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LGBT Rights: A Case Comparison
There are 38 countries in Africa in which homosexual activities between men are criminalised (Thoreson). Zimbabwe is one of them (Waaldijk). There is even a violent campaign against homosexuality waged by Mugabe (Ember and Ember). This has disastrous effects on LGBT individuals; as Thoreson points out: 'one has only to look at the reports of human rights organizations to see evidence of the violence and discrimination unleashed on LGBT people...'. Another major injustice facilitated by the criminalization of homosexuality is that LGBT people are often blackmailed or extorted (Thoreson). In order to ensure justice for these people, Zimbabwe must decriminalise homosexual acts. The cases of Dudgeon v UK and Toonen v Australia will be compared with Banana v Zimbabwe in order to highlight this point.
In the UK, decriminalisation came about by legislative change. However, the law in Northern Ireland, a part of the UK, still had provisions in force that criminalised homosexual acts (Dudgeon v UK).These provisions were successfully challenged in Dudgeon; the Court held that Dudgeon’s right to private life had been violated as a result of these laws, despite there being no arrest, blackmail or extortion. This set a legal precedent requiring legislative repeal of any laws criminalising homosexual acts in all Council of Europe Member States (McLoughlin). There has been much progress in Europe since (Waaldijk).
Internationally, Toonen is significant. The Human Rights Committee agreed with the applicant that his rights under articles 17(1) and 2(1) of the International Covenant for Civil and Political Rights (ICCPR) had been violated, again despite there being no arrest, blackmail or extortion. This resulted in the repeal of Australia’s last sodomy laws and since this decision 'the … Committee and other UN treaty bodies have repeatedly urged States to decriminalise consensual same-sex sexual conduct' (Kirby).
However, Zimbabwe still has not followed. In Banana, the former president appealed his conviction of homosexual sexual offences to the Supreme Court.Instead, of following the precedents set by the aforementioned cases, it rejected the appeal, holding that the criminalisation of homosexual acts was not unconstitutional.
A brief comparison of the main three issues in these cases is shown in the table below.
The Court in Dudgeon reached its decision based on Article 8 of the ECHR, which protects the right to private life. This was the most important consideration for the Court in this case. The Committee in Toonen also considered privacy, stating that 'it is undisputed that adult consensual sexual activity in private is covered by the concept of “privacy”…' The Court in Banana held that there was no corresponding right to privacy in their Constitution, which, 'guaranteed only protection from arbitrary search or entry and had “nothing whatever to do with whether or not consensual sodomy is a crime”.'
The ECtHR did not base its decision in Dudgeon on equality or non-discrimination, as it decided the case on the basis of privacy; however, in later cases the Court held that sexual orientation is included in Article 14 ECHR. In Toonen it was held that ‘sexual orientation’ is included under Article 26 of the ICCPR, which prohibits discrimination. Conversely, the majority in Banana 'rejected challenges to the law based on non- discrimination.' It decided that sexual orientation was not one of the grounds covered by Section 23 of the Constitution of Zimbabwe.
The most striking difference between these decisions is the issue of public morality. Laws that criminalise homosexuality 'are usually ... justified by reference to tradition, popular opinion, and public morality' (Jernow). This is the main argument that the Court used to justify finding that there was no violation in Banana (Jernow). They felt that they should not 'strain to place a sexually liberal interpretation on the Constitution of a country whose social norms and values in such matters tend to be conservative' (Jernow). In Dudgeon and Toonen, although morality was considered, it was held in both that other factors outweighed public morality and, so there were violations in both cases. The Court in Dudgeon made it clear that it is 'not concerned with making any value judgment as to the morality of homosexuality.' However, it conceded that morality and public opinion are relevant; just because morality in Northern Ireland is different to rest of Europe doesn't automatically make it wrong. Even so, it went on to say that there is now a better understanding and tolerance in Europe and this evolution cannot be overlooked. The Committee in Toonen held that 'moral issues are [not] exclusively a matter for domestic concern', but then found that, because there were no such laws anywhere else in Australia and they were not even enforced in Tasmania, the provisions were not reasonable.
The majority judges in Banana 'rejected the dissent’s use of comparative law', which included the precedents set in both Dudgeon and Toonen. The authorities should instead follow Dudgeon and Toonen; try to protect all its citizens against discrimination and violations of privacy; and not let public morals get in the way of this.