The High Court has upheld an application for referral to the Constitutional Court for a Harare woman who was arrested on allegations of deliberately infecting her boyfriend with HIV three years ago.
The woman (name withheld) was arrested on 31 March 2022 and was placed on remand at Rotten Row Magistrates’ Court after being charged with deliberate transmission of HIV.
It is the State’s case that, during the period extending from March 2021 to November 2021 at Phase 6 Eastview, the woman unlawfully infected the complainant with HIV knowing that she was infected with the virus or realising that there was a real risk or possibility of such transmission.
Following the commencement of the Marriages Act [Chapter 5:15] on 27 May 2022, section 79 of the Criminal Law Code–the provision under which the applicant was charged was repealed.
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Consequently, on 2 August 2022 the woman, who is represented by Paidamoyo Bryne Saurombe sought to quash the charges.
She argued that, per section 70(1)(l) of the Constitution, she cannot be lawfully convicted of an act that no longer constitutes a criminal offence.
Despite a lower court ruling that the Interpretation Act permits such trials to continue, the woman approached the court seeking a Constitutional Court referral to determine if her rights are being violated by a prosecution based on a defunct law.
Magistrate Taurai Manuwere dismissed the referral application as “frivolous and vexatious,” noting the accused had not led oral evidence and that the Constitutional Court had already decided on section 70(k) rights of an accused person. He then dismissed the application on those grounds, a decision the woman sought a review at the High Court.
In his judgement, High Court judge Justice Maxwell Takuva said the lower court erred by requiring oral evidence for a referral based solely on law and agreed facts.
He added that the lower court committed a gross procedural irregularity by ruling on the merits after declaring the application “defective.”
“The court a quo materially misdirected itself in holding that the application for referral to the Constitutional Court was fatally defective for want of viva voce evidence, notwithstanding that the application was founded purely on a point of law and that the material facts were common cause.
“Having made a finding of fatal defect, the court a quo further erred in proceeding to determine the merits of the application. That approach was internally contradictory and constituted a gross procedural irregularity.
“The court a quo further exceeded its jurisdiction by purporting to determine constitutional questions which it was only empowered, in terms of section 175 of the Constitution, to refer to the Constitutional Court.
“Finally, the characterisation of the application as frivolous and vexatious was not supported by the established legal tests or by the record, and accordingly amounted to a misdirection.
“In the result, the decision of the court a quo is vitiated by material irregularities and cannot be permitted to stand,” read part of the judgment.
The woman is set to appear again in court on 25 February where her case is expected to be referred to the Constitutional Court for the determination of her right not to be convicted of an offence that is nolonger an offence.
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