Activist’s challenge to Zambia’s Constitution after “hunt down gays” arrest

By Melanie Nathan, May 15, 2013.

Today  Kasonkomona appeared before the Hon Lemeck Ngambi at Lusaka Magistrates’ Court, charged with “the idle and disorderly offence of soliciting in a public place for immoral purposes.” SBN Legal Practitioners, representing Kasonkomona, filed a constitutional application and so with regard to the criminal case against him,  are asking that it be held back, pending the outcome of the Constitutional challenge.

Kasonkomona was arrested after he appeared on a MuviTV program speaking about the HIV crisis, where he noted the need to recognize the rights of LGBT  people and sex workers as a critical concomitant to deal with the HIV pandemic.  That is what he was arrested for. What we in the U.S.A. call “freedom of speech”, the Zambians are calling ” the idle and disorderly offence of soliciting in a public place for immoral purposes.”

According to Southern Africa Litigation Center’s (SALC) Anneke Meerkotter, Kasonkomona’s actions – calling on the Zambian government on live television to respect gay rights – neither amounts to ‘ idle and disorderly behavior, nor soliciting for immoral behaviour in a public place.’  According to an article posted on the SALC website, the charges against Kasonkomona suggest that his “arrest had been for an ulterior purpose [that is] not based in law”.

Although Kasonkomona’s case was scheduled for trial today, his lawyer Sunday Nkonde SC, from the firm SBN Legal Practitioners, informed the court that they had filed a Constitutional Application which ought to be heard prior to the trial. The prosecution was unable to agree to such until they had time to view the application. And so the case was postponed until 4 June 2013.

According to the Southern Africa Litigation Center report:

“Whilst the arrest and prosecution of Kasonkomona relates directly to his right to freedom of speech/ expression, the case will also serve to highlight the challenges accused face within the criminal justice system in Zambia. The practice in subordinate courts is for the prosecution not to provide an accused with detailed information about their case against him or her. This is also an issue in this case. “

The Constitutional Application that has been launched by the defense alleges two grounds:

1. That section 178(g) of the Penal Code, which deals with soliciting in a public place for immoral purposes, is unconstitutionally vague and over-broad and contravenes article 20 of the Constitution which protects the right to freedom of expression; and

2. That the failure by the prosecution to avail the defense with statements of the witnesses the prosecution intends to call and other evidence, violates an Kasonkomona’s right to a fair trial under article 18(1) of the Constitution.

From what we can gather it sees that on 4 June 2013, the prosecution will actually argue its response to the defense’s Constitutional Application. The magistrate will then make a decision on whether to refer the case to the High Court for a determination of the constitutional issues before the trial commences. So the actual postponement of the criminal case for the Constitutional challenge has yet to be determined.

SALC is working with SBN Legal Practitioners on this matter and will provide regular updates on the case on this site. A summary of the case is available here.

It is believed that Kasonkomona was specifically targeted amidst the Zambian government’s call to “hunt down homosexuals,” much of which we have reported here on OBLOGDEE over the past few months.  In true activist form, Kasonkomona is not going to allow this targeted persecution to go down without a fight, and so after he was detained, on 10 April, he launched a case to sue the Attorney General for punitive damages for false imprisonment, mental stress and damages. He is also claiming damages from the police for denying him access to his ARV and TB medication for two days while he was in prison waiting for charges to be made against him.

Article also appears on our site with more commentary at http://oblogdeeoblogda.me/2013/05/15/zambian-activists-constitutional-challenge-to-homophobic-arrest-and-charges/