BY PHYLLIS MBANJE
LAST week, some female Members of Parliament called for the decriminalisation of the wilful transmission of HIV during a National Assembly debate on the Second Reading Stage of the Marriages Bill.
HIV criminalisation has been a growing phenomenon in southern Africa, with research showing that punishing HIV transmission may have adverse public health consequences, especially on women.
Many cases of people hauled before the courts to answer to the charge of wilful transmission of HIV have been recorded.
These included one Samukelisiwe Mlilo, who was dragged to court by her husband who accused her of wilfully infecting him sometime in 2012.
Despite lack of concrete evidence, she was convicted of the criminal offence.
Those campaigning against the law argue that HIV criminalisation was an unjust application of the law to people living with HIV based solely on their HIV status — either via HIV-specific criminal statutes, or by applying general criminal laws that allow for prosecution of unintentional HIV transmission, potential or perceived exposure to HIV, where the virus was not transmitted, and/or non-disclosure of known HIV-positive status.
While there was no HIV criminalisation at the start of the 21st century, 27 sub-Saharan African countries, including Zimbabwe, have enacted overly broad — and sometimes vague—–HIV-specific criminal statutes.
According to Aids Map, between October 2015 and December 2018, at least 913 people living with HIV were arrested, prosecuted, convicted or acquitted in 49 countries.
The largest number of cases were reported in the Russian Federation (at least 314 cases). During the same period, Zimbabwe recorded 16 cases.
Justice Oagile Bethuel Key Dingake, a former judge of the High Court of Botswana and now with the Supreme and National Courts of Papua New Guinea, said he was against the criminalisation of HIV.
Five years ago while addressing Sadc parliamentarians, Dingake said the legislators had a sacred duty to enact laws informed by science, research and serve public good and public health.
“Sadc region suffers from a double burden: the burden of the epidemic itself and also the epidemic of bad laws,” he said.
The parliamentarians, who were gathered in Botswana to discuss criminalisation of HIV transmission and exposure noted that law was far from being a panacea.
“It (law) can be a force for good and it can also be a force for bad. For as long as we know that, then we know what kind of law to enact,” Dingake said.
“This is because not all transmissions can be criminally culpable. For example, due to specific characteristics of HIV and Aids, such as the long period of incubation, it is not easy to prove causation and fault of HIV transmission.”
In Zimbabwe, in terms of section 79 of the Criminal Law (Codification and Reform) Act, it is a crime to deliberately transmit the HIV virus.
The highly emotive section has been criticised by local HIV and Aids activists, who feel it sets back the gains made so far in fighting stigma and discrimination.
HIV activist Martha Tholanah (pictured) said the legislation, in its current form, was a very bad law.
“When it was put in place, scientific knowledge had not advanced to the stage where we have more evidence now on the disease. The law has done nothing to reduce the spread of HIV. Instead it has fuelled stigma and discrimination,” she said.
Tholanah also said the criminalisation of HIV had caused great suffering to people living with HIV (PLWHIV) who, upon arrest, were often harassed and stigmatised by the police and media.
“They are often ostracised by relatives and their communities,” she said.
Tholanah argued that where people have been convicted, there has been no scientific evidence to prove the guilt.
“Laws relating to the criminalisation of HIV transmission, exposure and/or non-disclosure in the southern and east African region are often overly broad and vague, violate criminal law principles, trump human rights and are based on myths and misconceptions about HIV and its modes of transmission, thus undermining effective public health,” said Michaela Clayton, director for Aids and Rights Alliance for Southern Africa.
However, it is not all doom as the legal environment relating to HIV criminalisation has improved in some of the countries in sub-Saharan Africa, most notably in Kenya.
On March 18 2015, Kenya’s High Court ruled that its HIV criminalisation provision — section 24 of the HIV Prevention and Control Act 2006 — was unconstitutional because it was vague, too broad and lacking in legal certainty, particularly in respect to the term ‘sexual contact’.
In 2017, in a landmark ruling likely to shift the tide for cases of wilful transmission of HIV in Africa, a Malawian High Court overturned both sentence and conviction of an HIV-positive woman who had been dragged to court for breastfeeding a neighbour’s baby.
The appellant was a woman living with HIV who was convicted of negligently and recklessly doing an act which is “likely to spread the infection of any disease which is dangerous to life” under section 192 of the Malawi Penal Code for accidentally breastfeeding another person’s child.
She, however, appealed against her conviction and sentence and challenged the constitutionality of the section for being vague and overbroad. She raised expert evidence to show the “infinitesimally small risk” of HIV transmission by women on antiretroviral treatment through breastfeeding.
The State agreed that the appellant’s conviction and sentence should be overturned and set aside.
Clara Banya of the International Council of Women in Malawi at the time said: “Breastfeeding is not a crime. Breastfeeding is recommended for women living with HIV who are on antiretroviral treatment by the World Health Organisation and in terms of the Ministry of Health’s guidelines.”
According to Coalition of Women Living with HIV and Aids executive director Edna Tembo, cases of wilful transmission proved that women living with HIV faced major hurdles.
“This case highlights ongoing discrimination against people living with HIV and illustrates the struggles faced by women living with HIV. There is need for communities to understand facts about HIV transmission and exposure,” she said.
Since last year, Zimbabwe has also started to make positive moves to decriminalise HIV transmission.
Justice minister Ziyambi Ziyambi, recently told Parliament that the government had decided to decriminalise HIV transmission.
He reasoned that the law stigmatises people living with HIV and Aids. He also said his ministry was going to repeal that section of the law.