HIV/AIDS not a deadly condition anymore – High Court

By Agencies
The High Court has advised convicted criminals to stop raising HIV as a special circumstance during mitigation because the infection is no longer deadly due to advancements in its treatment.
Judges of appeal Justices Munamato Mutevedzi and Naison Chivayo said this while handing down their ruling on an appeal by two convicts who were convicted for unlawful possession of ivory tusks.
Both convicts whose identity is being withheld because of their HIV status were jailed for 11 and nine years minimum mandatory sentences respectively for the offence.
One of them was jailed 11 years after it emerged that he was a serial offender.
They both raised their positive HIV status as a mitigatory factor while seeking a lenient sentence.
The court said being infected with HIV was not a special circumstance.
“They were general items of mitigation which this court in previous pronouncements has ruled as not constituting special circumstances even when taken cumulatively.
“But perhaps what needs special mention among those is the submission by both appellants that they were infected with HIV, the virus that causes AIDS.
“We were not sure what they wanted to achieve from that,” said the judges.
“Much as being HIV positive used to be scary and was viewed by many as terminal, it is a notorious fact, which the court will take judicial notice of, that this is no longer the case.
“Many forms of treatment have been developed over the years to mitigate the effects of HIV on humans.
Dr Amos had the following to say regarding the previously catastrophic effects of the condition: “Treatments used, mean people living with HIV live long and healthy lives because the virus is controlled and its effects on someone’s health are limited.
“The treatment also brings the level of virus in the body of someone living with HIV down to such low levels that it can’t be detected by HIV tests – and this also means that it can’t be passed on to someone’s sexual partners, whether they use condoms or not.”
The judges said in Zimbabwe’s case, as far back as 1993 when being infected with HIV was still viewed as a death penalty, the High Court in the case of S v Mahachi (1993 2 SACR 36 (Z)), rejected the notion of treating those with HIV as a special category of offenders.
In its final determination, it held further that because the accused it was sentencing had previous convictions, his state of health was not decisive. It sentenced him to imprisonment regardless of his HIV condition.
“I also wish to add that the effects of HIV have since been downgraded to the levels of any other disease and conditions like the common colds, diabetes, and hypertension among others.
“In fact, it is a fact that there are more deadly infections and diseases than HIV.
“It is time therefore that people accused of crime must stop seeking special sentences in the guise of their HIV statuses because their conditions are no different from other illnesses.
“The courts will view that as nothing but an abuse of one’s medical condition.
“For the avoidance of doubt, being HIV positive, like any other ailment, and without more is not a special circumstance warranting a court to depart from imposing a prescribed minimum sentence on an offender,” said Mutevedzi.
He said the lower court was correct to impose the minimum mandatory eleven years on him regardless of his HIV condition.
“Equally the sentence of nine years imprisonment imposed on the second appellant was an appropriate one, “they ruled.