Zambian Gay Trial Continues as Medical Sodomy Witnesses Fail to Testify

Human Rights Infractions Threaten Lives of Two 21 year old Men Perceived as Gay Couple

By Melanie Nathan, September 01, 2013.

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2 Zambian men being held in jail for five months in deplorable conditions here at court holding cell pending trial

For almost five months, two young men have been languishing in an overcrowded and disease ridden Zambian jail, and while a Magistrate keeps them incarcerated with little evidence to an alleged crime, witnesses fail to show up for trial.

James Mwape and Philp Mubiana both aged 21 years have been ordered by Judge John Mbuzi to  remain in horrendous conditions while critical professional witnesses in the case say they have “better things to do” than show up to testify. In the meantime the conditions in the jail are so bad, a local activist reports that these young men may not survive.

On August 28, the trial against the me, accused of “carnal knowledge against the order of nature” resumed, but the medical witnesses who had allegedly tested the young men for sodomy, did not show up. With this humiliating invasion of privacy and controversial method for obtaining proof, in a case where there were no eye witnesses to the alleged sodomy, one wonders why these young men are still being held by the Magistrate. They are clearly not a harm to society and have been subjected to harsh conditions, akin to torture.

Back in May, police in the Kapiri Mposhi district in the Central province of Zambia, arrested two men for what may turn out to be simply a perception of living together as a gay couple. The latter not a being criminal, unless sodomy can be proved.  At the time the Commissioner of Police, Standwell Lungu, confirmed the arrests with an account that the men were exposed by a member of the community, who had accused them of living together as if a “husband and wife.” The allegation set off a storm amongst the local people, in response to a call by the Zambian Government to hunt down all gays. All those months ago, a large crowd gathered outside the Court some demanding justice and others their release. The men were released and then rearrested and at one point in the trial the Magistrate asked that the Court be cleared, due to the vulgar nature of the subject matter. The Magistrate later withdrew the in-camera order and the trial resumed with people allowed into the court room, remanded to August 28th and now again to September 16.

The young men, residents of Ndeke Compound, were charged for having sex “against the order of nature contrary to the laws of Zambia.” But the evidence seems slim unless the medical testers can prove the anal sex and link it to the actual two men being with each other.  On the admission of the Police Commissioner at the time, the two men were not caught in the act.   In this instance the critical witnesses are medical examiners who apparently tested the men to see if they had been involved in anal sex with each other. The Police Commissioner’s statement that “the two, who have been living together as a couple in Ndeke area and were arrested over the weekend after a “tip-off from concerned members of the public who alleged that the suspects were married,” does not prove the elements of the crime. The Police Commissioner alleges that “Philip had been acting as wife while James as man in the relationship which has existed for some time now.” Such is not a crime and without the proof of sodomy, an admission as such by the Commissioner.

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James Mwape and Philp Mubiana both aged 21 years

And so the two were forced by police to undergo medical tests in an attempt to find proof for the “act of sodomy”, as reported in the Lusaka Times: “The medical tests conducted on the suspects at Kapiri Mposhi District Hospital proved that they had been practicing sodomy,” said Lungu. Yet the professional witnesses to testify to this have not shown up to court on more than one occasion. One wonders if the witnesses have steered clear for fear of their complicity in what could be construed as an invasion of privacy and possibly be set up for legal action.   The question is whether this method for obtaining evidence is nothing more than participation in a witch hunt. It is surely an unorthodox, irregular and overreaching attempt to make a crime of a relationship which, prima facie, is not illegal. It may have been different had their been an eye witness to the alleged sodomy.

As the trial drags on one must assume that the controversy surrounding the issue and validity of the medical testing, could in fact be a reason why the witnesses did not show up.

My source reports:

“I was in Kapiri two days ago and the judge still head that the two young men by the names of James Mwape and Phillip Mubiana ought to remain remanded in prisons 5 months after they where initially arrested. They boys remain in poor health has they have been psychologically traumatised. They still remain victims of physical assault from other inmates with whom if they deny sexual favours too, often times they have been beaten up. I visited James and Phillip last week during there pending court case when James narrated to me how he nearly died of Malaria and there was little of no access to medical health care. Further more. The boys complained of the many diseases that they risk being exposed to in the over crowed jail cell at Mpima remand prison where they remain incarcerated 5 months down the line. On Aug. 28, the latest court proceedings in their trial faltered, despite the prosecution’s plans for testimony by medical experts, because those witnesses said they had other things to do.

My source further reported:

“After hearing testimony from a neighbor of Mubiana, Kabwe Principal Resident Magistrate John Mbuzi, said the trial would resume Sept. 16, nearly five months after their arrest. Mbuzi said he expected all expert medical witnesses to appear then and testify about sworn statements that they had made to the police. Those witnesses have not been showing up when called to the stand, saying they had prior commitments. The defendants are charged with “carnal knowledge of a person against the order of nature,” which can lead to a 14-year prison sentence. So far, no witness has testified to seeing them violate that law.

In furthering the idea that there is no proof and that there may be no reason to convict the men, with a case based on hearsay:

“In their trial this week, only one witness testified. The neighbor, a Mr. Wakumelo, said he went to Mubiana’s house and heard two people arguing inside, but was unable to enter the house and did not see either man. Wakumelo said he had heard from his wife and a defendant’s sister that Mwape and Mubiana were living as man and wife. He was questioned about a statement that he made to police that, as a boy, Mubiana had played with girls and that, as an adult, his actions and gestures seemed feminine,” notes my source.

Prior to the arrest of these men in May, the fervor against gays was heightened by the comments of Minister of Youth and Sport Chishimba Kambwili who said: “The Government will help the people of Zambia to fight the vice with vigor. We don’t want Zambia’s children to be taught any vice. We will not tolerate homosexuality. Those who want to promote homosexuality in Zambia are wasting their time. If anything, we are planning to stiffen laws against homosexuality.”

There are many human and civil rights infractions in this case, on the part of government, police, medical professionals and and community alike.  It is my hope that people, especially LGBT worldwide, will start to express outrage at this institutionalized persecution of the 2 young men, based on stereotyping and the perception that they are gay.  We must speak out against these infractions and continued persecution of the young men, as our silence sets the precedent that will be harmful to more LGBT accused both in Zambia and around the world. These young men, whether gay or not, are treated so adversely, simply based on the stereotyping of neighbors and community through the call for a witch hunt. Should they be found guilty, not only will they have had their basic rights violated, but they will also suffer a possible14 years prison term in deplorable condition, for something that may not have been a crime, and if it were, ought not to be a crime.

By Melanie Nathan
[email protected]

More Articles on this Case and Zambia’s anti-gay drive:

Zambian Police Hunting Homosexuals and Arrest HIV/AIDS Activist

Zambia – LGBTI Community under attack as scapegoats- as government discusses contentious issues in the draft constitution… By Melanie Nathan, April 09, 2013.

This evening, prominent HIV/Aids activist Paul Kasonkomona was picked up from Muvi TV station in Lusaka’s mass media area by Woodlands police for questioning after his appearance on a live program called ‘The Assignment’ READ MORE

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