Kapiri gay couple ruling set for February 25, 2014.

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

The Kabwe Magistrates court has set February25, 2014 for ruling in a case in which two men of Kapiri Mposhi are facing charges of practicing homosexuality.

This follows the conclusion of submissions by the prosecution after all its eight witnesses finished testifying in the matter which has taken close 10 months.

Kabwe Principle Resident Magistrate John Mbuzi has also set February 7 and 21, 2014 as dates for presenting written submissions by state prosecutors and defense lawyers respectively.

In this case James Mwape, a bricklayer and Philip Mubiana a hair dresser both aged 21 and residents of Soweto compound are charged with committing unnatural offences contrary to section 155 of the penal code chapter 87 of the laws of Zambia as read with amended Act number 15 of 2005.

The duo are being represented by Sunday Nkonde-SC of SBN Legal Practitioners of Lusaka.

Mwape and Mubiana are alleged to have on unknown dates but between April 11 and 25, 2013 in Kapiri Mposhi in Central Province to have had canal knowledge of each other against the order of nature and stayed together as man and wife.

Yesterday, in a day long court session, the remaining two state witnesses, Andrea Bandula a Senior Resident Medical Officer at Kapiri Mposhi District Hospital and the arresting officer, Chief Inspector Rayford Hamyanza at Kapiri Mposhi Police Station testified in the matter summing up the number of state witnesses to eight.

In his testimony Dr. Bandula said he conducted physical examinations on the two suspects on May 22, 2013 after the duo were brought taken to him to ascertain allegations that the two engaged themselves in sodomy.

Dr. Bandula testified that he obtained a verbal consent from each of the suspects before examining them and took samples from them for laboratory investigations.

He however said he could not order for forensic investigations on the suspects because the 72 hour window period had elapsed.

“I could not do a forensic because it is not recommended to conduct forensic investigations after 72 hours has elapsed because the samples lose the usefulness. However I did physical investigations and I wrote a report and handed it over to the police,” Dr. Bandula said.

He told the court that during his physical examinations he discovered the presence of anal warts and dilation of the anal pipe on Mubiana and bruises on Mwape’s manhood results which he said were consistent with the alleged charge against the duo.

Dr. Bandula however said the Laboratory tests on the duo came out normal.

But in cross examination by the defense lawyer, Sunday Nkonde, Dr. Bandula said the findings on the two suspects could also be caused by other conditions that include constipation, compromised immunity and Sexually Transmitted Infections (STI).

He therefore stated that it would not be entirely correct to conclude that the conditions presented by the duo after physical investigations were entirely caused by sexual contact.

And Chief Inspector Hamyanze, 54, said he handled two separate incidents of alleged sodomy involving the two suspects.

Inspector Hanyanze said the first case was on April 28, 2013 when he found a report at Victims Support Unit (VSU) from a complainant, Sharon Mubiana, the elder sister of Philip Mubiana, that her brother and his friend James were staying as man and wife.

He said following the report he warned and cautioned the duo and later arrested the suspects before releasing them on police bond awaiting appearance in court.

Inspector Hamyanze said the second time he handled the case was on May 7, 2013 while on duty when he received a report that the duo had been re-arrested and brought to police after being found having anal sex by the complainant, Sharon, in their room while on police bond.

He said he interviewed the suspects and issued police medical reports on both occasions.

“In the first incident the accused were examined at the Hospital by Dr. Luhanga while on the second incident they were examined by Dr. Bandula who both prepared reports on their findings and I charged them with committing the case of unnatural offences based on the two medical reports,” Inspector Hamyanze said.

Inspector Hamyanze said both Mubiana and James denied the charge.