In this case Canaan Banana, a former president of Zimbabwe, was accused by his former aide-de-camp of repeated sexual abuse. The Commissioner of Police conducted an investigation into the allegations of the common law crime of sodomy, unlawful intentional sexual relation per anum between two human males. Banana was also accused of having relationships with several male aids while in office. A trial was heard in the High Court and the appellant was convicted on two counts of sodomy, seven counts of indecent assault, one count of common assault and one count of committing an unnatural offence. He appealed the conviction to the Supreme Court on the basis that the common law crime of sodomy contravened the Constitution of Zimbabwe which guaranteed protection against discrimination on the ground of gender.
In the majority opinion, Judge McNally stated that the question for the court was whether the Constitution of Zimbabwe compels the court to rule that consensual sodomy is no longer a crime. The court found that there were three ways consensual sodomy had moved away from being treated as criminal. The first was that changing popular attitude led to national debate, resulting in legislation. The second, as in South Africa, was where a new Constitution made a provision specifically outlawing discrimination on the grounds of sexual orientation. The third, as in Ireland and Northern Ireland, was where the majority were disinclined to decriminalise the offence, but a supra-national judicial authority had intervened.
When considering Zimbabwe, the court found that ‘it cannot be said that public opinion has so changed and developed in Zimbabwe that the courts must yield to that new perception and declare the old law obsolete.’ The court stated that it would be guided by Zimbabwe’s conservatism in sexual matters in interpreting the Constitution.
Considering Section 23 of the Constitution, protection from discrimination, the majority found that ‘what is forbidden by s 23 is discrimination between men and women. Not between heterosexual men and homosexual men.’ The court confirmed that this is not the sort of discrimination that would be struck down by Section 23. The court relied on the US judgment in Bowers v Hardwick to demonstrate that the existence of the legislation does not negate the state’s status as a democratic society.
The Court held, by a majority of three to two, that the term ‘gender could not be construed to include sexual orientation. The court was unanimous on the issues of (a) the cautionary rule in sexual cases; (b) the single witness situation; (c) admissibility of evidence of complaint; and (d) similar fact evidence.
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