Kabwe Principle Resident Magistrate, John Mbuzi has acquitted two men of Kapiri Mposhi district on charges of practicing homosexuality.
In his judgment today, Magistrate Mbuzi ruled that the prosecution failed to prove the case beyond any reasonable doubt from evidence adduced from its witnesses to secure a conviction.
The case carries minimum of 15 years to life if convicted.
Philip Mubiana, a hair dresser and James Mwape, a bricklayer of Ndeke and Soweto compounds , respectively, were appearing in Kapiri Mposhi Magistrates Court each charged with two counts of committing unnatural offences contrary to section 155 (a) and (c) of the penal code chapter 87 of the laws of Zambia as read with amended Act number 15 of 2005.
It was alleged that the duo on unknown dates but between 11 and 25 April 2013 and 5th May 2013 in Kapiri Mposhi had canal knowledge of each other against the order of nature and were living as man and wife.
Mubiana and Mwape were being represented by Sunday Nkonde-SC of SNB legal Practitioners of Lusaka after.
In the case that has taken over a year now, the prosecution called up eight witnesses among them Dr. Andrea Bandula and Melody Luhanga, a medical licentiate from Kapiri Mposhi District Hospital who separately carried out physical investigations on the two suspects.
The defense called up only one witness, Dr. Lalick Banda, a Sexual Assault Forensic Expert at the University Teaching Hospital (UTH) after the accused were found with a case to answer and put on their defense in March 2014.
Delivering judgment in a fully packed court room today, Magistrate Mbuzi stated that according to the evidence adduced from the state witnesses, the accused were not found in a sexual act when they were apprehended.
Magistrate Mbuzi further observed that the evidence brought before court that the two expert state witnesses only conducted physical examinations was not enough to prove the involvement of the two accused persons in a sexual act.
The magistrate ruled that there was need for DNA forensic investigations on the two to prove penetration and ascertain their involvement in a sexual act.
He said although same sex and sodomy was a taboo in the Zambian culture and the Bible, the proof of penetration in this matter was essential.
In their testimony on their findings, expert state witnesses Dr. Andrea Bandula and Melody Luhanga admitted that they had not carried out DNA forensic tests but only conducted physical examinations on the accused persons because of the lapse in the 72 hour time when the two suspects were presented to them by the police.
According to the physical examination findings by the two medical personnel Mubiana was found with anal warts and dilation of his anal pipe while Mwape presented with bruises on his manhood.
Magistrate Mbuzi however ruled that there were also other conditions such as constipation and compromised immunity that can cause the physical examination findings on the two suspects.
“It would be incorrect to infer that the examination findings and conditions presented by the suspects after physical investigations were entirely caused by sexual contact noting that forensic DNA examination was relevant to the process of determining the involvement of the accused persons in a sexual act … I therefore acquit the accused persons on all counts,” Magistrate Mbuzi decreed.
Germany ambassador to Zambia, Bernd Finke witnessed the judgment but refused to give interviews to the media about the outcome of the case and immediately jumped into his car and sped off.
European Union (EU) head of cooperation, Aad Biesebroek and United States embassy representative Mark Padat also witnessed the judgment.