Philip Mubiana accused of involved in a homosexual relationship walking into the court room while covering his face
Philip Mubiana accused of involved in a homosexual
relationship walking into the court room while covering his face

Central Province Principle Resident Magistrate, John Mbuzi has rejected an application by defense lawyers to grant bail to two men appearing in court on allegations of practicing homosexuality.

The two are alleged to have committed the offence in Kapiri Mposhi kast month.

And Magistrate Mbuzi has adjourned the case to 5 June, 2013 for determination of constitutional issues raised by the defense.

This is in the case in which James Mwape, a bricklayer and Philip Mubiana a hair dresser both aged 21 and residents of Ndeke and Soweto compounds respectively in Kapiri Mposhi are facing four counts of engaging in homosexuality.

In the first count Philip Mubiana is charged with committing an unnatural offence contrary to section 155 (c) of the penal code chapter 87 of the laws of Zambia as read with amended Act number 15 of 2005.

Particulars of the offence are that Mubiana, on unknown dates but between 11 and 25 April 2013 in Kapiri Mposhi in central province did permit a male person, James Mwape to have canal knowledge of him against the order of nature.

In the second count James Mwape is charged with committing unnatural offences contrary to section 155 (c) of the penal code chapter 87 of the laws of Zambia as read with amended Act number 15 of 2005.

“The accused are being held in police custody to their advantage for security reasons so that society does not harm them looking at the offences they are accused of committing”, Ms. Banda said.

Particulars of the offence are that Mwape, on dates unknown did permit a male person Philip Mubiana to have canal knowledge of him against the order of nature.
In the third count James Mwape is charged with committing an unnatural offence contrary to section 155 (a) of the penal code chapter 87 of the laws of Zambia.

Particulars are that on 5th May 2013 in Kapiri Mposhi Mwape had canal knowledge of a male, Philip Mubiana against the order of nature.

And in the fourth and last count Philip Mubiana is charged with an offence of committing an unnatural offences contrary to section 155 (c ) of the penal code chapter 87 of the laws od Zambia as read with amended Act number 15 of 2005.

Particulars before court are that on 5 May 2013, Mubiana, while at Kapiri Mposhi district in central province did permit a male person James Mwape to have canal knowledge of him against the order of nature.

Magistrate Mbuzi declined to grant bail to the two men after an application by defense counsels when the matter came up for commencement of trial today.

The accused are being represented by William Ngwira and Mubanga Bwalya of SBN Legal Practitioners of Lusaka.

The defense applied for bail for the two accused stating that their clients were of fixed abode and that the offences that they are accused of committing are bailable.

The defense counsels also assured the court that the accused persons will comply with the bail conditions and avail themselves to the court when needed.

However, State Prosecutor and Divisional Prosecutions Officer, Hilda Banda objected that the accused persons should not be granted bail owing to their earlier abrogation of police bond which was given to them after they were arrested for the offences as charged.

Ms. Banda stated that the two had flouted the police bond which was given to them on 3rd may 2013 by committing the similar offence which they were charged for when they were released from police custody.

Ms. Banda also submitted that if given bail the two could interfere with their relatives who are state witnesses in the case .

She also submitted that considering the offences the accused are indicted for there is likelihood that society may rise against and harm them and hence they should be kept in police custody until further notice.

“One is innocent until proven guilty and on the issue of public perception there is no evidence before the court to state what the public perceptions are on this matter therefore, public perceptions should not be the basis of objecting bail for the accused because granting bail will be in the interest of justice,” Mr. Ngwira said.

“The accused are being held in police custody to their advantage for security reasons so that society does not harm them looking at the offences they are accused of committing”, Ms. Banda said.

But Defense Counsel, William Ngwira argued that the opposition of bail by the state is against the presumption that an accused person is innocent until proven guilty.

Mr. Ngwira stated that the offences that the duo is accused of are based on allegations and not proven by the court and their continuous detention in police cells was against the fundamental provisions of the law.

“One is innocent until proven guilty and on the issue of public perception there is no evidence before the court to state what the public perceptions are on this matter therefore, public perceptions should not be the basis of objecting bail for the accused because granting bail will be in the interest of justice,” Mr. Ngwira said.

