Zimbabwe

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Africa: Moving towards revolutionising approaches to HIV criminalisation

29 Jun 2017
“We have all agreed with the Sustainable Development Goal of ending HIV and Tuberculosis by 2030. We cannot get there while we are arresting the same people we are supposed to ensure are accessing treatment and living positively,” said Dr … More

Advocates fighting to end HIV criminalisation reach a global TV/web audience on The Stream

28 Jun 2016
Last night, HIV criminalisation advocacy reached a global audience on both TV and the internet with The Stream, on Al Jazeera English. During the 30 minute programme, HIV criminalisation survivor, and Sero advisory board member, Ken Pinkela appeared with co-hosts … More

Zimbabwe: HIV-specific criminal law on trial; ZLHR launches campaign highlighting impact of overly broad HIV criminalisation on women

17 Feb 2015
Tomorrow, Zimbabwe’s HIV-specific criminal statute, Section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act 23 of 2004 will be on trial itself, facing its first-ever challenge in the Constitutional Court. The Court will hear arguments on behalf of … More

African HIV criminalisation achievements and challenges highlighted at ICASA 2013

11 Dec 2013
The African continent has more countries with overly broad and vague HIV-specific laws relating to HIV non-disclosure, exposure and/or transmission than any other global region, nearly all of which have been enacted in the past decade. Although North America is … More

Zimbabwe: Blame, responsibility, impact of criminalisation on women analysed

05 Oct 2008
Excellent opinion piece in the Zimbabwean newspaper, The Herald, which discusses blame and responsibility and the impact of criminalisation of HIV transmission on women.   Blame Game Won’t Change a Thing The Herald (Harare) Beatrice Tonhodzayi 4 October 2008She is … More

Zimbabwe: Woman pleads guilty to unprotected sex, gets five years suspended sentence

09 Apr 2008
A 26 year-old woman who pleaded guilty to having unprotected sex with her partner in 2007 was given a five year suspended sentence primarily because the lover did not test HIV-positive. The woman was convicted under s79 of the Zimbabwe … More

Zimbabwe: HIV transmission via rape of minors ‘a major driver’ of HIV

07 Jan 2008
A 16 year-old alleges that she was raped and infected with HIV by her 50 year-old brother-in-law. The man has since been arrested and charged with rape, but is out on bail. “Victim Friendly Court national co-ordinator Mr Idine Magonga … More

Africa’s HIV transmission laws based on questionable science

31 Aug 2007
Africa’s HIV transmission laws based on questionable scienceby Cassandra Willyard, New York Nature Medicine 13, 890 (2007)Published online: 31 August 2007 Faced with an AIDS epidemic that kills millions every year, countries in sub-Saharan Africa are contemplating a new prevention … More

Last reviewed 01 June 2017

Country overview

The Criminal Law (Codification And Reform) Act [Chapter 9:23] Act 23/2004 criminalizes deliberate transmission of HIV under Section 79. The law is vague and overly broad. A wide range of variables are possible that involve neither being deliberate nor actually transmitting HIV.

Specific laws

Specific law enacted Yes

Specific law criminalising HIV non disclosure, exposure, or transmission: Yes

Prosecuted using non-HIV specific laws: No

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Prosecutions

Number of prosecutions 11

The first known successful prosecution in Zimbabwe took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted. At least seven men and four women have been prosecuted, the most recent conviction in March 2016 and charges in another case being laid in September 2016. See Further reading: ZBC official nabbed for rape, deliberate HIV infection. News Day, 8 September 2016. Mapuranga S. Man gets 10 years for deliberately infecting wife with HIV. Newsday, 1 March 2016.

Convictions

Number of convictions 3

The first known successful prosecution in Zimbabwe took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted. At least seven men and four women have been prosecuted, the most recent conviction in March 2016 and charges in another case being laid in September 2016. See Further reading: ZBC official nabbed for rape, deliberate HIV infection. News Day, 8 September 2016. Mapuranga S. Man gets 10 years for deliberately infecting wife with HIV. Newsday, 1 March 2016.

