Defence And Prosecutors "Undo" Each Other In Homosexual case

The Zambian flag drapped in LGBT colours

By Paul Shalala

Kapiri Mposhi Resident Magistrate Ackson Mumba is on Thursday expected to deliver judgement in a case where two men are accused of homosexuality.

In this case, which has been before the Kapiri Mposhi Magistrate’s Court since August last year, a 38 year old man is accused of having unlawful carnal knowledge of a 30 year old man.

Both the state and the defence have filed their final submissions in a case where two male adults are accused of practising homosexuality in Kapiri Mposhi District in Central Province.

In this case, 38 year old Japhet Chataba and 30 year old Stephen Sambo are charged with practicing unnatural acts, an offence which attracts 15 years in jail.

In a widely circulated video on social media, the two men were allegedly seen pushing each other around until they entered a lodge where they are alleged to have engaged in sex.

Chataba, who was seen in the video dragging his friend into a room, is charged with one count of unnatural offences contrary to Section 155 (a) of the Penal Code, Chapter 87 of the laws of Zambia as read with Act No. 15 of 2005.

He is accused of having had sex with his co-accused Sambo.

On the other hand, Sambo, who in the video pleaded with people to call the Police to rescue him, is also charged with unnatural offences contrary to Section 155 (c) of the Penal Code, Chapter 87 of the laws of Zambia as read with Act No. 15 of 2005.

He is accused of having allowed Chataba to have sex with him.

According to the Zambian laws, the two offences state as follows:

Section 155 (a) of the Penal Code Act, Chapter 87 of the Laws of Zambia

155.    Any person who-

(a)        has carnal knowledge of any person against the order of nature; or

commits a felony and liable, upon conviction, to imprisonment for a term not less than fifteen years and may be liable to imprisonment for life

Section 155 (c) of the Penal Code Act, Chapter 87 of the Laws of Zambia

155.    Any person who-

(c)        permits a male person to have carnal knowledge of him or her against the order of nature;

commits a felony and liable, upon conviction, to imprisonment for a term not less than fifteen years and may be liable to imprisonment for life.

The two accused persons were on 7^th May found with the case to answer and put on their defence.

Magistrate Mumba said he found a prima facie case against the two and set June 21 as day for judgement.

And now, the Defence has submitted its written arguments in which it calls for the two men to be set free.

The accused are represented by lawyer Daniel Libati of Abha Patel and Associates of Ndola.

In his final submission, Libati said the evidence brought before the court against his clients was badly discredited and caused doubts which should lead to his clients being freed.

Reacting to the five witnesses who testified in the matter, Libati said: "Prosecution Witness Number 1 Lisa Mwangala made several admissions in favour of the accused persons. The admissions highlighted herein, raised doubts on the State’s case against the accused, which doubts this Court is being urged to resolve in favour of the accused."

He recalled that Ms Mwangala said “She had no evidence that Changala had indeed purchased condoms from her with an intention to have sexual intercourse with, carnal knowledge of Sambo.”

Libati said the witness had no evidence that her claim that she saw both accused persons naked in a lodge room, except that she spoke the words that she had indeed seen them and that she had no evidence apart from her verbal testimony that she saw Chataba’s penis being inserted in Sambo’s anus.

The defence also said another witness Musakanya Chileshe failed to prove before caught that he saw the two having sexual intercourse.

On Prosecution Witness Abel Sampa, the defence argues that his testimony that he saw Chataba wearing a condom during the sexual act is not factual because the said condoms were never presented in court and that his evidence was in contradiction with Mwangala.

Libati, who also weighed in on the medical evidence from Dr. Koko Dikowa which started that there was no evidence to show any sodomy having taken place between the two accused persons.

“He produced documents initially marked as “ID2” and “ID3” later produced as “P2” and “P3” as medical reports signed by him confirming that there was no evidence of sodomy from his testing of both Accused persons,” said Libati.

Further, the Defence states that the arresting officer Rex Kafula actually revealed to the court that his investigations had no evidence of Chataba having carnal knowledge of Sambo.

He adds that even though Detective Constable Kafula brought to Court a photo album, none of the photos in that album depicted  the two accused persons having sexual intercourse.

“He did not examine the penis of Chataba  to determine that indeed this was the penis appearing on the photos he produced as as part of State Evidence. The photos brought to court depicting  human penis did not show the face of the owner and as such the  owner could not be identified,” he said.

The defence further argued that the video produced in Court by the Prosecution did not show the two accused persons having sexual intercourse but rather showed them involved in a fight.

But in its submission, the Prosecution, led by Cheelo Mulambe, has called on the court to convict the two based on the evidence adduced in court.

