Despite acquittal, trial revealed deep Zambian injustices
by Colin Stewart
The arrest, trial, year-long detention and recent acquittal of Philip Mubiana and James Mwape on homosexuality charges
demonstrate much that's wrong with Zambia's legal, political and social
life, along with a few strengths, lawyer Anneke Meekotter writes in the
Southern Africa Litigation Centre blog.
In the article, she discusses:
- Political statements "bordering on hate speech."
- Inaccurate, sensationalist media reports that caused long-term damage to people's lives.
- A praiseworthy lower court that dispensed justice objectively.
- Shameful behavior overall by the Zambian criminal justice system, including its acceptance of hearsay testimony, its use of medical examinations by untrained personnel, and its disregard of the principle that defendants should be presumed innocent until proven guilty.
- The importance of a small group of concerned lawyers and activists working hard to see that justice was done.
Meerkotter is a project lawyer with SALC's LGBT and sex worker rights program. The following excerpts comprise the bulk of her commentary:
Reflections on the case of two men accused of sodomy in Zambia
In
March 2013, Minister Edgar Lungu made a number of statements bordering
on hate speech against gays and lesbians. Shortly after these
statements, the police arrested activist Paul Kasonkomona in what was
clearly a politically motivated
arrest. Kasonkomona had appeared on a private television station
speaking about the need to recognise the rights of gays and lesbians in
order to address the HIV epidemic holistically. These events led to many
sensationalist reports by a media eager to sell papers. That same
month, the police released a statement noting that homosexuality is a
serious offence in Zambia and that members of the public should report
anyone involved in the practice to the police.
During
that time, two young men were brought to a police station in Kapiri
Mposhi after an interaction with their neighbour. The police were quick
to charge them under section 155 and the media were even quicker to
start spinning lies about the accused, claiming that they were engaged
to be married or caught in the act. With each new news report the
stories about the accused were further embellished and by June 2013,
Magistrate Mbuzi had to order the media to refrain from spreading
rumours and conducting a trial by media. The two men were refused bail
as a direct result of the media reports that were circulated about them.
During the trial, these reports proved to be untrue. The impact of
negative media has been lasting. In the public’s mind the two men are
guilty even if a court found otherwise.
The
men in Kapiri Mposhi were not the only victims of anti-gay rhetoric.
Subsequently there were a number of reports of people who had been
brought to the police at the instance of community members. The impact
of such arrests, even if the persons are subsequently released or
acquitted, is dire. In many cases going back to the person’s home or
family after an arrest is not an option. The threat associated with
allegations of homosexuality will always hang over them.
Injustices and the courts
The
eventual acquittal of the two men in Kapiri Mposhi was, from a legal
point of view, inevitable. To be clear, there was zero evidence of them
having committed any offence. Their acquittal represents a victory as it
demonstrates the ability of lower courts to dispense justice
objectively and without favour. This is commendable. The Magistrate, in
his judgment, emphasised that the test is whether the State proved a
case against the accused beyond reasonable doubt. It would have been a
miscarriage of justice if the personal views of the community were
allowed to trump the facts before the court.
However,
the fact that two innocent men remained in custody for more than a year
is a shameful indictment of the criminal justice system in Zambia.
From
the start, the men were bombarded with obstacles in their quest for a
fair trial. They were forced to plead before they had obtained a legal
representative. They were lucky to obtain a qualified lawyer from Lusaka
who was willing to defend their right to a fair trial despite the risks
this might have for his professional career. This would not have been
the case had a small but caring local human rights organisation, Friends
of Rainka, not heard about their arrest and sought a lawyer for them.
Had there not been lawyers and activists out there who care about human
rights, they might still be languishing in jail.
In
any bail application the presumption of innocence is supposed to
operate in favour of the applicant’s release. This did not happen. The
men were refused bail in the Magistrate’s Court because there were fears
that they might commit the same act with which they were charged – even
though the charge itself had not been proved. A subsequent bail
application made to the High Court in Kabwe was postponed on numerous
occasions. The application was finally heard in November 2013, but the
judge refused to make an order.
Whilst
the right of an accused to have knowledge of the nature of the State’s
case against him or her is respected in other jurisdictions, that right
is not currently recognised in subordinate courts in Zambia. Throughout
the trial, the defence’s lawyers were unable to access evidence held by
the prosecution, including witness statements and medical reports. This
basically amounted to a trial by ambush. ...
The
prosecution called eight witnesses, none of whom had any direct or
indirect knowledge of sexual relations between the two accused. The
police officers who testified relied on hearsay evidence without having
conducted investigations. The medical evidence presented in the trial
also reflected a lack of objectivity by State medical officers. Medical
officers conducted intrusive examinations of the accused, without their
consent and in the absence of their legal representatives. The medical
doctors were not trained in forensic medical examinations and their
conclusions were ill-informed and not supported by medical science. Yet,
this haphazard testimony was allowed to consume the court’s time whilst
the accused languished in jail. This lack of oversight of the cases
which are brought to the courts leads not only to great human suffering,
but also immense costs to the State and the accused, especially where
lawyers, prosecutors, police and the Magistrate have to travel
repeatedly to a far-flung circuit court to conduct the trial.
These
obstacles are not unusual. They are faced by many people who enter the
criminal justice system on a daily basis. Such obstacles continue to
cast a shadow on the fairness of the Zambian criminal justice system. As
a result, many innocent people continue to suffer in overcrowded
prisons throughout the country. In this context, the review of the Penal
Code and Criminal Procedure Code by Zambia’s Law Development Commission
is timely. Hopefully it will invigorate the debate around the
over-reliance on criminal laws to modify behaviour, a legacy of colonial
times which is no longer appropriate.
Related articles
- Zambia frees 2 allegedly gay men after year in prison (76crimes.com)
- LGBT in Zambia: 'How many more lives will be ruined?' (76crimes.com)
- Sodomy in Zambia (paper-bird.net)
- Zambia to West: Don't watch when we jail LGBT people (76crimes.com)
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