Two Zambian men have been jailed for nearly six months without a conviction on homosexuality charges that resulted in their arrest last spring. They are victims of continuing legal delays and the country’s public campaign against homosexuals.
The latest delay in the case of Philip Mubiyana and James Mwape came as the judge ordered the sixth deferral of a bail application hearing. In a communication that the defense received by way of the prosecution, Magistrate John Mbuzi put off the hearing until Nov. 8, stating that on the previously scheduled October date he “will be away on another business matter, therefore, unable to sit in chambers.”
Mubiyana and Mwape, both age 21, 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 at least 15 years and as long as a life sentence. No eyewitnesses have testified that they saw the defendants engage in homosexual behavior.
The Mpima Remand Prison in Kabwe, where the defendants are being held, has often been the focus of complaints about overcrowding and inhumane conditions such as a broken sewage system, meals of beans and porridge served without cups, bowls or plates, and tuberculosis patients confined with the general population. In 2005, it housed more than 300 inmates in space designed for only 210, the Zambian Human Rights Commission said.
Activists from the Southern African Litigation Centre (SALC) and the Open Society Initiative for Southern Africa (OSISA) have expressed outrage about the repeated delays of the men’s bail applications.
“It is unacceptable that these two young men have been in custody for almost five months [now almost six months],” Chivuli Riva Ukwimi, OSISA’s Marginalised Populations Coordinator, said recently. “The High Court’s delay in attending to their bail application, in addition to the numerous delays in their trial, casts a serious shadow over the criminal justice system in Zambia.”
Anneke Meerkotter, a lawyer at SALC, added, “This case is one of many in Zambia that illustrate a disregard for the constitutional rights of accused people and the principles underlying the provision of bail.”
SALC and OSISA stated:
On 22 May 2013, the Kapiri Magistrates Court denied bail to the two men, who had pleaded ‘not guilty’ and whose trial had not yet started, for spurious reasons. The accused’s lawyers have made repeated attempts since then to apply for bail in the High Court, which seems intent on never hearing the application. On the last occasion, a Kabwe High Court judge postponed the bail application for a further five weeks – without giving reasons. …
Zambia’s constitution enshrines the right to personal liberty, dignity and freedom from inhuman treatment. Every accused person has the right to a fair trial, which includes the right to be presumed innocent. However, it is estimated that one in every three people in prison in Zambia are pre-trial detainees.
“In a bail application the presumption of innocence is supposed to operate in favour of the applicant so every person arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit – and subject to reasonable conditions,” said Meerkotter. “There are no rationale reasons why the two Kapiri men should not have been granted bail.”
Section 123(3) of the Criminal Procedure Code provides that when any person is detained, the High Court may, at any time, on the application of an accused person, grant him or her bail. Any bail inquiry must be conducted impartially, judicially and in accordance with the law.
“Any postponement or refusal of bail without lawful justification amounts to an unlawful deprivation of a person’s liberty” said Meerkotter. “It is of great concern that the Kabwe High Court has failed to attend to the bail application of the two Kapiri men on an urgent basis.”
“The delay in hearing the bail application of the two Kapiri young [men] has reached a crucial stage,” said LGBT rights activists in Zambia.
A further issue is that the men’s defense team is being denied information about the case.
“The total disregard, and lack of communication from the state acting through the prosecution team, is another cause of concern,” the Zambian activists said. “Thus far, the persecution has blatantly refused sharing information pertaining to the medical doctors that examined the two accused and subjected them to anal swabs. [Also, the prosecution is often unresponsive] whenever defense seek clarification on any matter relating to the case. Often the feedback is delayed, with little to no feedback at all despite the numerous times the defense attempts to contact them.” They added:
This bureaucracy has now perpetuated into the sixth month that the accused have been detained and denied bail application on bogus reasons. In the mean times, the boys remain hopeful that the justice system will not fail them on the basis of perceived sexual orientation , and are determined on relating upon the presumption of innocence which states “ A person is innocent, till proven guilty’.
The arrest of Mwape, a bricklayer, and Mubiana, a hairdresser, 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 and has been repeatedly delayed since then. It had been scheduled to continue on Aug. 28, but scheduled appearances by medical experts were postponed because the witnesses said they had other things to do. Magistrate John Mbuzi warned them that they needed to come to court.
But at the next scheduled trial date, on Sept. 16, Mbuzi himself was absent. The courtroom was told that he was attending to an urgent family problem.
A decision on the men’s bail request was scheduled for Oct. 1, was delayed until Oct. 31 on the grounds that the prosecutor was ill, and now has been delayed until Nov. 8 because the judge said he was busy.
Supporters are seeking local, national and international pressure on government leaders in Zambia to bring about the release of Mubiana and Mwape. Without that, they fear that the Zambian government’s homophobia will lead to further arrests. Already, two men in Lusaka have been arrested on similar charges and AIDS activist Paul Kasonokoma is awaiting trial for suggesting on television that the Zambian law against homosexual activity
Amnesty International last month called for the release of Mubiana and Mwape.
- 36 who are in prison for being gay, 17 more awaiting trial (76crimes.com)
- Zambia report: Police arrest married gay couple (76crimes.com, May 6, 2013)
- Zambia: 2nd arrest in 2 days for gay couple (76crimes.com, May 7, 2013)
- Amnesty Int’l demands freedom for Zambian gay couple (May 8, 2013)
- Jailed gay pair in Zambia abused; at risk of rape, disease (May 9, 2013)
- Gay in Zambia: 6th week in jail for 2 awaiting trial (76crimes.com, June 5, 2013)
- Zambian pair’s sentence could be 14 years for gay sex (76crimes.com, June 10, 2013)
- Zambia: Sister and police testify against gay pair (76crimes.com, June 11, 2013)
- On the scene in Zambian courtroom in anti-gay case (76crimes.com, June 11, 2013)
- Zambia: Setback for prosecution in gay trial (76crimes.com, June 24, 2013)
- 4th month in jail for gay couple facing Zambia trial delays (76crimes.com, July 18, 2013)
- 5 months in Zambian jail as gay trial falters; no eyewitnesses (76crimes.com, Aug. 30, 2013)
- Amnesty to Zambia: Release 2 men facing gay sex charges (76crimes.com, Sept. 11, 2013)
- Justice delayed, justice denied for 2 in Zambian gay trial (76crimes.com, Sept. 17, 2013)