“The prosecution called 5 witnesses and all gave sworn testimonies thereby giving chance to the accused persons (defence) to cross examine them or discredit their evidence as it were and their evidence is on record,” stated Cheelo.

He further said the defence failed to rebut the evidence given in court.

       

Cheelo added that the evidence discharged was directly linking Chataba and Sambo to the facts.

“Concerning the non production of the condoms, PW5 (arresting officer) categorically testified that at the scene there was commotion or disorder such that it was difficult to collect anything. The mob of people would have pounced on the accused persons for their conduct,” he added.

And on the decision by the two accused persons to remain silent after being found with a case to answer last month, the Prosecution said: “The accused persons though their legal rights opted to remain silent thereby the submission of defence that the accused persons were fighting can not suffice as those people alleged to have been involved Affray did not testify but it has just reflected in the submissions, Your honor, sure how can we cross examine issues raised just in the submissions.”

He said the evidence given by the five witnesses and the photos presented by the arresting officer proves the Prosecution’s case.

“Your Honor, this case as a matter of law we have corroborated it very well such that the evidence of PW1-PW5 and exhibits P1-P6 has remained unchallenged in connection of the offence charged. In the fore goings, our humble prayer to you your Honour is to convict all the accused persons as charged.

On Thursday, Resident Magistrate Mumba will deliver his judgement in the case which has raised international interest.

This is the second such case involving alleged homosexuality in Kapiri Mposhi, a transit town in Central Province.

In the first case, two men Phillip Mubiana and James Mwape were arrested in May 2013 for homosexuality and spent eight months behind bars for eight months before being acquitted the following year.

Zimbabwe's "Coup" Brings Hope, Free Speech And Business

By Paul Shalala in Harare, Zimbabwe

President Emmerson Mnangagwa -Picture
Courtesy of 263 Chat

Landing in Harare, Zimbabwe´'s capital, was supposed to be a short 45 minutes flight.

But in their usual fashion, Kenya Airways delayed the flight.

"We are sorry to announce that we will be shutting down the engines because one of our computers has malfunctioned. We need to reboot them," said the flight captain as we anxiously sat in our seats in an Embraer 190 jet at the Kenneth Kaunda International Airport in Lusaka.

Shortly afterwards, all lights went off, the aircon too was switched off.

Then it downed on me that the plane was really shut down.

Ten minutes later, the plane was switched on and in no time, we took off from Lusaka, headed to Zimbabwe and that was on Monday.

In the next 50 minutes, a lot of scenarios came in my mind.

Won’t I be arrested upon arrival at the airport? Zimbabwe is not known for being warm to journalists.

On a normal journalistic assignment, foreign reporters are required to register with the Journalism Council of Zimbabwe, which I didn't do.

To make matters worse, my passport has journalism as my occupation.

Like Bembas like saying "Fili Oko Tuleya" meaning we will see what happens ahead, I tried to forget about what would happen with Immigration officers at the airport.

As we started our descent on the Robert Gabriel Mugabe International Airport, thoughts of either being turned away or being arrested again hit me.

Bruce, Paul and Fanta at the airport

Again the "Fyalaisova" (We will sort it out) mentality gripped me.

With fear in my body, I walked down the plane after we landed and boarded the shuttle to the arrival terminal.

As we entered the terminal, we were greeted by a huge banner written ZIMBABWE IS OPEN FOR BUSINESS with a smiley face of the new President Emmerson Mnangagwa staring at us.

Upon seeing the President's image, I remembered his nephew Jackson Mnangagwa who was my peer at Mumbwa High School from 2000 to 2002.

Interestingly, President Mnangagwa was also a pupil at the same school decades earlier when he lived in Lutondo Village which is just 15 kilometers away from my home village Lubanze in Mumbwa District.

Actually, we the people of Mumbwa lay a claim on the Zimbabwean President, he is one of us.

As a coward, I made sure that my friend Bruce Chooma, who is also a journalist, stood ahead of me on the queue as we waited to be cleared by the Immigration officers who were all females.

Bruce, who is also a blogger, stepped forward and presented his passport and the invitation letter from the KAS Media Africa office.

The gentleman was questioned for over 10 minutes.

This scared me even more.

Later, I was ushered to another officer and i presented my papers.

"Neimwi uyu journalist shamwari (there is another journalist my friend,)" said the Immigration officer as she informed her colleague who was attending to Bruce.

After a few questions, the officer asked me to sign a form which only gave me five days to stay in Zimbabwe without the possibility of an extension.

"Keep that paper safe, you should hand it over to the Immigration officer the day you will leave the country. If you lose it, you will be charged $100," she warned me.

