By GRACE CHAILE
THE Zambian Civil Liberties Union (ZCLU) has maintained that Section 155(a) and (c) of the Penal Code is vague, ambiguous, and overly broad, arguing that the law fails to clearly define what constitutes unnatural offences.
Appearing before the Constitutional Court, ZCLU Executive Director Isaac Mwanza questioned whether the provision criminalizes certain sexual practices or styles, pointing to a lack of specificity in the law’s wording.
“We are challenging Section 155(a)(c) of the Penal Code Cap 87, on the basis that it is vague, ambiguous, and awkwardly drafted,” Mwanza stated.
“We pray that this honourable court declares these sections unconstitutional due to their overbreadth and lack of clarity.”
In response, the State argued that the law is constitutional and that the offences are clearly defined within the Penal Code.
Referring to Article 18(8) of the Constitution and the case of Steven Katuka v. Law Association of Zambia, the State submitted that the provisions prescribe both the offence and the applicable penalties.
Acting Principal State Advocate Ndekela Mbao told the court that the provisions were drafted with the understanding that sexual intercourse should be between a man and a woman for the purpose of procreation.
Mbao further argued that the law prohibits acts such as anal sex and oral sex, which are considered unnatural under Section 155.
“The drafters of the law envisioned natural intercourse as involving a penis and a vagina. Anything else, such as a man having sex with another man or oral sex, falls under unnatural offences,” Mbao said. “Even scripture supports the notion that sex is intended for procreation.”
The court was also presented with images of sex styles submitted by the petitioners, which the State claimed depicted acts that fall under the definition of “unnatural offences.”
Representing the three church mother bodies — the Zambia Conference of Catholic Bishops (ZCCB), Evangelical Fellowship of Zambia (EFZ), and Council of Churches in Zambia (CCZ) — lawyer Abednego Chuni of Equitas Legal Practitioners argued that the matter falls under the Bill of Rights and should therefore be heard by the High Court.
Mr Chuni cited international jurisprudence, including a Canadian case, Canadian Foundation for Children, Youth and the Law v. Attorney General, to support the position that a law is only unconstitutional if it is so vague that it leaves people uncertain about what conduct is prohibited.
He maintained that Section 155 has existed since November 1, 1931, and is not ambiguous as claimed. “The fear of arbitrary application is hypothetical. This court cannot invalidate a law based on mere hypotheticals,” he said.
Mr Mwanza responded that the State’s arguments reinforce the Union’s position that the law is overly broad.
He pointed out inconsistencies in the application of the term “unnatural,” noting that some of the acts depicted in the submitted images involve consensual sex between a man and a woman
