Landmark Constitutional Court ruling

As Justice Makara annuls death penalty for HIV+ rapists

RELEBOHILE ELIAS TSOAMOTSE

MASERU – The Sexual Offences Act provision that sexual offenders who knowingly violate the law aware of their HIV positive status or having reasonable suspicion of being infected shall face the death penalty is unconstitutional, High Court judge Justice Molefi Makara has ruled.

The judge made the ruling on Wednesday this week following a petition by a rape convict and detainee at the Mohale’s Hoek Correctional Centre, Mahabe Khongoana, who in 2020, asked the High Court (sitting as the Constitutional Court) to invalidate provisions of the Sexual Offences Act (2003).Particularly, Section 32 (a) (vii) of the Act which in essence states that offenders who are HIV positive or had reasonable suspicion that they may be infected shall face death sentence upon conviction.“. . . a person who is convicted of an offence of a sexual nature shall, subject to the provisions of section 31, be liable…where a person is infected with the Human Immunodeficiency Virus (HIV) and at the time of commission of the offence the person had knowledge or reasonable suspicion of the infection, to the death penalty.”

Khongoana argued that the section is discriminatory and unjustifiable for prescribing a death sentence only for people living with HIV adding that it unfairly discriminates against individuals living with HIV and thus infringes sections of 18 and 19 of the constitution.Section 18 guarantees freedom from discrimination while Section 19 assures equality before the law and equal protection of the law.The same Act prescribes sentences ranging from eight to 15 years for other categories of offenders but a death penalty for HIV positive offenders hence Khongoana’s argument that its discriminatory.He asked the court to so declare.

He had also asked the court to nullify section 30 of the Act for permitting or providing for a forced HIV test. Section 30 of the Sexual Offence Act states that a person charged with a sexual act involving insertion of a sexual organ into another person’s sexual organ or anus shall have his blood substance taken by a medical practitioner within a week of the preferment of the charge.Khongoana argued that the forced HIV test is a violation against the right to private and family life (privacy) protected in Section 11 of the Constitution, right to freedom from inhuman and degrading punishment protected in Section 8 of the Constitution, as well as the right to a fair trial protected in Section 12 (7) of the Constitution.The forced HIV test, he added, was in breach of his right to a fair trial in that he is forced to give evidence in his own trial.

“The sentence provided for in terms of Section 32 (a) (vii) is imposed after results from a mandatory HIV test are revealed during sentencing after conviction. The death sentence consequently imposed comes as a result of compelling me essentially to give evidence against myself which is a breach of my right to a fair trial.”When he instituted the application, the Mohale’s Hoek Magistrate Court had just convicted him of rape but declined jurisdiction to sentence saying the appropriate sentence was above her powers.

The trial was then referred to the High Court for sentencing but during the arguments, it was agreed by both parties and a presiding judge that “the matter be referred to the Constitutional Court to allow the constitutionality of the act (Sexual offence Act) to be fully interrogated.”In a judgment agreed to by Justices Moroke Mokhesi and Polo Bonyane, Justice Makara says the Sexual Offences Act is unconstitutional only in so far as it prescribes the death sentence for HIV offenders who knew about their HIV positive status or had reasonable suspicion to believe they were infected.The court said in particular Section 32 (a) (vii) is in violation of citizens’ rights to equality before the law and equal protection of the law.

The unconstitutionality of the section was also found from the fact that it discriminates against the rights of people living with HIV to be considered for sentencing in equal terms with others but, instead, subjecting them to a “degrading system of punishment which amounts to inhuman punishment.”“The discrimination of people who are living with HIV for the sole purpose of subjecting them to the relatively harsher sentence scheme designed specifically for them, would be spiritually torturous upon the affected persons.

It directly implies that they are being punished for their health status. This is so because others who committed the same offence are not equally treated.So, any continued operationalisation of the scheme “would sustain the torturing of the same people and subject them under a degrading punishment.”However, the court refused to nullify section 30 which makes it mandatory for suspects to undergo an HIV test saying the test is done for a good cause.“In all fairness, the provision requiring the accused person convicted of sexual offence to undergo HIV testing and that if the results are positive, this should be disclosed to the victim is constitutional…”

The judges said while it is an invasion of privacy, it is done for a good cause: to ascertain the condition of the complainant after the unfortunate incident, allow medical interventions and counselling, exploring prospects for possible compensation of the victim and establish a basis for the victim to institute civil claims if need it be.Khongoana had also prayed that proceedings before the Magistrate court which found him guilty of rape be nullified but the court refused.

Instead, the court referred the matter back to the magistrate for sentencing saying the trial court – magistrate court – prematurely sought the intervention of the High Court.According to the judges, the trial court “the trial court pre-maturely committed the matter for sentencing by this court before turning its attention to Section 31 which gives it the discretionary powers in considering the appropriate sentence.”The magistrate has, as result, been directed to sentence the convict in reference to Section 31 of the Sexual Offences Act. In doing so, the High Court says consideration should be given to the time already spent by the accused in custody.