ZIYAMBI
JCC:
[1]
This matter is brought by way of referral in terms of section 24(2)
of the former Constitution of Zimbabwe (“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
section 79 of the Criminal Law (Codification and Reform) Act,
[Chapter
9:23]
(“the Code”).
The
applicants claim that section 79 violates their right to protection
of the law as well as their right not to be discriminated against in
terms of sections 18 and 23, respectively, of the former
Constitution.
THE
BACKGROUND
[2]
The first applicant is a 42 year old male. On 5 September, 2012, he
was arrested and subsequently charged with contravening section 79 of
the Code, briefly, “deliberate transmission of HIV/AIDS”.
It
was alleged that the applicant had deliberately infected his wife,
Geziwe Ncube 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 Code with which he is charged is too wide, broad
and vague so as to render the law uncertain thereby infringing his
right to protection of the law as set out in section 18 of the
Constitution.
2.
Section 79 of the Code violates the applicant's fundamental right
guaranteed under section 23 of the Constitution, not to be
discriminated against on any basis (including his HIV/AIDS status).
[3]
The second applicant is a woman aged 34 years. She was customarily
married to one Joseph Marozva 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 section 79 of the 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 set out in [2]
above as well as the following additional grounds:
(3)
Whether or not the criminalization 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 section 18 of the Constitution.
(4)
Whether or not the remand and prosecution of the accused on the
criminal charge under section 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 set out in [2] above.
THE
LEGISLATIVE PROVISIONS
[4]
Section 79 of the Code:
“79
Deliberate transmission of HIV
(1)
Any person who -
(a)
knowing that he or she is infected with HIV; or
(b)
realising that there is a real risk or possibility that he or she is
infected with HIV; intentionally does anything or permits the doing
of anything which he or she knows will infect, or does anything which
he or she realises involves a real risk or possibility of infecting
another person with HIV, shall be guilty of deliberate transmission
of HIV, whether or not he or she is married to that other person, and
shall be liable to imprisonment for a period not exceeding twenty
years.
(2)
It shall be a defence to a charge under subsection (1) for the
accused to prove that the other person concerned —
(a)
knew that the accused was infected with HIV; and
(b)
consented to the act in question, appreciating the nature of HIV and
the possibility of becoming infected with it”.
Section
15 of the Code:
“15
Realisation of real risk or possibility
(1)
Where
realisation of a real risk or possibility is an element of any crime,
the test is subjective and consists of the following two components:
(a)
a component of awareness, that is, whether or not the person whose
conduct is in issue realised that there was a risk or possibility,
other than a remote risk or possibility, that;
(i)
his or her conduct might give rise to the relevant consequence; or
(ii)
the relevant fact or circumstance existed when he or she engaged in
the conduct; and
(b)
a component of recklessness, that is, whether, despite realising the
risk or possibility referred to in paragraph (a)
the person whose conduct is in issue continued to engage in that
conduct.
(2)
If a crime of which the realisation of a real risk or possibility is
an element is so defined in this Code or any other enactment that;
(a)
the words describing the component of awareness are omitted, the
component of awareness shall be implicit in the word 'recklessly'
or any derivatives of that word; or
(b)
the words describing the component of recklessness are omitted, the
component of recklessness shall be implicit in the expression
'realise a real risk or possibility' or any derivatives of that
expression.
(3)
Where, in a prosecution of a crime of which the realisation of a real
risk or possibility is an element, the component of awareness is
proved, the component of recklessness shall be inferred from the fact
that:
(a)
the relevant consequence actually ensued from the conduct of the
accused; or
(b)
the relevant fact or circumstance actually existed when the accused
engaged in the conduct; as the case may be.”
Section
18 of the former Constitution:
“18
Provisions to secure protection of law
(1)
Subject to the provisions of this Constitution, every person is
entitled to the protection of the law.”
Section
23 of the former Constitution:
“23
Protection from discrimination on the grounds of race, etc.
(1)
Subject to the provisions of this section -
(a)
no law shall make any provision that is discriminatory either of
itself or in its effect; and
(b)
no person shall be treated in a discriminatory manner by any person
acting by virtue of any written law or in the performance of the
functions of any public office or any public authority.
(2)
For the purposes of subsection (1), a law shall be regarded as making
a provision that is discriminatory and a person shall be regarded as
having been treated in a discriminatory manner if, as a result of
that law or treatment, persons of a particular description
by race, tribe, place of origin, political opinions, colour, creed,
sex, gender, marital status or physical disability
are prejudiced -
(a)
by being subjected to a condition, restriction or disability to which
other persons of another such description are not made subject; or
(b)
by the according to persons of another such description of a
privilege or advantage which is not accorded to persons of the
first-mentioned description; and the imposition of that condition,
restriction or disability or the according of that privilege or
advantage is wholly or mainly attributable to
the description by race, tribe, place of origin, political opinions,
colour, creed, sex, gender, marital status or physical disability of
the persons concerned…..”
