The High Court last week acquitted an HIV-positive woman who was sentenced to nine months imprisonment for an act “likely to spread the infection of any disease which is dangerous to life”.
She was convicted under Section 192 of the Penal Code.
The Machinga Magistrate’s Court gave out the jail term before she was acquitted by the High Court in Zomba.
The woman, whose identity the court ordered to be hidden and will be called EL as per the court’s own coding, accidentally breastfed another person’s child on August 25 2016 at Kotamo Village in Machinga.
According to EL’s lawyer Wesley Mwafulirwa, on August 25 2016, EL attended a village meeting with her 11 months old baby, and while there, she “unknowingly” breastfed someone’s child after breastfeeding her own.
The mother, whose child was breastfed by EL (we call her PM), after noticing what had happened, demanded that EL and the baby undergo HIV testing and at the clinic, the child was given post-exposure prophylaxis.
It was also established at the clinic that EL was on anti-retroviral therapy (ART). And on August 28, PM reported EL to police, which led to her subsequent arrest, conviction and sentencing.
According to Mwafulirwa’s appeal document on behalf of EL, the magistrate, despite noting EL’s remorse and confession, nevertheless stated:
“However, the conduct she portrayed has left a lot to be desired. She is aware that she is positive. She comes to breastfeed a baby which is not hers. It is the same thing as a man knowing to be HIV-positive choosing to sleep with a school girl. Indeed, such act cannot go unpunished.”
In her appeal against the conviction and sentence, EL prayed with the court to determine whether her conviction was proper, whether the offence was unconstitutional for being vague and overboard, as well as whether the sentence given out by the lower court was manifestly excessive.
EL further attached to her appeal an affidavit sworn by Dr. Ruth Margaret Bland, a British medical expert and researcher in the field of HIV transmission, including mother-to-child situations.
Bland’s affidavit attested that the “risk of transmission to the complainant’s child after a single exposure [the appellant’s] breast milk while she was on ART would be infinitesimally small”.
Another EL’s affidavit, sworn by Michaela Clayton, a British national who is permanently resident in Namibia, urged the court that in determining the matter, it should bear in mind a number of issues.
The issues include international and regional recommendations against overboard criminalisation of HIV transmissions and exposure as well as against vertical discrimination and that in Africa, there is no evidence of the impact of criminal laws in preventing HIV transmission.
The State, on the other hand, argued that on the issue of HIV and Aids, “it is a well-known policy that a mother who is diagnosed with HIV and Aids should seek counselling if she wants to breastfeed her child because the act of breastfeeding in that state is dangerous to the breastfeeding child as chances of transmitting the virus to the child are high.”
Determining the matter on January 19 2017, Justice Zione Ntaba said the custodial sentence for an offence which was a misdemeanour and not a felony was grossly excessive. n