Forensic DNA key in gay case – witness

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Philip Mubiana and James Mwape of Kapiri Mposhi district.
Philip Mubiana and James Mwape of Kapiri Mposhi district.

A medical practitioner has testified that it is not possible to conclusively determine that one has been sodomized through physical examinations alone but by also  conducting forensic DNA investigations.

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Melody Luhanga, who is a medical licentiate at Kapiri Mposhi District Hospital, told the court that forensic DNA investigations ought to be conducted on persons alleged to have been involved in an act of sodomy in order to ascertain the result.

 

This is in a matter where two Kapiri Mposhi men are appearing in the Magistrate Court for allegedly practicing homosexuality.

 

Mr. Luhanga said he only conducted physical examinations and not forensic DNA investigations on police request on the two suspects after they were arrested for allegedly practicing homosexuality on 7th May 2013.

 

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Mr. Luhanga said from the physical investigations he conducted on the suspects he discovered that Mubiana presented with lacerations and some white material in his anal area while Mwape had a reddish manhood but indicated that there were more other physical cases that can present the findings on the duo other than just sodomy. 

 

Testifying in the matter as state witness number six during a day’s long court session yesterday, Mr. Luhanga stated that other than sodomy the findings on the two men could have also been caused by several other conditions that include masturbation, chronic constipation, and reduced hygiene among others.

 

Before Kabwe Principal Resident Magistrate John Mbuzi where Phillip Mubiana a hair dresser and James Mwape a bricklayer, both aged 21 of Ndeke and Soweto compounds respectively in Kapiri Mposhi district.

 

Mubiana and Mwape are being represented by State Counsel, Sunday Nkonde of SNB Legal Practitioners of Lusaka.

 

Mr. Luhanga said he only conducted physical examinations and not forensic DNA investigations on the duo and hence he could not ascertain conclusively whether the suspects did involve themselves in homosexuality.

 

Mr. Luhanga told the court that forensic investigations were the only technique that could enable a medical practitioner determine whether the two men engaged in homosexual acts.

 

“It is not possible to conclude that the two engaged in sodomy based on physical examinations alone there is need to also conduct forensic DNA investigations to determine the cause of the findings,” Mr. Luhanga said.

 

In cross examination by defense lawyer, Sunday Nkonde SC, Mr. Luhanga said he did not subject the white material found in Mubiana’s anal area to forensic examinations to determine whether they were Mwape’s semen.

 

He further stated that he got verbal and not written consent from the two men before conducting his physical examinations on them adding that written consent was necessary only in cases where a patient was undergoing an operation.

 

In this case Mubiana and Mwape are facing four counts of engaging in homosexuality.

 

In the first count Mubiana is charged of 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 on unknown dates but between 11 and 25 April 2013 by permitting a male person, Mwape, to have canal knowledge of him against the order of nature.

 

In the second count Mwape is charged of 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.

 

Particulars of the offence are that Mwape, on dates unknown did permit a male person, Mubiana, to have canal knowledge of him against the order of nature.

 

In the third count Mwape is charged of committing an unnatural offence contrary to section 155 (a) of the penal code chapter 87 of the laws of Zambia of having canal knowledge of a male, Mubiana against the order of nature.

 

And in the fourth count Mubiana is charged with an offence of 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 of permitting a male person, Mwape, to have canal knowledge of him against the order of nature.

 

Meanwhile, Magistrates Mbuzi has adjourned the case to 27th December, 2013 for continuation of trial.

 

Magistrate Mbuzi has also warned the state to prepare their final witness, a medical Doctor from Kapiri Mposhi District Hospital, who has repeatedly failed to turn-up to testify.

 

“This is the last time I’m entertaining an adjournment in this case based on your failure to secure your witness… on 27th we should conclude this case with or without the state witness in question” Magistrate Mbuzi said.

 

This followed the defense’s complaint against the state’s persistence in seeking for adjournments based on witnesses’ unavailability.

 

The defense complained that the accused have been subjected to harsh conditions because they have continued to be held in remand.

 

And there was drama at Kapiri Mposhi Magistrate court when the families to the two accused burst into tears following the adjournment of the case to 27th December for continuation of trial.

 

The family members including the complainant in this matter, sister to Mubiana, Sharon hysterically wailed at the court premises as the duo were being led back to the holding cells by police officers.

   

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