Procedural Posture
Canaan Banana, a former president of Zimbabwe, was convicted by the High Court on two counts of sodomy, seven counts of indecent assault, one count of common assault, and one count of committing an unnatural offence, and he appealed his conviction to the Supreme Court.
Issue
Whether the common law crime of sodomy was in conformity with Section 23 of the Constitution, which guaranteed protection against discrimination on the ground of gender.
Facts
The conduct at issue arose out of Canaan Banana’s relationships with several male aides while he was in office. In 1997, his former aide-de-camp alleged that he had been subjected to repeated sexual abuse.
Domestic Law
Constitution of Zimbabwe, Section 23 (protection from discrimination, including on the grounds of gender), including Section 23(5) (any law discriminating between persons on the grounds of gender would not be in contravention of Section 25 to the extent that it took due account of physiological differences between persons of different gender, so long as such a law was reasonably justifiable in a democratic society), Section 11 (preamble), and Section 17 (protection from arbitrary search or entry).
Comparative Law
Bowers v. Hardwick, United States Supreme Court, 1986 (upholding constitutionality of State law criminalising sodomy).
National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa, 1998 (finding unconstitutional statutory and common law offences of sodomy).
Romer v. Evans, United Stated Supreme Court, 1996 (finding unconstitutional a State constitutional amendment that withdrew a specific class of people – gays and lesbians – from the protection of the law without a legitimate states purpose, in violation of the equal protection clause of the federal constitution).
R v. M(C), Ontario Court of Appeal, Canada, 1995 (finding that a higher age of consent for anal intercourse than for vaginal intercourse was discriminatory and violated Section 15(1) of the Canadian Charter of Rights and Freedoms).
Vriend v. Alberta, Supreme Court of Canada, 1998 (holding that sexual orientation was a ground analogous to those listed in section 15(1) of the Canadian Charter of Rights and Freedoms).
International Law
International Covenant on Civil and Political Rights, Article 26.
Dudgeon v. United Kingdom, ECtHR, 1981 (finding that the sodomy laws of Northern Ireland violated the right to privacy under the European Convention).
Modinos v. Cyprus, ECtHR, 1993 (finding that the sodomy laws of Cyprus violated right to privacy under the European Convention).
Norris v. Ireland, ECtHR, 1988 (finding that the sodomy laws of Ireland violated the right to privacy under the European Convention).
Toonen v. Australia, United Nations Human Rights Committee, 1994 (finding that the sodomy laws of Tasmania violated rights to privacy and non-discrimination under the ICCPR).
Reasoning of the Court
By 3 to 2, the Supreme Court rejected the constitutional appeal. The main difference between the majority and dissent was over whether the criminalisation of same-sex sexual conduct (“sodomy”) discriminated on the basis of gender or sexual orientation. The other issues on appeal concerned the cautionary rule in sexual assault cases, the single witness situation, and various rulings on admissibility of evidence. On these points the Court was unanimous.
Majority Opinion (per Justices McNally, Muchechetere and Saundura)
The majority opinion first rejected the dissent’s use of comparative law. It stated that consensual sodomy had been decriminalised in three main ways: by legislation, after the gradual development of a more tolerant public attitude; by a constitution that specifically mentions sexual orientation, as in South Africa; or by a supra-national judicial authority, such as the European Court of Human Rights. The majority placed great weight on Bowers v. Hardwick, emphasising that in 1986 25 States in the United States criminalised consensual sodomy. “The fact remains that the present stand of perhaps the most senior court in the western world is that it is not unconstitutional to criminalise consensual sodomy.”
The majority discussed the role of public opinion, describing Zimbabwe as conservative in matters of sexual behaviour. “I do not believe that this court, lacking the democratic credentials of a properly elected parliament, should 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.” The majority also quoted Bowers in support of this point: “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognisable roots in the language or design of the Constitution”.
The majority then addressed the non-discrimination argument. The opinion emphasised that what was forbidden by Section 23 was discrimination between men and women and not “between heterosexual men and homosexual men”. In the court’s view, this was important because “the real complaint by homosexual men is that they are not allowed to give expression to their sexual desires, whereas heterosexual men are”. That form of discrimination, reasoned the majority, was not the kind forbidden by Section 23.
Regarding the dissent’s “technically correct” argument, that anal sex involving women rather than men as passive partners was permitted under the law, the majority found it lacked “common sense”. The majority stated that anal sex between heterosexual partners was the result either of a “drunken mistake” or “an excess of sexual experimentation in an otherwise acceptable relationship”. The majority also doubted that the occurrence of anal sex between opposite-sex partners could be proven, (and declared this to be a practical issue rather than a matter of principle).
