Yes this is an election year, but beyond merely changing faces of representatives and office bearers, it is high time the saints of Christ were helped to comprehend the meaning and implications of laws and provisions that matter in the newly amended Constitution.
We Christians should not perish because of ignorance (Hosea 4:6), but we will certainly drown if we fail to engage lawyers among us to give us the key of knowledge Jesus spoke of in Luke 11:52.
Unless every congregation of Jesus Christ takes a serious interest in the legal and constitutional changes introduced by the Presidential assent at Heroes Stadium in Lusaka this year, the church will one day find itself in a Zambia it will not recognise.
Among many novelties, the newly amended Constitution provides for a Constitutional Court, which is believed to enhance balance in the administration of justice for all.
But in South Africa, it was the Constitutional Court that on December 1, 2005 extended the common-law definition of marriage to include same-sex spouses on the basis that the country’s constitution guaranteed equal protection to all citizens regardless of sexual orientation.
The court gave Parliament one year to level humps and bumps of inequality in marriage laws, and on November 14, 2006 the National Assembly passed a law permitting same-sex marriage.
The matter started in 2002 when a lesbian couple, Marie Fourie and Cecelia Bonthuys lodged an application to have their union recognised in the Pretoria High Court and recorded as a valid marriage at the Department of Home Affairs.
There has been a precedent here: In April 2012, a total of 115 gay couples caused a scene when they went to the Lusaka Civic Centre to register gay marriages contrary to the Marriages Act Cap 50.
They were turned away instead of being arrested in keeping with the law, meaning that the one who simply turned them away broke the law instead of bringing them to book.
The sheer numbers, in a display unseen in Zambia before, indicated hidden sponsorship, much like Fourie and Bonthuys were sponsored in their bid by the Lesbian and Gay Equality Project.
Next time gays challenge our laws, depending on who spots an unseen crack in the constitutional firewall, and depending on who sits on the Constitutional Court or High Court bench, Zambia may find herself cruising towards legal same-sex marriage.
Do not assume that the hidden sponsorship that tested the Lusaka civic centre waters through 230 individuals (115 pairs of people) has been ferreted back to some European bank vault and that is it.
In March 2013, a year later, the European Union offered financial support for organisations that wish to promote rights of gay people in Zambia.
The Evangelical Fellowship of Zambia (EFZ) strongly and flatly rejected the offer and warned the EU against interfering in the internal affairs of Zambia; going as far as demanding an apology from the union.
That is the most sensible way to respond to unwarranted provocation: our sovereignty and integral existence are at stake.
But how many worshippers in the pews are even aware of all this?
Not only that: abortion rights and euthanasia rights have found an open door in a number of West hemisphere versions of the Bill of Rights.
Presently, there is much talk about a comprehensive Bill of Rights at the same time that there is an outcry about the requirement that parliamentary aspirants provide traceable Grade 12 certificates as an educational minimum.
The Grade 12 outcry is of significance not merely because there is an outcry: the same parliamentarians who passed that law—and some in civil society—have found themselves in the swamps.
Tomorrow, the euphoria about the Constitutional Court and the yet-to-be-amended Bill of Rights, which civil society have pressed for over the years, will similarly evaporate and we may find ourselves in an irretrievable quagmire.
It will interest you that the gay rights thing is not over and done with in America. Towards the South Carolina primary on Saturday February 20, where Republican and Democratic supporters will indicate which presidential aspirant they prefer to contest the November 8 elections, current opinion polls are showing that up to a third of respondents in that state would rather homosexuality rights were yanked off the pages of the US law books.
To what extent are the people in our church pews aware of what positives and negatives the new legal and constitutional changes portend? For certain, oblique meanings and contra-indications tend to open unseen doors in law.
With reference to a clause against ‘discrimination’ in the draft constitution, the Human Rights Commission notably submitted to the Annel Silungwe Technical Committee in July 2012:
“The Human Rights Commission is of the view that this is a very progressive provision and has sought to capture as many groups as possible. However, as this Constitution is supposed to be a reflection of the will of the Zambian People, the Human Rights Commission acting in the interests of the Zambian people is bound to raise certain concerns.
“The provision itself is very open ended and may lead to the handing of certain rights to or inclusion of certain groups that the people of Zambia may not be ready or willing to accept. In particular this concern is directed at members of the Lesbian, Gay, Bisexual, Transgender and Inter-Sex (LGBTI) community.
