Drop Charges, Cease Invasive Exams, Protect Rights of Accused
(Nairobi) - Zambian authorities should dismiss all charges and release two men arrested for engaging in homosexual acts, Human Rights Watch said. The police should immediately cease forensic anal examinations, which are intrusive, invasive and constitute cruel, inhuman, and degrading treatment in violation of international law.
On May 6, 2013, police in the Kapiri Mposhi district in central Zambia arrested James Mwansa and Phillip Mubiana in response to reports from neighbors that the two were engaging in homosexual acts. Both men were subjected to anal examinations without their consent by forensic doctors at the Kapiri Mposhi District Hospital, as part of the police investigation. On May 8, the district magistrate formally charged Mwansa and Mubiana, and denied their request for a postponement even though they had no legal representation.
“It’s bad enough that Zambia wants to prosecute these two men for homosexual acts, but to subject them to invasive examinations is just outrageous,” said Monica Tabengwa, researcher in the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch. “The authorities should immediately drop the charges and free them, and stop bringing such cases.”
The arrest, detention, and prosecution of men suspected of homosexual acts is only one aspect of a looming human rights crisis for LGBT people in Zambia. Since April, politicians, religious, and community leaders have been carrying out vicious campaigns to vilify LGBT people, Human Rights Watch said.
Juliet Mphande, director of Lusaka-based LGBT organization Friends of Rainka, told Human Rights Watch that Mwansa and Mubiana, both 21, were coerced to confess to the allegations and have been deprived of adequate food and water in detention.
This is the second time the men have been arrested on similar charges, Human Rights Watch said. In April,the two men were arrested and detained for a week before being released on bail on a charge of engaging in “carnal knowledge against the order of nature,” as set out in the Zambian Penal Code.
The Zambian government is obligated under international law and its own constitution to respect the private lives and personal liberties of everyone in the country, and to cease prosecuting people for consensual adult sex, Human Rights Watch said.
Forensic anal examinations are used on suspected homosexuals in various countries to prove “habitual” anal penetration, Human Rights Watch said. The tests are intrusive, invasive, and abusive, and they violate the individual’s rights to integrity, dignity, and privacy. They are a cruel, inhuman, and degrading treatment that may amount to torture, violating the African Charter on Human and Peoples’ Rights, the Convention Against Torture, and the International Covenant on Civil and Political Rights, all of which Zambia has ratified.
The examinations have no forensic or evidentiary value for consensual homosexual acts. They are contrary to medical ethics as laid out by the World Medical Association and the United Nations Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
Principle 4 of the UN principles states:
It is a contravention of medical ethics for health personnel, particularly physicians... to apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments.
“Medical professionals participate in a miscarriage of justice when they subject people arrested for homosexuality to anal examinations,” Tabengwa said. “These invasive procedures are painful and humiliating and can be a form of torture. They should be banned immediately and evidence obtained should be declared inadmissible.”
The Zambian government should respect its own constitutional provisions guaranteeing non-discrimination and equality before the law by ordering an immediate halt to arrests and prosecutions based on suspicion of homosexual conduct. As part of its obligation to protect and promote human rights for all, the government should also repeal all laws criminalizing consensual sexual sex between adults, including Penal Code sections 155 (“Unnatural Offences”), 156 (“attempt to commit unnatural offences”), and 158("indecent practices between persons of the same sex"), Human Rights Watch said. These provisions provide maximum penalties from 5 years to life in prison.
The recent efforts in Zambia to vilify LGBT people have publicly portrayed homosexuality as immoral and un-African. The government’s unwillingness to assert constitutional protections and ensure redress for discrimination and abuse of minorities, as well as the arbitrary arrest and prosecution of individuals suspected of homosexual acts, show the vulnerability of the country’s LGBT community.
On April 10, on Radio Phoenix, on a live radio panel discussion among religious leaders led by the former Orthodox Bishop Edward Chomba, another religious leader suggested that the most appropriate way to deal with gay people was death. The minister of youth and sports, Chishimba Kambwili, called in during the program and said defenders of the rights of LGBT people were “agents of the devil.” He also said that the Zambian government will be “introducing stiffer penalties against homosexuality,” instead of repealing the existing laws.
A police spokeswoman, Elizabeth Kanjela, told the media that homosexuality was a serious offense and appealed to the public to report anyone involved to the police. This statement followed a news report involving the attempt of four gay couples to register marriages during the Easter holidays. Same-sex marriage is an offense under Zambian law. The attempt to register same-sex-marriages provoked an outcry from several traditional and religious leaders who wrote a letter to the Daily Mail newspaper calling for “gays to be caged.” The LGBT community has never raised same-sex marriage as a priority in Zambia.
When the human rights defender Paul Kasokomona appeared on Muvi TV on April 6 to discuss LGBT and HIV issues, he was arrested as he left the television station. He was denied bail for five days, then finally released on April 11. He was charged with “soliciting in a public place for immoral purposes” and faces a court appearance on May 22. If convicted, Kasokomona may be imprisoned for one month or fined.
“The Zambian government should take immediate action against government officials who make discriminatory statements against LGBT people, or arrest or detain them,” Tabengwa said. “The attacks on LGBT people need to stop.”