sexual health and human rights in the african region - The ICHRP

precautions or disclosing her status to her lover fell within the prohibited
conduct. The Act punishes not just intentional conduct, but also doing ‘anything’
that the defendant knows ‘involves a real risk or possibility of infecting another
person with HIV’. 425 Also, it is not a requirement that the defendant must be
HIV-positive. It is sufficient that the defendant knows there is a ‘real risk or
possibility’ that he or she has HIV. 426 If the defendant was, in fact, HIV-positive,
the Act provides a defence of consent. It is a defence that the other person knew
about the defendant’s HIV status and consented. 427 A conviction under the
Zimbabwean Act carries a maximum of twenty years in prison.
[46] The purview of the Zimbabwean Act is extremely wide. Whilst the charge under
the Act is one of ‘deliberate’ transmission of HIV, the Act in practice punishes
not only reckless but also, more worryingly behavior that is negligent or even
below the threshold for negligence. A mere ‘possibility’ of infecting the other
person is sufficient to constitute the offence. In this respect the Act uses criminal
law to do the work that is normally done by delict or the tort of negligence. But
even more disconcerting, punishing for a ‘mere possibility’ of transmitting HIV
lowers the threshold of criminal liability to a standard that is even lower than its
delict or tort of negligence counterpart. Using criminal law in this manner
renders it a blunt instrument that is apt to engender contempt for the law as well
as repression. It is anomalous that the Act also punishes a person who is not
carrying the HIV on the ground that there is a possibility that the person might
have HIV. In this respect, the Act creates a crime of ‘fear and possibility’ and not
of ‘effect and consequence’. 428 An offence is committed even if the defendant has
no HIV or there is no transmission of HIV. By implication, the Zimbabwean Act
also criminalizes mother-to-child transmission or the possibility thereof, where
the mother knew that she had HIV or feared that she may have HIV. 429 While
informed consent is a defence where the defendant was a person living with
HIV, the defence does not apply to an HIV-negative defendant.
[47] The Kenyan and Tanzanian laws on criminalization of HIV transmission are
similar in one respect. Both countries have an HIV/AIDS Prevention Control Act
that has broadly the same objectives. The Kenyan Act was passed in 2006 430 while
the Tanzanian Act was passed in 2008. 431 Criminalization of HIV under these
Acts is part of a broader HIV/AIDS strategy. Over and above criminalizing HIV
425 Section 79(1)(b) of the Zimbabwean Criminal Law (Codification and Reform) Act of 2004.
426 Ibid.
427 Ibid section 2(b) of the Zimbabwean Criminal Law (Codification and Reform) Act.
428 Cameron et al, ‘HIV is a Virus, not a Crime: Ten Reasons against Criminal Statues and Criminal
Prosecutions’ supra at 2.
429 Ibid.
430 HIV/AIDS Prevention and Control Act of 2006 of Kenya.
431 HIV/AIDS (Prevention and Control Act of 2008 of Tanzania.
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