Zimbabwe

Last updated on: 9 September 2015

Criminalisation of HIV transmission/exposure

Zimbabwe
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
2
Number of people convicted: 
1 conviction, 1 pending
Applicable law: 

CRIMINAL LAW (CODIFICATION AND REFORM) ACT [CHAPTER 9:23]  Act 23/2004

Key wording in the law: 

Division D: Transmitting HIV deliberately or in the course of committing sexual crimes
Deliberate transmission of HIV:
(1) Any person who
(a) knowing that he or she is infected with HIV; or
(b) realising 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 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.

(2) It shall be a defence to a charge under subsection 1. for the accused to prove that the other person concerned—
(a) knew that the accused was infected with HIV; and
(b) consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.

Sentence for certain crimes where accused is infected with HIV
(1) Where a person is convicted of—
(a) rape; or
(b) aggravated indecent assault; or
(c) sexual intercourse or performing an indecent act with a young person, involving any penetration of any part of his or her or another person’s body that incurs a risk of transmission of HIV;
and it is proved that, at the time of the commission of the crime, the convicted person was infected with HIV, whether or not he or she was aware of his or her infection, he or she shall be sentenced to imprisonment for a period of not less than ten years.

(2) For the purposes of this section—
(a) the presence in a person’s body of HIV antibodies or antigens, detected through an appropriate test, shall be prima facie proof that the person concerned is infected with HIV;
(b) if it is proved that a person was infected with HIV within thirty days after committing a crime referred to in those sections, it shall be presumed, unless the contrary is shown, that he or she was infected with HIV when he or she committed the crime.

Key Cases: 

Current prosecution:

  • Zimbabwe: Man, 43, on trial for ‘deliberate infection’, accused by former partner after relationship ends Zimbabwe: Hubby in Court for Deliberate Infection October 23, 2013 -
  • Lawyers plan Supreme Court challenge in the case of a man alleged to have ‘deliberately’ infected his wife HIV law challenged – Newsday Zimbabwe October 3, 2012
  • Zimbabwe Alleged transmission Heterosexual men Prosecutions Zimbabwe: Woman, 22, accuses former partner, 38, of “alleged deliberate infection” CHITUNGWIZA WOMAN COLLAPSES IN COURT newsdzeZimbabweNewsdzeZimbabwe September 6, 2012 
  • Source: http://www.hivjustice.net/site/cases/?casetype=335&country=247&from-month=-1&from-year=-1&to-month=-1&to-year=-1#sthash.rgMpimEP.dpuf
Discussion: 

From the information gathered, deliberate transmission of HIV to another can be prosecuted under the Criminal Law in Zimbabwe.

The law also provided for people who transmit other sexually transmitted diseases to be prosecuted.

If the person to whom HIV is transmitted knew hat the accused was HIV-positive, and consented, then the accused is exempt from prosecution.

From the media reports, at least one woman has been convicted for transmitting HIV.  There are no details of how many more people have been convicted.

Sentences for crimes such as rape are aggravated where the accused is infected with HIV. (see above)

As a member of the SADC region, it remains to be seen what impact the SADC ‘Model Law’ will have on the current legislative provisions.

To provide specific guidance to Members of Parliament, Ministers, of SADC countries on the complex process of HIV legislation, the SADC Parliamentary Forum, a consultative and advisory intergovernmental organization of national Parliaments in SADC countries, with the technical assistance of the AIDS and Human Rights Research Unit and the involvement of various stakeholders and regional civil society groups, has developed a model law on HIV to serve that purpose. The Model Law integrates the protection of human rights as a key element of an effective response to HIV. The Model Law has no provisions allowing criminalisation.

Survey respondents/Organisations working on HIV and the Law: 

Southern African AIDS Trust (SAT)
PO Box 390, Kopje, Harare, Zimbabwe
Tel/Fax:   (263 4) 722915, 725537
dete@satzim.org.zw
Web: www.satregional.org

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

There are no specific entry or residence regulations for people with HIV/AIDS. Neither a medical certificate nor an HIV test result is required when entering the country. Foreigners with a known HIV infection are not subject to specific residence regulations. There are no regulations regarding the control, deportation or expulsion of those concerned.
Travellers are required to carry evidence of a yellow fever vaccination if they are arriving in Zimbabwe from infected areas.

For updated information, please go to: http://www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Not Legal

Punishments for male to male relationships: Imprisonment of less than 10 years

Female to Female Relationships: Legal

Marriage and Substitutes for Marriage: No law

For updated information, please go to: http://ilga.org

 

Protective laws and policies for people living with HIV: 

Yes