Two men that have stood trial for allegedly engaging in homosexuality have been convicted and committed to the High Court in Kapiri Mposhi District in Central Province for sentencing.
This is in the case where Japhet Chataba, 38 a carpenter and resident of Ndeke compound in Kapiri Mposhi and Stephen Sambo , 30, who is a planning officer at Ndola City Council have been appearing before resident magistrate Ackson Mumba.
The duo were charged with having engaged in having had carnal knowledge against the order of nature contrary to Section 155 (a) of the Penal Code, Chapter 87 of the Laws of Zambia as read with Statutory Instrument number 15 of 2015.
Both Chataba and Sambo pleaded not guilty to the charge.
The state had lined up five witnesses to testify in the matter.
At the close of the prosecution’s case, Chataba and Sambo were found with prima facie case and subsequently put on their defence.
However, the accused persons who were represented by Daniel Libati of Abha Patel and Associates, a Ndola based legal firm elected to remain silent in their defence.
The matter came up for judgement before Petauke based resident magistrate Ackson Mumba sitting in Kapiri Mposhi on yesterday (Friday).
In his ruling Magistrate Mumba observed that four prosecution witnesses that testified in the matter were eye witnesses because they physically saw Chataba having anal sex with Sambo in room 16 at a named lodge, adding that the prosecution witnesses proved the identity of the two men thereby making the evidence collaborative.
Magistrate Mumba stressed that the first witness remained firm in her examination in chief and cross examination, adding that the credibility of her evidence cannot be questioned.
He added that the defence counsel failed to challenge the evidence of the first witness and the arresting officer.
Magistrate Mumba, in his 90 minute judgement delivered yesterday, further observed that despite the medical doctor who examined the two men that had allegedly engaged in homosexuality informed the court that his findings were inconsistent with the allegations, the said doctor was quick to state that that does not exclude the possibility of sodomy, especially that the medical examination was conducted on the duo 10 days after they were found having anal sex.
Magistrate Mumba explained that by the mere fact that the two accused persons opted to remain silent in their defence meant that the court’s duty was to draw reference to the evidence adduced by the prosecution witnesses because the court could not start to speculate what the accused persons wanted to say in their defence.
He stressed that “the law is what it is and not what it ought to be.”
The resident magistrate added that the prosecution team had proved its case beyond any reasonable doubt, saying he was convicting the two men as charged.
For this reason, Magistrate Mumba then committed Chataba and Sambo to the High Court for sentencing as the magistrate’s court has no jurisdiction to pass sentence in an offence where people are alleged to have engaged in homosexuality.
Defence counsel Libati then followed the convicted men to the holding cells where he conferred with them.
Libati had “no comment” on the outcome of the case when approached by members of the press.
On August 25, 2017 Chataba and Sambo were found by members of the public at a named Lodge in Kapiri Mposhi having sexual intercourse against the order of nature.