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defers sentencing of woman challenging law criminalising transmission
Zimbabwe Lawyers for Human Rights (ZLHR)
July 10, 2012
A Bulawayo Magistrate
has deferred the sentencing of a woman convicted of deliberately
infecting her husband with HIV after he referred the matter to the
Supreme Court to determine the violation of her rights.
Mlilo was convicted of deliberately transmitting HIV to her husband
in contravention of Section 79 of the Criminal
Law (Codification and Reform) Act, Chapter 9.23 by Bulawayo
Regional Magistrate, Owen Tagu on Tuesday 3 July 2012. Mlilo was
due for sentencing on Tuesday 10 July 2012.
But her sentence
was deferred pending the hearing of the Supreme Court application
which was filed by Mlilo's lawyers Lizwe Jamela and Nosimilo
Chanayiwa of Zimbabwe Lawyers for Human Rights. Magistrate Tagu
granted the application for referral of the matter to the Supreme
Court in which Mlilo wants the court to determine the constitutionality
of Section 79 of the Criminal Law (Codification and Reform) Act,
the Supreme Court to determine the following questions:
or not Section 79 of the Criminal Law (Codification and Reform)
Act is too wide, broad and vague so as to render the law uncertain
and thereby infringing on Applicant's protection of the law
as set out in Section 18 of the Constitution.
Further, whether or not such Section should be struck down for want
or not section 79 of the Criminal Law (Codification and Reform)
Act violates Section 23 of the Constitution in that it seeks to
discriminate against a class of people who are HIV positive or who
may possibly be infected or whether or not the discrimination rendered
by this section is justifiable in a democratic society.
or not the criminalization of consensual conduct whereby the complainant
voluntarily engaged in a sexual encounter with the accused amounts
to a violation of the right to protection of the law as per-Section
18 (1) of the Constitution.
(d) The question
of whether or not the remand and prosecution and of the accused
on the criminal charge under Section 79 of the Criminal Law (Codification
and Reform) Act are not on the facts a violation of her fundamental
rights to personal liberty and the protection of the law.
The matter was
postponed indefinitely pending the determination by the Supreme
Court of Mlilo's application.
cases filed by Insiza legislator Hon. Siyabonga Ncube and Harare
resident Shirley Tavengwa challenging the constitutionality of Section
79 of the Criminal Law (Codification and Reform) Act are pending
in the Supreme Court.
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