The Lusaka Magistrate’s Court ruled today that the criminal case against HIV activist Paul Kasonkomona should be transferred to the High Court for a hearing on the constitutional issues raised by the defence around the freedom of expression.
Kasonkomona was arrested in April 2013 and charged with violating section 178(g) of the Zambian Penal Code, which criminalises ‘every person who in any public place solicits for immoral purposes’ for public comments he made regarding the rights of lesbian, gay, bisexual and transgender individuals and sex workers.
After Kasonkomona’s first appearance at the Magistrate’s Court last month, the defence filed a constitutional application on two grounds – that section 178(g) of the Penal Code is vague and infringes on the right to freedom of expression; and that the Zambian prosecution’s practice of not providing an accused with detailed information about his case violates his right to a fair trial under the Constitution.
In response, the State filed papers arguing that there were no rights at stake to justify a constitutional reference to the High Court. The State further argued that a person’s right to freedom of expression can be limited on public morality grounds, and that the term ‘immoral purpose’ is clear as it refers to any behaviour unacceptable to society in a Christian nation.
The origins and purpose of section 178 will be at the crux of the arguments before the High Court. The State has argued that section 178 was intended by the legislature to curb speech on moral issues, while the defence maintains that the section was situated in the Penal Code chapter on nuisance and because of its origins in the English Vagrancy Act of 1898 it was merely incorporated into Zambian law without being discussed by the Zambian legislature.
The date of the High Court hearing will be confirmed in the coming months.
Kasonkomona is represented by Sunday Nkonde SC and William Ngwira from SBN Legal Practitioners, supported by SALC.