But in his ruling Magistrate Mbuzi refused to grant bail to the accused stating that the defense had failed to invalidate the state’s objection of bail on the basis that the accused persons may go and interfere with the state witnesses who are their relatives.

Magistrate Mbuzi also ruled that once given bail there is a possibility that the couple may go and commit similar offences as charged bearing in mind that they did so when they were granted police bond upon being arrested.

“The defense has not countered the grounds by the state to oppose the granting of bail on the basis of interference with the witnesses and the court order can be unreasonable because how will the court be sure the accused will not meet and commit similar offences… I therefore see a danger with the defense application therefore the appeal for bail is refused and the status quo remains,” Magistrate Mbuzi ruled.

And Magistrate Mbuzi has adjourned the case to 5th June 2013 for determination of constitutional issues raised by the defense.

This was after the defense applied for adjournment to prepare formal applications to raise constitutional issues in the High Court.

The defense applied that they needed time to raise and formally file the case of constitutional issues to the High Court and were hence asking for an adjournment.

But the state objected to the deferment of the matter arguing that the defense had not clearly stated the reasons for their application for an adjournment and the constitutional issues that they intend to raise to the high court.
However, Defense counsels submitted that they requested to be furnished with copies of medical reports on the accused to enable them get expert advice on the matter in contemplation of preparation of the defense.

“We wrote a letter to the state requesting for medical reports for our clients … we have not been answered until this morning when we have been served with a response that the state has rejected our request so in this court this trial is under ambush… we want to raise constitutional issues in the High Court in this matter”, Mr. Ngwira said.

“In the letter we pointed out to the state that the issue to be addressed is article 18(1) of the constitution which talks about the right to a fare trial… we are of the view that the medical reports should be made available in the interest of justice and for the accused to have fare trial”, Mr. Ngwira said.

Magistrate Mbuzi ruled that the defense can proceed with the application of the hearing of constitutional matters in the High Court while at the same time the Magistrates court continues with its business and quashed the defense application for an adjournment.

“If there are constitutional issues to be raised in the High Court you can proceed but that cannot stay the procession of the case in the Magistrate Court… so trial will commence,” Magistrates Mbuzi said.

“If there are constitutional issues to be raised in the High Court you can proceed but that cannot stay the procession of the case in the Magistrate Court… so trial will commence,” Magistrates Mbuzi said.

However, after a five minute adjournment the defense reversed their earlier application for an adjournment based on the raising of constitutional issues in the high court.

Mr. Ngwira re-submitted that the defense will file for determination the constitutional issues raised with Magistrate Mbuzi and applied for an adjournment so that they can be allowed to prepare a formal application to the same court to determine whether the constitutional issues raised should be filed in the High Court.

Magistrate Mbuzi then adjourned the case to 5th June 2013 for determination of constitutional issues and commencement of trial.

Mwape and Mubiana entered a plea of not guilty last week.

The duo was arrested on 4th May 2013 for allegedly engaging in homosexuality contrary to the laws of Zambia as read with amended Act number 15 of 2005.

The duo will continue being remanded in custody.

ZANIS

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62 COMMENTS

  1. Everybody is raising constitutional issues. It seems that there is a big flaw with our constitution. I hope we fix it once and for all. So is Homosexuality are non-bailable offense like motor vehicle theft? Or is the constitution silent.

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    • There is nothing wrong with our constitution.

      In fact the reason why most people are raising constitutional issues is that they feel and believe that the constitutional provisions protects them.

      As you may know the constitution is the supreme law of the land

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    • The judge in this case is also gay, he enjoys seeing these men in his court hence denial of bail

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  2. It always confuses me on how people try to force their values on others.The way i see it, if your religion says that marriage is between a man and a women only, then that means you and only you can’t marry someone of the same gender. People who don’t follow the same codes as you do have every right to marry whoever they want, the restriction is only on you and not anyone else,so stop ruining life for other people by telling them what they should do because of your religion.There are more important things that matters that we can concentrate on.Like fighting crime,defilement,abortions,drug abuse and corruption.

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    • Your argument is misplaced. Which “people” are trying to force values here? The magistrate is not using religion as the basis for his ruling but the Laws of Zambia, which clearly forbids intimate relations of the same gender. Anyone who contravenes against the Law contravenes against the State and therefore is liable to punishment by the State.

