Wilful transmission of HIV will be decriminalised once the Marriages Amendment Bill, which sailed through Parliament last week, is signed into law by the President as Government and Parliament move to keep abreast with international standards.
There is international condemnation by activists for criminalising transmission of HIV. The activists argue that criminalising HIV transmission has the effect of stigmatising those living with the disease coupled with the view that there seems to be a link between the decline in infections and the criminal sanctions.
Now Parliament has moved in to end criminalising transmission through Clause 53 of the Marriages Bill which repeals Section 79 of the Criminal Law (Codification and Reform) which made it an offence to transmit HIV to a partner in certain circumstances.
The section about to be repealed made it an offence for anyone knowing they were infected with HIV or knowing there was a real risk or possibility that they were, and then intentionally did anything or permitted the doing of anything that would infect someone else or involved a real possibility of infecting another person.
Such people were guilty of deliberate transmission of HIV, whether or not they were married to the other person, and were liable for up to 20 years jail. Convictions were extremely rare.
In his presentation in the National Assembly during the initial stages of the Bill, Justice, Legal and Parliamentary Affairs Minister, Ziyambi Ziyambi, said the new global thinking was that the law criminalising transmission stigmatised people living with HIV.
He said when the law was enacted, the thinking was that it would help to fight the spread of HIV by criminalising those that transmitted it to partners willingly.
“But the global thinking now is that that law stigmatises people living with HIV and studies have shown that it does not produce the intended results. What the ministry is going to do is to repeal that section of the law and ensure that we keep up to speed with modern trends in the world,” said Minister Ziyambi.
In the past, those charged under the law have challenged the constitutionality of the law arguing that their right under the Constitution not to be discriminated against on any basis, including HIV status, was being violated.
They also argued that their Constitutional right to protection of the law was being violated because the offence in question was so wide, broad and vague.
The challenge to the constitutionality of this offence was focused on a conviction requiring only that when the accused had sex with another person, the accused realised the real risk or possibility that they were infected with HIV and that there was a real risk that the other person would be infected.
Lawyers argued that this formulation was conjectural and vague and that innocent persons were in danger of being convicted under this provision.
Other activists noted that married couples were not exempt from this law and therefore it was not a defence to state that the sexual activity was done during the exercise of conjugal rights.
It was argued that essentially anybody living with HIV was defined as a potential criminal, something that directly contradicts science because currently, constant and regulated consumption of the antiretroviral treatment reduced chances of transmission, in many cases to zero.
The original law dates from the days before anti-retroviral treatment was available and before medical science found that this treatment could reduce the viral load to zero.
Chairperson of Parliament’s Portfolio Committee on Health and Child Care, Dr Ruth Labode, is on record arguing that there was no link between the marked decline in infection rates and criminal sanction.