AMSHeR Welcomes Landmark Court Judgements Passed in Mozambique and Zambia

FOR IMMEDIATE RELEASE

JOHANNESBURG, November 13, 2017 – The African Men for Sexual Health and Rights (AMSHeR) welcomes land mark decisions made by the Constitutional Council of Mozambique and the Lusaka High Court in Zambia.

Mozambique’s Constitutional Council in a ruling dated October 31, 2017 has declared clause 441117 used to deny registration of associations of lesbian, gay, bisexual and transgender (LGBT) persons as unconstitutional, while the Lusaka High Court has granted an order compelling the office of Registrar General of Births and Deaths to change an applicant’s gender marker from female to male following an application filed in the Lusaka High Court by a known applicant for the right to assume the correct gender marker.

In Mozambique, the Constitutional Council was responding to a request made by Lambda Mozambique and other civil society organisations through the Ombudsman, Jose Abudo to declare clause 441117  that prohibited the registration of LGBT organisations in Mozambique as ‘Unconstitutional’. The Court granted the request on the basis that the specified clause was violates the right to Freedom of Association enshrined in the Mozambican Constitution.

In passing the judgement Mozambique’s Constitutional Council relied on a 2004 Constitutional amendment which partly states that, ‘it is irrefutable to state that the constituent legislator of 2004 has ruled out the possibility that the exercise of rights and freedoms may be limited by ordinary law, which means that that subject has been reserved to the Constitution, in honour of the principle constitutionality of restrictions on rights, freedoms and guarantees’ (unofficial translation).

The Constitutional Council also stated that, ‘Article 1 of Law No. 8/91, of July 18, was materially unconstitutional and in violation of the principle of non-discrimination provided for in Article 44 of the Constitution of the Republic of Mozambique.’ Please find the judgement here, Lambda Mozambique_Court Judgement_Unofficial.

“Mozambique is championing social justice, equality and non-discrimination on the African continent – after having earlier repealed legislation that criminalised same-sex relationships. This Constitutional Court’s decision exemplifies the country’s commitment to guarantee and affirm the basic freedom of association and related rights.

The Constitutional Court’s decision heralds a new era and translates the growing trend we see with the judiciary in African countries assuming more boldly their role of righting wrongs. We see this as a tangible result of the work of our members and AMSHeR’s continued engagement with various actors working in the judiciary and encourage other states to follow the example of set by Mozambique within their own contexts”, said Berry D. Nibogora in passing his congratulatory message to LAMBDA Mozambique.

Meanwhile, the Zambian High Court through Justice Betty Mujala-Mung’omba delivered a landmark  decision that orders the Examination Council of Zambia and all other school regulators to allow an applicant to amend their school certificates to change their gender maker from female to male after the applicant proved through a court process that their current gender marker does not reflect their correct gender.

On seeking to change the applicant’s name to reflect their correct gender marker, the Court advised the applicant to file a deed poll by lodging documents and paying prescribed fees in accordance with statutory instrument number 40 of 2014 of Births and Registration. Follow this link for a news item from Zambia .

Berry further stated, ‘AMSHeR congratulates its member organization LAMBDA Mozambique, other Civil Society Organisations (CSOs), the applicant in Zambia, the transgender community and the respective courts of law for these landmark rulings.  Much work remains to be done on the African continent in reducing discrimination based on real or perceived Sexual Orientation and Gender Identity and Expression (SOGIE) – progress made such as these landmark judgements embolden us and the broader social justice movement to continue doing more.’