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    • @Nine Chale. It is the same thing here.It is just the coating which is different.What i`m saying is that those two gentlemen were not wrong at all in short.Those laws have a basis which came from the bible or religion in short, so indirectly someone is trying to make them follow laws and rules based on other individuals beliefs.Our constitution is a fraud.It is too archaic.

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    • dude you are a fool!!!! it not religion its nature!!!! even male dogs that have no religion don’t practice gayism! u are disgrace!!!!! the anus is for waste products sure>>>> that has no thing to do with values.

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    • @I.R Dude come on.I myself i`m into pu-ssy(just from getting some actually) but it just doesn`t make sense to me why we should be hard on individual with a preference for an alternative style of copulation.High time we understood that not all individuals are the same.It is each one to himself.If one individual feels like inserting his item in a sewer line, then let it be it is his choice not mine.We have to change our altitude in the way we treat others coz this is discrimination of the worst kind.

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    • Abuse of the Anus is a very serious offence. You Anus fackers please leave the anus to perform its duty – to expel feaces from the body system. That is what it was meant for…..

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  3. one is innocent untill proven otherwise but for these two poor boys ,,they are guilty until proven otherwise because they were trying make a baby through unnatural pipping…kekekekkakakakkikikik

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  4. Be fore warned that this scourge is coming to Africa like cholera in the near future. European countries are legalizing homosexual marriages and the church is just watching. Very soon after tarnishing their societies, they will turn to Africa and use aid as a weapon to destroy our culture. It happened in Malawi. Cage these boys and after let them see a doctor.

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  5. “Magistrate Mbuzi also ruled that once given bail there is a possibility that the couple may go and commit similar offences as charged bearing in mind that they did so when they were granted police bond upon being arrested.”

    Sorry, but Magistrate Mbuzi is assuming they are guilty! What happened to innocent until PROVEN guilty?

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  6. ba LT why don’t you keep our names,email,website?its tiring to type our details everytime we want to make a coment especialy using a phone.

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  7. Now I am utterly and totally confused.moc!, who has been doing who here? I tried to read between the lines and I now think I am reading along the lines. Did I read that one was entered and then on another occasion the entree became the entered? Help to resolve this conundrum. Prison is like paradise for these two as they are going to have orgies in there. The confusion continues for me and the law in particular. It’s like locking up a bank robber in a cash vault and handing him a key in one hand a sack in the other while the vaults door is unmanned and wide open.

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  8. Don’t just vote me down – explain the context in which you understand this story above. In all honest, I actually found it a bit long wounded and in need of summarisation without loss of content and meaning. I don’t swing on both sides – I swing on the right side fortunately for me but no need for you to come out just yet.

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  9. Don’t stand a high moral high ground here. Follow the facts as they are given in this article. I count it as a draw at the moment 2 for 2 against.

    My ruling:

    These are just very stupid young boys who are not really sexually oriented but with brains the size of peas one in each. Non has displayed being male of feminine in their deed if the story is to go by it and I don’t think homosexual do change roles at will.

    My verdict:

    Misadventure, give them 10 strokes of a wet cane on their bare bottoms and let them go. Don’t waste taxpayers money on trash.

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  10. where is Mushota? she’s very well versed with these matters. I hope she is a she.

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  11. This issue of saying everyone has the right to do what they want as “kings” imply is nonsense. It’s like saying if you want to steal u can do it when u are in luck, its ok. We should realize that we are people created with dignity, hence we should have dignity in our actions. We will not have control if rights are created by individuals and justified by the same individuals.

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    • Its reasoning like yours which makes anti gay activists look not only dull but disoriented.How can you compare stealing with being gay ? A person who steals affects another person who incurs a loss materially, financially and mentally.But two gay point don`t affect anyone.It is only between the two of them.Those are two individuals in a comfort of their room going about their business without harming anybody.Lets be fair in the way we treat others.