“It must be noted that human rights are universal but their enjoyment is not absolute. It is subject to the cultural, moral, religious, legal, economic and social context of the community/country in which they apply. Limitation of the enjoyment of individual human rights is permissible for the protection of the greater good of society.
“Indeed, the Vienna Declaration and Programme of Action adopted at a world conference on human rights held in Vienna, Austria in 1993 while acknowledging the universal, indivisible, interrelated and interdependent nature of human rights re-stated that the significance of national and regional particularities and various historical, cultural and religious backgrounds of states must be borne in mind as the State fulfils its duty to protect and promote human rights for all.
“Therefore the Commission does not view this as a legitimate group that can have sexual persuasion related rights recognised. For the avoidance of doubt the Commission wishes to emphasise that this group is entitled like any other group or individual to the human rights protections afforded in this draft constitution.
“The Commission therefore does advocate that they cannot be discriminated against on the basis of the traditional grounds as set out under Article 23 in the current constitution i.e. sex race, tribe, place of origin, marital status, political opinions, colour or creed in respect of their enjoyment of the rights enjoyed by all on account of their sexual orientation.
“It is thus recommended that the provision should be exhaustive rather than inclusive and such terms such as ‘conscious’ and ‘belief’ should be removed as there is a danger that such groups could have these rights recognised on these bases.” In short, the Commission sensed that strange things can be sneaked into the realm of legality by merely being read from a different angle.
BILL OF RIGHTS
Is a comprehensive Bill of Rights unaffordable?
As outlined in Part 5 of the Constitution of the Republic of Zambia, Section 24. (1) says: “The Bill of Rights, as provided for in this Part, is fundamental to democracy and constitutionalism and shall be the basis of Zambia’s social, political, legal, economic and cultural policies and State action.”
The Bill of Rights 1991 has not been altered, in keeping with the requirement that a Referendum be called to make changes.
Among frequent arguments is this; that the Bill of Rights as it is does not cater for economic, social and cultural rights. It does not provide for rights to such matters as education, health and employment which are crucial in fighting poverty.
Further, it is contended that the current provisions need to be expanded to enable women to have the right to equal treatment, opportunity to participate in the political, economic, social and cultural life of the nation.
It has been argued that current levels of illiteracy, poor working conditions, unemployment levels, bad housing conditions, low levels of medical care, poor sanitation and mounting poverty show that human rights are being violated—which warrant inclusion in the Bill of Rights. Do believers know about these matters?
The United Nations Committee on Economic, Social and Cultural Rights during meetings held on April 26 and 27 in 2005 did recommend that Zambia incorporates the International Convention on Economic, Social and Cultural Rights. What are the provisions of that convention? A few snippets will shed some light on the matter.
In Part II, Article 2 requires that:
1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognised in the present Covenant to non-nationals.
Article 3 requires: “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.”
Article 10 says that the States Parties to the present Covenant recognise that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.
Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.
Article 11 requires that:
1. The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
The States Parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognising the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilisation of natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.
Requirements like these, on which basis a government should be taken to court if it fails to fulfil citizens’ expectations, may not be escaped by states like Zambia which are signatories. How they may be pragmatically interpreted and applied is at issue.
In its insightful submission to the Annel Silungwe Technical Committee in July 2012, the Human Rights Commission counselled a plausible way forward for the implementation of the Bill of Rights:
“However, it is the Commission’s submission that the President be obligated to submit to the National Assembly a separate stand-alone report on the measures taken towards the realisation of the provisions of the Bill of Rights at the end of each year.
“The Commission believes that it would carry more weight if the President’s address on the state of human rights was given its own date and not at the time when the President is addressing the National Assembly. This recommendation is motivated by past experience with the President’s address during the opening of the National Assembly in which human rights issues have tended to be swallowed up by other issues and relegated to a few sentences.
“Delivering a report at the end of each year would provide government with the opportunity to introspect and take stock of its achievements and limitations in the protection and promotion of human rights as well as provide government an opportunity to plan for enhanced protection in the following year.
“In addition a specific address on human rights would not only keep the nation more informed on human rights issues but would also result in a more pro-active nation in terms of recognising and combating human rights abuses.”
Shepherds of the flock of Christ must by all means tune in and act to equip the sheep with knowledge on what matters most now.