This morning Paul Kasonkomona appeared before the Honourable Lemeck Ngambi at Lusaka Magistrates’ Court. In April 2013, Kasonkomona was charged with the idle and disorderly offence of soliciting in a public place for immoral purposes. Kasonkomona was arrested after he appeared on a Muvi TV programme where he spoke about the need to recognise the rights of vulnerable groups such as LGBT persons and sex workers in order to comprehensively address the HIV pandemic. As testimony to Kasonkomona’s community activism a group of sex workers came to support him in court.
Although Kasonkomona’s case was scheduled for trial today, his lawyer Sunday Nkonde SC from the firm SBN Legal Practitioners indicated that the defence had filed a constitutional application which should be heard prior to the trial. The prosecution argued that they would need to peruse the application and the case was accordingly postponed until the afternoon on 4 June 2013.
Whilst the arrest and prosecution of Kasonkomona relates directly to his right to freedom of expression, the case will also serve to highlight the challenges accused face within the criminal justice system in Zambia. The practice in subordinate courts is for the prosecution not to provide an accused with detailed information about their case against him or her. This is also an issue in this case.
Thus, the constitutional application by the defence is on two grounds:
- That section 178(g) of the Penal Code, which 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; and
- That the failure by the prosecution to avail the defence with statements of the witnesses the prosecution intends to call and other evidence, violates an accused’s right to a fair trial under article 18(1) of the Constitution.
On 4 June 2013, 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 determination of the constitutional issues before the trial commences.
SALC is working with SBN Legal Practitioners on this matter and will provide regular updates on the case on this site. A summary of the case is available here.