(My underlining)
THE
QUESTIONS TO BE DECIDED
[5]
The questions referred for determination, namely:
1.
Whether section 79 of the Code with which the applicants are charged
is too wide, broad and vague so as to render the law uncertain
thereby infringing on their right to protection of the law as set out
in section 18 of the former Constitution; and
2.
Whether section 79 of the criminal Code violates the fundamental
right of the applicants, guaranteed under section 23 of the
Constitution, not to be discriminated against; are hereunder dealt
with in turn.
1.
Infringement of the right to protection of the law - section 18
[6]
The main attack launched by Mr Mpofu
on section 79 of the Code is that the section is framed in terms so
wide as to be violative of the protection of the law guarantee.
He
submitted that the offence created by the legislature in section 79
was conjectural and vague in that a person who realizes that there is
a risk or possibility that he or she is infected with the HIV virus
must be convicted under that provision. That would include any person
who has sexual intercourse, whether protected or otherwise, and any
person who has been injected with a needle or has subjected himself
to blood transfusion.
He
submitted further that the offence created was 'dangerously wide'
in that it speaks of
a
real risk or possibility of infecting another.
Scientific
research, it was submitted, had shown that condoms are not 100%
effective in protecting against the risk of infection. Thus having
sexual intercourse with a condom is, strictly speaking, irrelevant
for the purposes of this provision.
In
addition, there is great danger of false incrimination as it is
currently not possible in this country to determine who it is that
was infected first.
[7]
The counter argument advanced by the respondent was that the offence
created by section 79 comprises both the common law concepts of
actual intention (dolus
directus)
and legal intention (dolus
eventualis).
The offence was committed by a person who knowing or believing that
he is infected with the HIV virus intentionally does or permits the
doing of an act which he knows will infect another or which he
realizes involves a real risk of infecting another.
It
was submitted that section 79 was clear and straight forward and the
use of the words 'real risk or possibility' did not open the
section to an unacceptably wide interpretation as that phrase is
defined in section 15.
Section
79, it was submitted, did not criminalise sexual intercourse by a
person infected with HIV but was aimed at the conduct of persons who,
knowing they are infected with the HIV virus, deliberately or
recklessly spread the virus to innocent partners.
The
section provides for a defence to an accused person that the sexual
partner was, at the time of his participation in the act of
intercourse, aware of his HIV status and the possibility of being
infected therewith.
It
was submitted that the applicants right to protection of the law as
enshrined in section 18 of the former Constitution had not been
infringed.
[8]
The right to protection of the law entails that the law be
expressed in clear and precise terms to enable individuals to conform
their conduct to its dictates. A law may not be so widely expressed
that its boundaries are a matter of conjecture nor may it be so vague
that the people affected by it must guess at its meaning. If it does
it will fail to meet the test of validity. A subject must be able to
foresee to a reasonable degree the consequences which his chosen
course of conduct might entail.
As
it was put in The
Sunday Times v The United Kingdom:
“… a
norm cannot be regarded as a 'law' unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct:
he must be able – if need be with appropriate advice – to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail. Those consequences need
not be foreseeable with absolute certainty: experience shows this to
be unattainable. Again, whilst certainty is highly desirable, it may
bring in its train excessive rigidity and the law must be able to
keep pace with changing circumstances.”
[9]
The right to protection of the law also includes the right not to be
prosecuted under a law that is unconstitutional. Consequently, it is
always open to an accused person to challenge the constitutionality
of legislation under which he is charged, the onus being on him to
prove the unconstitutionality.
[10]
It might be mentioned here that constitutional rights and freedoms
are not absolute. They have boundaries set by the rights of others
and by important social concerns such as public order, safety, health
and democratic values.
Thus
a law may impose certain limitations on the enjoyment of individual
rights for the benefit of the public subject to the overriding
consideration that such a law may not be inconsistent with the
constitution.
[11]
The thrust of Mr Mpofu's
attack on the constitutionality of section 79 of the Code is that it
is expressed in terms too broad and imprecise to provide guidelines
for individual conduct. He took issue in particular with section
79(1)(b) which penalises a constructive intent to commit the offence,
arguing that at most only an actual intent ought to be required.
I
cannot agree.
As
the respondent submitted, the offence created in section 79 embraces
the common law concepts of actual (dolus
directus)
and constructive (dolus
eventualis)
intent.
Both
the offender who has an actual intent to infect another and the one
who is reckless as to whether or not his actions will result in the
infection of another are caught by section 79.
