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Court defers sentencing of woman challenging law criminalising transmission of HIV
Zimbabwe Lawyers for Human Rights (ZLHR)
July 10, 2012

A Bulawayo Magistrate has deferred the sentencing of a woman convicted of deliberately infecting her husband with HIV after he referred the matter to the Supreme Court to determine the violation of her rights.

Samukelisiwe Mlilo was convicted of deliberately transmitting HIV to her husband in contravention of Section 79 of the Criminal Law (Codification and Reform) Act, Chapter 9.23 by Bulawayo Regional Magistrate, Owen Tagu on Tuesday 3 July 2012. Mlilo was due for sentencing on Tuesday 10 July 2012.

But her sentence was deferred pending the hearing of the Supreme Court application which was filed by Mlilo's lawyers Lizwe Jamela and Nosimilo Chanayiwa of Zimbabwe Lawyers for Human Rights. Magistrate Tagu granted the application for referral of the matter to the Supreme Court in which Mlilo wants the court to determine the constitutionality of Section 79 of the Criminal Law (Codification and Reform) Act, Chapter 9.23.

Mlilo wants the Supreme Court to determine the following questions:

(a) Whether or not Section 79 of the Criminal Law (Codification and Reform) Act is too wide, broad and vague so as to render the law uncertain and thereby infringing on Applicant's protection of the law as set out in Section 18 of the Constitution. Further, whether or not such Section should be struck down for want of constitutionality.

(b) Whether or not section 79 of the Criminal Law (Codification and Reform) Act violates Section 23 of the Constitution in that it seeks to discriminate against a class of people who are HIV positive or who may possibly be infected or whether or not the discrimination rendered by this section is justifiable in a democratic society.

(c) Whether or not the criminalization of consensual conduct whereby the complainant voluntarily engaged in a sexual encounter with the accused amounts to a violation of the right to protection of the law as per-Section 18 (1) of the Constitution.

(d) The question of whether or not the remand and prosecution and of the accused on the criminal charge under Section 79 of the Criminal Law (Codification and Reform) Act are not on the facts a violation of her fundamental rights to personal liberty and the protection of the law.

The matter was postponed indefinitely pending the determination by the Supreme Court of Mlilo's application.

Already, two cases filed by Insiza legislator Hon. Siyabonga Ncube and Harare resident Shirley Tavengwa challenging the constitutionality of Section 79 of the Criminal Law (Codification and Reform) Act are pending in the Supreme Court.

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