The majority concluded that, since the discrimination in this case was between homosexual men and heterosexual men, and discrimination on grounds of gender was therefore not at issue, it was not forbidden by the Constitution.
Dissent (per Chief Justice Gubbay and Justice Ebrahim)
As framed by Chief Justice Gubbay, the question was whether the common law crime of sodomy imposed on males a restriction to which females were not subject and, if it did, whether such a law was “reasonably justifiable in a democratic society”.
Because Zimbabwe case does not criminalise either sexual acts between women or anal sex between a female and male, Chief Justice Gubbay found that “the only distinction that makes such acts criminal is the participants’ gender or sex”.
The dissent relied heavily on international and comparative law, and especially the decision of the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality v. Minister of Justice and the decision of the Ontario Court of Appeal in R v. M (C), which found that a different age of consent for anal intercourse violated the right to equality. The dissent stated: “it therefore affords some support for the view that a law which subjects acts of anal intercourse occurring between consenting male adults to criminal sanction should be held to be unconstitutional on the ground that it discriminates against gender”.
The dissent distinguished the United States Supreme Court case Bowers v. Hardwick. “The unconstitutionality of Georgia’s sodomy laws was based upon the right to privacy which is not specifically mentioned in the Constitution of the United States. A gender discrimination argument could not be advanced because the Georgia statute was gender neutral; anal sex was prohibited for homosexuals as well as heterosexuals.” The dissent also noted that Bowers v. Hardwick had been heavily criticised and that the same court had handed down Romer v. Evans, which struck down a discriminatory amendment to a State constitution.
Since the sodomy law took “due account of physiological differences between the male and female genders”, under the constitutional framework the court was then required to consider whether the law was reasonably justifiable in a democratic society. If not, it was in violation of Section 23 of the Constitution. The criteria were whether: (1) the legislative objective which the limitation was designed to promote was sufficiently important to justify overriding the fundamental right concerned; (2) the measures designed or framed to meet the legislative objective were rationally connected to it and were not arbitrary, unfair or based on irrational considerations; and (3) the means used to impair the right or freedom were no more than was necessary to accomplish the objective.
First, the objective of the criminal law was to discourage conduct “considered immoral, shameful and reprehensible and against the order of nature”. The Court had to determine whether this objective was so important as to outweigh the protection against gender discrimination. To answer this question, the dissent reviewed the legal position in other countries, beginning with South Africa, noting the position in the majority of member States of the Council of Europe, and discussing the European Court of Human Rights’ decision in Dudgeon v. United Kingdom and the line of cases which followed it.
The dissent recognised that the majority of people might “find acts of sodomy morally unacceptable”. But public disapproval was not sufficient. “This does not mean, however, that today in our pluralistic society that moral values alone can justify making an activity criminal. If it could one immediately has to ask, ‘[b]y whose moral values is the state guided?’”
After quoting Professor Ronald Dworkin’s work Taking Rights Seriously (1978), the dissent stated: “I am thus not persuaded that in a democratic society such as ours it is reasonably justifiable to make an activity criminal because a segment, maybe a majority, of the citizenry consider it to be unacceptable”. The dissent offered a particular view of the role of the judiciary in terms of the protection of individual rights: “The courts cannot be dictated to by public opinion…. Otherwise there would be no need for constitutional adjudication. Those who are entitled to claim the protection of rights include … the marginalised members of society.”
The second issue the dissent had to resolve was whether the limitation of rights was rationally connected to its objective and was not arbitrary, unfair or based on irrational considerations. Here the dissent asked whether it could be rational to criminalise the (anal intercourse) only when it was performed by males. “If both forms of sexual deviation are to be regarded as immoral and against the order of nature, by what logic is the discrimination against the male gender justified?” The dissent questioned why sexual acts between women were not criminalised if it was the homosexual nature of the act that was the focus of the provision.
Third, the dissent considered whether the limitation on the right or freedom was more than necessary to accomplish the objective. To answer this question, the dissent quoted a number of sources, including Professor Edwin Cameron’s article, “Sexual Orientation and the Constitution: A Test Case for Human Rights” (1993), the Canadian Supreme Court in Vriend v. Alberta, and the South African case National Coalition for Gay and Lesbian Equality v. Minister of Justice. These sources considered the harmful impact of such laws on gay men. The dissent stated that “depriving such persons of the right to choose for themselves how to conduct their intimate relationships poses a greater threat to the fabric of society as a whole than tolerance and understanding of non-conformity could ever do”.
Banana v. State, Supreme Court of Zimbabwe (full text of judgment, PDF)
