Why Decriminalising HIV Transmission is The Way To Go For Zim

OVER the past few months, there has been talk around the subject of decriminalising HIV transmission. The minister of Justice, Honorable Ziyambi Ziyambi told Parliament that government was planning to decriminalise wilful transmission of HIV following the gazetting of the Marriage Bill.

By Michael Gwarisa

Civil Society Organisations (CSOs) which include the Zimbabwe Lawyers for Human Rights (ZLHR), Katswe Sisterhood, Zimbabwe Aids Network (ZAN), Zimbabwe National Network of People Living with HIV (ZNNP+) among others have been advocating for the repealing of Section 79 of the Criminal law which criminalises wilful HIV transmission.

According to Section 79 of the Criminal Law (Codification and Reform Act) Chapter 9:23, deliberate transmission occurs when (1) a person who- (a) knowing that he or she is infected with HIV; or (b) realising that there is real risk or possibility that he or she is infected with HIV; intentionally does anything or permits the doing of anything which he or she knows will infect, or does anything which he or she realises involves a real risk or possibility of infecting another person with HIV, shall be guilty of deliberate transmission of HIV, whether or not he or she is married to that other person, and shall be liable to imprisonment for a period not exceeding twenty years.

ZLHR programme manager for HIV, Human Rights and Law Project, Tinashe Mundawarara said Zimbabwe has the highest rate of prosecutions in sub-saharan African and the sixth highest in the world vis-à-vis HIV criminalisation.

HIV criminalisation is unjust. It violates human rights and threatens Zimbabwe’s HIV response. When it comes to HIV criminalisation, Zimbabwe has the highest rate of prosecutions in sub-Saharan Africa and the sixth highest globally.

“HIV criminalisation is the unjust application of criminal laws against people living with HIV on the sole basis of their HIV status. This includes the use of HIV-specific criminal laws as well as general criminal provisions as applied to HIV transmission, potential or perceived exposure and nondisclosure of an individual’s HIV-positive status,” said Mundawarara.

He added that Section 79 was over broad and open to unjust application.

“The words “deliberate transmission” are misleading. Section 79 is not only limited to cases of deliberate and intentional transmission of HIV. It has also been applied to cases where: no actual HIV transmission occurred, there was no proof that the accused person was the one who caused the transmission of HIV

“The accused had no intention to infect the other person with HIV;  there is not even proof of intentional conduct;  exposure to HIV is merely assumed; and the accused’s acts pose no real risk of HIV transmission.”

He also said Section 79 has been applied to sexual conduct such as consensual sexual intercourse between married adults. But also to non-sexual conduct, like breastfeeding. People who have never had an HIV test or who don’t know they are HIV-positive can be convicted merely if there is a “reason to believe” that they might be HIV-positive.

“No actual HIV transmission occurred; there was no proof that the accused person was the one who caused the transmission of HIV; the accused had no intention to infect the other person with HIV;  here is not even proof of intentional conduct;  exposure to HIV is merely assumed; and the accused’s acts pose no real risk of HIV transmission. People who don’t know their HIV-status can be convicted. People who have never had an HIV test or who don’t know they are HIV-positive can be convicted merely if there is a “reason to believe” that they might be HIV-positive.”

Meanwhile, Section 53(2) of the Marriage Bill 2019 repeals section 79 of the Criminal Code and there are reasons why this is an important and positive reform according to Mundawarara.

“Section 79 is vague and overbroad. The African Commission on Human and Peoples’ Rights and the UN Special Rapporteur on the Right to Health have both said section 79 is vague and overbroad. The principle of legality requires that criminal laws must be clear and precise so that ordinary people can know what conduct is prohibited. Vague and over-broad laws offend this principle.

“HIV criminalisation violates human rights and increases HIV stigma. Section 79 violates human  rights of people living with HIV to equality, freedom from discrimination, privacy, human dignity, health, liberty, and the right to a fair trial, amongst others.”

He further added that HIV criminal laws are unscientific and Section 79 (like most HIV criminal laws) is frequently applied in unjust ways contrary to the science of HIV. Courts, lawyers and prosecutors often do not understand HIV transmission dynamics, do not enjoy access to adequate expert evidence, and are prone to the same prejudice and misinformation that drives stigma in communities.

HIV criminalisation does not prevent HIV. Nowhere in the world has it been shown that HIV criminalisation actually prevents HIV or deters people from conduct likely to spread HIV. HIV criminalisation simply does not work.

“HIV criminalisation inhibits people from disclosing their HIV-status. Knowing that someone finding out about your HIVstatus could make you vulnerable to criminal prosecution, actually makes it harder to disclose by increasing the risks of disclosure.”

The law has also been accused of harming women more than it does men and Section 79 has  been disproportionately applied against women living with HIV.

“Women are usually the first to know of their HIV status and are  vulnerable to being falsely blamed for bringing HIV into the relationship. Women living with HIV are also vulnerable to violence and abuse in intimate relationships and the threat of prosecution only increases that vulnerability.”

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