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ZLHR Rescues Man Jailed 13 Years for Disputed Deliberate Transmission of HIV

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A ZIMBABWEAN court has set free a 39 year-old man who was convicted and sentenced to serve 13 years in prison after he was convicted for deliberate transmission of HIV when transmission never occurred.

39 year-old Nevson Mpofu, was on 04 November 2016 convicted by Bulawayo Regional Magistrate Sibongile Marondedze for contravening Section 79 (1) (a) of the Criminal Law (Codification and Reform) Act Chapter 9:23 after he allegedly deliberately transmitted HIV to his girlfriend and sentenced to 13 years imprisonment with three years being suspended on account of good behaviour.

Prosecutors claimed that Mpofu who knew that he is infected with HIV intentionally had unprotected sexual intercourse with his girlfriend who is HIV negative.

Mpofu, who is employed as a security guard in Bulawayo was saved after an intervention by Lizwe Jamela of Zimbabwe Lawyers for Human Rights (ZLHR), who represented the 39 year-old man and filed an application for bail pending appeal on Tuesday 22 November 2016 after realising that Mpofu tendered a plea of guilty but on perusing the record he noted that his plea was not a genuine admission of the charge and all the essential elements of the offence.

Jamela argued that the sentence given to Mpofu was too excessive considering that there was no actual transmission of HIV to the complainant and that there was an objection to the production of his medical records in court during his trial.

Mpofu was on Wednesday 23 November 2016 admitted to $100 bail by Magistrate Marondedze pending the hearing and determination of his appeal against both conviction and sentence, which was filed in the High Court by Jamela on Thursday 17 November 2016.

In his appeal, Mpofu who wants his conviction and sentence to be set aside and that a trial de novo (fresh trial) be constituted before a different Magistrate, argues that Magistrate Marondedze erred in convicting an unrepresented accused person without properly explaining the charge and the facts of the matter to the full appreciation and understanding of the accused person.

In the event that the High Court confirms his conviction, he will argue that Magistrate Marondedze still erred in passing a severe sentence that induce a sense of shock under the circumstances without giving weight to a plea of guilty being tendered.

ZLHR’s Position On Criminalisation of HIV

Section 79 of the Criminal Law (Codification and Reform) Act must be repealed. This section is a bad law which is poorly drafted, overbroad and counterproductive. It is at cross purposes with Zimbabwe’s public health policy, is unjust, unconstitutional and facilitates gross violation of the rights of people living with and affected by HIV.

 

ENDS

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LM Edition 363

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Unacceptable Persecution Of Human Rights Defenders

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ZIMBABWE Lawyers for Human Rights (ZLHR) strongly condemns the violation of the rights of human rights defenders (HRDs), who were abducted and tortured by unidentified men on Friday 18 November 2016 following an organised ambush.

According to information gathered by ZLHR, unidentified armed men blocked vehicles in which some HRDs including Dr Patson Dzamara were travelling in, during the early hours of Friday 18 November 2016 in Harare.

Some of the HRDs who were with Dzamara fled in the mayhem and the armed men proceeded to blindfold him and bundled him into a truck before setting the HRDs’ vehicles ablaze.

Dzamara was assaulted on the back of the head and all over his back with spikes which had been thrown in front of his vehicle before being driven to a place which he strongly suspects to be Lake Chivero.

Throughout his detention in the said truck, Dzamara had a gun stuck to his neck.

The pro-democracy campaigner, whose brother Itai is still missing after he was abducted from his Harare home on 09 March 2015, was warned that he had not learnt from the fate of his missing brother and was told that; “Hauna kudzidza pane zvatakaaita kumukoma wako manje nguva yekudzidza yakwana,” loosley translated to mean; “You haven’t learnt and taken heed of how we treated your brother and now your time to learn is upon you”.

The unidentfied men spent some time talking to a man whom they referred to as ‘Boss’ inquiring whether to proceed with an option one or option two and during their consultation with the ‘Boss’ they indicated that they had containers and cotton but no ‘catalyst.’

Dzamara suspected that the unidentified men intended to throw him in Lake Chivero but they eventually tied up his hands and dumped him naked near Snake Park in Norton and along the Harare-Bulawayo highway after tearing up all his clothes and further assaulting him.

Dzamara managed to crawl to the Harare-Bulawayo highway, where well-wishers eventually rescued him and assisted to connect him to one of his family members who took him to a local medical facility for treatment to injuries sustained from the assault and torture.

There are three other HRDs whose whereabouts are still unaccounted for following the disturbing violence this morning.

ZLHR condemns the inhuman treatment of these HRDs, which was clearly meant to curtail them from leading or participating in an anti-government protest which they were organising as legitimate pro-democracy campaigners.

It is shocking that such barbaric acts have been committed just some few weeks after the government attempted to paint a rosy picture of the human rights situation in Zimbabwe at the United Nations Human Rights Council led Universal Periodic Review Process in Geneva.

Perpetrators of torture and abduction must understand that torture and enforced disappearances are an outdated, inhumane, and ultimately ineffective practice that ruins the lives of innocent people.

