A Zimbabwean government officer was recently convicted by a magistrate in the city of Bulawayo on charges of deliberately infecting her husband with the HIV virus.

By Michek Rusere, Harare

Samukeliso Mlilo (34), an agricultural extension officer, is charged based on the controversial section 79 of the Zimbabwean Criminal Law Act.

Mlilo had no legal representative in the initial stages of her trial. But she was relieved when Lizwe Jamela, a renowned human rights lawyer with the Zimbabwe Lawyers for Human Rights (ZLHR) took her case. He managed to take the matter to the Supreme Court before Mlilo was sentenced. He argues that the law is unconstitutional and discriminates against people living with HIV/AIDS.

“The basis [for the supreme court appeal] is mainly to deal with the constitutionality of section 79 of the Criminal Law Act,” says Jamela.

Vague
The law states that the deliberate transmission of HIV is a crime. Fair enough, says Jamela. But he has an issue with the fact that the law doesn’t take into consideration whether actual infection happened or not. He is also arguing that there is no proof of who infected who.

Human rights activist Tinashe Mundawarara says Mlilo is one of many in the country who is a victim of a law which is supposed to be protecting the individual. He says the vagueness of section 79 is such that even those who are HIV-negative can be charged and be prosecuted for transmitting the virus.

Jamela argues that section 79 of the code is too vague and broad so as to allow for arbitrary arrests and prosecution of people in contravention of the law.

“The section tends to be over reaching and too broad to an extent that it’s not clear as to what constitutes criminal conduct,” he says as part of his basis for appealing to the Supreme Court.

Who infected who?
He also adds that no provision is made in the law about finding out who infected who. He says it is very often left to the imagination and speculation.

In Mlilo’s case, both her and her husband had had previous affairs before getting together. Jamela says Mlilo only discovered that she was HIV positive upon seeking antenatal care after falling pregnant while living with her husband. As part of the country’s health policy, HIV testing is compulsory for all pregnant women.

Mlilo added that her and her husband had already lived a year together before the pregnancy. She further states in her defense that she disclosed her status to her husband who even assisted her to get medication.

“So who infected who?” says Mundawarara. The reason of the court case baffles him because the couple stayed for so long together and had consented to having sex since they got married.

But the million-dollar question is how the magistrate managed to be convinced that Mlilo, who pleaded not guilty, actually transmitted the virus to her husband and not the other way round.