Laws

Applicable laws

Criminal Law (Codification And Reform) Act [Chapter 9:23] Act 23/2004. Part III Sexual Crimes and Crimes against Morality. Division D: Transmitting HIV deliberately or in the course of committing sexual crimes. Section 79. Deliberate transmission of HIV and Section 80. Sentence for certain crimes where accused is infected with HIV. http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/72803/74195/F858899812/ZWE72803.pdf

Applicable key wording

Division D: Transmitting HIV deliberately or in the course of committing sexual crimes
Section 79. 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.

Section 80. 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.

Discussion

In February 2015, the Zimbabwe Lawyers for Human Rights (ZHLR) challenged Section 79 of the Criminal Law (Codification And Reform) Act [Chapter 9:23] Act 23/2004 in the Constitutional Court for being vague and overly broad on behalf of two applicants, Pitty Mpofu and Samukelisiwe Mlilo, both of whom were convicted of “deliberate transmission of HIV” in 2012. Arguments were heard in February 2015 and a ruling is overdue.  ZHLR also launched a campaign against overly broad HIV criminalisation, called 'HIV on Trial – a threat to women’s health’, highlighting the case of Ms Mlilo who features in a short documentary. See Further reading:

Alone But Together - Women and Criminalisation of HIV Transmission: The story of Samukelisiwe Mlilo. HIV Justice Worldwide. 15 February 2015.

Bernard EJ. Zimbabwe: HIV-specific criminal law on trial; ZLHR launches campaign highlighting impact of overly broad HIV criminalisation on women. HIV Justice Network, 17 February 2015.

Further reading

Edwin J Bernard and Sally Cameron. Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation. HIV Justice Network and GNP+. Brighton/Amsterdam, April 2016. http://www.hivjustice.net/wp-content/uploads/2016/05/AHJ2.final2_.10May2016.pdf

Latest cases and news can be found at: http://www.hivjustice.net/site/news/?country=247&from-month=-1&from-year=-1&to-month=-1&to-year=-1

Criminal Law (Codification And Reform) Act [Chapter 9:23] Act 23/2004. http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/72803/74195/F858899812/ZWE72803.pdf

ZBC official nabbed for rape, deliberate HIV infection. News Day, 8 September 2016. https://www.newsday.co.zw/2016/09/08/zbc-official-nabbed-rape-deliberate-hiv-infection/

Tafadzwa Mushunje a victim of bad HIV law. Opinion: Bellinda Chinowawa and Elizabeth Mangenje, project lawyers with Zimbabwe Lawyers for Human Rights. The Standard, 21March 2016. http://www.thestandard.co.zw/2016/03/21/tafadzwa-mushunje-a-victim-of-bad-hiv-law-2/

7.3 Motion on Criminalisation of HIV Transmission, Exposure and Non-Disclosure in SADC Member States. Parliament of Zimbabwe Hansard. Tuesday, 1st March, 2016. www.parlzim.gov.zw/senate-hansard/senate-hansard-01-march-2016-vol-25-no-29

Mapuranga S. Man gets 10 years for deliberately infecting wife with HIV. Newsday, 1 March 2016. https://www.newsday.co.zw/2016/03/01/man-gets10-years-deliberately-infecting-wife-hiv/

ARASA Facebook page. 27 May 2015. https://www.facebook.com/AIDSandRightsAllianceforSouthernAfrica/photos/a.10153284189602305.1073741835.45271732304/10153284189502305/?type=1&theater

ARASA. ARASA and SADC PF Human and Social Development and Special Programmes Regional Standing Committee Meeting on Criminalisation of HIV exposure and transmission. 27 May 2015. http://www.arasa.info/news/arasa-and-sadc-pf-human-and-social-development-and-special-programmes-regional-standing-committee-meeting-criminalisation-hiv-ex/

