A HARARE woman charged with deliberate HIV transmission has taken her case to the High Court, arguing that the State is violating her constitutional rights since the law under which she is being charged has been repealed.
She is challenging Harare magistrate Taurai Manwere and the National Prosecuting Authority of Zimbabwe in her application.
She is being represented by Paidamoyo Saurombe.
The woman filed an application for review after Manwere dismissed her application for referral to the Constitutional Court for determination on whether or not the section that she is being charged under is still whether her continued prosecution and consequent trial on present charges based on a repealed provision of the law is not in violation of her constitutional rights.
The woman was arrested on March 31, 2022 and appeared at the Harare Magistrates Court on April 1, where she was placed on remand on a charge of deliberate transmission of HIV.
Allegations are that between March 2021 and November of the same year, the woman allegedly unlawfully infected her boyfriend with HIV.
In May 2022, Zimbabwe repealed section 79 of the Criminal Law (Codification and Reform) Act, which criminalised HIV transmission.
This decision effectively decriminalised deliberate transmission of HIV.
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The repealed section of the Act imposed penalties for deliberately infecting another person with HIV.
These included a sentence of up to 20 years in prison.
In August 2022, the woman made an application to have the charges against her quashed after the repeal of section 79 of the Act.
She submitted that she had a right not to be convicted for an act or omission that is no longer an offence.
On November 18, 2022, the court dismissed her application and ruled that section 17 of the Interpretations Act provides for retrospective application of the law.
In her latest application, the woman submitted that the ruling by the magistrate was fatally defective and did not comply with the requirements of the law.
She said when constitutional issues arose in criminal courts, the criminal court acted within the ambit of section 175 of the Constitution for determination.
“The magistrate’s decision to dismiss my application on the basis that it was fatally defective, frivolous and vexatious is grossly unreasonable as it takes away my right to equal protection and benefit of the law as provided for under section 56(1) of the Constitution,” she submitted.
“The law entitles me to approach the Constitutional Court and have a question of the validity of a provision of the law determined, but the court a quo (lower court) has taken away that right from me without just cause.
“The court a quo has taken away from me the right to equal protection of the law and will bring me to trial having arrogated to itself powers that it does not have.”
She argued that a travesty of justice awaits her if the trial proceeds.
“The magistrate’s decision to dismiss my application for referral on two grounds is irreconcilable with the law and is a gross irregularity and no judicial officer under the same facts and circumstances would come up with the same decision,” she said.
“The door has been closed through gross irregularities and is grossly unreasonable such that no judicial officer under the same facts and circumstances would come up with the same decision.
“I, therefore, pray that the ruling of the magistrate on my application for referral be set aside.”law.She wants the Constitutional Court to determine
