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Startseite Urgent Actions 2013 05 Two men on trial for "unnatural" sex Zambian court postpones ruling on gay case
FI 124/13-2
Abgeschlossen am 7. Juli 2014

Zambian court postpones ruling on gay case

AI-Index: AFR 63/002/2014

On 30 May the Magistrate court in Kapiri Mposhi postponed delivering its verdict on the case of James Mwape and Philip Mubiana to an unknown date.

On 30 May the Magistrate court in Kapiri Mposhi was due to deliver its verdict on the case of James Mwape and Philip Mubiana, who have been held for over a year after being charged with having sex “against the order of nature”. Due to delays by the state prosecutor, the case was postponed to an unknown date.

On 6 May 2013 police in the district of Kapiri Mposhi in Zambia’s Central Province arrested Philip Mubiana and James Mwape, both then aged 21, in the village of Ndeke. The arrest was their second for alleged same-sex sexual conduct, which is considered a crime under Zambia’s penal code. The two men were first arrested on 25 April 2013, and were detained at Kapiri Mposhi police station until 2 May, when they were released on bail.

After the second arrest both men were subjected to forced anal examinations carried out by government doctors. They are being held at Mpima Remand Prison in Kabwe, the capital of Central Province, and last appeared in court on 30 May 2014 as part of their trial on charges of having sex “against the order of nature” under Section 155 of the Penal Code. On 24 January, the last state witness gave his testimony. James Mwape and Phillip Mubiana are reported to be stressed by their ordeal.

Anal examinations conducted without consent of the individuals concerned contravene the absolute prohibition of torture and other cruel, inhuman and degrading treatment or punishment under international law. Such examinations are highly invasive, abusive, profoundly humiliating and conducted for reasons based on discrimination. In addition, forensic anal examinations have no value whatsoever in identifying consensual anal intercourse.

Both men have pleaded not guilty to the charges against them. For safety reasons, actions taken on this case should not make any assumptions about, or reference to, the victims’ sexuality.

Additional Information

Please be aware that labelling Philip Mubiana or James Mwape as gay could put them at greater risk in Zambia and could affect them negatively during the trial process.
Homosexuality is considered a crime under Zambia’s penal code, and if convicted, the two men face at least 14 years in prison. This case comes at a time when senior government officials have made inflammatory statements instructing the public to report anyone they suspect of being a homosexual or “promoting homosexuality.”
The arrest of anyone for their real or perceived sexual orientation or gender identity amounts to discrimination and is a violation of their rights to non-discrimination, equality before the law, freedom of expression and privacy, among others. Laws criminalising consensual, adult same-sex sexual activity, or expression of gender identity criminalize legitimate exercise of these rights, which are protected in international treaties ratified by Zambia.
Amnesty International is worried about the shrinking space for human rights in Zambia under the current administration. Fundamental freedoms have increasingly come under attack with political opponents, civil society and sexual minorities being systematically suppressed.

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