Using Science for Justice: The Implications of the Expert Consensus Statement on Zimbabwe’s HIV Criminalisation Law

By Annabel Raw, Michaela Clayton, Tinashe Mundawawara and Lizwe Jamela

Section 79 of Zimbabwe’s Criminal Law (Codification and Reform) Act [Chapter 9:23] criminalises HIV exposure and transmission. The law, and others like it, have been criticised extensively on human rights and public health grounds and on the basis that the offence is applied in a manner that is unscientific. Despite this, the Zimbabwe Constitutional Court upheld the constitutionality of the offence in 2016. This article examines the implications of the first ever global ‘Expert Consensus Statement on the Science of HIV in the Context of Criminal Law’ in relation to section 79 of Zimbabwe’s Criminal Code. This is done to determine to what extent a scientifically accurate understanding of HIV transmission dynamics, as detailed in the Expert Consensus Statement, may impact the application of the offence and whether this may have weight in a court’s assessment of the offence’s constitutionality. The article finds that, if applied by lawyers, prosecutors and courts, the Expert Consensus Statement may alleviate some unjust prosecutions and convictions in guiding courts to assess evidence on HIV transmission, to draw appropriate inferences on mental elements of the offence, to recognise defences on the basis of transmission risk-reducing conduct, and to more appropriately inform the courts’ assessment of the harm of HIV infection in sentencing. While the Expert Consensus Statement may reduce unjust prosecutions, we consider that the continued existence of the offence will nevertheless perpetuate inequality and injustice. We call for the total repeal of section 79 of the Criminal Code. The implications of the science reflected in the Expert Consensus Statement may also weigh in favour of a finding by the courts that the offence is unconstitutional if a new constitutional case is made against the offence.

Keywords: HIV Criminalisation; Science; Expert Consensus Statement; Zimbabwe

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