Defense opens in homosexual case

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

The case in which two Kapiri Mposhi men were put on their defense for practicing homosexuality has resumed in the magistrate court.

James Mwape and Philip Mubiana were found with a case to answer and put on their defense by Kabwe Principle Resident Magistrate, John Mbuzi last week.

Mwape, a bricklayer and Mubiana a hair dresser both aged 21 and residents of Soweto compound are charged with 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.

The defence called its first witness today, a sexual assault forensic expert who testified that it was unethical for a medical practitioner to conduct physical examination on a patient without obtaining their written consent.

Dr. Lalick Banda, a Medical Doctor from the University Teaching Hospital (UTH), said medical practitioners are compelled to obtain written consent and refer to relevant guidelines before attending to patients involved in sexual assault cases.

Dr. Banda who is also leader of the Medical Team sitting on the Multi Disciplinary Team for Review of Sexual Assault in Zambia testified that persons to undergo sexual assault forensic examination need also to be informed by the examiner about the process and the purpose of the examination.

He told the court that only expertly trained medical practitioners are permitted to conduct forensic and physical examinations on patients of sexual assault.

Dr Banda testified that a person holding a Medical Licentiate qualification was not competent to give expert evidence in the matter before court and does not qualify to conduct forensic investigations on patients of sexual assault.

Dr. Banda who informed the court that he had handled over 3000 cases including male-to-male sexual offences that required sexual assault forensic examinations in his eight year career at the UTH said there were sufficient guidelines in Zambia that govern handing of sexual offences.

He referred to the National Guidelines for the Multi-Disciplinary Management of Survivors of Gender Based Violence in Zambia issued in 2011 which tabulates the procedure to be followed by medical practitioners and police officers when handling sexual assault cases.

“It is unethical for a medical examiner or a police officer not to follow the guidelines on how to handle sexual assaults when obtaining evidence …. Written informed consent should be obtained from the person to be examined because examinations can be very uncomfortable to anyone and if someone has not consented in written the examination should not be carried out,” Dr. Banda said.

And Dr. Banda told the court that forensic DNA examination was relevant to the process of proving the involvement of a person in sexual assault offences.

“DNA is very relevant in sexual assault forensic examination… DNA samples through blood, urine swabs and spermatozoa can last for more than 10 years if well kept and can provide evidence of a person’s involvement in a sexual assault case”, Dr. Banda said.

Meanwhile, Magistrate Mbuzi has adjourned the case to 26 March 2014 for cross examination and continuation of defense.

The duo is being represented by Sunday Nkonde of SNB Legal Practitioners of Lusaka.