The Telegraph reported on 29 September 2015 that, “ Zimbabwean president Robert Mugabe strayed from his script in startling fashion on Monday evening, and blurted out: “We are not gays” during his UN General Assembly speech. The 91-year-old used his speech to criticise the UN for its “archaic” organisation which, he argued, excluded the poorest countries. He criticised EU sanctions against his country, and voiced his anger at the Security Council’s failure to represent developing nations. But it was during a section in which he criticised the UN for trying to impose human rights rules on countries that he made the off-the-cuff comments. “We reject the politicisation of this important issue and the application of double standards to victimise those who think and act independently of the self-anointed prefects of our time,” he said. “We equally reject attempts to prescribe ‘new rights’ which are contrary to our values, norms, traditions and beliefs.” He then blurted out: “We are not gays!” Homosexuality is illegal in Zimbabwe, and Mr Mugabe has made no secret of his distain for homosexuals.”
The Country Guidance case of LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC) by the Upper Tribunal noted at paragraph 20 of that decision that, “President Mugabe is most vociferous. He has blamed the LBGT community for Africa’s ills and repeatedly denounced its members as “worse than pigs and dogs.” And at paragraph 103 of their decision, “The public expression of homophobia in Zimbabwe is relatively recent and politically motivated – more of a rabble-rousing distraction”. LZ however concluded among other matters that despite there being much public expression of extreme homophobia at the highest levels in recent years, applying HJ & HT [2010] UKSC 31, [2010] Imm AR 729, there is in Zimbabwe no general risk to gays or lesbians. The Tribunal found that prosecutions are very rare. Lesbianism is not criminalised. Although some homosexuals suffer discrimination, harassment, intimidation, violence and blackmail from the general public and the police, the Upper Tribunal concluded in LZ that there is no general risk. They also concluded that “corrective rape” is rare, and does not represent a general risk. The Tribunal further considered that GALZ (Gays and Lesbians of Zimbabwe) had taken a realistic view ie that Zimbabwe is, “not the worst place in the world to be gay or lesbian even though the President, government officials and church leaders have whipped up a climate of hysterical homophobia”.
LZ had sought sought asylum in 2009 in the UK, based on the risk of persecution as a lesbian. Although the outcome in LZ is somewhat restrictive having regard to the reasoning and conclusions therein , LZ’s appeal itself was allowed on refugee grounds on the basis that although the Tribunal find that LZ would be personally discreet in Zimbabwe, by choice, nevertheless, her sexual identity, in the context of her family connections among the Zimbabwean elite, gave rise to a risk. It was considered that there were no findings on this family relationship in the initial Judge’s decision determination. It is not however possible to extract much from the Upper Tribunal’s decision regarding LZ ‘s actual personal circumstances. The Tribunal noted from the start that LZ did not rely only on general risk to homosexuals, or to female homosexuals but that she relied on her unique circumstances – it is however not clear what those unique circumstances are as the Tribunal stated that the parties had agreed during proceedings that it was not desirable for their decision to make her identity public. The Tribunal thus gave her anonymity and acknowledged that they had not included matters likely to identify her in the main body of their decision.
The remarks made by President Mugabe a few days ago in relation to gay people and those noted by the Upper Tribunal are not the only ones he has uttered.
On 30 June 2015 , Ibtimes in a news article titled, Zimbabwe President Mugabe Proposes To Obama, Mocks Gay Marriage Supreme Court Decision, stated, “Zimbabwe’s President Robert Mugabe jokingly said he would travel to the White House and propose to U.S. President Barack Obama,…….. “I’ve just concluded since President Obama endorses the same-sex marriage, advocates homosexual people and enjoys an attractive countenance – thus if it becomes necessary, I shall travel to Washington, D.C., get down on my knee and ask his hand,” Mugabe, 91, was quoted as saying by Turkey-based news website AWDnews. Mugabe, who was elected Zimbabwe’s president in 1987, said the United States was run by perverted Satan-worshippers. “I can’t understand how this people dare to defy Christ’s explicit orders as our Lord prohibited mankind from sodomy,” he said, according to AWDnews. The Zimbabwean dictator, who strongly opposes homosexuality, has made countless controversial remarks against the LGBT community in the past. Mugabe, who is also the African Union chairperson, has said that gay people are lower than “pigs, goats and birds” and they should go to “hell,” according to Newsweek.”Let Europe keep their homosexual nonsense there and live with it. We will never have it here. The act [of homosexuality] is not humane,” Mugabe reportedly said in a July 2013 speech to his ruling Zanu PF party supporters. “Any diplomat who talks about homosexuality will be kicked out. There is no excuse and we won’t listen to them.” Homosexuality is barred in Zimbabwe and Mugabe has criticized Obama for encouraging gay rights on the African continent. “We have this American president, Obama, born of an African father, who is saying we will not give you aid if you don’t embrace homosexuality. We ask, was he born out of homosexuality?” Mugabe reportedly said at a 2013 campaign rally”.
