Samukelisiwe Mlilo was recently convicted of deliberately transmitting HIV to her husband in contravention of Section 79 of the Criminal Law (Codification and Reform) Act, Chapter 9.23 by Bulawayo Regional Magistrate, Owen Tagu. Mlilo was due for sentencing on Tuesday.
But her sentence was deferred pending the hearing of the Supreme Court application which was filed by Mlilo’s lawyers, Lizwe Jamela and Nosimilo Chanayiwa of Zimbabwe Lawyers for Human Rights.
Mlilo wants the Supreme Court to determine whether or not Section 79 of the Criminal Law (Codification and Reform) Act is too wide, broad and vague so as to render the law uncertain and thereby infringing on Mlilo’s protection of the law as set out in Section 18 of the Constitution. Further, the woman wants the Supreme Court to decide whether or not such Section should be struck down.
The aggrieved woman also want the Supreme Court to conclude whether or not the section violates the Constitution in that it seeks to discriminate against a class of people who are HIV positive or who may possibly be infected or whether or not the discrimination rendered by this section is justifiable in a democratic society.
The matter was postponed indefinitely pending the determination by the Supreme Court of Mlilo’s application.
Already, two cases filed by Insiza legislator Siyabonga Ncube and Harare resident Shirley Tavengwa challenging the constitutionality of the same section, are pending in the Supreme Court.