ZLHR is concerned about the violation of the HRDs right to freedom of movement, from torture, degrading and inhumane treatment, dignity and the right to property as provided for in the Constitution of Zimbabwe and the Universal Declaration of Human Rights, as well as a range of other international treaties to which Zimbabwe is a State Party,

ZLHR urges state and non-state actors and the government, which have for years been fingered and held accountable in such acts of persecution of HRDs to observe these basic human rights in the interest of upholding the rule of law.

ZLHR believes that citizens should be allowed to enjoy their rights and be free to exercise their rights in their country of origin for social, political and economic growth to be achieved.

It is our belief from experience that Dzamara and some of his colleagues were treated like this due to them being HRDs who have challenged the state and the government’s violation of human rights.

The continued harassment of HRDs, who are exercising their rights, is simply unacceptable and should cease immediately.

Silencing those who criticise the government for presiding over the suffering being endured by citizens will not bring stability to the country.

The complete lack of accountability of those responsible for perpetrating violations against other HRDs is of special concern given the longstanding and pervasive culture of impunity in Zimbabwe.

ZLHR reminds the government that it has legal obligations under several international and African human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights (ACHPR), which it needs to respect.

ZLHR calls upon the Minister of Home Affairs, Commissioner-General of Zimbabwe Republic Police to bring to account those persons responsible for the abduction, and torture of the HRDs and the violation of their fundamental rights because ignoring it will perpetuate impunity and reinforce the belief that the perpetrators of such heinous crimes are above the law.

Therefore, ZLHR urges the government to;

Carry out an immediate, thorough and impartial investigation into the abduction and torture of the HRDs with a view to publishing the results of the probe and bringing those responsible to justice in accordance with international standards.

Take all necessary measures to guarantee the physical and psychological integrity and security of these HRDs.

Cease targeting HRDs and guarantee in all circumstances that they are able to carry out their legitimate human rights activities without any fear of reprisals.

In conclusion, the Southern African Development Community to demonstrate a renewed commitment to protect human rights in the region through deploying an independent investigative mission to assess the deteriorating human rights situation in Zimbabwe.

ON THE UNITED NATIONS WORKING GROUP REPORT AS PRESENTED BY THE TROIKA DURING THE 2ND CYCLE HUMAN RIGHTS COUNCIL LED UNIVERSAL PERIODIC REVIEW OF ZIMBABWE

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Zimbabwe Lawyers for Human Rights (ZLHR) and the Zimbabwe Human Rights NGO Forum (the Forum) commends the government of Zimbabwe for its efforts in producing the national report as well as participation in the Interactive Dialogue during the just ended Universal Periodic Review (UPR) held on 2 November 2016.

The UPR process is a peer country-to-country review mechanism established by the United Nations Human Rights Council (UNHRC) in 2006 to monitor the overall human rights situation of UN member states. Hence the participation of Zimbabwe in this process must continue to be encouraged.

Following the presentation of the draft outcome report on 4 November 2016 by the Troika (comprising of Kenya, Macedonia and the United Arab Emirates) for adoption, we make the following observations;

  • Whilst a total of 86 UN member states took the floor during the Interactive Dialogue, making a total of 260 recommendations, the government of Zimbabwe accepted 142, noted and rejected 18 and deferred for further scrutiny and consideration 100.
  • It is encouraging to note that the accepted recommendations mainly relate to the implementation of the 2013 Constitution and the alignment of all legislation to the Constitution. Others relate to full operationalisation of constitutional Commissions and rule of law institutions.
  • We applaud the government of Zimbabwe for accepting 142 recommendations,  however, we call upon the government to set up a framework and effective mechanisms to not only implement these recommendations but to regularly review progress.
  • Further, there must be progress to build on implementing other recommendations accepted in 2011 during the first review that had not been fully implemented by 2 November 2016.

Of the 100 recommendations that were deferred that were mainly focusing on the ratification of important human rights instruments, the Forum and ZLHR urges:

  • The government to embrace those recommendations in order to eradicate the culture of torture, enforced disappearances that continue tarnish the human rights record of the country. These include the United Nations Convention on the Protection of all Persons from Enforced Disappearances and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Protocol, amongst others.

Of the 18 recommendations that were either noted or did not enjoy the support of the government  the Forum and ZLHR also urges;

  • The government to reconsider the recommendations that it did not accept that focus on issues of non-discrimination of persons based on their actual or perceived sexual orientation and gender identity as well as the ratification of the Rome Statute on the International Criminal Court (ICC);
  • To reconsider issuing a standing invitation to all mandate holders under special procedures.

Further, the Forum and ZLHR encourages the government to remain open to constructive dialogue as led by different stakeholders, whether from other UN member states, civil society or other actors that have an interest in contributing to fostering a culture of human rights in Zimbabwe.

ENDS

Zimbabwe Lawyers for Human Rights

6th Floor, Beverley Court

100 Nelson Mandela Avenue Harare, Zimbabwe

Phone+263 4 764085/705370/708118

Email: info@zlhr.org.zw

www.zlhr.org.zw

FOLLOW US:@ZLHRLAWYERS ON TWITTER | ZIMBABWE LAWYERS FOR HUMAN RIGHTS ON FACEBOOK

 

Zimbabwe Human Rights NGO Forum

Suite No.4

1 Raleigh Street

Harare

Email: admin@hrforum.co.zw

www.hrfrorumzim.com

FOLLOW US:@ZimHRNGOForum

LM Edition 362

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