Woman convicted of deliberately infecting hubby with HIV - case referred to Supreme Court

THE case of a 34-year-old woman, Samukelisiwe Mlilo who was last week convicted of deliberately transmitting HIV to her husband has been referred to the Supreme Court as her lawyers are challenging the constitutionality of the law under which she was charged.
Mlilo had pleaded not guilty to contravening Section 79 of the Criminal Law (Codification and Reform) Act, Chapter 9:23 but was convicted by senior Western Division regional magistrate Mr Owen Tagu. Mr Tagu had remanded the matter to Tuesday as he said he wanted time to research on the type of sentence he could pass.
Mlilo, through her lawyers, Mrs Nosimilo Chanayiwa and Mr Lizwe Jamela, of the Zimbabwe Lawyers for Human Rights prayed in the application that the matter be referred to the Supreme Court for determination of constitutional issues raised and that pending the said determination by the Supreme Court, the matter be postponed sine die.
Mr Tagu referred the matter to the Supreme Court and told Mlilo that she would have to wait for the outcome of the Supreme Court application.In the application, Mrs Chanayiwa and Mr Jamela noted that Section 79 of the Criminal Law (Codification and Reform) Act, Chapter 9:23 had already been referred to the Supreme Court.
This was through the case of State versus Siyabonga Malandu Ncube, the Member of the House of Assembly for Insiza South, who is facing charges of deliberately infecting a Bulawayo female journalist with HIV.
The other case is for the State versus Shirley Tavengwa, a Harare magistrates' courts case and both cases want the Supreme Court to determine the constitutionality of Section 79.
The State case against Mlilo was that she was customarily married to the complainant and they had unprotected sex between 2008 and 2010.
In 2009, Mlilo fell pregnant and as a result had to undergo an HIV test as one of the prenatal requirements.
She tested positive and did not disclose this fact to her husband and they continued having unprotected sex.
In her defence, she said her husband was aware of her HIV status as she disclosed this fact to him and he assisted in seeking medical assistance.In convicting her, Mr Tagu acknowledged that this was a test case but said the State, led by Mr Tinashe Dzipe, had proved that Mlilo did not disclose her status to her husband, whom she has now divorced.
It was the court's finding that she became aware of her status on 4 August 2009 but continued to have unprotected sex with her husband until he accidentally stumbled on her medical card in her wardrobe in November 2009.
"The State proved that you knew that you were HIV positive but you did not disclose your status to your husband until he bumped into your medical card on 18 November the same year and then he stopped being intimate with you."Your guilt has been proven beyond any reasonable doubt and accordingly you are found guilty," said Mr Tagu.
In her application, Mlilo through her lawyers stated that Section 24 (2) of the Constitution of Zimbabwe provides that if any question arises as to the contravention of the Declaration of Rights, the High Court or other court is obliged to refer the question to the Supreme Court.
It is their contention that the Supreme Court should determine whether Section 79 is too wide, broad and vague so as to render the law uncertain and thereby infringing on Mlilo's protection of the law as set out in Section 18 of the Constitution.
They further want the Supreme Court to decide whether such Section should be struck down for want of constitutionality.
They also want the Supreme Court to examine whether Section 79 violates Section 23 of the Constitution in that it seeks to discriminate against a class of people who are HIV positive or who may possibly be infected or whether not the discrimination rendered by this Section is justifiable in a democratic society.
"The question of whether or not the remand and prosecution of the accused on the criminal charge under Section 79 of the Criminal Law (Codification and Reform) Act, Chapter 9:23 are not on the facts a violation of her fundamental rights to personal liberty and the protection of the law.
"Whether or not the criminalisation of consensual conduct whereby the complainant voluntarily engaged in a sexual encounter with the accused amounts to a violation of the right to protection of the law as per Section 18 (1) of the Constitution," they submitted as questions that the Supreme Court has to answer.
It is their contention that the State did not specify whether they were charging their client under Section (a) or (b), adding that the charge simply cites the whole section.
The Section, they said, has a rather wider import and tends to be all-catching.
They add: "There is no requirement for the accused to show and in fact it is not available for her as a defence to prove  that despite whatever exposure she might have had prior to having sex with the complainant, there was no actual infection.
"The issue of 'who infected who' is not well dealt with and as a result an accused person may be convicted simply because their partner was the first to make a report when in fact the complainant could be the one who would have infected the accused person."
It is their observation that in Mlilo's case, when one considers the evidence that was led, it is clear that both parties had previous sexual encounters before they met.
They never got tested when they met and the complainant only tested almost a year after learning of Mlilo's status.
"It would seem according to Section 79 in question that anyone who has sexual intercourse with another is at risk of prosecution. All it would take is for the partner to file a complaint claiming to have been infected with the virus and a prosecution would result whether the accused is HIV positive or not and regardless of the fact that the complainant may possibly have been already infected with the virus prior to the encounter," they submitted.
The lawyers further submitted that a court must ensure that if human conduct is to be subjected to the authority of any criminal law, the terms of such law must not be vague for otherwise there would be denial of due process.
The lawyers further argued that the Section directly negates against the ability to conduct human relations on their part.
"It would seem a person with HIV or those once exposed to it would need to educate every potential sexual partner on the biology of HIV and ensure that they have fully understood and appreciated the nature of HIV before indulging.
Such regulation on the part of those with HIV or those possibly infected becomes too onerous and places an unreasonable burden on them in social interactions, a burden which is not reposed upon any other person who does not have HIV or who may possibly not have it," they said.
The lawyers argued that Section 79 had created a special category of people, a class of people to whom the maximum standard of perfection is expected in the conduct of their relations.