The
section is specifically directed at these two categories of persons
and these only.
The
definition in section 15 of the phrase 'real risk or possibility'
has dispelled any perceived vagueness in that phrase by the inclusion
therein of the components of 'awareness and recklessness'.
Section
79 is in my view formulated in sufficiently clear terms to enable a
subject to foresee the consequences of his actions.
[12]
It is to be borne in mind that one is here concerned with a person
who is aware that he (and the word 'he' is meant to include
'she') is infected with the HIV/AIDS virus or has reason to
believe he might be so infected.
Public
policy would, in my judgment, require of such a person that he make
full disclosure to his intended partner in order to afford that
partner the opportunity to make an informed decision.
The
fears expressed by Mr Mpofu
in
regard to the use of ineffective condoms and blood transfusions can
be allayed by full disclosure of such fears to the intended partner.
In
my view the section, framed as it is, affords the protection of the
law not only to the accused persons but to all members of the public
- to accused persons who can avail themselves of the defence afforded
to them in section 79 as well as to members of the public who are
entitled to be protected against the wanton and reckless conduct of
persons who fall foul of the provisions of the section.
It
is well known that infection with the HIV virus can have fatal
consequences particularly where the infected person is not in receipt
of remedial treatment either because he is not aware of the fact of
his infection or because although aware of his status, he takes a
conscious decision not to avail himself of such treatment which can
only be obtained upon disclosure of his condition to a care giver.
As
I perceive it, the applicants objection to the disclosure of their
status springs from a desire to safeguard their privacy. That desire
must, however, be weighed against the intended partner's rights
prominent among which is the right to life.
[13]
I take the view that section 79 is cast in terms sufficiently precise
and adequate to provide guidance for individual conduct.
Taking
the two examples given by Mr Mpofu,
of the 'innocent people': the person who has no reason to
believe that he or she is infected, for example where infection has,
unknowing to him or her, been brought about by an injection with an
infected needle, would not be convicted under section 79.
The
elements of subjective awareness and recklessness would be absent.
Similarly,
the person who has reason to believe that he might be HIV positive,
would not be liable to be convicted under section 79 if he disclosed
this belief to his partner so that the latter could make an informed
decision.
The
section in my view poses no danger of conviction to these persons.
[14]
I conclude that the right of the applicants, enshrined in section 18
of the former Constitution, to protection of the law has not been
infringed by section 79 of the Code.
2.
Whether
section 79 of the criminal Code violates the applicant's
fundamental right guaranteed under section 23 of the Constitution
[15]
At the outset it must be noted that the right afforded by section 23
is not a right not to be discriminated against on any
basis.
The
underlined portions of subs (2) of section 23
show that discrimination on grounds of HIV/ AIDS or other status is
not listed therein as a constitutionally enshrined right. In that
connection the following observations by MCNALLY JA in Kombayi
v Registrar General
2001 (2) ZLR 356 (S)
are pertinent:
“There
are two reasons why this argument is fallacious. The first is that
s23 of the constitution protects the individual from discrimination
on a number of grounds, but lack of education is not one of them. The
types of discrimination that are prohibited are discrimination by
'race, tribe, place of origin, political opinions, colour, creed or
gender…'”
The
argument advanced on behalf of the applicants is that section 79 of
the Code infringes their right protected by section 23(1) not to be
discriminated against in that it discriminates against those persons
who are HIV positive by imposing on them restrictions which other
members of the community are not subjected to and exerts on them a
higher standard of social interaction not exerted on other citizens.
The
section, so the submission went, negates the ability to conduct
normal human relations in that a person infected with the HIV virus
or one exposed to it would have to educate every potential sexual
partner on the 'biology of HIV and ensure that they have fully
understood and appreciated the nature of HIV before indulging'.
It
was submitted that the defence of disclosure to the intended partner,
afforded to persons charged under section 79 was 'too burdensome'
for any human being.
It
was accordingly submitted that the limitations imposed on the
applicants constitutional rights by section 79 of the Code are not
reasonably justified in a democratic society.
[16]
The fallacy of this argument lies in the fact that as stated above
the Constitution does not deal with the right claimed by the
applicants.
Not
all discrimination is proscribed by section 23.
What
is proscribed is discrimination on the grounds underlined above.
These are: “race, tribe, place of origin, political opinions,
colour, creed, sex, gender, marital status or physical disability”.
Discrimination
on the basis of HIV status is not prohibited by section 23.
Thus
while section 79 targets only persons infected with or exposed to the
HIV virus – which can be regarded as discriminatory of those
persons - such discrimination is not unlawful in that it is not
proscribed by section 23.
