ZIMBABWE has the highest rate of HIV criminalisation prosecutions in Sub-Saharan Africa and the sixth highest in the world owing to what legal experts have termed a vague and retrogressive piece of legislation.
By Michael Gwarisa in Kadoma
Briefing journalists at Editors Media Workshop organised by NAC in Kadoma, NAC Legal Advisor, Mr Fanuel Ncube said the criminalisation legislation has a had a negative implication on the HIV response and parliament should move with speed to ensure its repealed.
In terms of the prosecutions, Zimbabwe among one of the highest countries in Africa of these kind of prosecutions. So we have really been doing very well in terms of the prosecutions. We should be one of the top 10 countries that have the highest HIV criminalisations.
“The law has had a disproportionate effect on women, I don’t know weather its natural or some other cause but women are passionatly concerned about their health status. Now women because they are the ones who fall pregnant, when they go for their natal services they have to be tested, that’s when they realise they are positive and they are the ones who go first so usually the man points to woman to say she is the one who would have infected him and he rushes to the courts so that how women are affected by this law,” said Mr Ncube.
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.
“That kind of law is very discriminating and unjust, when you go to the criminal proceedings themselves it, you realise that the status of the complainant is immaterial. What is material is the status of the accused person. Its very possible that the accused person may be convicted even though the complainant is HIV negative.
“In any case, there is not even a requirement for the complainant’s HIV status to be known. For the law to stand, the HIV status of the accused person should be known so in the initial stages of the law, it becomes very problematic because the accused person would refuse to be tested arguing that it was an infringement of their right to be tested. The issues of confidentiality comes into play,” said Mr Ncube.
Meanwhile, Zimbabwe Lawyers for Human Rights (ZLHR) programme manager for HIV, Human Rights and Law project, Mr Tinashe Mundawarara recently told this publication that the HIV criminalisation law 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.
The Zimbabwean government has moved to decriminalise wilful transmission of HIV to a partner after it gazetted the Marriages Bill that seeks to repeal a legal provision that makes it an offence. The Marriages Bill, which was gazetted last year, decriminalises the transmission of HIV and AIDS to another partner, as Government seeks to keep abreast with international standards.
Section 53 of the Marriages Bill repealed Section 79 of the Criminal Law (Codification and Reform) Act which makes it an offence to transmit HIV to a partner