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HIV Status No Longer Mitigating Factor In Sentencing, High Court Rules

By Judith Nyuke

The High Court has ruled that due to advancements in treatment, HIV is no longer considered a deadly condition and it should not be used as a mitigating factor by convicted criminals.

While ruling on an appeal by two men convicted of possessing ivory tusks illegally, Justices Munamato Mutevedzi and Naison Chivayo of the Court of Appeal addressed the issue of HIV as a mitigating factor in sentencing.

Due to their HIV status, the identities of two men convicted of illegal ivory possession are being withheld; one received an 11-year sentence (due to being a repeat offender), while the other received a nine-year sentence, both mandatory minimums.

In their appeals for lighter sentences, both men cited their HIV-positive status, a plea the court dismissed as irrelevant to sentencing.

“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.

“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,” the judges said.

The two judges pointed out that as early as 1993, when HIV was often seen as a death sentence, the Zimbabwean High Court, in the case of S v Mahachi (1993 2 SACR 36 (Z)), established that HIV status did not constitute a special circumstance for offenders.

The court’s final decision stated that due to the accused’s prior convictions, his health status, including his HIV-positive status, was not a determining factor in sentencing, and he was sentenced to imprisonment regardless.

They also said that HIV is now comparable to other common conditions like colds, diabetes, and hypertension in terms of its impact.

“It is time therefore that people accused of crime must stop seeking special sentences on 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.

The judge affirmed the lower court’s decision to impose the mandatory minimum sentence of eleven years, regardless of the appellant’s HIV status, and further ruled that the nine-year sentence for the second appellant was also appropriate.