A Bulawayo man who had been fired from the civil service for allegedly engaging in homosexual activities has successfully appealed against his dismissal at the Labour Court.
Some human rights defenders are welcoming the ruling.
Labour Court president Justice Evangelista Kabasa on Monday ruled that Raymond Sibanda’s appeal against dismissal was valid as no one should be dismissed from work on the basis of their sexual orientation.
Justice Kabasa said the case against Sibanda had no merit as it involved a moral issue over which there is no absolute right or wrong.
Sibanda was employed as a youth officer by the Ministry of Youth and Economic Empowerment and was fired last year after a disciplinary hearing found him guilty of misconduct.
This emanated from Sibanda's arrest and payment of an admission-of-guilt fine for a charge of allegedly performing an indecent act in a public place, following a police raid at a hotel in the outskirts of Bulawayo, where he was part of a crowd that attended a Christmas party hosted by the Gays and Lesbians Association of Zimbabwe, commonly known as GALZ, in 2013.
Sibanda was dismissed on the basis of misconduct in terms of civil service regulations for, among other things -quote- “putting the name of the ministry into disrespect and disrepute” on the grounds that he was engaging in gay practices.
INDECENT PUBLIC ACT
Sibanda had wanted the court to rule on whether or not his admission to a charge of allegedly performing an indecent act in a public place can be equated to gay practices, and also whether or not he was engaged in gay practices.
He had argued that the disciplinary authority should not have regarded his payment of an admission-of-guilt fine to the charge of performing an indecent act in a public place as conclusive evidence that he was involved in gay practices, adding that the authority had no basis for its findings as they are not supported by any evidence.
Justice Kabasa said she would provide her complete written judgment soon.
Sibanda’s lawyer Emmanuel Mlalazi refused to speak on tape but confirmed that his client’s appeal against dismissal had been successful.
Spokesperson Mojalifa Mokoele of the Sexual Rights Centre told Studio 7 that his organization is pleased with the ruling.
Moekole said, “We see that as a milestone achievement as an organization that advocates for sexual rights especially those of minority groups; that it is justice served. We have always advocated for each and every citizen’s right to be heard in court and this is exactly what has happened.
“One interesting fact that was raised yesterday was that the dismissal of somebody on the basis of sexual orientation is unconstitutional; the constitution of Zimbabwe does not in any way offer any grounds for dismissal based on sexual orientation.”
SEXUAL MINORITIES
Although they had argued in their heads of argument that Sibanda’s payment of guilt fine to conduct associated with public indecency and gay activities was enough for the government to sack him, state lawyers from the Attorney General’s civil division, agreed with the court that the dismissal was invalid.
The state lawyers said they agreed with the court that the case had no merit but had gone on to represent their client at the insistence of an unnamed departmental head who had wanted to have Sibanda fired as a way sending a message that -quote- “government does not support gay activities.”
Lawyer Nqobani Nyathi of the Abammeli Human Rights Lawyers Organisation told Studio 7 the constitution of Zimbabwe guarantees equality to all, prohibiting discrimination on any basis.
“If you look at Section 56 of the constitution it provides for the right to equality and non-discrimination. Obviously discrimination against people because of their perceived sexual orientation or gender identity is not justified in a democracy; it’s really like the crushing of sexual minorities.
“Everyone has that right to equality regardless of whether they are gay, or bi-sexual, lesbian or transgender, and to dismiss anyone based on such prejudices is in clear violation of that right to equality and non-discrimination.”
The country's statutes outlaw same sex marriage and sodomy which is defined as the -quote- "unlawful and intentional sexual relations between two human males."
President Robert Mugabe has repeatedly condemned homosexuality, describing those who practice it as being worse than dogs and pigs.
