James Mwape and Philip Mubiana

James Mwape and Philip Mubiana

Human rights groups – the Southern African Litigation Centre (SALC) and the Open Society Initiative for Southern Africa (OSISA) – say that the Zambian High Court must give bail to two awaiting trial men jailed for almost five months on charges of homosexuality.

James Mwape and Philip Mubiana, both 22-years-old and from Kapiri, have been accused of ‘unlawful carnal knowledge’. They have been in detention since May 2013 while their trial has been repeatedly delayed for largely bureaucratic reasons.

“It is unacceptable that these two young men have been in custody for almost five months,” said Chivuli Riva Ukwimi, OSISA’s Marginalised Populations Coordinator. “The High Court’s delay in attending to their bail application, in addition to the numerous delays in their trial, casts a serious shadow over the criminal justice system in Zambia.”

On 22 May 2013, the Kapiri Magistrates Court denied bail to the two men, who had pleaded ‘not guilty’ and whose trial had not yet started.

The accused’s lawyers have made repeated attempts since then to apply for bail in the High Court, which seems intent on never hearing the application. On the last occasion, a Kabwe High Court judge postponed the bail application for a further five weeks – without giving reasons.

“This case is one of many in Zambia that illustrate a disregard for the constitutional rights of accused people and the principles underlying the provision of bail,” said Anneke Meerkotter, a lawyer at SALC.

Zambia’s constitution demands that every accused person has the right to a fair trial, which includes the right to be presumed innocent. However, it is estimated that one in every three people in prison in Zambia are pre-trial detainees, say the organisations.

“There are no rationale reasons why the two Kapiri men should not have been granted bail. Any postponement or refusal of bail without lawful justification amounts to an unlawful deprivation of a person’s liberty,” Meerkotter said.

“It is of great concern that the Kabwe High Court has failed to attend to the bail application of the two Kapiri men on an urgent basis.”

In addition to being jailed for months on end, it was previously reported that Mubiana and Mwape were forced to undergo medical tests at Kapiri Mposhi District Hospital when they were arrested to “prove” that they had engaged in anal sex.

Amnesty International has demanded that Zambia drop the charges against the two men and release them from prison unconditionally.

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