the government enforced laws against same-sex sexual activity during the year, but rather than submit cases for trial, police on several occasions arrested suspected LGBT persons on bogus charges, forcing them to spend at least one night in jail. In most cases police demanded bribes before releasing the individuals. Police also increasingly charged transgender people with ‘impersonation’, but could not generally prosecute these cases successfully, and detainees were released.

2016

A report by the Southern African Litigation Centre noted that while not expressly criminalised, transgender people in Zambia are often harassed by police under ‘vagrancy’ provisions.

2015

In May, the High Court of Zambia upheld the judgment of a lower court acquitting an LGBT and HIV/AIDS activist on charges of “soliciting for immoral purposes.” He was arrested in April 2013 after speaking on Zambian television about the need to recognise the rights of vulnerable groups, such as LGBT people, to address the HIV pandemic.

2014

In May, residents of the Marapodi area of Lusaka apprehended two women suspected of being lesbians, took them to a nearby police station, and demanded police arrest them. After the mob dispersed, police released the two without charge.

In July, the Kapiri Mposhi Magistrate Court acquitted two men suspected of engaging in same-sex relations, noting the prosecution had failed to prove its case against them. The men spent 14 months in remand prison before their acquittal.

Police arrested two transgender individuals in Lusaka’s Kabwata area in October, claiming they “looked gay”. Activists who attempted to obtain the individuals release were told by police that they would held in detention for 24 hours to “teach them a lesson”. The individuals released later with no charges, after having paid a bribe.

2013

In August, a man was arrested for allegedly engaging in consensual sexual activity with another man, after supposedly being caught in the act by the homeowner who was sleeping in the same room.

Discrimination and Violence

2020

The US Department of State report noted that societal violence against LGBT people occurred, as did harassment and discrimination in employment, housing, education, and healthcare, and the government made no attempt to address this discrimination.

2019

Research published in 2019 found that 53% of LGBT people had experienced physical violence in their lifetime, with 27% reporting incidents in the previous year, while 34% had experienced sexual violence (16% in last year). Additionally, 70% had experienced verbal harassment related to their sexual orientation and gender identity (37% in the previous year).

2014

Between January and February, the state-owned newspaper Times of Zambia published a series of seven editorials based on pseudoscience that decried same-sex sexuality.

In January, a self-identifying gay man was reportedly attacked by a mob of people which allegedly included three police officers.

We will not support homosexuality. I will not compromise human nature because of money.

Former President, Edgar Lungu, 2014

2013

Zambian LGBT activist organisation Friends of Rainka recorded 43 rights violations against LGBT people in the six months to September 2013. The report concluded that the “continued violence that [LGBT people] face from state and non-state actors is often unreported in the news, thereby creating a false delusion of tranquillity in the Southern African Nation.” The report documented how two gay men aged 19 and 21 were “found in a compromising position” outside a nightclub. They were beaten, yet refused to press charges out of for fear of being charged themselves.

References

Local Organisations

Friends of Rainka

a Zambian organisation that aims to protect, advance, and promote the rights of sexual minorities.

The Lotus Identity

an organisation which aims to empower and realise the rights of marginalised people including the LGBT community in Zambia.

Related Countries

Zimbabwe

Zimbabwe criminalises same-sex sexual activity between men. Sentences include a maximum penalty of one year imprisonment and a fine.

Malawi

Malawi criminalises same-sex sexual activity between men and between women. The gender expression of trans people is also criminalised. Sentences include a maximum penalty of fourteen years’ imprisonment with corporal punishment.

Tanzania

Tanzania criminalises same-sex sexual activity between men and between women. Sentences include a maximum penalty of life imprisonment.

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