Zambian High Court to hear Freedom of Expression challenge after call to hunt down homosexuals arrest

It is believed that Kasonkomona was specifically targeted amidst the Zambian government’s call to “hunt down homosexuals”

By Cathy Kristofferson, June 05, 2013

Times of Zambia
Times of Zambia

The court case of Zambian Paul Kasonkomona which we have reported on here on OBLOGDEE was today transferred to that country’s High Court for the constitutional challenge Kasonkomona and his defense are seeking.

Kasonkomona, an HIV activist, was arrested following a television interview in April and held beyond the legal 48 hour limit eventually charged with “the idle and disorderly offence of soliciting in a public place for immoral purposes” for speaking out for gay rights .  The case now will center around Kasonkomona’s, and all Zambians’, constitutional right to Freedom of Expression.

As we’ve previously noted, the persecutory arrests of Zambians could be impacted by this case and this could effect how Gay people are targeted by Zambian authorities who have called for arrests of gay people, such as the arrest of still jailed couple James Mwape and Philp Mubiana who were turned in by family and neighbors.

The Media Advisory sent out by Southern Africa Litigation Centre, one of the advisors on the case:

MEDIA ADVISORY: ZAMBIAN HIGH COURT TO HEAR HIV ACTIVIST’S FREEDOM OF EXPRESSION CASE

Lusaka, 5 June 2013 – The Lusaka Magistrate’s Court ruled today that the criminal case against HIV activist Paul Kasonkomona should be transferred to the High Court for a hearing on the constitutional issues raised by the defence around the freedom of expression.

Kasonkomona was arrested in April 2013 and charged with violating section 178(g) of the Zambian Penal Code, which criminalises ‘every person who in any public place solicits for immoral purposes’ for public comments he made regarding the rights of lesbian, gay, bisexual and transgender individuals and sex workers.

“We are pleased that the magistrate has recognised the critical issue at stake in this case and sent the case to the High Court since the freedom to express one’s views goes to the very heart of a democracy,” said Anneke Meerkotter, SALC’s LGBT and Sex Work Project Lawyer. “If speech is stifled through the application of outdated criminal laws, Zambians will find themselves unable to openly discuss and debate some issues of real importance to them.”

After Kasonkomona’s first appearance at the Magistrate’s Court last month, the defence filed a constitutional application on two grounds – that section 178(g) of the Penal Code is vague and infringes on the right to freedom of expression; and that the Zambian prosecution’s practice of not providing an accused with detailed information about his case violates his right to a fair trial under the Constitution.

In response, the State filed papers arguing that there were no rights at stake to justify a constitutional reference to the High Court. The State further argued that a person’s right to freedom of expression can be limited on public morality grounds, and that the term ‘immoral purpose’ is clear as it refers to any behaviour unacceptable to society in a Christian nation.

The origins and purpose of section 178 will be at the crux of the arguments before the High Court. The State has argued that section 178 was intended by the legislature to curb speech on moral issues, while the defence maintains that the section was situated in the Penal Code chapter on nuisance and because of its origins in the English Vagrancy Act of 1898 it was merely incorporated into Zambian law without being discussed by the Zambian legislature.

The date of the High Court hearing will be confirmed in the coming months.

Kasonkomona is represented by Sunday Nkonde SC and William Ngwira from SBN Legal Practitioners, supported by SALC.

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