Paul Kasonkomona

The case against Zambian LGBT and HIV activist Paul Kasonkomona has been postponed after his lawyers challenged the constitutionality of charging him for speaking in favour of gay rights.

Kasonkomona was arrested last month after he spoke on television about the need to recognise the rights of vulnerable groups such as LGBT people and sex workers in order to comprehensively address the HIV pandemic.

He was detained by officers as he left the television studio and was charged with the offence of “soliciting in a public place for immoral purposes”. He was jailed for more than three days and was reportedly not allowed access to his HIV medication before being granted bail.

On Wednesday, Kasonkomona appeared in the Lusaka Magistrates’ Court for the start of his trial. His lawyer indicated, however, that he had filed a constitutional application which should be heard prior to the trial.

The prosecution in turn argued that they would need to assess the application and the case was postponed until 4 June.

According to the Southern African Litigation Centre (SALC), which is providing support to Kasonkomona’s lawyer, Kasonkomona is asserting that his arrest and prosecution “relates directly to his right to freedom of expression”.

His lawyers are also claiming that the law that deals with soliciting in a public place for immoral purposes “is unconstitutionally vague and overbroad and contravenes article 20 of the Constitution which protects the right to freedom of expression”.

On 4 June, the prosecution will argue its response to the defence’s constitutional application. The magistrate will then make a decision on whether to refer the case to the High Court for a ruling on the constitutional issues before the trial commences.

Following Kasonkomona’s arrest, the Zambian authorities arrested two young men on charges of having sex “against the order of nature”.

James Mwape and Philp Mubiana, both in their early twenties, were arrested earlier this month after one of the men’s relatives contacted the police and reported their relationship.

They have been denied bail and could face up to 15 years in prison if found guilty. The men’s trial is set to begin on 22 May.

Consensual adult same-sex acts are criminalised in Zambia. Offences such as sodomy, or sex between women, carry a minimum sentence of 15 years or a maximum of life in prison. Attempts to have sex without being successful are punishable by a minimum sentence of seven years or a maximum of 14 years jail time.

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