Kasonkomona, 38, is charged with one count of idle and disorderly conduct by soliciting for immoral purposes.
Particulars allege that Kasonkomona, of Chilulu Garden Township is on April 7, this year solicited for homosexual rights to be respected in Zambia during ‘The Assignment’ programme on Muvi Television.
Before commencement of trial, Kasonkomona had applied to have his case referred to the High Court for determination of Constitutional matters.
He had contended that the constitutionality of Section 178 (g) of the Penal Code was vague and violated Article 18 and 20 of the Constitution.
And Magistrate Lameck Ng’ambi in his ruling after the application stayed the proceedings and allowed the application of Article 18 and 20 in which the accused claimed that the section violated his fundamental rights.
But in her ruling yesterday, High Court Judge Anne Sharpe Phiri dismissed the application on grounds that there was no Constitutional issue raised concerning the contravention of fundamental rights.
Ms Justice Phiri said a review of the two relevant pieces of legislation showed that Section 178 (g) of the Penal Code referred to a person being ‘idle and disorderly’ by soliciting for immoral purposes whereas Article 20 of the Constitution referred to the fundamental freedoms of expression.
“I am of the considered view that the subject contained under section 178 (g) of the Penal Code was not the same as that contained in Article 20 of the Constitution. The two issues are different.
“I therefore find that there was no Constitutional issue concerning the contravention of fundamental rights of the accused and there was no ground for the magistrate to refer the case. I therefore send this file back to the magistrate to deal with the matter,” Ms Justice Phiri said.