Will decriminalisation of deliberate transmission of HIV/Aids change anything?
By Daniel Chigundu
President Emmerson Mnangagwa signed the Marriages Bill into law, the Marriages Act, following almost 3 years of intense debate in Parliament.
The Marriages Bill was gazetted on the 19th of July 2019 and with it comes the many changes that range from harmonising the country’s marriage laws, to the protection of minors from entering marriages before the age of 18 years and designating chiefs as marriages officers.
It also officially decriminalises deliberate transmission of HIV/Aids in Zimbabwe by repealing Section 79 of the Criminal Law (Codification and Reform) Act.
Section 79 of the Criminal Law (Codification and Reform) Act was initiated in the late 90s in a bid to dissuade people from deliberately infecting others with the virus.
It was enacted during a time when HIV/Aids was still regarded as a death sentence due to a lack of information and knowledge on how to manage it effectively.
However, the deliberate transmission of HIV is a very difficult crime to prove and ascertain which of the partners infected the other let alone prove the intention.
Also, in terms of the rules of evidence, it is very difficult to prove wilfulness beyond a reasonable doubt.
According to Miriam Majome, a legal practitioner, guilt in such cases will more likely be assessed on a balance of probabilities instead of beyond reasonable doubt as is the criminal law standard.
The standard of criminal charges is that the State has to prove the accused’s guilt beyond a shadow of doubt. For a conviction, there must be no doubt that the accused committed the crime and that they intended to commit the crime.
Currently, science is not able to point out who infected who in cases of wilful transmission of HIV/Aids or to point out the direction of the infections.
Those who know their status first and decide to report their partners to the police, often get the advantage even if they might be the ones who infected their partners.
Samukelisiwe Mlilo was in 2012 convicted of deliberately transmitting HIV to her husband and sentenced to 20 years in prison.
In 2014 Nyengedzai Bheka was convicted of deliberately infecting someone with HIV/Aids by a Chinhoyi magistrate and sentenced to 15 years in prison.
However, the signing of the Marriages Act into law is expected to save many people from falling into the same situation with Mlilo and Bheka.
Experts in the health sector are also of the view that the new law will help remove issues of stigma.
According to commentators, many people are reluctant to disclose their status for fear of being reported by their partners.
It will remain to be seen if the decriminalisation of deliberate transmission of HIV/Aids will have any impact on the country’s HIV/Aids program and people’s behaviour.
In an interview, the Chairperson of the Parliamentary Portfolio Committee on Health, and Child Care Dr. Ruth Labode said the new law will increase the number of people who will step up to know their HIV/Aids status.
’’The impact is that it will increase the number of people who seek to know their HIV status without fear of being accused by a partner and thrown into a jail. It will stop the sentencing of people arbitrary without scientific evidence to prove who infected whom among the two parties.
‘’It gives us as a nation a better chance of reaching our 2030 SDG goal of controlling HIV,’’ she said.
Parliament is required by Section 141 of the Constitution to engage the general members of the public in its legislative processes and consult them on any Bills that will be before it.
According to Dr. Labode, the citizens were fully consulted on the new law, adding that it was subjected to many reviews both in and outside Parliament and that there was no objection to the clause.
She said besides the extensive consultations, the responsibility of having safe sex lies with the parties involved and should not be delegated to the government.
‘’People were fully consulted as this was part of the Marriages Bill. Unless you are saying that the Marriages Bill as a whole was not consulted enough, which is not true because it was reviewed many times based on objections to certain sections.
‘’There was no objection on Section 79 of the Marriages Bill which sought to decriminalise wilful transmission of HIV.
‘’The responsibility of ensuring that parties have sex lies with both parties. We have HIV testing centres and condoms for people to protect themselves.
‘’If they choose to have unsafe sex it’s their choice. Government cannot continue to police individuals and take responsibility for their sexual mistakes,’’ she said.
Zimbabwe National Network of People living with HIV (ZNNP+) Advocacy and Communication Officer Martha Mlambo concurred with Dr. Labode adding that the move will improve the country’s HIV programing in a greater way.
She said they have been battling with the issue as an organisation for some time and are now hopeful that there will be a decrease in levels of stigma and discrimination.
‘’Yes, it will change something for people living with HIV/Aids. Being criminalised for having a condition for us is something we have been battling as an organisation because for us HIV is a condition just like cancer and any other health condition that anyone can have. So, we are saying if we are going to be criminalised, we are criminalising people for having health conditions then that is a big challenge.
‘’The reason why it would be a challenge is that we are going to have people not coming out and saying out their status, they will continue living without being tested, they would say I would rather not know my status than to know my status and then be prosecuted for knowing my status.
‘’So, it’s not a crime to be HIV positive because it is a condition that someone would have acquired, I don’t know how,’’ she said.
Mlambo added that ZNNP+ is seeing positive change in the country’s HIV program emanating from these changes in the law.
She said more people are going to come out and disclose their HIV status and seek treatment.
‘’As an organisation that fight for the rights of people living with HIV, we are saying it will definitely change the programing because we will more people coming out and disclosing their status because they don’t have any fear of being prosecuted for getting into a relationship with someone who then later maybe just to spite them might want to use their health condition to get back at them or something.
‘’Also the criminalisation on its own was increasing stigma, stigma is when someone doesn’t want to come out or acknowledge the fact that they are HIV positive so the moment that we decriminalise it and we make it easy for people to talk about it means that anyone who has got the condition or is living with HIV will find it easy to come out in the open.
‘’Not all people will do that, but it will be better than when you know that the moment that you come out with your condition that you are positive,’’ Mlambo said.
According to Mlambo, issues of rape should not be used to criminalise a health condition, adding that rape should be treated separately as a criminal offence.
‘’I know there are cases for example when someone is raped, in a rape case, the criminal offence is rape and not the condition that someone has.
‘’If someone rapes someone and they infect them that person should be charged with rape and not the fact that they have actually passed on that condition, it’s just like any other condition,’’ she said.
Women were at more risk of being sent to jail with this law, as they are required to take an HIV test when they go to register their pregnancy at health institutions.
Will decriminalisation of deliberate transmission of HIV/Aids change anything?