I
must accordingly disagree with the submission on behalf of the
respondent that section 79 of the Code
infringes
the applicants right not to be discriminated against in terms of
section 23(1) of the former Constitution.
As
was observed in the Kombayi
and Banana cases (supra),
section 23(2) limits the type of discrimination which is proscribed
by the Constitution. This emerges clearly when the section is read as
a whole.
[17]
In terms of section 23(5), where a law discriminates on the grounds
of sex or gender, the challenger bears the burden of showing that
“that law or, as the case may be, the thing done under the
authority thereof is not reasonably justifiable in a democratic
society”.
Thus
in the Banana
case,
GUBBAY CJ remarked as follows:
“The
burden of proof is on the challenger (ZIMBABWE
TOWNSHIP DEVELOPERS v LOUS SHOES
1983 (2) ZLR 376 (S) at 382-383A) to prove that the impugned
enactment goes further than is reasonably justified in a democratic
society, and not upon the state to show that it does…
In
effect the court will consider three criteria in determining whether
or not the limitation upon the protection is permissible in the sense
of not being shown to be arbitrary or excessive. These criteria were
identified in Nyambirai
v National Social Security Authority and Anor
1995 (2) ZLR 1 (S) at 13D-F. [They] are whether:
1.
The legislative objective which the limitation is designed to promote
is sufficiently important to justify overriding the fundamental right
concerned;
2.
The measures designed or framed to meet the legislative objective are
rationally connected to it and are not arbitrary, unfair or based on
irrational considerations;
3.
The means used to impair the right or freedom are no more than is
necessary to accomplish the objective.”
Both
parties made submissions on this issue the applicants alleging that
section 79 being such a law was not reasonably justifiable in a
democratic society while the respondents submitted that it was and
the criteria set out above had been met by section 79.
The
nature of the discrimination alleged by the applicants renders
section 23(5) irrelevant to the determination of the issue at hand.
However,
even if a consideration of the above criteria was necessary, it is my
view that, as will appear hereunder, the applicants have failed to
discharge the onus on them to show that the said criteria have not
been satisfied.
THE
LEGISLATIVE OBJECTIVE
[18]
As correctly submitted by the respondent the objective of the section
79 is to halt or prevent the spread of HIV/AIDS.
In
view of the fatal nature of the disease, the objective is not only
important but laudable.
I
am not persuaded that the objective of preventing the spread of the
disease has been shown not to be sufficiently important to warrant
the overriding of the applicants right (or perceived right) to
non-discrimination.
THE
MEASURES DESIGNED TO MEET THE OBJECTIVE
[19]
Because of the grave danger to life presented by infection with the
HIV virus, section 79 providing as it does for the prosecution of
persons accused of spreading the disease by deliberately or
recklessly infecting others with it, is rationally connected to, and
calculated to achieve, the stated objective.
Prosecution
in terms of section 79 would not be arbitrary or based on irrational
considerations. The purpose of a prosecution is to investigate the
guilt of a person accused of criminal conduct and to assess the
evidence in a rational manner. A court of law is well equipped to do
so.
THE
MEANS USED TO IMPAIR THE RIGHT
[20]
It was submitted on behalf of the applicants that the sentence
imposed by the legislature is draconian.
The
respondents on the other hand submitted that the wording of the
statutory provision allows for a sentence of up to 20 years to be
imposed.
It
is clear that the graver the case the more severe the sentence which
will be justified, and that each case will be determined on its
particular merits.
As
pointed out above, an infection with the HIV virus could be fatal for
the victim. In effect, in some if not all cases, a sentence of death
will have been imposed on the partner by the actions of the accused
person.
In
these circumstances a court might well in its discretion consider the
maximum sentence to be appropriate.
[21]
Accordingly, I am of the view that the applicants have failed to
discharge the onus on them to establish that section 79 of the Code
is unconstitutional.
[22]
The
applications are dismissed.
CHIDYAUSIKU
CJ: I
agree
MALABA
DCJ: I
agree
GWAUNZA
JCC: I
agree
GOWORA
JCC: I
agree
HLATSHWAYO
JCC: I
agree
PATEL
JCC: I
agree
GUVAVA
JCC: I
agree
MAVANGIRA
AJCC: I
agree
Zimbabwe
Lawyers for Human Rights,
applicants legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
1.
(1979-80) 2 EHRR 245 at 271 (para 49)
2.
Zimbabwe
Township Developers v Lous Shoes 1983
(2) ZLR 376 (S) at 382-383A
3.
Currie & De Waal 5th
Edition at p163
4.
Section 3 former Constitution of Zimbabwe
5.
Supra at para [4]
6.
See also S v Banana 2000 (1) ZLR 607 (S) at 635
