Paidamoyo Chipunza: Senior Health Reporter
On November 19, 2014, then Chinhoyi regional magistrate Mr Never Katiyo sentenced 39-year-old Nyengedzai Bheka to 15 years in prison for willfully transmitting HIV to a 17-year old pupil. In his ruling, Mr Katiyo said infection of that nature was tantamount to a death penalty on the girl since she was an immature minor.“This is a very rare case that we have had to deal with as the courts and we have to set a precedent that is deterrent to would-be offenders,” said Mr Katiyo.
“Although it was a matter involving a single witness the court is convinced that there was deliberate infection.”
Bheka’s case saves as both a template for discussion on aptness of wilful transmission of HIV as a law and as precedence to the 1,4 million Zimbabweans estimated to be living with HIV who by virtue of them being HIV positive are ‘‘potential criminals’’.
Elizabeth Tailor Human Rights Award winner and HIV activist, Ms Martha Tholanah said this law must be scrapped because it stigmatised and discriminated against people living with HIV.
Ms Tholanah, who has been living with HIV for the past 14 years, said criminalisation of wilful HIV transmission was done a long time ago on the advent of the disease, when no one wanted to be associated with it.
She, however, said owing to developments in the medical field, HIV is now just like any other disease hence the law must be informed by science trends.
“Evidence has shown that chances of transmitting HIV to another person if you are on treatment are slim. The law must then speak the same language with science to achieve our national and global goals and targets,” said Ms Tholanah.
She said the current law discouraged people from getting tested thereby delaying them from accessing treatment early, reversing global efforts to end Aids by 2030.
To end Aids by 2030, Zimbabwe adopted the United Nations goals popularly referred to as the 90-90-90 targets.
These targets entail that at least 90 percent of people living with HIV must be tested by the year 2020. For those diagnosed with HIV, at least 90 percent of them must be on antiretroviral treatment and a further 90 percent of those on treatment must have their viral load fully suppressed by the year 2020.
“How do you get tested when you know that you risk being a criminal?” said Ms Tholanah.
She said while science has proved that taking antiretroviral drugs (ARVs) actually reduced the risk of one transmitting HIV to another person, the law drew conclusions on deliberate HIV transmission from the fact that one was on ARVs — a direct contradiction of science.
Zimbabwe Lawyers for Human Rights HIV and Law Unit project manager Mr Tinashe Mundawarara said HIV involved science and it was therefore difficult to ascertain the direction of infection even in developed countries where there is sophisticated equipment.
“It is still difficult to point out the direction of infection and also people might have acquired the same HIV genotype from a common source, which might also dismiss infection from the concerned partners,” said Mr Mundawarara.
Section 79 (1) of the Criminal Codification and Reform Act on deliberate transmission of HIV reads: “Any person who knowingly that he or she is infected with HIV, or 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 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.
“It shall be a defence to a charge under subsection (1) for the accused to prove that the other person concerned knew that the accused was infected with HIV and consented to the act in question, appreciating the nature of HIV and the possibility of becoming infected with it.”
Mr Mundawarara said this law was too broad and that the accompanying defence on informing the other person and ‘‘appreciating the nature of HIV’’ was also vague making it difficult to prosecute and convict someone of committing a crime.
He said the law itself was not clear on what understanding the nature of HIV meant.
“Does it mean the scientific or genetic make-up of the HIV virus or does it mean how HIV impacts on the immune system,” he said.
Mr Mundawarara said the law also criminalised sex by people living with HIV and Aids, hence it infringed on their rights and promoted stigma and discrimination around HIV.
“One can still be charged even if transmission has not occurred because it says ‘ . . . real risk or possibility of infecting another person with HIV’. So, if you engage in unprotected sex which involves a real risk of transmitting HIV to another person, you risk being charged, thus making everyone living with HIV a potential criminal,” said Mr Mundawarara.
Mr Mundawarara said this legislation should therefore be scrapped as it reversed public health gains in national HIV and Aids response.
He said the law can still punish people who willfully transmit HIV through other provisions such aggravated indecent assault.
Katswe Sisterhood director Ms Talet Jumo said the law was unfair on women who in most cases knew of their status first through antenatal care or voluntary testing, hence risked being charged of having infected their spouses.
“Sometimes women may delay to inform their partners of their status due to fear of gender based violence and using that law, their partners may still drag them to the courts for deliberately transmitting HIV,” said Ms Jumo.
National Aids Council board chairman Mr Everisto Marowa said in line with the UNAIDS 90-90-90 targets, Zimbabwe must reduce new HIV infections from the current 64 000 a year to about 6 000 — a figure he described as a huge considering that HIV was preventable.
He said NAC was aiming to have less than 1000 new infections by the year 2020.
“NAC is geared for the task ahead and ready to provide the needed leadership with guidance from Government,” said Dr Marowa.
HIV remains a major public health threat in Zimbabwe with a prevalence rate of about 15 percent.