By Professor Mutodzi
Bulawayo, November 23, 2016 – AN Umguza security guard who was jailed 13 years for deliberate transmission of HIV has been rescued from further incarceration after human rights lawyers secured his release from prison on bail.
Nevson Mpofu (39), who is employed as a security guard at Umguza Rural District Council just outside Bulawayo, was early this month convicted of the offence by Bulawayo Regional Magistrate Sibongile Marondedze.
He was found to have contravened Section 79 (1) (a) of the Criminal Law (Codification and Reform) Act Chapter 9:23.
This is after he allegedly deliberately transmitted HIV to his girlfriend and sentenced to 13 years imprisonment with three years being suspended on account of good behaviour.
Prosecutors claimed that Mpofu, who knew that he is HIV positive and who is married and had an extra-marital affair with his 30 year-old girlfriend, intentionally had unprotected sexual intercourse with his girlfriend, who is HIV negative, twice in October after he proposed love to her girlfriend in June.
The girlfriend, prosecutors charged, then demanded that the two go for HIV tests of which Mpofu declined the proposal.
However, late last month, the girlfriend searched a bag belonging to Mpofu and found a plastic bag containing some antiretroviral pills.
Quizzed about the owner of the tablets, the security guard indicated they belonged to his uncle based in Nkayi.
“The complainant begged the accused person to say the truth and he said she must not be concerned about his family secrets,” reads part of the state outline seen by RadioVOP.
Mpofu was saved after an intervention by Lizwe Jamela of ZLHR, who filed an application for bail pending appeal on Tuesday.
This is after realising that Mpofu had tendered a plea of guilty but on perusing the record, Jamela noted that the plea was not a genuine admission of the charge and all the essential elements of the offence.
Jamela argued that the sentence given to Mpofu was too excessive considering that there was no actual transmission of HIV to the complainant and that there was an objection to the production of his medical records in court during his trial.
Mpofu was on Wednesday granted $100 bail by Magistrate Marondedze pending the hearing and determination of his appeal against both conviction and sentence filed at the High Court 17 November this year.
In his appeal, Mpofu who wants his conviction and sentence set aside and for fresh trial to be conducted before a different magistrate as he feels that Marondedze erred in convicting him.
Mpofu becomes the latest Zimbabwean to be arraigned before the courts for deliberate transmission of HIV.
ZLHR has been on a campaign employing both litigation and advocacy strategies seeking to have Section 79 of the Criminal Law (Codification and Reform) Act repealed.
The human rights organisation says Section 79 of the Criminal Law (Codification and Reform) Act is a bad law which is poorly drafted, overbroad and counterproductive.
“It is at cross purposes with Zimbabwe’s public health policy, is unjust, unconstitutional and facilitates gross violation of the rights of people living with and affected by HIV,” said ZLHR.