Alone But Together - Women and Criminalisation of HIV Transmission: The story of Samukelisiwe Mlilo. HIV Justice Worldwide. 15 February 2015. https://www.youtube.com/watch?v=9buM4xnjRYc

Bernard EJ. Zimbabwe: HIV-specific criminal law on trial; ZLHR launches campaign highlighting impact of overly broad HIV criminalisation on women. HIV Justice Network, 17 February 2015. http://www.hivjustice.net/news/zimbabwe-hiv-specific-criminal-law-on-trial-zlhr-launches-campaign-highlighting-impact-of-overly-broad-hiv-criminalisation-on-women


Cases

Overview

The first known successful prosecution in Zimbabwe took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted. At least seven men and four women have been prosecuted, the most recent conviction in March 2016 and charges in another case being laid in September 2016.

See Further reading:

ZBC official nabbed for rape, deliberate HIV infection. News Day, 8 September 2016.

Mapuranga S. Man gets 10 years for deliberately infecting wife with HIV. Newsday, 1 March 2016.

As a member of the SADC region, it remains to be seen what impact the Southern African Development Community (SADC) 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 ffective response to HIV. The Model Law has no provisions allowing criminalisation. (see Further Reading).

 

SADC region: parliamentary forum adopts motion on HIV criminalization (see Further Reading: Edwin J Bernard and Sally Cameron (2016). Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalization). Key agencies and members of parliament from across southern Africa came together in Botswana in May 2015 to interrogate HIV criminalisation in the Southern African Development Community (SADC) region. Convened by the AIDS and Rights Alliance for Southern Africa (ARASA) and the SADC Parliamentary Forum’s Human and Social Development and Special Programmes Standing Committee, it was attended by parliamentarians from Botswana, Democratic Republic of Congo, Lesotho, Malawi, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. (See Further Reading: ARASA Facebook page. 27 May 2015).

 

The meeting included expert presentations on the latest science and evidence-based thinking to educate parliamentarians so that they may lead, advocate and legislate on the basis of evidence rather than emotions. (See Further Reading: ARASA. ARASA and SADC PF Human and Social Development and Special Programmes Regional Standing Committee Meeting on Criminalisation of HIV exposure and transmission. 27 May 2015).

 

In November 2015, the Plenary Assembly of the SADC Parliamentary Forum Resolution considered, took note of, and unanimously adopted a motion on HIV criminalisation, moved by Hon. Duma Boko of Botswana and seconded by Hon. Dr. Emamam Immam of South Africa. Members expressed concern that specific laws on HIV transmission, exposure and non-disclosure may not only be harmful to successful HIV prevention and care but may also infringe on human rights. The motion reaffirmed the obligations on SADC Member States to respect, protect, fulfil and promote human rights in all endeavours undertaken for the prevention and treatment of HIV; reiterated the critical role of Parliamentarians in enacting laws that support evidence-based HIV prevention and treatment interventions that conform with regional and international human rights frameworks; and called on Member States to consider rescinding and reviewing punitive laws specific to the prosecution of HIV transmission, exposure and non-disclosure. (See Further Reading

 ·         7.3 Motion on Criminalisation of HIV Transmission, Exposure and Non-Disclosure in SADC Member States. Parliament of Zimbabwe Hansard. Tuesday, 1st March, 2016. www.parlzim.gov.zw/senate-hansard/senate-hansard-01-march-2016-vol-25-no-29

·         ARASA Facebook page. 27 May 2015. https://www.facebook.com/AIDSandRightsAllianceforSouthernAfrica/photos/a.10153284189602305.1073741835.45271732304/10153284189502305/?type=1&theater

·         ARASA. ARASA and SADC PF Human and Social Development and Special Programmes Regional Standing Committee Meeting on Criminalisation of HIV exposure and transmission. 27 May 2015. http://www.arasa.info/news/arasa-and-sadc-pf-human-and-social-development-and-special-programmes-regional-standing-committee-meeting-criminalisation-hiv-ex/

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017