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  12. Just bail them yaba haha. It seems to me the only reason bail was not granted was the lazy excuse that the chaps would interfere with the relatives and that they would commit a similar offense. Thats like saying that some one accused of stealing should not be given bail because they will steal again. In the eyes of the law no difference exists. The other reason concerns their protection. Seriously would the same concept be applied to some one accused of lets say raping some one? There a number of people who would be aggrieved by such a case and would seek revenge on the defendant. I am afraid this excuse is too flimsy. This assumes rape is bailable.
    The same goes for the defendants talking to their relatives who happen to be state witnesses. The all case is going to be subjective.

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  13. These animos nayakwata na ba loya? Imwe mwbantu we should be like Uganda and Zimbabwe, ifitaila capwa.

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  14. William Ngwira and Mubanga Bwalya of SBN Legal Practitioners of Lusaka, who is paying you? Naimwe Lesa akamikanda mwe mbwa mwe tu.

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  15. I have had before lesbian friends both zambians and none zambian in the US. I don’t have any issues against homosexuality here because its the norm of this society.
    Now doesn’t that mean I’m okay with homosexuality in Zambia? No. Reason being that the Zambian society is not yet ready for such and until such a time when we will ethically be comfortable with such. In short, any people has a choice but I think it would currently be unfairto the Zambian elderly.

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    • I find it pretty confusing to have two contradicting issues in Zambia: Zambia is a Christian Nation (unanimously it appears for the constitutional makers and some lawyers); Homosexuallity should be allowed!

      Are we mad as a country that we do not know what we want? The question of homosexuallity is not even worth debating! Either lock them up or forget the case … we are just wasting time!

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  16. How can you be gay mu Komboni and expect people to leave you alone or understand. You should have moved to Kabulonga or Kansenshi, you might have just got away with it. Some of these habits are meant for the well to do, who can afford to live behind a high wall and hide from prying eyes

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  17. Our constitution does NOT allow homosexuals just like it does NOT allow murder. So if one feel their rights are not protected by law, they must submit to the current constitutional review team for ‘consideration of the ‘submission. Until then if you are gay or lesbian in Zambia, please stay in closet. Or take your closet to USA, RSA or EU and open it there. In Zambia and right now. It is a NO.

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  18. Just release them and let the mob deal with with them. I am sure there are a lot safer behind bars and most likely will find men of their taste. This gay/lesbian thing is becoming hot everywhere even here in China. It’s now common to see some girls dressed and behaving like men with their “girlfriends” even openly kissing and holding hands. I don’t know where the world is going to.

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  19. if a dog can know that this is my fellow male dog,what of a man who was mad in the image of God.it is a disgreece in the eyes of GOD,and remember no one will be forgiven due to ignorance.The bible is very clear.In every society there are rules and regurations

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    • Are you sure you have studied wildlife sir/madam? There are freakshows there, too! Beware! We even have VIRGIN births in the animal kingdom – including ‘turnaround’ sexuality (if that is closest to homosexuality)… Unfortunately the tide of civilian march is unstoppable. With time we will either embrace this nonsense, or tightly defend it with the constitution we have. Cheers.

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  20. In short, the choice to have sex with animals (Bestiality) is not available in Zambian law, just as the choice to have sex with a family member (incest) is not available, just as the choice to have same sex sex (homosexual, lesbian) is not available in Zambia. Change the law to allow one of these repulsive abnormal acts, then you will have to change to allow ALL of them simply because the exact same argument would apply to all of them. What we should be debating is ‘What would be the most appropriate corrective measure to take to combat homosexuality in our Society? What values have we lost along the line in the name of development and ended up like this?’ By the way has anyone ever seen gay Elephants or gay Lions living in their natural habitat?

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    • Come on dude you can`t compare being gay with Bestiality.An animal will never be a consenting adult but a fellow human will.That kind of reasoning should be left in the stone or Victorian age.

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    • Dear Kings, your inability to argue your case without degenerating into name-calling speaks volumes about you. Consenting adults?? An adult male dog agrees (consents) to have sex with an adult woman by riding a woman in the exact same way it rides an adult female dog. So there you have it. Two consenting ADULTS. Or are you now going to suggest the male dog is forced to have an erection against its will and then ride the woman dog-style are you? I notice you have not commented on two consenting adults committing incest. Is that ok by your standards? And when you are asked whether you have ever seem a gay lion or gay elephant in their natural habitat, you call that a stone-age question?? You, my friend have run out of credible points.