LZ considered background evidence only up till 26 September 2011 – on the basis of President Mugabe’s subsequent several anti -gay statements following that decision including most recently and also having regard to relevant recent background evidence, could this be good enough reason to argue a departure from LZ ?
RELEVANT INTERNATIONAL LAW
The legislative framework to these types of applications/appeals includes international and European Union law including the Refugee Convention and the European Convention on Human Rights and the Council Directive 2004/83/EC.
Article 1A(2) of the Convention relating to the Status of Refugees 1951, as applied by the 1967 Protocol, provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country…”
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, provides:
“Article 9
Acts of persecution
- Acts of persecution within the meaning of article 1 A of the Geneva Convention must:
| (a) | be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or |
| (b) | be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). |
- Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:
| (a) | acts of physical or mental violence, including acts of sexual violence; |
| (b) | legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; |
| (c) | prosecution or punishment, which is disproportionate or discriminatory; |
| (d) | denial of judicial redress resulting in a disproportionate or discriminatory punishment; |
| (e) | prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2); |
| (f) | acts of a gender-specific or child-specific nature. |
- In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1”.
“Article 10
Reasons for persecution
- Member States shall take the following elements into account when assessing the reasons for persecution:
| (a) | the concept of race shall in particular include considerations of colour, descent, or membership of a particular ethnic group; |
| (b) | the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief; |
| (c) | the concept of nationality shall not be confined to citizenship or lack thereof but shall in particular include membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State; |
| (d) | a group shall be considered to form a particular social group where in particular:
depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article; |
| (e) | the concept of political opinion shall in particular include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
- When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution”.
SOME RELEVANT CASELAW
HJ (Iran) & HT (Cameroon) v SSHD [2010] UKSC 31 concerned appeals which raised the question as to the test to be applied when considering whether a gay person who is claiming asylum under the Refugee Convention has a well-founded fear of persecution in the country of his nationality based on membership of that particular social group.
Lord Hope said at paragraph 35:
“This brings me to the test that should be adopted by the fact-finding tribunals in this country… It is necessary to proceed in stages.
(a) The first stage, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. But I would regard this part of the test as having been satisfied if the applicant’s case is that he is at risk of persecution because he is suspected of being gay, if his past history shows that this is in fact the case.
(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Office’s Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry.
(c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test. As I said earlier (see para 15), the Convention was not directed to reforming the level of rights in the country of origin. So it would be wrong to approach the issue on the basis that the purpose of the Convention is to guarantee to an applicant who is gay that he can live as freely and as openly as a gay person as he would be able to do if he were not returned. It does not guarantee to everyone the human rights standards that are applied by the receiving country within its own territory. The focus throughout must be on what will happen in the country of origin.
(d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.
(e) This is the final and conclusive question: does he have a well-founded fear that he will be persecuted? If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5 will have been established. The applicant will be entitled to asylum.
36.It should always be remembered that the purpose of this exercise is toseparate out those who are entitled to protection because their fear of persecution is well founded from those who are not. The causative condition is central to the inquiry. This makes it necessary to concentrate on what is actually likely to happen to the applicant. As Lord Walker says in para 88, the inquiry is directed to what will happen in the future if the applicant is returned to his own country. An approach which disregards what is in fact likely to occur there in the case of the particular applicant is wrong and should not be adopted”
Lord Rodger said at paragraph 82:
“When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.
If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.
If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.
If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution – even if he could avoid the risk by living “discreetly”.
If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.
If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.
If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him”.
SOME BACKGROUND EVIDENCE AFTER LZ
The contentious issue in LZ appeared to be the lack of supporting background evidence to support the arguments regarding the general risk of persecution of gays in Zimbabwe.
