Southern Africa

Edwin J. Bernard
Published: 18 July 2010


  • WATCH: #Illinois Governor signs bill repealing #HIVcriminalisation law #HIVJustice 02 Aug 2021
  • #US: #Illinois is now the second state to completely reverse its #HIVcriminalisation law… 02 Aug 2021
  • #Illinois#HIVcriminalisation law was rooted in fear and racial biases.” #HIVJustice 02 Aug 2021
  • Activists from the EECA region launch new practical toolkit and training hub for paralegals and community leaders i… 02 Aug 2021
  • RT @edwinjbernard: Congratulations to the many individuals and organisations involved in this remarkable achievement. Inspiring advocates f… 30 Jul 2021
  • #Illinois fully repeals its #HIVcriminalisation law becoming only the second #US state ever to do so. Illinois’… 30 Jul 2021
  • Get to know @alisapower in our #MindTheGap segment from our #HIVJustice Live! show! WATC… 29 Jul 2021
  • [TOMORROW] No one should be punished simply because they have a health condition. An open interactive discussion… 29 Jul 2021
  • The arrest of a man accused of failing to tell a partner that he had #HIV has sparked fresh controversy about a Mex… 29 Jul 2021
  • "Follow-up Report on the Continued Impact of Sars-Cov-2 / Covid-19 Pandemic on Member Organizations within AAE Netw… 29 Jul 2021
  • RT @ShaunMellors: "Bans on the entry and residence of foreign citizens and stateless persons with HIV, according to the document, were esta… 28 Jul 2021
  • RT @kenpinkela: I welcome this data - If we have to show them the financial impact to get them to listen - So Be It - #stigma #hate is a wa… 28 Jul 2021
  • #HIVcriminalisation in #Florida: length of incarceration and fiscal implications 28 Jul 2021
  • [Update] #US: #Missouri Governor signs bill that modernises #HIVcriminalisation laws #HIVJustice 27 Jul 2021
  • #COVID19 LAW and POLICY TRACKERS A list of global and national resources, tracking laws and policies implemented i… 27 Jul 2021
  • #US: New analysis from the Williams Institute shows that at least 154 people were incarcerated for #HIV crimes in F… 27 Jul 2021
  • 'Ladies First: On the Frontlines for Justice,' will have an open interactive discussion on how women are impacted b… 27 Jul 2021
  • #Russia: Law prohibiting migrants living with #HIV from staying in the country does not just legalise discriminatio… 27 Jul 2021
  • #US: The military's #HIV policies are discriminatory — and decades behind the times. People living with HIV are sti… 27 Jul 2021
  • #Missouri’s redo of its #HIVcriminalisation law is a good start—but it is not enough… 26 Jul 2021


Botswana has been debating whether to enact HIV-specific criminal laws since 2000  (reported at the Global Criminalisation Scan). A recent prosecution based on section 184 of the Botswana Penal Code (‘spreading infection’) failed primarily because the complainant did not test HIV-positive and was unable to convince the court that she was certain about the defendant not using a condom. Although the court acknowledged that the sex was non-consensual, the accused man was acquitted of both ‘speading infection’ and of having non-consensual sex.1


Lesotho, in the Sexual Offences Act 2003, criminalised HIV exposure or transmission occurring as a result of someone failing to disclose his or her HIV-positive status during consensual sex. There have been no reports of prosecutions.

South Africa

In 2001, the South African Law Commission undertook a comprehensive review of the need for an HIV-specific criminal law. It concluded that "an HIV-specific statutory offence/s will have no or little practical utility; the social costs entailed in creating an HIV-specific statutory offence/s are not justified; and an HIV-specific statutory offence/s will infringe the right to privacy to an extent that is not justified."2 A 2003 Criminal Law Amendment Bill sought to define non-disclosure of HIV status prior to otherwise consensual sex as rape, but that definition was not included in the version of the bill ultimately approved in 2007.3 Rather, the legislation requiresHIV-antibody testing for suspected rapists and allows for longer prison sentences for rapists found to be HIV-positive.4


Following proposals as early as 1996,5 Zimbabwe became the first African country to create an HIV-specific criminal law when it passed the Sexual Offences Act of 2001. Anyone diagnosed HIV-positive who “intentionally does anything or permits the doing of anything” which (s)he “knows ... will infect another person with HIV”6 was now committing a crime. The law was revised in 2004 to include people who suspected they were HIV-positive, but were not yet diagnosed.7 Section 79 of the Zimbabwe Criminal Law (Codification and Reform) Act, 2004, came into effect in 2006.

