The High Court of Zimbabwe has issued a landmark ruling, advising convicted criminals to cease using their HIV-positive status as a mitigating factor during sentencing. In a judgment delivered by Justices Munamato Mutevedzi and Naison Chivayo, the court declared that advancements in HIV treatment render the infection no longer a special circumstance warranting leniency.
The ruling stemmed from an appeal by two convicts, whose identities are being withheld to protect their privacy, found guilty of unlawful possession of ivory tusks. One convict received an 11-year minimum mandatory sentence, reflecting a history of prior offences. The other received a nine-year sentence. Both individuals had presented their HIV-positive status as grounds for a reduced sentence.
The judges were unequivocal in their rejection of this argument. “They were general items of mitigation which this court in previous pronouncements has ruled as not constituting special circumstances even when taken cumulatively,” the judgment stated.
The court specifically addressed the convicts’ assertion of their HIV status: “But perhaps what needs special mention among those is the submission by both appellants that they were infected with HIV, the virus that causes AIDS. We were not sure what they wanted to achieve from that,” the judges noted.
The court acknowledged the historical perception of HIV as a terminal illness, but emphasized that this is no longer the case. “Much as being HIV positive used to be scary and was viewed by many as terminal, it is a notorious fact, which the court will take judicial notice of, that this is no longer the case. Many forms of treatment have been developed over the years to mitigate the effects of HIV on humans,” the ruling explained.
This sentiment was reinforced by expert medical opinion. Dr Amos, whose full name was not provided in the original article, highlighted the effectiveness of modern HIV treatment: “Treatments used, mean people living with HIV live long and healthy lives because the virus is controlled and its effects on someone’s health are limited. The treatment also brings the level of virus in the body of someone living with HIV down to such low levels that it can’t be detected by HIV tests – and this also means that it can’t be passed on to someone’s sexual partners, whether they use condoms or not.”
The court further underscored that this position aligns with prior legal precedent. The judges cited the 1993 High Court case of S v Mahachi, which rejected the notion of treating HIV-positive individuals as a special category of offenders, even when HIV infection was considered a death sentence. The Mahachi case concluded that pre-existing convictions outweighed the defendant’s health status in determining sentencing.
Justice Mutevedzi’s concluding remarks provided a clear and firm stance on the issue: “I also wish to add that the effects of HIV have since been downgraded to the levels of any other disease and conditions like the common colds, diabetes, and hypertension among others. In fact, it is a fact that there are more deadly infections and diseases than HIV.
“It is time therefore that people accused of crime must stop seeking special sentences in the guise of their HIV statuses because their conditions are no different from other illnesses. The courts will view that as nothing but an abuse of one’s medical condition. For the avoidance of doubt, being HIV positive, like any other ailment, and without more is not a special circumstance warranting a court to depart from imposing a prescribed minimum sentence on an offender.”
The court upheld the lower court’s decision to impose the 11-year sentence on the first appellant, regardless of their HIV status. Similarly, the nine-year sentence for the second appellant was deemed appropriate. The ruling firmly establishes that HIV status, in the context of modern medical advancements, cannot be considered a mitigating factor in criminal sentencing in Zimbabwe.