The Tribunal in LZ noted at paragraphs 34 of their decision, that GALZ at interview said that they were not aware of any cases of consenting adults prosecuted for sodomy in 2009, 2010 or 2011. At paragraph 35 of their decision, it was noted that ZLHR were similarly not aware of any convictions for sodomy in 2009, 2010 or 2011. They were aware of threats of arrest being used regularly to harass homosexual men and women. At paragraph 41 of their decision, the Tribunal observed that Zimbabwe has a lively press, although largely subservient to President Mugabe. There were active human rights organisations which follow gay and lesbian issues, and publish reports. The Tribunal stated that if consensual homosexual conduct was being prosecuted, even in the lower courts with minimal penalties, they considered that there would have been some press reporting, and that organisations like GALZ and ZLHR would know about it. It was noted the other sources before the Tribunal including the US State Department Country Report, consistently stated that there have been no recent prosecutions of consensual homosexual conduct. To the Tribunal, the only conclusion sensibly available was that such conduct is not prosecuted to any meaningful extent. At paragraph 49 of their decision, the Tribunal noted murders with a homophobic element may of course occur in Zimbabwe, and may not appear as such in any public record. It was stated that neither party referred the Tribunal to any evidence of such events and the Tribunal had nothing to support the proposition that this is a real risk to homosexuals of either gender. At paragraph 58 of their decision the Tribunal stated that from the references made to the sources before them, their assessment is that “corrective rape” was rare. The Tribunal accepted that it did happen, and of its nature must often be a hidden crime, but it did not represent a real risk to homosexuals of either gender. At paragraph 72 of their decision, the Tribunal noted that at the end of 2004 there were 9 different regional groups or associations affiliated with GALZ. There was no evidence that any of these regional groups subsequently ceased to function. It followed that in these nine towns or cities there are some, although perhaps limited, opportunities for homosexuals to meet and socialise – Bulawayo; Chipinge; Chitungwiza; Marondera; Masvingo; Mutare; Penhalonga; and Victoria Falls. The Tribunal also noted at paragraph 82 of their decision that GALZ is a long established organisation, with nine affiliated organisations across Zimbabwe, whose existence is tolerated. If a lesbian is willing to join the organisation (which can be done on line without visiting Harare) GALZ is able to provide some support to her, including practical support in providing access to lawyers (through ZLHR), and to doctors and clinics which are not homophobic.
It has been several years since LZ was notified and as such references will be made to some readily available recent background evidence below to see whether the Tribunal’s assessment and reasoning having regard to current background evidence could possibly remain the same:
“The Zimbabwean government should immediately stop persecuting members of Gays and Lesbians of Zimbabwe (GALZ), Human Rights Watch said today in a letter to Prime Minister Morgan Tsvangirai and President Robert Mugabe. On August 20, 2012, police officers entered and occupied the offices of GALZ in Harare for six hours, producing a warrant only after the GALZ lawyers demanded it. They confiscated documents, advocacy materials, and computers. GALZ advocates for the rights of lesbian, gay, bisexual, and transgender (LGBT) people in Zimbabwe. “This latest police raid on the country’s leading LGBT group shows the government’s intolerance of the rights of Zimbabwe’s sexual and gender minorities,” said Monica Tabengwa, LGBT researcher at Human Rights Watch. “By intimidating and harassing members of GALZ, the authorities are violating their rights to freedom of expression and association.” In the past decade, Zimbabwean authorities have intensified attacks against members of GALZ including intimidation, arbitrary arrests, and beatings. Mugabe, in office since 1980, has been at the forefront of anti-gay harassment, repeatedly using his office to insult and denigrate gay and lesbian Zimbabweans. He has vowed not to allow the inclusion of LGBT rights in Zimbabwe’s new constitution, which is being drafted”- 27 August 2012 Zimbabwe: End Attacks on LGBT People, https://www.hrw.org/news/2012/08/27/zimbabwe-end-attacks-lgbt-people
