Appeals court overturns HIV conviction

HARARE - A Bulawayo security guard was on Wednesday released on bail pending appeal after being jailed for 13 years earlier this month for deliberately infecting his girlfriend with HIV.

Nevson Mpofu, 39, was convicted on November 4 by Bulawayo regional magistrate Sibongile Marondedze under Section 79 (1) (a) of the Criminal Law (Codification and Reform) Act Chapter 9:23.

A Court of Appeal ruled the evidence used to convict Mpofu was legally insufficient.

The deliberate transmission of HIV crime came into force in 2004 and has been contentious, with Zimbabwe Lawyers for Human Rights (ZLHR) fighting to have it repealed and launching a Constitutional Court challenge.

It is a crime for anyone who realises “that there is a real risk or possibility” that he or she might have HIV to do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV”.

“This section is a bad law which is poorly drafted, overbroad and counterproductive. It is at cross purposes with Zimbabwe’s public health policy, is unjust, unconstitutional and facilitates gross violation of the rights of people living with and affected by HIV,” ZLHR said in a statement.

His lawyer Lizwe Jamela of ZLHR argued that “the sentence given to Mpofu was too excessive ... that there was an objection to the production of his medical records in court during his trial.”

Mpofu was admitted to $100 bail by Marondedze pending the hearing and determination of his High Court appeal against both conviction and sentence.

“In his appeal, Mpofu . . . wants  . . . a trial de novo (fresh trial) be constituted before a different magistrate” arguing “Marondedze erred in convicting an unrepresented accused person without properly explaining the charge and the facts of the matter to the full appreciation and understanding of the accused person.”

Mpofu had tendered a plea of guilty but not a genuine admission of the charge, according to his lawyer.

Prosecutors insisted that an HIV+ Mpofu intentionally had unprotected sexual intercourse with his girlfriend, who was HIV negative.

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