Justice delayed, justice denied for 2 in Zambian gay trial

Colin Stewart is a 45-year journalism veteran living in Southern…

Jailed in Zambia for nearly five months on homosexuality charges, defendants James Mwape and Philip Mubiana wait in the cell as their trial falters because witnesses have other engagements. — Jailed in Zambia for five months on homosexuality charges, defendants James Mwape and Philip Mubiana wait in the cell as their trial falters.

Supporters of two young Zambian men facing homosexuality charges say the men are being denied a fair trial.

Philip Mubiana and James Mwape, who have been denied bail, have been jailed for five months while their trial is delayed again and again.

In the previous attempt at continuing the trial, on Aug. 28, the scheduled appearance by medical experts was postponed because the witnesses said they had other things to do. Magistrate John Mbuzi warned the experts that they needed to come to court.

But at the next scheduled trial date, on Sept. 16, Mbuzi was absent. The courtroom was told that he was attending to an urgent family problem.

The trial might resume Sept. 23.

The defendants are charged with two counts each of “carnal knowledge of a person against the order of nature,” which can lead to a prison sentence of 15 years to life. [The earlier version of this article, as well as many previous articles about Zambia on this blog, understated the potential prison sentence. The law against homosexual activity had called for a sentence of up to 14 years, but it was amended in 2005 to a sentence of 15 years to life.]

No eyewitnesses have emerged who have testified that they saw the defendants engage in homosexual behavior.

Amnesty International called for the men’s release last week. The human rights group noted:

[We are] troubled by reports that on two occasions in May, government doctors forcibly conducted anal exams on both Mwape and Mubiana. The government-owned Zambia News and Information Services quoted Central Province Commissioner of Police, Standwell Lungu, confirming medical exams had been conducted.

“Anal exams are inherently invasive, abusive, profoundly humiliating and conducted for reasons based purely on discrimination,” said Simeon Mawanza, [Amnesty International’s Zambia researcher].
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“This procedure is not only scientifically illegitimate, it is also a form of sexual assault and is tantamount to torture. Any “findings” that result from it cannot be used as evidence in a trial against the victims.”

The arrest of Mwape, a bricklayer, and Mubiana, a hairdresser, both of them age 21, resulted from an anti-gay campaign launched in early April, when Justice Minister Wynter Kabimba urged the Zambian public to report homosexuals. In response to that appeal, Mubiana’s sister Sharon reported her brother to police.

The men were arrested in Kapiri Mposhi in rural Zambia on April 25, were released on May 2, and were re-arrested on May 4 after a hostile mob found them sharing a drink at a local bar. They have been detained since then because police said the men might break the law again if they were released.

The trial began June 10.

The defense renewed its request for bail on Sept. 12. A decision on that request is scheduled for Oct. 1.