“Zimbabwean President Robert Mugabe on July 5 said authorities should arrest gays and lesbians who don’t conceive children. “I should like to shut them-up in some room and see if they get pregnant; if they don’t then it’s jail because they have claimed they can have children,” the tabloid New Zimbabwe quoted Mugabe as saying during a rally in Harare, the country’s capital, at which he unveiled the platform of his party, ZANU-PF, ahead of the African nation’s July 31 elections. “So, to that kind of rot, we say no, no, no, no!” The tabloid further reported that Mugabe criticized the Anglican Church for blessing same-sex marriages. The Zimbabwean Broadcasting Corporation noted Mugabe also blasted President Obama’s support of nuptials for gays and lesbians. “Obama said he wished that we in Africa accepted gay marriages,” Mugabe said. “Parents, tell your children that we are against gay marriage.” ,8 July 2013, Zimbabwe president: Arrest gays who don’t conceive children – See more at: http://www.washingtonblade.com/2013/07/08/zimbabwe-president-arrest-gays-who-dont-conceive-children/#sthash.c2Zrq1tN.dpuf
“Harare, February 22, 2014 – Zimbabwean authorities have stepped up their antipathy towards the activities of gays and lesbians after summoning the leader of the Gays and Lesbians of Zimbabwe (GALZ) to stand trial Monday on charges of running an “unregistered” organisation. Police recently served summons on GALZ chairperson Martha Tholanah to appear in court 5 at Harare Magistrates Court where her trial is scheduled to commence… Human rights groups fear that by pressing ahead with the prosecution of the GALZ leader even though the High Court recently exempted GALZ from registering under the PVO Act, representatives of the National Prosecuting Authority could be abusing their powers and bend on persecuting gays and lesbians in Zimbabwe. President Robert Mugabe and his Zanu PF party supporters are infamous for their anti-homosexual stance. Mugabe has described gays and lesbians as “worse than pigs and dogs” while in recent years, GALZ has been banned from participating at some of the country’s high profile fairs and meetings”. 22 February 2014, Zim Authorities Target GALZ In Renewed Judicial Persecution, http://www.radiovop.com/index.php/national-news/10637-zim-authorities-target-galz-in-renewed-judicial-persecution.html
“BULAWAYO – A 22-year-old man who allegedly stabbed a gay for proposing love to him has been acquitted by a Bulawayo court. Bongani Phiri was appearing before regional magistrate Sikhumbuzo Nyathi facing attempted murder charges. Phiri, who pleaded not guilty to the charges, indicated during his defence that he was constantly being nagged and harassed by the complainant Walter Kwanele Ndlovu over a relationship. “According to the complainant, Phiri, behaved like a gay and had submitted that the latter would sometimes caress him without his consent. Before passing his verdict, magistrate Nyathi cited among other issues the contradiction and inconsistencies of evidence put forward by the State and that of the witnesses. Since Phiri was being charged for attempted murder, Nyathi said he was not satisfied that he had an intention to kill when he committed the alleged crime. With regard to the nature of the case, Nyathi also admitted that issues pertaining to homosexuality in Zimbabwe were controversial. “In Zimbabwe, the issue of homosexuality is a controversial one to such extent that it has drawn into the fray, the highest office in the country. Some people are known to hold strong views on homosexuality,” he said. As a result Nyathi, found Phiri not guilty. According to the State papers, on October 26, last year at around 10pm outside a shebeen in Nguboyenja suburb, the two engaged in an argument after Phiri accused Ndlovu of being gay. The altercation got nastier which led to Phiri drawing an okapi knife from his pocket before stabbing the complainant on the upper left part of the chest. The complainant sustained a deep cut and had to be ferried to a hospital”, 26 March 2014, Gay Stabber Acquitted, http://www.dailynews.co.zw/articles/2014/03/26/gay-stabber-acquitted?
