Wilful HIV transmission criminalisation challenged

A Harare woman charged with the deliberate transmission of HIV has approached the High Court seeking a review of her case, arguing that her continued prosecution violates her constitutional rights, as the law under which she is being charged was repealed in 2022.

The woman, who cannot be named for legal reasons, is represented by lawyer Paidamoyo Saurombe. In her application, she is challenging Harare magistrate Taurai Manwere and the National Prosecuting Authority of Zimbabwe (NPA). She contends that her prosecution under a law no longer in force infringes on her rights to equal protection and benefit of the law, as enshrined in Section 56(1) of the Constitution.

She was arrested on March 31, 2022, and placed on remand the following day on allegations of deliberately infecting her boyfriend with HIV between March and November 2021.

At the centre of the dispute is Section 79 of the Criminal Law (Codification and Reform) Act, which previously criminalised the deliberate transmission of HIV, carrying penalties of up to 20 years in prison. However, this section was repealed in May 2022 as part of legal reforms aimed at ending the criminalisation of HIV.

Following the repeal, the woman applied in August 2022 to have the charges quashed, arguing that it was unconstitutional to prosecute her for an offence that no longer exists. However, on November 18, 2022, Magistrate Manwere dismissed her application, citing Section 17 of the Interpretation Act, which allows certain repealed laws to have retrospective effect in ongoing cases.

In her latest bid at the High Court, she argues that Manwere's decision was fundamentally flawed and did not comply with the Constitution. She asserts that the criminal court should have referred the matter to the Constitutional Court, as required when constitutional questions arise in criminal proceedings under Section 175 of the Constitution.

"The magistrate's decision to dismiss my application on the basis that it was fatally defective, frivolous and vexatious is grossly unreasonable, as it deprives me of my right to equal protection and benefit of the law," she submitted.

She further argued that the lower court had effectively denied her access to the Constitutional Court, unlawfully assuming powers it does not possess.

"The court a quo has taken away from me the right to equal protection of the law and will bring me to trial having arrogated to itself powers that it does not have," she said.

She warned that allowing the trial to proceed under these circumstances would amount to a travesty of justice.

"The magistrate's decision is irreconcilable with the law and is a gross irregularity. No reasonable judicial officer, presented with the same facts and circumstances, would have reached the same conclusion," she argued.

She is now seeking an order setting aside the magistrate's ruling and compelling the lower court to refer the matter to the Constitutional Court for proper determination.

The High Court is yet to set a date to hear the application.