Deliberate HIV transmission ruling reserved

HARARE - The Constitutional Court has reserved ruling in a case where two women are seeking the court’s protection from prosecution on allegations of deliberately infecting their partners with HIV.

The two women were arraigned before the Bulawayo Magistrates’ Courts in 2012 for contravening Section 79 of the Criminal Law (Codification and Reform) Act (Chapter 9:23), before they applied for the referral of the matter to the Constitutional Court.

Both women, who are represented by Thabani Mpofu, claimed the Act under which they were being charged infringed on their rights to protection of the law and right not to be discriminated against.

The women submitted that Section 79 was unconstitutional and prayed for it to be struck off.

Mpofu said that the provision criminalising the deliberate transmission was wide, vague and meaningless, adding that the maximum penalty of 20 years for the offence was draconian.

“The provision then deals with a real risk or possibility of infecting another. This is too wide and objectionable. Scientific research shows that condoms are not 100 percent effective in protecting against the risk of infections.

“Thus having sexual intercourse with a condom is, strictly speaking, irrelevant for the purposes of this provision. There is senselessness in this provision. The penalty is far too draconian to be defended as a legal law,” he said. He said the provision implied that one has to go through a lecture before having sexual intercourse.

“There is also a huge danger of false incrimination. It is currently not possible in this country to tell who it is that was infected first,” he said.

However, prosecutor Editor Mavuto opposed the application, arguing that there was nothing new or complex in the manner in which Section 79 of the Constitution was framed.

He justified the 20-year maximum prison term, claiming it deterred would-be offenders from committing a similar crime.

“Respondent is of the view that Section 79 is clear and straight forward. It is not too wide, broad and vague as submitted by the applicants,” Mavuto said.

He further said the provision did not criminalise having sexual intercourse with an infected person but the conduct of people who knew that they are HIV-positive but deliberately spread the virus.

“If deliberate transmission of HIV was left uncontrolled there would be a threat to public health,” he said, further noting that there would be more deaths if people were left to willingly spread the virus.

After the submissions, Chief Justice Godfrey Chidyausiku leading the full Constitutional Court bench of nine judges reserved ruling.

Comments (2)

Zvakaipa kuzunzira munhu hosha ine rufu. Chonetsa madzimai anoita gumbo mumba gumbo muroad zvinozivikanwa hapana mhosva nokuti ati hombarume orumwa anyerere. Panonetsa ukati vadzimu vanyemwerera opuhwa shirikadenga ine hosha. Apa munhu ngaazivise mumwe kuti ukapinda mumukoko mangu usina raincoat unopepuka bako waniwa. Yes sir munorumwa nenyuchi kunyange makadya nhapitapi yeuchi. Kwachiremba wonzi wakarumwa nechekutsvara. Munhu wese ngachenjere. Ari wangu tadana naye yes ma'am lets go kwadoctor for tests. Zvechekutsvara kwete munhu unofutsirwa 6 feet under iwe nehama dzako kuchema zvakare kuzvidemba uri muguva wave chipoko.

Hore Goredema - 20 February 2015

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