Johnson Progress

A Harare woman, accused of deliberately transmitting HIV to her boyfriend, has escalated her legal battle to the High Court, arguing her continued prosecution violates fundamental rights and legal principles because the law under which she is charged has been repealed.

The woman, whose identity remains protected, faces charges stemming from her arrest on March 31, 2022.

Authorities allege that she intentionally infected her boyfriend with HIV during a period spanning March to November 2021.

At the time, her alleged actions fell under Section 79 of Zimbabwe’s Criminal Law (Codification and Reform) Act, which specifically criminalized the deliberate transmission of HIV.

However, the legal landscape shifted dramatically in May 2022 when the Zimbabwean parliament repealed Section 79, decriminalizing the deliberate transmission of HIV.

This landmark change followed years of advocacy by human rights and public health groups, who argued that such laws fueled stigma, discouraged testing, and were difficult to enforce fairly.

Capitalizing on the legislative change, the woman, represented by lawyer Paidamoyo Saurombe, applied to the Magistrates’ Court in August 2022 for the charges against her to be dropped.

Her legal team contended that since the act of deliberate HIV transmission was no longer a crime, prosecuting her under a repealed statute was fundamentally unjust and lacked a legal basis.

Magistrate Taurai Manwere rejected her application on November 18, 2022. The court ruled that the repeal of Section 79 did not necessarily apply retroactively to acts committed before the law was abolished.

Essentially, the magistrate held that the alleged offence, committed while the law was active, could still be prosecuted under the old provisions.

Faced with this setback, the woman sought to have constitutional issues arising from her prosecution referred directly to the Constitutional Court.
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Magistrate Manwere also denied this request, prompting the current High Court challenge.

In a review application now before the High Court, the woman challenges both Magistrate Manwere’s rulings and the stance of the National Prosecuting Authority of Zimbabwe (NPAZ).

Her legal papers argue that the magistrate’s decision was fundamentally flawed, procedurally irregular, and unreasonable.

“It is grossly unfair, irrational, and a violation of fundamental rights to prosecute someone for an act that is no longer considered a criminal offence in Zimbabwe,” her application asserts She contends that proceeding to trial under the repealed law would inevitably result in an unfair trial and a miscarriage of justice.

Crucially, she argues that Magistrate Manwere erred by failing to properly refer to the significant constitutional questions raised to the Constitutional Court.

These questions centre on whether prosecuting someone under a repealed law infringes upon the constitutional right to equal protection and benefit of the law and whether it constitutes cruel, inhuman, or degrading treatment.

“The learned magistrate grossly misdirected himself and failed to exercise his discretion judicially in refusing to refer the matter to the Constitutional Court,” the application states, adding that the refusal effectively deprived her of her constitutional rights.

The woman is now petitioning the High Court to set aside Magistrate Manwere’s rulings – both the refusal to refer the case to the Constitutional Court and the refusal to drop the charges based on the repeal.

Her case highlights the complex legal tensions between applying laws retroactively and upholding the principle that individuals should not be punished under laws that society, through its legislature, has deemed should no longer exist.

The High Court’s decision is keenly awaited, potentially setting a significant precedent for similar cases arising from Zimbabwe’s repeal of its HIV criminalization law.