M & ANOR v THE STATE

CONSTITUTIONAL COURT, HARARE

[Constitutional Referral CCZ 5-16]

February 18, 2015 and June 15, 2016

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI, GWAUNZA, GOWORA, HLATSHWAYO, PATEL AND GUVAVA JJCC AND MAVANGIRA AJCC

Constitutional law  –  Referral  –  Referral in terms of section 24 of the Constitution of Zimbabwe, 1980  –  Right to protection of the law under section 18  –  Whether section 79 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] criminalising the deliberate transmission of HIV infringed the right protected by section 18.

Constitutional law  –  Referral  –  Referral in terms of section 24 of the Constitution of Zimbabwe, 1980  –  Right to protection from discrimination under section 23  –  Whether section 79 of the Criminal Law (Codification and Reform) Act criminalising the deliberate transmission of HIV violated the right protected by section 23.

The first applicant was a 42 year old man who, it had been alleged, had deliberately infected his wife with HIV. The second applicant was a 34 year old woman who, it was also alleged, had deliberately infected her husband with HIV. On separate occasions, they were both charged with a contravention of s 79 of the Criminal Law (Codification and Reform) Act (“the Criminal Code”) (“deliberate transmission of HIV/AIDS”). They succeeded in having their matters referred to the Supreme Court for a determination of the constitutionality of s 79, in particular, whether it was consistent with ss 18 and 23 of the Constitution of Zimbabwe Order, 1979 (“the former Constitution”).

Regarding s 18 of the former Constitution, the applicants argued that s 79 of the Criminal Code was too broad and imprecise to qualify as “law” within the contemplation of s 18. In relation to s 23 of the former Constitution, the applicants asserted that s 79 discriminated against persons with HIV/AIDS by imposing on them restrictions which other members of the community are not subjected to, thereby exerting on them a higher standard of interaction not exerted on other citizens.

The application was dismissed.

Held, that s 79 of the Criminal Code is sufficiently clear and precise to qualify as a law under s 18 of the former Constitution. Accordingly, it does not infringe the right to the protection of the law as it provides clear guidance for individual conduct and affords the protection of the law to both the accused persons and members of the public.

Held, further that s 79 of the Criminal Code does not infringe s 23 of the former Constitution because discrimination on the grounds of HIV/AIDS is not listed among the grounds in s 23. Accordingly, there can be no infringement of a non-existent constitutional right.

Cases cited:

Kombayi v Registrar General 2001 (2) ZLR 356 (S), applied

S v Banana 2000 (1) ZLR 607 (S); 2000 (2) SACR 1 (ZS), applied

Sunday Times v The United Kingdom (1979-80) 2 EHRR 245, referred to

Zimbabwe Township Developers v Lou’s Shoes 1983 (2) ZLR 376 (S); 1984 (2) SA 778 (ZS), referred to

Legislation considered:

Constitution of Zimbabwe Order, 1979 (SI 1600 of 1979 of the United Kingdom), ss 3, 18, 23, 23 (2), 23 (5), 24 (2)

Criminal Law (Codification and Reform) Act [Chapter 9:23], ss 15, 79

Book cited:

Currie I and De Waal J (eds) The Bill of Rights Handbook (5th edn, Juta & Co Ltd, Cape Town, 2005) at p 163

T Mpofu, for the applicants

E Mavuto, for the respondent

ZIYAMBI JCC:

This matter is brought by way of referral in terms of s 24 (2) of the Constitution of Zimbabwe Order, 1979 (SI 1600 of 1979 of the United Kingdom) (“the former Constitution”) which provides as follows:

“24 Enforcement of protective provisions

(1) …

(2) If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings shall, refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

The questions referred for decision concern the constitutionality of s 79 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Code”). The applicants claim that s 79 violates their right to protection of the law as well as their right not to be discriminated against in terms of ss 18 and 23, respectively, of the former Constitution.

The background

The first applicant is a 42 year old male. On 5 September, 2012, he was arrested and subsequently charged with contravening s 79 of the Criminal Code, briefly, “deliberate transmission of HIV/AIDS”. It was alleged that the applicant had deliberately infected his wife, GN with HIV. On 27 September, 2012 the applicant appeared before the magistrate for a remand hearing and requested that the matter be referred to the Supreme Court (formerly the Court which determined constitutional matters) on the following grounds:

1. Section 79 of the Criminal Code with which he is charged is too wide, broad and vague so as to render the law uncertain there by infringing his right to protection of the law as set out in s 18 of the former Constitution.

2. Section 79 of the Criminal Code violates the applicant’s fundamental right guaranteed under s 23 of the former Constitution, not to be discriminated against on any basis (including his HIV/AIDS status).

The second applicant is a woman aged 34 years. She was customarily married to one JM during the period 2008 to 2010. It was alleged, and proved at her trial, that in 2009, she fell pregnant and had to undergo routine HIV testing. Although the result was positive, she did not disclose this fact to her husband but continued to have unprotected sexual intercourse with him until he stumbled upon her antenatal card which disclosed she was taking medication for HIV/AIDS. She was convicted of contravening s 79 of the Criminal Code and remanded for sentence. At the resumption of the trial on 9 July, 2012, an application was made, and granted on 10 July 2012, referring the matter to the Supreme Court on the two grounds stated as (1) and (2) above as well as the following additional grounds:

(3) Whether or not the criminalisation of consensual sexual conduct whereby the complainant voluntarily engaged in a sexual encounter with the accused amounts to a violation of the applicant’s right to protection of the law as enshrined in s 18 of the former Constitution.

(4) Whether or not the remand and prosecution of the accused on the criminal charge under s 79 of the Criminal Code are not, on the facts, a violation of the applicant’s fundamental right to personal liberty and the protection of the law.

These additional grounds were, however, not pursued by Mr Mpofu who confined himself to the first two questions. Accordingly this judgment will deal with the two questions stated as (1) and (2) above.

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