By Nqobani Nyathi
Zimbabwe is on the verge of taking a concerning step backwards. One of the clauses in the Criminal Laws Amendment (Protection of Children and Young Persons) Bill, 2024 seeks to reinstate the criminalisation of HIV transmission, a law that was repealed in 2022.
A flawed law with unintended consequences
Back then, the criminalisation of HIV transmission was initiated in response to advocacy campaigns calling for tougher penalties for rapists who were HIV-positive. It was also aimed at protecting vulnerable individuals, particularly married women, from the risk of HIV transmission within marriage.
However, the law criminalising “deliberate transmission of HIV” went far beyond targeting intentional infection. It cast a much wider net and included anyone who knew or even suspected they might be HIV-positive, regardless of whether they had actually been tested. The law criminalised even potential HIV transmission, regardless of actual infection.
The burden of proof also fell unfairly on the accused to disprove their knowledge of status, potentially discouraging testing and treatment. Ultimately, this law perpetuated stigma and discrimination against people living with HIV. The overly broad and vague language of the law, violated the rights of people living with HIV.
Criminalisation of HIV also ended up disproportionately affecting women by placing an unfair burden on them to disclose their HIV status. In one of the cases, a routine health testing during pregnancy, not required for men, revealed the woman’s HIV status. The law then punished her for not disclosing this information to her husband. The fear of disclosure could have been potentially due to domestic violence concerns. The law was, therefore, flawed. While it was initially aimed for safety of women in marital unions, it ended up creating an unequal burden for them, furthering stigma.
We have seen that criminalisation does not work
Laws criminalising the transmission of HIV have been seen as ineffective in curbing HIV. The Joint United Nations Programme on HIV and AIDS (UNAIDS) says that criminalisation discourages testing and treatment, hindering public health efforts. UNAIDS emphasises that criminal law should be a last resort, reserved for exceptional cases of demonstrably intentional transmission with proven infection. It goes further and highlights that criminalisation undermines, rather than supports, efforts to prevent HIV infections.
In 2019, a legal environment assessment was carried out in Zimbabwe. It showed that criminalising of HIV transmission obstructs access to healthcare and perpetuates stigma and discrimination against people living with HIV and other marginalised groups. The recommendation was to repeal the law relating to the criminalisation of HIV. After that, there was collaboration with various stakeholders to promote the findings of the legal environment assessment and advocate against the law criminalising HIV transmission.
In 2022, Zimbabwe took a step by repealing the criminalisation of HIV transmission. The lack of foresight in the criminalisation of transmission of HIV behind the original legislation was acknowledged. The repeal was seen as a significant step towards strengthening Zimbabwe’s HIV response. Why bring it back?
No reason for reinstating the criminalisation of HIV transmission
The proposed amendment seeks to add HIV to another poorly drafted section criminalising “deliberate infection of another with a sexually transmitted disease.” This crime is essentially similar and suffers from the same vagueness as the previous crime of deliberate transmission of HIV. It includes criminalisation of those who may have simply realised “there is a real risk or possibility” of having an STD.
There is no coherent explanation in the Bill’s memorandum why there is an intention to add HIV to the list of STDs. This means that the previous concerns and the challenges in the criminalisation of HIV transmission would be brought back again.
A more effective path forward
Thankfully, the world of HIV treatment has changed significantly rendering criminalisation not just outdated but illogical. For example, with proper medication, people living with HIV can achieve an undetectable viral load. This means the amount of virus in their blood is so low it cannot be transmitted through sex. Punishing someone who is effectively non-infectious due to successful treatment makes no sense from a public health perspective.
As highlighted by UNAIDS, Zimbabwe has significantly improved its HIV response. Currently, the majority of the country’s HIV-positive population, has access to life-saving medication. AIDS-related fatalities have notably decreased, accompanied by a corresponding reduction in new HIV infections.
Conclusion
Re-criminalising HIV has the potential of disregarding these developments and undermines the progress made. It is a move shrouded in a lack of clear explanation or convincing justification. The repeal of the criminalisation of HIV transmission in 2022 was a commendable step. Bringing it back would be a mistake. MPs should be vigilant and reject this move.
Nqobani Nyathi is a lawyer.
