Zimbabwe has ‘effectively sanctioned snooping and reporting to police on the most intimate details of a person’s life’, by ruling in favour of a law making it a criminal offence ‘do anything’ that might conceivably lead to the HIV infection of another person, writes Carmel Rickard in Legalbrief.
“With its most recent decision Zimbabwe’s Constitutional Court has effectively sanctioned snooping and reporting to police on the most intimate details of a person’s life: the court upheld that country’s laws making it a criminal offence for you to ‘do anything’ that might conceivably lead to the infection of another person, if you believe you are HIV-positive, writes Carmel Rickard in her A Matter of Justice column featured in Legalbrief.
Rickard writes: “Sixteen months after hearing an appeal by two people charged under this controversial law – the first constitutional challenge to the provisions – the nine judges have now pronounced the legislation constitutionally sound. By dismissing the challenge brought by two people charged under these laws, the court has cleared the way for them both to be sent to jail for up to 20 years.
“One of them, Samukelisiwe Mlilo (36), represented by Zimbabwe Lawyers for Human Rights, told a heart-breaking story. She said she discovered she was HIV-positive during routine testing at an ante-natal clinic. She claims she discussed her status with her husband and they agreed on a strategy to prevent transmission to the child.
“However, after the birth the relationship between the couple worsened. When he became physically abusive she obtained a protection order and eventually they separated. But he soon got his own back: ‘He reported me to the police in August 2009,’ Mlilo said. This led to state investigation and then to charges and a trial.
“Facing a lengthy jail sentence and frantic about what would happen to her children while she was in prison, Mlilo was helped by ZLHR to challenge the laws under which she was charged. On 15 June, however, the court said the laws were constitutionally permissible and dismissed the appeal.
“As part of its preparations for the case, ZLHR made a video in which Mlilo spoke about her situation and officials working in the field of law, ethics and HIV-Aids commented on the problems posed by legislation that criminalises transmission of the virus. They said women were particularly vulnerable to these laws because of the widespread practice of testing at ante-natal clinics to establish the status of women in order to prevent transmission to their babies if the mothers test positive.
“However, this could be extremely dangerous: speaking on the video Michaela Clayton, executive director of the AIDS Rights Alliance of Southern Africa, said the general practice of testing women of child-bearing age at clinics meant women were usually the first in a relationship to know their status. When they got home after having been tested, they were expected to disclose their status to their partner, but were often afraid to do so because ‘of a very real fear’ of a violent response from their partner and being evicted from their home.
“In the second appeal heard jointly with Mlilo’s case by the Constitutional Court, that of Pitty Mpofu, all that was known was that he was diagnosed ‘sometime in 2010’. There was no proof during the trial of the timing or the direction of the transmission of HIV between him and his wife.
“Tinashe Mundawarara, manager of the HIV and law unit of Zimbabwe Lawyers for Human Rights, said the media often sensationalised such cases and violated the privacy rights of those involved, thus discouraging people from testing or seeking health services.
“Other officials said the impression was created that people living with HIV were criminals because of their status. The policy of widespread testing of women often led to domestic violence when the woman went back home. They were blamed for bringing infection into the house ‘but you do not know who infected whom’.
“The Constitutional Court’s decision, written by Judge Vernanda Ziyambi, appears to take no account of these and other problems caused by these disputed laws; certainly there is no mention in her decision of any hardship for which the laws might be responsible.”
Rickard writes: “The court made much of the fact that the grounds on which discrimination is forbidden in Zimbabwe did not include discrimination on the grounds of one’s HIV status. ‘Discrimination on grounds of HIV/Aids or other status is not listed as a constitutionally enshrined right’: the only grounds listed by the constitution are race, tribe, place of origin, political opinions, colour, creed or gender, marital status or physical disability.
“Ziyambi said the state correctly submitted that the objective of the provision was to ‘halt or prevent the spread of HIV/Aids’. In view of the ‘fatal nature of the disease’, she said, ‘the objective is not only important but laudable’.
“She said that because of the ‘grave danger to life presented by infection with the HIV virus’ the legal provision for prosecuting those ‘accused of spreading the disease by deliberately or recklessly infecting others with it, is rationally connected to, and calculated to achieve, the stated objective. Prosecution in terms of (this section) would not be arbitrary or based on irrational considerations. The purpose of a prosecution is to investigate the guilt of a person accused of criminal conduct and to assess the evidence in a rational manner. A court of law is well equipped to do so,’ she concluded.”
Rickard writes: “ZLHR’s Mundawarara said 37 of the 50 states in the US, 27 African countries and nine in Europe ‘have these bad laws that we should do away with’. He and others working in HIV-Aids say laws criminalising the spread of HIV are bad news for women, that they can be misused by one partner against another, there is often no way to prove when the person charged was infected and by whom, and that it is often simply one person’s word against another’s. Far better, they say, to allow the law’s normal criminal provisions to be used in cases where it could be shown that there was indeed a deliberate intention by one person to harm another through infection.
“There have been about a dozen prosecutions under this legislation in Zimbabwe, and deliberate misuse of the existing laws is not unknown or unproved: in 2010 a man was arrested and fined for lying to the authorities that his girlfriend had infected him with HIV. After he laid his claim against her they were both tested, but while he was HIV positive, his girlfriend tested negative. Charged for supplying false information, he was fined US$9 and released.”Legalbrief material