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.