Zimbabwean bloggers Takura Zhangazha (right)
and Blessings Vava (middle)

At this point, I got more scared, but she allowed me to proceed to the luggage bay and finally I exited the airport.

As we jumped on a taxi, I breathed a sigh of relief.

My Senegalese friend Fanta Diallo (a fellow blogger), Bruce and I boarded a taxi and we were driven to a hotel in Msasa area of Harare,

For your own information, in the local Shona language, Harare means a place which does not go to sleep.

In the new Zimbabwean era, we were freely allowed to move around Harare without minders trailing us.

This was not common a few years ago when foreign journalists were not welcome in the country.

But since the Zimbabwean Army overthrew Robert Mugabe and installed his deputy Mnangagwa as the country's third President, the country has seen a number of changes.

Back to my trip from the airport to the hotel, we tried to engage the driver in conversations of politics and current affairs but the man must have still been living in the Mugabe era where people were engulfed in a climate of fear.

Upon arrival at Cresta Lodge, we were greeted by a smiley lady whose name tag had a Banda surname.

Immediately I greeted her in the Lusaka version of Nyanja but surprisingly, she answered me in Tonga and we started talking.

We spent some 10 minutes chatting and Bruce, who is Tonga himself, was at home.

That evening, we went to have dinner in the restaurant.

We found a number of Zimbabweans taking some beers and were loudly discussing how ZIMBABWE IS NOW OPEN TO BUSINESS.

While sipping the locally prized Zambezi lager, these Zimbos kept talking how the business environment had changed and how they wished the General elections could quickly pass so that investors can pump in the much needed foreign exchange.

These are the kinds of discussions Zimbabweans I met over the next four days had.

It struck me that Zimbabweans were now hopeful of the future, they no longer lived under fear of what tomorrow was to bring, Mugabe was now relegated to his house without any role in the country.

Bloggers who attended the #AfricaBlogging
conference in Harare

The following day was the first day of the #AfricaBlogging conference, an annual gathering of bloggers from Sub-Sahara Africa to discuss trends on the continent and learn more about the field of information sharing.

In the 37 years when Mugabe was at the helm of the former British colony's government, such a conference would not have been held.

Even in an unlikely event that it was held, state agents would still have kept a close eye on it.

"If it was in the Mugabe time, we were going to see people who are not employees at this hotel, suddenly start repairing these windows while listening to proceedings. They would take more time than necessary to assess what’s going on," said KAS Zimbabwe Resident Representative David Mbae.

The Konrad Adenauer Stiftung (KAS) is a German political foundation which promotes good governance and media development across the world.

The organisation has a Johannesburg-based media office which runs a number of projects in Sub-Sahara Africa.

One of such projects is #AfricaBlogging which brings together political bloggers from Anglophone and Francophone countries on an annual basis to discuss the growing appetite for independent voices on the continent.

"We chose Zimbabwe for this year's #AfricaBlogging conference because of the political transition we witnessed late last year. And the fact that we have been freely welcomed and held this workshop in Harare is testimony to the new freedoms that have come to Zimbabwe," said KAS Media Africa Sub-Sahara Director Christoph Plate.

Christoph Plate addressing the bloggers

Plate, himself a long serving Africa correspondent for several German publications in the 1990s, said despite the failure by a handful of West African bloggers to get visas to attend the conference, the atmosphere in Zimbabwe in the post-Mugabe era was promising.

Prominent Zimbabwean bloggers and political analysts Blessing Vava and Takura Zhangazha shared their perspectives on the new era.

"This year's election is the first where we don't have Mugabe on the ballot. It is also the first election where Mugabe's arch rival (Morgan) Tsvangirai is also not on the ballot. In previous elections, you would not see Zimbabweans express themselves on social media, but today, we even have hashtag movements," said Blessings.

The University of Johannesburg PhD candidate went on to explain that after Mugabe's overthrow by the military in November last year, social media has opened up and it has become a big source of information for the masses.

He also said due to the influence of social media, President Mnangagwa had also been forced to open Facebook and Twitter accounts to canvass for votes and interact with voters.

His colleague Takura however said very little has changed in Zimbabwe after the November coup.

He said cyber security is still a challenge in the country just as it is in the Southern Africa region.

"We have a law on cyber security which is still being held on. We are likely to see it pass after the elections in July," said Takura.

On the day the #AfricaBlogging conference opened, Nelson Chamisa, the firebrand presidential candidate for late Tsvangirai's MDC party led a march across the streets of Harare to press for electoral reforms ahead of the July poll.

