Case Summary and Outcome

Human rights activist Paul Kasonkomona appeared on a television program advocating for human rights of the LGBT community in Zambia. He was arrested and charged under section 178(g) of the Penal Code. The High Court affirmed the Magistrate Court’s ruling as the state failed to prove its case beyond reasonable doubt, and that Kasonkomona was exercising his right to freedom of expression.

Facts

Paul Kasonkomona (defendant) is a prominent human rights activist in Zambia. He appeared on a television program requesting the government to decriminalize homosexuality, protect the human rights of the LGBT community and sex workers, and to combat the spread of HIV among these groups. The defendant was arrested and charged under section 178(g) of the Penal Code with the idle and disorderly crime of soliciting in a public place for immoral purposes.

The defendant pleaded not guilty to the charges presented by the state. He submitted that he was exercising his right to freedom of expression protected by the Constitution of Zambia and that the Penal Code does not prohibit the discussion of LGBT rights. The defendant also asserted that they did not commit the offense entailed in section 178(g) as they did not ‘solicit’ any activity for ‘immoral purposes’. The Magistrate Court acquitted the defendant as the state failed to establish a prima facie case.

The state appealed the ruling of the Magistrate to the High Court on the grounds that the court had erred in their definition of the word ‘soliciting’ and that there was sufficient evidence against the defendant. The state also argued that pursuant to article 20 (3) of the Constitution, which allows a justifiable limitation of freedom of expression, the defendant’s statements were promoting immoral conduct thus violating section 178(g) of the Penal Code.

Decision Overview

Justice Judy Mulongoti delivered the opinion of the High Court. The main issue before the court was the appeal brought by the state that the Magistrate Court had erred when they acquitted the defendant. Firstly, they argued that the Magistrate Court limited the definition of ‘soliciting’, and secondly that there was sufficient evidence against the defendant. The High Court formally dismissed the charges under section 178(g) of the Penal Code against the defendant.

Justice Mulongoti agreed with the Magistrate Court’s understanding that ‘soliciting’ requires an element of pressure and enticement. For that matter, Mulongoti dismissed the state’s claim that the Magistrate Court limited the definition of ‘soliciting’.

The court then established that the elements of section 178(g) are: 1) soliciting; 2) in a public place and 3) for immoral purposes. Accordingly, Mulongoti affirmed that for the state to prove its case beyond reasonable doubt it had to meet the three elements of section 178(g). Justice Mulongoti confirmed the ruling rendered by the Magistrate Court and acquitted the defendant. She determined that the state failed to prove their case beyond reasonable doubt and that they failed to meet the elements of ‘soliciting’ and ‘immoral purposes’ of section 178(g) of the Penal Code.

Justice Mulongoti asserted that regarding “soliciting”, the state did not prove that the defendant’s actions amounted to a persistent solicitation or persuasion to engage in immoral behavior. (p. 10). Mulongoti agreed with the Magistrate Court’s understanding that ‘solicitation’ has an element of persistence and pressure. (p. 10).

The court conceded that the television program in which the defendant discussed LGBT rights constituted a public place. Regarding the ‘immoral purposes’ of section 178(g), Justice Mulongoti agreed with the Magistrate’s Court that the “accused was not engaging anyone to practice homosexuality but advocating for the rights of those practicing it to be protected.” (p. 11). She added that the “respondent was exercising his right to freedom of expression.” (p. 12). The court also discussed that conduct of ‘immoral purposes’ entails actual sexual activity. Mulongoti coincided with the Magistrate Court that the defendant was advocating and discussing the rights of the LGBT community and not persuading to practice prohibited sexual activity. In her judgment, Mulongoti agreed with the Magistrate Court that the defendant was invited to the television program to discuss his views regarding LGBT rights.

Justice Mulongoti also agreed with the Magistrate Court and with the defendant that the right to freedom of expression can be limited pursuant to article 20(3) of the Constitution. The state argued that the analysis of section 178(g) can be entailed in cases “where there is not actual but potential harm to the public”. (p. 8). However, the state did not show that the defendant’s statements resulted in any harm to the public that justified a limitation to the right to freedom of expression. The defendant argued that state intended to use section 178(g) to “punish the respondent for expressing his opinion about the human rights of homosexual minority groups.” (p. 9).

For these reasons, Justice Mulongoti concluded that she agreed with the Magistrate Court’s ruling that the prosecution did not prove their case beyond reasonable doubt and that the defendant was exercising his right to freedom of expression. (p. 12).