A MAGISTRATE has called for reforms into laws criminalising deliberate transmission of HIV, describing current legislation as defective.
Harare magistrate Clever Tsikwa said courts were increasingly seeing cases where people came forward to accuse their partners of infecting them with the virus which causes Aids, but courts were not empowered to look into medical records or compel accused individuals to undergo tests.
“As it stands, accused individuals can only undergo HIV tests on a voluntary basis. That’s a serious shortcoming in the law,” Tsikwa said on Tuesday.
The magistrate made the intervention as he acquitted a man accused of passing HIV to his estranged wife.
The charges were brought under Section 79 of the Criminal Law (Codification and Reform) Act which criminalises deliberately or knowingly infecting a sexual partner with HIV.
The section makes no provision for courts to subpoena individual medical records, nor does it provide for compulsory HIV testing.
Section 80 of the Act, however, empowers courts to order mandatory testing of suspects in sexual crimes including rape and aggravated indecent assault. The section explicitly says “the presence in a person’s body of HIV antibodies or antigens, detected through an appropriate test, shall be prima facie proof that the person concerned is infected with HIV.”
Insiza North MP Siyabonga Malandu Ncube was charged under Section 79 of the Act last year after a Bulawayo journalist Simiso Mlevu accused him of infecting her with HIV, but the case hit the skids after prosecutors admitted they had no legal means to prove the claims.
In Bulawayo on Tuesday, magistrate Owen Tagu indefinitely suspended passing sentence on Samukelisiwe Mlilo, 34, who was last week convicted of infecting her husband with HIV after her lawyers asked for the matter to be referred to the constitutional court.
Mlilo’s lawyers Nosimilo Chanayiwa and Lizwe Jamela advised the court that Section 79 of the Criminal Law (Codification and Reform) Act had already been referred to the Supreme Court through the case of Malandu Ncube, and another case of a Harare woman, Shirley Tavengwa.
In the case before Tsikwa, a 20-year-old woman who was living with her partner since December 2011 in Belvedere was taken ill in March this year and was tested for HIV by Dr Johannes Marisa who has a surgery in Kuwadzana.
Prosecutors said the test was negative, and she was advised to take a second test after five weeks because HIV has an incubation period of up to two months. She tested again on April 30 at Wilkins Hospital and discovered she had HIV.
The woman had also filed a second claim of aggravated indecent assault, accusing her ex-partner of forcing her to perform oral sex on him.
During the trial, the woman said she was convinced of her husband's HIV status because his “first wife died of meningitis which is one of the many opportunistic infections which affect AIDS patients”.
But the magistrate said both claims were unproven as they were not supported by medical record and the court could not order her ex-partner to undergo an HIV test.
In the Mlilo case in Bulawayo, prosecutors said she was customarily married to the complainant between 2008 and 2010.
In 2009, Mlilo fell pregnant and had to undergo an HIV test as a prenatal requirement. She tested positive but did not disclose this fact to her husband and they continued having unprotected sex.
In her defence, she said her husband was aware of her HIV status as she disclosed this fact to him and he assisted her in seeking medical assistance.
In convicting her, magistrate Tagu acknowledged that this was a test case but said prosecutors had put forward compelling evidence that she had withheld information from her husband.
He only became aware of her HIV status after coming across her medical card in her wardrobe in November 2009.