MDC supporters marching through Harare

The peaceful march, which Police officers sanctioned, would have been unheard of if Mugabe was still President.

But in the new dispensation, the opposition painted Harare as they made their voice heard.

That afternoon, we visited 263 Chat, a social media company which delivers news to over 20,000 of its online subscribers.

The company, which is located on Batanai House in the central business district of Harare, uses social media platforms like WhatsApp, Facebook, Twitter, Instagram and LinkedIn to deliver its news to ordinary Zimbabweans at home and abroad for free.

263 Chat was founded by Nigel Mugamu, an accountant who was based in the United Kingdom.

"I got fade up with the way BBC and CNN used to report about Zimbabwe. They were only reporting on Mugabe, Joyce Mujuru and Tsvangirai. So I came back home and came up with an idea of starting up conversations and tell the story through social media," said Nigel

Today, the company employs 16 people, mostly youths who document news using their mobile phones, professional cameras and other gadgets and then use social media to disseminate the news.

Nigel Mugamu (in white shirt) interacts with
Christoph Plate and some bloggers

"After the Coup! No Coup! people are now free to dicsuss issues they were afraid of talking about. Today you can hear people discuss Gukurahundi and other forbidden topics. Even us, we no longer get visits by state agents, we are now free to do our work. Stories we were scared of writing, we now write them. Business wise, we are even getting more clients calling us to deliver invoices. The change is there," said Nigel in response to a question from this blogger.

Gukurahundi, which Nigel mentioned, is a term used to describe the massacres of about 20,000 Ndebele speaking people in Matebeleland and the Midlands region by the Zimbabwean Army in the early 1980s.

The massacres were a hot topic which Zimbabweans were forbidden to discuss for fear of being arrested but with the fall of Mugabe, citizens are now discussing it.

Some point the finger on Mugabe while others accuse President Mnangagwa of being part of the people who planned and executed the killings.

But all this talk has only come now that the ZANU-PF strongman is out of the picture.

And from the close to two hours chat with Nigel, it was clear that the people of Zimbabwe had been freed from the fears they had in the Mugabe era.

They are entitled to their opinions which they are now freely expressing without the fear of being arrested.

The streets of Harare 

And a stroll through the streets of Harare revealed that the usually heavy Police presence was gone.

The only Police officers present where those deployed at major intersections to control traffic during the morning and evening rush hour.

Countrywide, it is reported that the 16 checkpoints which were usually mounted between Harare and the city of Masvingo where all scrapped off after the ascendance of President Mnangagwa and motorists now drive freely without the fear of being pulled over by traffic Police.

All these signs of relative change have given hope to Zimbabweans.

They look towards the post July elections era to see if the promise of change President Mnangagwa gave will continue irrespective of who wins the poll.

As I left the Robert Gabriel Mugabe International Airport, after handing over that paper which the Immigration officer had given me earlier, I said a short prayer, asking God to help Zimbabweans to manage this newly found freedom.

I asked God to ensure that the July elections go on without violence and the people's candidate wins the elections so that Zimbabweans can live in peace and rebuild their shuttered economy.

My prayer involved asking God to help them bring back money to the empty ATMs which are currently unused and to help them bring back the Zimbabwean dollar as opposed to the current use of the South African Rand and the US dollar as the country's legal tender.

After the prayer, I shouted in excitement "Pamberi Ne Zimbabwe (Forward with Zimbabwe)" as the Kenya Airways plane took off for Lusaka.

Zambia's Free Speech Activists Angered By Proposed Cyber Laws

Activists discussing the proposed cyber laws

By Paul Shalala

Bloggers and free speech activists are angered with moves by the Zambian government to introduce three bills which are aimed at regulating the cyber space.

In the next sitting of parliament which opens in two weeks time, Transport and Communications Minister Brian Mushimba is expected to move the Cyber Security and Cyber Crime Bill, Data Protection Bill and the E-commerce Bills.

On May 2, a day before World Press Freedom Day, Zambia's Information Minister and Chief Government Spokesperson Dora Siliya said the cyber laws would not in any way infringe on the rights of ordinary citizens.

“Let me emphasise that government has a responsibility to protect its citizens against unscrupulous people who are using social media and other online platforms to spread fake news, hate speech, rumours and propaganda just to mislead and create despondency and chaos among citizens. In this regard, I am working closely with the Ministers of Justice and Transports and Communications to strengthen existing defamation laws and provide for cyber laws,” she said.

But activists are contesting these bills.

Freedom of expression is enshrined in the Zambian Constitution under Article 20 clause 1. 

Information Minister Dora Siliya

It reads as follows: "Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence."