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    • Dude come on.Two consenting adults will never harm anybody.Its between them,let them use the orifice for defecation for other things if they feel like it,it is their life and not yours.They will face their maker in an individual capacity.I would worry about my personal business and salvation if i were you.

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    • I notice you are trying to digress from the crux of the matter. And the matter is simply this: – 1.) Your argument about ‘two consenting adults’ in homosexuality as a basis to change the Law in Zambia does not wash because your argument would also apply to Bestiality and incest. 2.) Have you ever seen gay Lions or gay elephants in their natural habitat? …

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    • You asked about animals in the world and i gave you examples.What else do you want ? By the way am not gay its only that i can`t hate anyone because of having a different sexual orientation from mine.

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    • Dear Kings, you do not have any credible points w.r.t. basis on which to change the law in Zambia to legalize Homosexuality. Period. End of story.

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  21. People generally don’t have a problem with prisoners inserting their dicks into fellow prisoners’ asses. But they sure are against homos promoting and trumpeting their filth as an acceptable way of life. This obviously can’t be acceptable even if you waited eternally for it. It is against nature! Isn’t that obvious too? If you must do it go ahead, who can police you, but don’t parade and shove it in people’s faces as an alternative lifestyle. It’s insane and extreme mental illness to imagine another man’s anus is a source of sexual gratification.

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    • You are clearly full of excrement and think
      anally. Get your brain not backside to think.

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  22. If this case is becoming a rallyibg point for gay activists, then it would be a good idea to move the trial elsewhere. Alternatively, the trial could be conducted without media sensationalism. There is no need to divide the country and divert attention from development issues. Development issues include infrastructure, services, roads, schools, hospitals, universities, bridges, housing, electric power. Simple reminder: countries praising gays today are the same countries that ostracized and lynched gays a few years ago.

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    • Its called being open minded.I`m not just into imposing my personal beliefs and principles onto others.

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  23. Dear Kings, your inability to argue your case without degenerating into name-calling speaks volumes about you. Consenting adults?? An adult male dog agrees (consents) to have sex with an adult woman by riding a woman in the exact same way it rides an adult female dog. So there you have it. Two consenting ADULTS. Or are you now going to suggest the male dog is forced to have an erection against its will and then ride the woman dog-style are you? I notice you have not commented on two consenting adults committing incest. Is that ok by your standards? And when you are asked whether you have ever seem a gay lion or gay elephant in their natural habitat, you call that a stone-age question?? You, my friend have run out of credible points..

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    • Lol…dude even animals express gay behavior .Use your internet to research about a chipazee species called bonobo`s.The same has been observed in Lizards called Whiptail lizards.There are fish species i learnt in my biology class which i have forgotten. Get your facts right before showing your ignorance and limitations here.

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    • There are gay bedbugs too.Just use your internet wisely sir.I personally learnt all this in pre-med.Ok i bet i have given you enough data that might help reduce your hatred toward that discriminated against group in society.

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    • I notice you are trying to digress from the crux of the matter. And the matter is simply this: – 1.) Your argument about ‘two consenting adults’ in homosexuality as a basis to change the Law in Zambia does not wash because your argument would also apply to Bestiality and incest. 2.) Have you ever seen gay Lions or gay elephants in their natural habitat?

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    • Yes i have seen chimpanzees doing that in the natural habitat .There is actually a video on you tube.

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    • Dear Kings, you do not have any credible points w.r.t. basis on which to change the law in Zambia to legalize Homosexuality. Period. End of story.

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    • The basis is it is none of your business what another person decides to do in private aslong it doesn`t infringe on other peoples rights,health and safety.

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  24. Kings, do you think fathers should have sex with their daughters or marry them if they consent? The same way you cannot have sex with your sister or brother is the same reason why we have laws in the country against homos. For a pre-med, I am surprised you have forgotten your genetics. If there was a gay gene, gays would have been extinct a long time ago because the gene could not have been passed on to the next generation because same sex cannot produce offsprings. Being open minded does not mean that we have to legalise or accept vices like homosexuality, bestilia, incest ,cocaine or heroine use and peadophilia.

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    • Dude get yourself some education not that religion crap you have been getting it has brainwashed you.

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