Although the crime in Section 79 is called “deliberate transmission of HIV”, a wide range of variables are possible that involve neither being deliberate nor actually transmitting HIV. It is a crime for anyone who realises “that there is a real risk or possibility” that he or she might have HIV to do “anything” that the person knows will involve “a real risk or possibility of infecting another person with HIV.” The HIV-negative partner’s informed consent following the other partner’s disclosure of a possible or confirmed HIV-positive status can serve as an affirmative defence.

The first successful prosecution under any of Zimbabwe's HIV-specific criminal statutes (and for alleged sexual HIV exposure on the African continent) took place in 2008, although it is believed that more than 20 prosecutions had previously been attempted.8 In this case, a 26-year-old woman who had mutually consensual sex with a male partner pleaded guilty to non-disclosure prior to unprotected sex. She was given a five-year suspended sentence, primarily because the partner – who had tried to withdraw the charges – did not test HIV-positive.9 Three cases alleging sexual HIV transmission, two concerning female defendents10,11 and one concerning a male defendent,12 are currently before the courts. In another recent case, a man was fined US$9 for falsely accusing his girlfriend, who subsequently tested HIV-negative, of infecting him with HIV.13


  1. Bernard EJ Botswana: judge acquits lawyer accused of HIV exposure. Criminal HIV Transmission, 2 July 2008
  2. South African Law Commission Fifth Interim Report on Aspects of the Law Relating to AIDS: the need for a statutory offence aimed at harmful HIV-related behaviour. April, 2001
  3. Matthews S Criminalising deliberate HIV transmission - is this good public health? SAMJ 96 (4): 312-314, 2006
  4. Bernard EJ South Africa: new rape laws mandate HIV testing for alleged offender. Criminal HIV Transmission, 8 January 2008
  5. Kanyangarara S Proposed use of the criminal law to deal with HIV transmission in Zimbabwe. Canadian HIV/AIDS Policy & Law Newsletter; 4(2/3): 98-101, 1999
  6. Njanji S New Sex Law to Curb HIV/AIDS, Marital Rape in Zimbabwe. Agence France Presse, 27 August 2001
  7. Government of Zimbabwe, Criminal Law (Codification and Reform) Act 2004. Zimbabwe Government Gazette, 2005
  8. Guni F, personal correspondence with the author. Unpublished, 2010
  9. Bernard EJ Zimbabwe: Woman pleads guilty to unprotected sex, gets five years suspended sentence. Criminal HIV Transmission, 8 April 2008
  10. Zimbabwe Herald Zimbabwe: boyfriend infected with HIV. 21 January, 2010
  11. Woman rapes boy 17, infects him with HIV. 4 February, 2010
  12. New Zimbabwe Man infects girlfriend with HIV. 7 March, 2010
  13. New Zimbabwe Man who lied over HIV infection fined. 15 February, 2010

HIV Justice

RSS Feed

A writer and advocate on a range of HIV-related issues, Edwin has a particular specialism in HIV and the criminal law. He works with national and international HIV organisations, including the International AIDS Society, GNP+ and UNAIDS, as well having as a long association with NAM as a writer on this topic and as the former editor of HIV Treatment Update. To visit Edwin's blog and respond to posts click here.

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.
Community Consensus Statement on Access to HIV Treatment and its Use for Prevention

Together, we can make it happen

We can end HIV soon if people have equal access to HIV drugs as treatment and as PrEP, and have free choice over whether to take them.

Launched today, the Community Consensus Statement is a basic set of principles aimed at making sure that happens.

The Community Consensus Statement is a joint initiative of AVAC, EATG, MSMGF, GNP+, HIV i-Base, the International HIV/AIDS Alliance, ITPC and NAM/aidsmap

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.