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Daniel Nemukuyu Senior Court Reporter
The National Prosecuting Authority yesterday publicly admitted that prosecuting a suspect for infecting a partner with HIV under the law which criminalises wilful infection was an uphill task. Section 79 (1) (b) of the Criminal Codification and Reform Act criminalises wilful infection. Lawyers yesterday argued that, under the Act a sexually active person is liable to prosecution for the offence even if no infection would have taken place.

It reads; “Any person who; 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…”

Advocates Thabani Mpofu, Nelson Chamisa, Webster Chinamhora and instructing counsel Mr David Hofisi, argued that Section 79 (1) (b) of the Criminal Law Codification and Reform Act was too wide, vague and arbitrary, thereby infringing on people’s right to protection of the law.

Addressing the Constitutional Court in a case in which two women Ms Samukelisiwe Mlilo and Ms Pitty Mpofu, were challenging the constitutionality of the law, Law Officer Mr Editor Mavuto, said it was not an easy task to secure a conviction when there is no proof that one deliberately infected another.

“It is very difficult for the State to secure a conviction when one is charged under the section, which talks of a suspect realising a real risk or possibility that he is infected with HIV.

“This offence was formulated to regulate the conduct of people who know that they are deliberately infecting others,” Mr Mavuto said.

The Constitutional Court yesterday reserved judgment in the case after hearing arguments from both parties.

Chief Justice Godfrey Chidyausiku, sitting with eight other judges heard arguments from the lawyers representing Ms Mpofu and Ms Mlilo as well as those representing the State before deferring judgment to an undisclosed date.

The two women’s lead counsel Adv Mpofu argued that Section 79(1) (b) was a draconian law that effectively criminalises sexual intercourse itself and interferes with the natural sex rules.

“It requires one to go through a lecture or counselling session with a partner before being intimate daily. Sex has got its own rules.

“This means daily one has to undergo the counselling session with his wife before intercourse, introducing yourself, telling the wife that there is a possibility of you being HIV positive by virtue of being sexually active, discussing with her that the use of a condom was not 100 percent safe and asking her if she is comfortable sleeping with you. By the time you finish the lecture, maybe the passion will have gone. Repeating the same daily to one person becomes unreasonable and the State cannot be draconian in our bedrooms,” said Adv Mpofu.

The women also questioned the criteria used to determine the HIV career in a relationship considering that any sexually active person has a possibility of spreading the virus.

The maximum penalty of 20 years imprisonment, according to the lawyers, was too harsh considering that the guilt of a suspect is difficult to prove under the circumstances.

The court also heard that the only way for one to know his or her HIV status is to undergo some tests, a process which cannot be made compulsory for everyone.

False results can be produced because of the window periods provided for in HIV and Aids issues.

The lawyers argued that there was a danger of false incrimination and abuse of the law by partners who want to fix each other in settlement of their own scores.