Online Reporter
Fidelis Munyoro-Chief Court Writer
DELIBERATE HIV transmission has taken centre stage in a legal battle before the High Court, where a Harare woman is challenging her prosecution under a repealed law.
Arrested on March 31, 2022, the woman, whose identity remains protected for legal reasons, faces allegations of intentionally infecting her boyfriend with HIV between March and November 2021.
She argues that the continuation of her prosecution violates her constitutional rights, as Section 79 of the Criminal Law (Codification and Reform) Act, under which she was charged, was repealed in May 2022.
Her lawyer, Mr Paidamoyo Saurombe, has filed an application challenging Harare magistrate Taurai Manwere and the National Prosecuting Authority (NPA), contending that the prosecution infringes on her right to equal protection and benefit of the law as guaranteed under Section 56(1) of the Constitution.
The repealed Section 79, once carrying penalties of up to 20 years in prison, was struck off the statute books as part of efforts to end the criminalisation of HIV.
In August 2022, following the repeal, the woman sought to have the charges dismissed, asserting that prosecuting her under an abolished law was unconstitutional.
However, Magistrate Manwere dismissed her application on November 18, 2022, relying on Section 17 of the Interpretation Act, which allows certain repealed laws to retain retrospective application in ongoing cases.
The woman argues this decision was flawed and unconstitutional.
Her High Court application asserts that the magistrate erred by failing to refer the matter to the Constitutional Court for determination of the constitutional issues raised, as required under Section 175 of the Constitution.
She contends that depriving her access to the Constitutional Court amounts to a violation of her fundamental rights.
The woman described the magistrate’s decision to dismiss her application as defective, frivolous, and vexatious. She said it was not only unreasonable but also constituted a gross irregularity.
The woman argues that allowing the trial to proceed would result in a miscarriage of justice and insists that no reasonable judicial officer, presented with the same facts and legal principles, would have reached the same conclusion.
The application seeks to have the magistrate’s ruling set aside and to compel the lower court to refer the matter to the Constitutional Court for adjudication.
The High Court has yet to set a date for the hearing.
