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YOUR RIGHTS:
African countries criminalise HIV

The Criminal Law Codification and Reform Act came into force in Zimbabwe on 1st July 2006. This new legislation discriminates against those who live with HIV/AIDS and who commit sexual offences. Karen Collis reports

he old Sexual Offences Act of 2001 provided for the criminalisation of deliberate transmission of, or exposure to HIV, and for specific sentences where the person convicted was HIV positive.

The old Act made it a criminal offence for any person, having actual knowledge that he had HIV, “intentionally to do anything or permit the doing of anything which he knows or ought reasonably to know will infect another person with HIV or is likely to lead to another person becoming infected with HIV”. It was a defence if the other party knew that the accused was infected with HIV and consented to the act in question, thus appreciating the nature of HIV and the possibility of infection.

The Act continued to state that “if it is proved that a person was infected with HIV within thirty days after committing an offence, it shall be presumed, unless the contrary is shown, that he was infected with HIV when he committed the offence.” His HIV status would then affect his sentencing negatively.

The new Act contains similar provisions as above but now where a person is convicted of a sexual assault and it is proved that, “at the time of the commission of the crime, the convicted person was infected with HIV, whether or not he or she was aware of his or her infection, he or she shall be sentenced to imprisonment for a period of not less than ten years.”

HIV specific criminal legislation is implemented throughout Africa; it has been introduced already in Lesotho and Swaziland and is proposed in Uganda, Namibia and Zambia. This is despite the United Nations body UNAIDS warning that criminal and public health legislation should not include specific offences against deliberate and intentional transmission of HIV but should rather apply general criminal offences to these exceptional cases.

We question whether criminal laws and prosecutions represent sound policy responses to conduct that carries the risk of HIV transmission. Individual cases, and accompanying media coverage, may prompt public calls for such a response, but there are few simple solutions to such a complex problem, and a rush to legislate should be avoided in favour of careful consideration.

Preventing the transmission of HIV should be the primary objective and this, rather than any other objective, should guide policy-makers in this area; any legal or policy responses to HIV/AIDS, particularly the coercive use of state power, should not only be pragmatic in the overall pursuit of public health but should also conform to international human rights norms, particularly the principles of non-discrimination and of due process; state action that infringes on human rights must be adequately justified, such that policy-makers should always undertake an assessment of the impact of law or policy on human rights, and should prefer the ‘least intrusive’ measures possible to achieve the demonstrably justified objective of preventing disease transmission.