“MDC-T councillor for Harare’s Ward 33 (Budiriro) Sydney Chirombe, who was allegedly caught having sex with another man last week, yesterday said the State’s case against him was weak because the medical affidavit did not indicate any anal penetration. Chirombe (49) is facing a sodomy charge following his arrest last week in Willowvale where he was allegedly having sex with Joseph Muchena (23) in a car. The two appeared before Harare magistrate Mr Milton Serima jointly charged with sodomy. Prosecutor Ms Sharon Mashavira opposed a bail application by Chirombe’s lawyer, Mr Shadreck Chisoko.“The accused were apprehended while committing the offence although they are yet to be convicted their presumption of innocence falls away….. Ms Mashavira alleges that at around 2:30am on May 15, a police patrol unit in Glen Norah approached a Toyota Noah (ACH 7644) parked on Godwin Road in Willowvale, and found Chirombe sodomising Muchena on the front passenger seat. A half-naked Chirombe allegedly tried to flee from the scene but was arrested.”. 22 May 2014, Sodomy Pair Remanded in Custody, http://www.zimbabwesituation.org/?p=39559
“22 year-old Joseph Muchena and Sydney Chirombe aged 49 years had been on trial since early July on charges of committing sodomy in contravention of Section 73 of the Criminal Law (Codification and Reform) Act Chapter 9:23. State prosecutors claimed that Muchena, who was represented by Kennedy Masiye of Zimbabwe Lawyers for Human Rights and Chirombe, who was represented by Shadreck Chisoko acted unlawfully when the two men allegedly performed anal sexual intercourse on 15 May 2014 while in a vehicle parked along Godwin road in Willowvale industrial area in Harare.But Muchena and Chirombe on Monday 28 July 2014 walked to freedom after being acquitted at the close of the State case by Harare Magistrate Renika Dzikiti who ruled that there was no evidence produced in court to prove an essential element of the offence” 28 July 2014, Court acquits duo accused of sodomy http://www.thezimbabwean.co/2014/07/court-acquits-duo-accused-of/
“The young man gathered himself and with difficulty said he thought he had contracted a sexually transmitted disease. As he removed his pants in front of the nurse, she shouted: “I knew when you entered that something is wrong with you! Are you a man or a woman?” Stunned, Tavira pulled up his pants, walked out of the room and never went back. This wasn’t the first time he was treated this way.“I, like every other gay person, has to give in to a lot of insults and degrading inhuman utterances every day,” Tavira confides after relating the recent incident. He is open about his sexuality and the discrimination he faces at the hands of health personnel in Zimbabwe. For Zimbabwe’s LGBTI community, disclosing one’s sexual orientation is a major barrier to getting accurate, appropriate and relevant medical treatment. Gays and Lesbians of Zimbabwe (Galz) is an organisation that works to protect the interests of this minority group in the country. Its programmes manager Samuel Matsikure highlighted that as Zimbabwe’s leadership has openly denounced homosexuality, discrimination and stigma against the LGBTI community goes unpunished and will take a long time to uproot. President Robert Mugabe has made it clear that homosexuality will never find a place in Zimbabwe……This state-endorsed homophobia has made it difficult for Galz to get HIV and Aids prevention messages out to its 2100 members and the LGBTI community at large, who face a backlash from government and society and receive no support from public health institutions. About 15% of Zimbabwe’s adult population is living with HIV and Aids. There is currently no data available on the LGBTI community specifically. “The hostile environment the gay community is exposed to, especially at health facilities in the country, has impacted negatively on their rights to basic services such as health,” Matsikure said. “Some have been keeping sexually transmitted infections for six to eight months without seeking help.”“Such discrimination and stigma at the highest level makes our lives difficult and we remain a secretive and isolated community always fearing for our lives,” Tavira added”. 7 October 2014, Zimbabwe: The LGBTI community’s struggle for healthcare access http://voicesofafrica.co.za/zimbabwe-lgbti-communitys-struggle-healthcare-access/
“LGBT individuals reported widespread societal discrimination based on sexual orientation. In response to social pressure, some families reportedly subjected their LGBT members to “corrective” rape and forced marriages to encourage heterosexual conduct. Such crimes rarely were reported to police. Women in particular were subjected to rape by male family members. LGBT persons often left school at an early age due to discrimination and had higher rates of unemployment and homelessness. Many persons who identified themselves as LGBT did not seek medical care for sexually transmitted diseases or other health problems due to fear that health providers would shun them…” Zimbabwe 2014, Human Rights Report, US Department of State, www.state.gov/documents/organization/236634.pdf
