A BRAVE STAND

Zambia’s chief justice Mumba Malila is facing a public backlash and demands that he step down after voicing support for gay rights. He’s not alone; a group of human rights lawyers have taken up the cause

The appointment of Zambia’s chief justice Mumba Malila was almost universally welcomed in 2021. But there’s been a dramatic shift in the past week. Two years ago, Malila’s strong human rights record, including his concern for the least powerful in society, won him praise and recognition at home and abroad. So did his commitment to the rule of law and judicial independence.

As a human rights lawyer Malila had sometimes acted without charge for people who couldn’t afford to pay. He had also chaired the country’s human rights commission.

Add to this his intellect and strong academic background, and you can understand why his appointment was hailed as a moment of renewal for Zambia’s judiciary.

In its special edition of its case review publication, the Lusaka-based Southern African Institute for Policy & Research celebrated Malila’s appointment as representing a new beginning. He was appointed when public confidence in the judiciary was at its lowest, said an editorial.

The “dumbfounding incompetence of [Zambia’s] Constitutional Court” with its poorly reasoned decisions had contributed significantly to the bad image of the judiciary. So had an antiintellectual culture that often “glorifies insularity and stagnation” and had led to the country’s law reports “reading like a museum of English law, littered with the debris of grotesque common law doctrines routinely cited out of context”, it added.

Then, last week, the honeymoon seemed to end when the public came to realise that supporting human rights includes support for the rights of people who aren’t popular. In this case, Zambia’s gay community.

As chief justice, Malila gave a lecture at the University of Zambia to mark the founding of the country’s supreme court. During the event, he was asked about gay rights, a highly contested issue in Zambia.

He replied that it is wrong to discriminate against people merely because of their sexual orientation. They don’t lose their humanity because of their sexuality, and their rights must be respected, he said. But he was quite circumspect, and local media quote him as adding that “how you deal with the issue of individuals of the same sex being erotically involved is a totally different issue”.

Brave steps

Those comments, hardly controversial in South Africa, have caused an outcry from the more vocal, conservative sectors of Zambian society. From social and traditional media, and from MPs, among others, have come demands for Malila to step down as chief justice.

Then a group of Zambia’s bestknown human rights lawyers took up the cause. It’s a step that, like Malila’s comments, deserves to be called brave, given the toxic attitudes to gay rights in the country.

The growing group of signatories say they support Malila’s view that gay people are entitled to all the rights in the constitution. These rights, they emphasise in their statement, include freedom of expression, assembly and association, along with the right to privacy, equality and dignity. These fundamental rights are enjoyed by all people, they write; they are “grounded on the principle of equality and nondiscrimination” and are “elevated above the capricious whims of the majority”.

Gay people have these rights, not as a “gift” from the majority, say the lawyers, “but rather by virtue of being human”. They also quote from a couple of court decisions to illustrate that Malila’s views represent the law as interpreted by the courts.

Responses to the remarks by Malila and the human rights lawyers who came out in his defence remind me of people of my grandparents’ generation who railed against “mixed marriages” between black and whites.

It was immoral, “against the law of nature” and against the precepts of the Bible, they said. That view has had its day. No doubt anti-gay prejudices will eventually also fade. Meanwhile, however, such people as Malila and the lawyers who dare support him must be admired for their courage.