Free speech campaigners are using this constitutional provision to base their fear that the cyber laws will give the state too much control thereby limiting free speech.

The campaigners have even started conversations on the topic under the hashtag #OpenSpaceZM

This fear has even been made worse by the announcement by the Zambia Information and Communication Technology Authority (ZICTA) that it will soon start arresting administrators of WhatsApp group where insults and bad behavior is exhibited by members.

"We are coming up with a law which will compel anyone who opens a WhatsApp group to register with us. They will need to come up with a code of conduct. If those are not followed, we will arrest the administrators or creators of those groups,” said Mofya Chisala who is the Director for Support Services at ZICTA.

This announcement was made on a live program on Zambia's state television station and it has been received with anger by both activists and citizens.

One annoyed activist is Edward Musosa, the Programmes Coordinator at the Civil Society for Poverty Reduction (CSPR) who took to WhatsApp to advise ZICTA.

"In terms of addressing the potential shrink in the online space, we need well informed CSOs on online advocacy such as MISA (Media Institute of Southern Africa) to take the lead in questioning these maneuvers. Otherwise, accountability is a broad concept and it can also lead to losing focus if everyday you are seen to be leading campaigns on different things. However, we should all be very concerned!" he said.

Activists have flooded Twitter with
messages on the Cyber Laws

His sentiments have been echoed by Richard Mulonga, a blogger who is the brains behind ZamBloggers, an organisation championing free speech.

"The cyber laws are a real threat to freedom of expression, press freedom and access to information. In reality, they are a threat to our democracy because democracy is about press freedom, dress of expression. Why has the process of drafting cyber laws been closed to other stakeholders?

Every law must be about protecting citizen rights. Therefore, the proposed cyber laws in Zambia must be about protecting citizen rights and enhancing democracy," said Mr Mulonga.

His argument is that government must involve all stakeholders in crafting the cyber laws and not th current scenario where the contents will only be known when the bills are presented in Parliament.

"You will see that 'fake news' is purposely vaguely defined. It is general and can be used to clamp down on critical citizen voices. There is no guarantee that cyber laws in Zambia will not be used to clampdown on citizens through arrests or surveillance," he added.

Another vocal critic of online regulation is Laura Miti, an accountability activist who wrote this: "The only reason government would want to regulate private use of social media is because citizens are using it effectively, to keep each other informed about the excesses of those in power. They don't want us to know, don't want us to ask questions.  #ItsOurCountry"

Across the continent, some governments use the veil of 'state security' to infringe on citizen rights.

This is the case in Tanzania, Uganda and Kenya where new cyber laws have been passed and activists in Zambia fear the same scenario could reach us.

According to East African media, Uganda's parliament recently passed a law to impose a controversial tax on people using social media platforms.

The law imposes a 200 shilling ($0.05) daily levy on people using internet messaging platforms like Facebook, WhatsApp, Viber and Twitter.

It is believed that President Yoweri Museveni had pushed for the changes, arguing that social media encouraged gossip.

This controversial law is expected to come into effect on 1 July this year.

Brenda Bukowa, a media and communication lecturer at the University of Zambia argues that regulating the online space must be done with caution as it can affect free speech.

Some of the strategies the civil society wants
to use to counter the Cyber Laws

Writing in her weekly column in the state owned Times of Zambia newspaper under the headline They Are Shutting Down Social Media! last Sunday, Brenda said the cyber laws may affect ordinary people on social media.

"‘Online media in a country like Zambia has opened up avenues for free speech and it can be argued that if regulation was enacted, the main victims would not be the purveyors of online misdemeanours but Zambia and its people’s freedom of expression. The results, would do far more damage to our democracy than any harm the culprits of social media abuse combined would bring. …Regulation at any level must be enforced with a careful consideration of the unique characteristics embedded in that society," she stated.

Meanwhile, the Media Institute of Southern Africa (MISA) Zambia chapter has also expressed concern on the proposed law, saying they are a threat to the media.

“Whilst the intentions sound genuine, we are concerned that the laws have not been made public despite government stating that it will take the bills to parliament this month. Our concern over the proposed laws is that they seek to regulate a space that provides media and citizens the opportunity to enjoy their rights of freedom of expression, assembly and access to information. The online space as it stands, is far more accommodating than any other platform of expression and thus, the proposed laws stand as a threat to citizen’s and media’s rights to enjoying the named rights,” said MISA Zambia Chairperson Hellen Mwale yesterday.

In the past week, several civil society organisations have been meeting to find a way of fighting the cyber laws.

These organisations includes the Action for Community Accountability, Actionaid Zambia, Zambia Council for Social Development, GEARS, SACCORD, PANOS.