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Landmark judgment for HIV+ rapist

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MASERU – When Mahabe Khongoana, who had tested positive to HIV, was convicted of rape in the Maseru magistrates’ court in 2020, his offence was considered so grave that he had to be sent to the High Court for sentencing.

Only the High Court could impose the maximum sentence — the death sentence on Khongoana who had been deemed to have deliberately infected his victim.

But Khongoana was not taking this fight lightly. With the help of the Lesotho Network of People Living with HIV/AIDS (LENEPWHA) and the Desmond Tutu HIV Centre of the University of Cape

Town, he challenged the constitutionality of the impending death sentence arguing his rights had been violated.

In a landmark ruling last Tuesday, the Constitutional Court agreed with him and overturned the judgment by the magistrates’ court.

The court found out that Khongoana’s constitutional right to equality before the law had been violated.

The court found that Khongoana should be treated the same way as other rapists with life-threatening diseases.

LENEPWHA and the Desmond Tutu HIV Centre were roped into the case as friends of the court, a position given to experts in a matter before the court who volunteer to guide the judge reach a fair verdict.

The High Court had not yet pronounced itself on the death sentence when the constitutional matter arose.

The Constitutional Court, made up of Justices Molefi Makara, Moroke Mokhesi and Polo Banyane, observed that the “matrix of sentences prescribed exclusively for” sexual offenders who knew were HIV positive is unconstitutional.

The court found that this violates the constitutional provision of the right to freedom from discrimination.

“In the same breath, the section is found unconstitutional for its inconsistency with the Section 19 constitutional right to equality before the law and equal protection of the law,” Justice Makara read the judgment.

The court also found that sentencing Khongoana to death would be inconsistent with the constitutional right of freedom from inhumane treatment.

The judges said it would be “invalid to the extent that it subjects only the persons convicted of the offences that they committed while living with HIV”.

“This is elucidated by its exclusion of the others who likewise committed the same offences but happened to be HIV negative at the material moment,” Justice Makara said.

“The provision does not include people who are convicted of the same offence at the time they knew that they were infected with other sexually transmittable viral infections that are relatively and potentially life-threatening analogous to HIV,” he said.

“Here reference could be made to syphilis, human papilloma (HPV), and hepatitis mainly due to their secondary sequelae.”

The court said the discrimination is rendered unfair because it impacts adversely upon the constitutional rights of the categorised convicts over sexual offences in contrast to others who are similarly circumstanced but are HIV negative.

The court found that when parliament enacted the law that imposed death sentence on rape convicts who knew their HIV statuses when they committed the offence, HIV/AIDS was a lethal threat to the infected.

The court said in the 1980s and 1990s “the infection with the virus…marked the progress towards death since there were no medical interventions for (halting) its lethal danger let alone to provide any meaningful therapy”.

“Thus, Parliament inspired by that reality, found it deserving at the time to prescribe the sentences as a measure towards deterrence and protection of the victims against the offenders,” Justice Makara said.

The court found that beginning in the 1990s there emerged a positive medical revolution against the then prevailing perception that HIV was naturally a killing enigma without any medical intervention to reverse that.

The court referred to the Vancouver, Canada International AIDS Conference, where it was announced that there was a breakthrough achievement of High Active Antiretroviral Treatment.

It was found that taking antiretroviral treatment daily as directed to achieve and maintain undetectable status stops HIV infection from progressing, helping people living with HIV stay healthy and live together while offering the benefit of preventing sexual transmission.

“Even more striking revelation is that there is effectively no risk of sexual transmission of HIV when the partner living with HIV has achieved an undetectable viral load,” the court said.

The court said contracting HIV “is no longer seen as a death sentence in developed countries which have resources to treat it”.

“To complement the picture,” Justice Makara said, “Lesotho is reported to have reduced HIV infections by 55 percent among adults and increased viral load suppression among adults living with HIV who were successfully treated with by 18 percent.”

The court observed that the law imposing the death penalty on sex offenders who knew their positive HIV statuses “was made under the panicking mode of thinking with the underlying urgency to save human lives”.

It said the medical advancements have rendered the rationale applicable at the time of the sanctions were prescribed for the crimes to fall apart.

Khongoana had also challenged his forceful testing of HIV after he was found guilty of rape, saying it was unconstitutional but the court found that it was correct because it should be disclosed to his victim.

The court said it was done to ascertain the condition of the complainant after the rape, allow the medical interventions and counselling, explore the prospects for some possible compensation of the victim, and to establish the basis for the victim to institute a civil claim against the convict.

“It should be appreciated that it makes constitutional sense for the person found guilty of having committed a sexual offence under the circumstances in which the victim might have been infected with the HIV virus, to remove the veil of his right to privacy in all its dimensions.”

The court however found that the imposition of the death penalty in itself is not inconsistent with the constitutional right to life because “the Constitution itself allows court to impose the death penalty under the prescribed circumstances”.

Caswell Tlali

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