“Two prisoners who were allegedly sodomising each other, made so much noise that they woke up another prisoner, who caught them red-handed in the act. Christopher Jani (36) allegedly had “noisy” sex with his alleged male lover Mbonisi Ncube (28) in a cell at around 3am on 3 March.Another prisoner, Edgar Majasi, allegedly woke up after hearing “high pitched sounds of delight” as the pair had sex and removed a blanket with which the “lovebirds” had covered themselves. Majasi, who said he was disgusted by what he saw, reported the matter to prison officials who forwarded a report to the police leading to the duo’s arrest. Jani and Ncube appeared before magistrate Tancy Dube facing a charge of sodomy. They were not asked to plead and they were remanded in custody to March 30. However, they denied having sex saying Majasi only found them sharing a blanket” – 18 March 2015, Prisoners caught red-handed in sodomy act http://bulawayo24.com/index-id-news-sc-national-byo-64616.html
“A former Zimbabwean civil servant is reportedly challenging his dismissal from his job after he was arrested for allegedly attending a gay party at a hotel in Bulawayo. The man, Raymond Sibanda, was arrested together with many others after police raided a Gays and Lesbians’ Association of Zimbabwe (Galz) end of year party in December 2013, according to a New Zimbabwe.com report…….Sibanda has since moved to file an application at a labour court in Bulawayo, challenging his dismissal, according to the state-owned Chronicle newspaper. He argued, among other things, that being present at the hotel at the same time as the Galz event did not mean he was part of it. Sibanda cited the Minister of Youth, Indigenisation and Economic Empowerment, Patrick Zhuwawo and the Civil Service Commission (CSC) as the respondents. “The respondents alleged that I was associated with gays, but the supreme law of the country, which is the Constitution under section 58, states that every person has freedom of assembly and association,” Sibanda argued. “Are the respondents therefore claiming that I was not supposed to be at Windermere Hotel just because there was a Galz party being hosted there?” But the respondents maintained Sibanda’s conduct was tantamount to tarnishing the image of government. They also said the decision by the disciplinary committee to fire Sibanda followed adequate evidence linking him to the alleged offence”.25 September 2015, Zimbabwe civil servant fights dismissal after being arrested at gay party, http://www.timeslive.co.za/africa/2015/09/25/Zimbabwe-civil-servant-fights-dismissal-after-being-arrested-at-gay-party
CONSIDERATION AND CONCLUSION
The Upper Tribunal in LZ, did say that personal circumstances place some gay men and lesbians at risk. Although not decisive on its own, being openly gay may increase risk. A positive HIV/AIDS diagnosis may be a risk factor. Gay rights activists and other persons who openly campaign for gay rights in Zimbabwe face the risk of arbitrary arrests by the police, and the harassment by state agents. As regards fear of ill-treatment by non-state actors, the Upper Tribunal in LZ found that the police and other state agents do not provide protection.
There may be a paucity of background evidence as regards actual convictions for acts of sodomy between consenting adults, however there are indeed meaningful prosecutions as per the background evidence in relation to acts of sodomy between consenting adults and indeed sometimes a mere perception of being gay is enough to be subjected to discriminatory behavior. As regards the suggestions that GALZ can provide support to gay people, the background evidence after the decision in LZ shows the persecution of the group itself. In combination with prosecution of consenting adults for sodomy as well as President Mugabe’s repeated anti – gay statements over the years, this belies GALZ’ s statements of 2011 that Zimbabwe is not the worst place in the world to be gay.
The Tribunal in LZ also noted at paragraph 86 of their decision a BBC news item of 24 October 2011 which stated that the then Zimbabwe’s Prime Minister Morgan Tsvangirai had reversed his position on gay rights, saying he now wanted them enshrined in a new constitution. He had told the BBC that gay rights were a “human right” that conservative Zimbabweans should respect. At paragraph 88 of their decision, the Tribunal in LZ stated that they recognised that in making this a public issue, Mr Tsvangirai’s words may have the short term effect of provoking even more homophobic rhetoric, however they thought it also showed the underlying reality that the general public is not as hostile to homosexuals as the President’s political bombast suggested. The Tribunal stated that the news item had not altered their conclusions, but it tended to reinforce them. General elections were however held in Zimbabwe on 31 July 2013. Robert Mugabe, was re-elected as President however the elections ended the inclusive government between Robert Mugabe’s Zanu PF party and Morgan Tsvangirai’s Movement for Democratic Change, MDC. Mr Tsvangirai is no longer Prime Minister in Zimbabwe.
The situation in Zimbabwe may be argued to be indeed hostile towards people of gay orientation having regard to the recent background evidence and rather than being a mere rabble-rousing rouse, in combination, President Mugabe’s recent statement only makes stronger the argument that the case of LZ should no longer be followed on issues of general risk.