Rev. Canaan Sodindo Banana (“Appellant”) challenged the constitutionality of the common law offense of sodomy, which criminalizes consensual anal intercourse between adult men. He argued that the law discriminates against gay men on the basis of their sexual orientation, in contravention of Section 23 of the Constitution of Zimbabwe, which prohibits discrimination on various grounds.
At issue in this case is whether the offense of sodomy violates the right to non-discrimination based on gender, as protected under Section 23 of the Constitution.
The Court held that the common law offense of sodomy differentiates between gay and heterosexual men on the basis of sexual orientation, not based on gender discrimination. The sodomy law does not distinguish between men and women because the law does not prohibit anal intercourse between men and women. Therefore, the Court reasoned that the law does not violate Section 23 of the Constitution, because it does not discriminate on the basis of a specifically prohibited ground (in this case, gender). Moreover, the law in question would survive the constitutional test of whether it was “not shown to be reasonably justifiable in a democratic society.” The Court reasoned that, given the prevailing conservative social norms and values against homosexual behavior, it is not appropriate for the undemocratically appointed court to liberally interpret the Constitution.
The Court held that the common law offense of sodomy is not contrary to Section 23 of the Constitution of Zimbabwe.