FOLLOWING massive lobbying and advocacy from Civil Society Organizations (CSOs), parliament, the media and some quasi government institutions, Zimbabwe is at the cusp of decriminalizing wilful or deliberate transmission of HIV.
By Michael Gwarisa
This was revealed during the launch of a Media Tool Kit on HIV criminalization by the Health Law & Policy Consortium in Harare. The decriminalization of HIV in Zimbabwe is tied to the Marriages Bill, Section 53 (2) which if enacted, will result in the repeal of Section 79 of the Criminal Law Code which criminalizes wilful transmission of HIV.
Speaking at the launch, Mr Tinashe Mundawarara, the Health Law & Policy Consortium (HPLC) Board Chairperson, said there has been progress with regards to decriminalizing HIV transmission and the media has been a key player and advocate around the subject.
We have come a long way in terms of this advocacy journey on decriminalization of HIV. As a country, we did have our first case in 2004 in Mutare and from there, we did have a number of people who were charged under the now repealed Sexual Offenses Act and the whole section from the repealed Sexual offenses Act was put into the criminal code and still lives with us to this day,” said Mr Mundawarara.
According to Section 79 of the Criminal Law (Codification and Reform) Act-Chapter 9:23, any person who knowing that he or she is infected with HIV or realizing that there is a 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 anything which he or she realizes 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 20 years.
Parliamentary Portfolio Committee on Health Chairperson, Dr Ruth Labode said the process of repealing Section 79 was as good as done and the document was now in the office of the head of state and government, President Emerson Mnangagwa.
“The process of repealing has taken place, we have deliberated in parliament and the parliamentarians passed it. It is now at the President’s office but it is being held by the issues of Lobola which the chiefs have challenges so it’s a done deal. As we stand, we have moved on to access other legal issues. There is no need to criminalize transmission of HIV. We are saying if everybody is on treatment and has been tested, the virus and its ability to spread goes down to zero so there surely is no reason to criminalize each other” said Dr Lobode.
Meanwhile, HLPC Projects Coordinator, Dorcas Chitiyo said Zimbabwe has a legislation that has two sections that criminalize HIV transmission and what is about to become law is the decriminalization of one aspect that is Section 79.
“We are focusing on decriminalizing an aspect that is contrary to our health law and public health policies. What we have termed deliberate transmission is quite unfortunate in the sense that when we criminalize this, we do it without the support of scientific evidence and proof that supports that allegation when we rely on criminal law. The law has two criminal elements, it has the aspect of knowing that the person knew or that they realized that there was a real risk or possibility.
“It is not easy to establish that the person realized that there was a real risk or a possibility that they were HIV positive without having gone for testing. What we then realized is that the manner in which this law was being applied resulted from people who were seeking to abuse this law because they were targeting people who were aware of their status, people who actually had shared their status and in some instances because the courts were not using scientific proof to back these allegations, in some instances it would be a false allegations and these were some of instances in which we realized that this law was being counter-productive,” said Chitiyo.
She added that Zimbabwe has Section 79 which criminalizes deliberate transmission of HIV and Section 80 which focuses on aggravation of penalty upon conviction of a person where an individual is convicted of a sexual voice act and in the event that it is later discovered that the person was HIV positive, those medical records will be used to aggravate for a steeper fine.